Darryl Vachon v. The Travelers Home & Marine Ins. Co., Fla. 2d DCA, No. 2D2023-2674, February 14, 2025
The insured was injured in 2011 when he was rear-ended by a driver who had a $10,000.00 insurance policy. The insurance carrier refused to pay benefits to the insured under the insured’s underinsured motorist coverage. In 2012, the insured submitted a “Civil Remedy Notice” to perfect his right to pursue a bad faith action under Florida Statute § 624.155.
The carrier sent a detailed response, respectfully denying all allegations of improper claim handling. The carrier asserted the insured was fairly compensated through his receipt of PIP and other insurance benefits under the other driver’s policy.
In 2013, the insured filed suit, seeking underinsured benefits. After years of litigation, a jury trial resulted in a plaintiff’s verdict exceeding the insurance policy’s UM limits. A new trial was then granted but resulted in an even larger verdict for the insured.
The insured amended his complaint to add a bad faith claim. The insurance carrier moved to dismiss the bad faith action, asserting for the first time that the Civil Remedy Notice lacked sufficient specificity. The motion to dismiss was denied, but the carrier pled lack of sufficient specificity as an affirmative defense and moved for summary judgment. The insured argued the carrier waived its right to challenge sufficiency by responding to the merits. The trial court granted the carrier’s summary judgment, finding the Civil Remedy Notice did not comply with statutory specificity requirements.
The Second District Court or Appeal reversed the trial court’s decision, finding that Florida law has long established the general principle that a party can waive any contractual, statutory or constitutional right, including pre-litigation notice requirements. Further, the district court advised that an insurer that responds to the merits of a Civil Remedy Notice without raising defects in the notice waives the right to later make any such objection. While the carrier argued that the doctrine of waiver should not apply when the alleged deficiencies are more than technical, the court countered that no court has made such a distinction.
The district court concluded, since the carrier responded to the merits of the Civil Remedy Notice and made no complaint that the notice lacked sufficient specificity, the carrier waived its right to raise the argument against the insured’s bad faith action.
