TRIAL COURT ERRED IN DENYING INSURER’S MOTION FOR SUMMARY JUDGMENT AND ALLOWING A BAD FAITH CLAIM TO PROCEED WHERE THE INSURER WAS NOT GIVEN THE 60 DAY NOTICE AND OPPORTUNITY TO CURE AS REQUIRED BY SECTION 624.155

Progressive American Insurance Co. v. Gonzalez, 50 Fla. L. Weekly D641 (Fla. 3rd DCA Mar. 19, 2025):

Progressive appealed a $25 million final consent judgment in a bad faith action, where the parties had reserved the right to appeal issues related to a civil remedy notice and the requirements under section 624.155.

The plaintiff had provided notice of the bad faith claim to the Department of Financial Services but had not supplied Progressive with that notice until 75 daysafter it was given to the department (and 15 days after the bad faith action was filed).

The case was governed by the 2018 version of Section 624.155, which gave the plaintiff a statutory remedy at bad faith but included a 60-day window as a period of cure, to encourage the payment of the underlying claim and avoid unnecessary bad faith litigation.

Here, there was nothing to show that Progressive had received the civil remedy notice within 60 days of the suit being filed. The plaintiff argued that because the statute is written in passive voice, stating that the department and the authorized insurer “must be given” 60-days written notice of the violation as a condition precedent to bringing an action, that did not compel direct notice to Progressive because it was given to the Department.

However, the court noted that the statute clearly provides that notice must be given to the authorized insurer as a condition precedent to the filing of statutory bad faith action. Thus, under the plain language, if there is no notice, there can be no statutory bad faith.

The plaintiff also asserted that the insurance company should have logged into the Department’s website regularly to search for newly filed civil remedy notices. While acknowledging that the suggested interpretation would resolve some of the interpretive problems in the statute, the court held firm that the purpose of the statute is to provide the insured with a notice and 60-day window to pay the claim and avoid the bad faith lawsuit. It observed that the statutory scheme begins to fray if the running of the 60-day cure period begins from the date of the filing with the Department, rather than the date of notice to the insurer as the statute seems to require.

After reconciling the various provisions of the statute with reference to all textual and structural clues bearing on the meaning of the disputed text, the court concluded that the filing with the Department did not constitute giving notice to the insurer in the version of the statute at issue. To say that Progressive was required to have a process in place to look at the Department’s website would be to require adding in language that the statute does not have. Under more recent versions of the statute, the Department is required to send a copy of the civil remedy notice to the carrier, but that was not the case under the 2018 version, resulting in the granting of summary judgment for Progressive.