272 So. 3d 448
Fla. Dist. Ct. App.2019Background
- Harper was seriously injured in a June 30, 2013 automobile accident and claimed both the at-fault driver’s liability limits and her own UM benefits under GEICO policies.
- Harper sued the at-fault driver and GEICO on December 10, 2013; she filed a civil remedy notice (CRN) with the Department of Financial Services (DFS) electronically on December 18, 2013 and mailed a copy to GEICO the same day; GEICO asserts it actually received the mailed copy on December 26, 2013.
- GEICO agreed to pay Harper her $10,000 UM limit on February 3, 2014, but the settlement check was not mailed to Harper’s counsel until February 21, 2014.
- Section 624.155(3)(d) provides that no bad-faith action lies if damages are paid or corrective action taken within 60 days after filing notice; subsection (3)(a) requires the department and insurer be given 60 days’ written notice.
- The trial court granted summary judgment for GEICO, concluding the 60-day cure period began on the date GEICO received the mailed CRN (Dec. 26), so payment was timely; Harper appealed.
- The Second District reversed, holding the 60-day cure period begins when the CRN is electronically filed with the DFS (Dec. 18), and GEICO’s payment on Feb. 21 was untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the 60-day cure period under §624.155 begin? | Begins when insured files (electronically) the CRN with the Department; that filing starts the 60 days. | Begins when insurer actually receives the CRN; insurer must be given 60 days’ written notice, so receipt controls. | Begins on the date the CRN is electronically filed with the Department; insurer must cure within 60 days from filing. |
| Does §624.155(3)(a) require actual receipt by insurer before the cure period runs? | No—statutory text and related provisions contemplate filing triggers the period, not insurer receipt. | Yes—language "must have been given 60 days' written notice" and case law imply receipt triggers the period. | Court rejects receipt requirement: statute does not require insurer’s actual receipt to start the 60 days. |
| Does Galante support measuring 60 days from insurer receipt? | N/A (Harper relied on filing) | GEICO relied on Galante to argue payment within 60 days of receipt cured bad faith. | Court: Galante did not decide start date issue; it addressed tolling, so it doesn’t support GEICO’s position. |
| Would measuring from receipt conflict with other subsections (e.g., tolling)? | Measuring from filing avoids conflicts with subsection (3)(f) tolling and is consistent with filing/mailing rules. | Measuring from receipt is workable. | Measuring from receipt could create conflicts with subsection (3)(f) and statute of limitations; court avoids such conflict by adopting filing date trigger. |
Key Cases Cited
- Galante v. USAA Cas. Ins. Co., 895 So. 2d 1189 (Fla. 4th DCA 2005) (addressed tolling/pendency of underlying action; did not decide start-of-period issue)
- Hayes v. State, 750 So. 2d 1 (Fla. 1999) (courts may not add words to statutes)
- Paz v. Fid. Nat'l Ins. Co., 712 So. 2d 807 (Fla. 3d DCA 1998) (agreement to pay is insufficient; actual payment required to satisfy §624.155)
- Bryson v. Branch Banking & Tr. Co., 75 So. 3d 783 (Fla. 2d DCA 2011) (unauthenticated documents attached to filings are inadmissible in summary judgment)