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concluding arguments were waived when party did not address them in its briefing
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CASE NO. 20-14013-CV-MIDDLEBROOKS
2020-11-09
PIN-PON CORPORATION, Plaintiff, v. LANDMARK AMERICAN INSURANCE COMPANY, Defendant.
Rochelle Wimbush, Arya Attari Li, Stephen A. Marino, Jr., Ver Ploeg & Marino, P.A., Miami, FL, for Plaintiff. Eric William Dickey, Lauren Diane Levy, Levy Law Group, Coral Gables, FL, for Defendant.
Rochelle Wimbush, Arya Attari Li, Stephen A. Marino, Jr., Ver Ploeg & Marino, P.A., Miami, FL, for Plaintiff.
Eric William Dickey, Lauren Diane Levy, Levy Law Group, Coral Gables, FL, for Defendant.
ORDER GRANTING MOTION TO RECONSIDER
DONALD M. MIDDLEBROOKS, United States District Judge
THIS CAUSE comes before the Court on Plaintiff Pin-Pon Corporation's ("Pin-Pon") Motion for Reconsideration of Order Granting Motion to Dismiss ("Motion to Reconsider") (DE 46), filed on July 2, 2020. Defendant Landmark American Insurance Company ("Landmark") responded on July 16, 2020 (DE 49), and Plaintiff replied on July 23, 2020 (DE 51). For the following reasons, Pin-Pon's Motion to Reconsider is granted.
I. BACKGROUND
On January 15, 2020, Pin-Pon initiated this lawsuit by bringing a single cause of action against Landmark for statutory bad faith pursuant to Fla. Stat. §§ 624.155(1)(a), 624.155(1)(b) 1, and 626.9541(1)(i). (DE 1). This action stems from substantial losses Pin-Pon sustained in 2004 due to Hurricane Frances that it alleged were covered under its policy with Landmark. (DE 24 ¶¶ 6–8). When Landmark refused to pay the full amount of the claim, Pin-Pon sued Landmark in state court. (DE 24 ¶ 11). The state court litigation ultimately resulted in a $2,935,642.37 judgment in favor of Pin-Pon, but only after a ten-year saga of litigation, consisting of two trials (one jury and one bench) and two appeals. (DE 24 ¶¶ 11–20).
Landmark moved to dismiss Pin-Pon's first-party statutory bad faith action on the grounds that Pin-Pon failed to comply with the notice requirements set forth in Fla. Stat. § 624.155(3), a condition precedent to bringing an action under Fla. Stat. § 624.155(1)(a)–(b). (DE 25 at 5–17). Landmark also argued that dismissal was warranted because Pin-Pon did not plead its misrepresentation claim brought pursuant to § 626.9541(1)(i) with the requisite specificity. (DE 25 at 4–5). On June 5, 2020, I granted Landmark's Motion to Dismiss, finding that "Plaintiff failed to satisfy the condition precedent to filing a statutory bad faith action." (DE 45 at 7). Based on that dispositive finding, I did not address whether Pin-Pon had satisfied Rule 9(b) of the Federal Rules of Civil Procedure's heightened pleading requirements. (Id. ).
A. Notice Requirement
Section 624.155(1) provides in pertinent part that
[a]ny person may bring a civil action against an insurer when such person is damaged ... by the insurer ... [n]ot attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests.
Fla. Stat. § 624.155(1)(b) 1. To properly bring an action under § 624.155, the so-called "Bad Faith Statute," an insured must have provided the Florida Department of Financial Services (the "Department") and the insurer with 60 days’ written notice of the violation. § 624.155(3)(a) ; QBE Ins. Corp. v. Chalfonte Condominium Apartment Ass'n, Inc. , 94 So. 3d 541, 546 (Fla. 2012). The statute explicitly states, and the Florida Supreme Court has confirmed, that "the requirements of written notice to the Department ... and the insurer are conditions precedent to bringing an action under subdivision (1)(a) or (b)" of § 624.155. Talat Enters., Inc. v. Aetna Cas. & Sur. Co. , 753 So. 2d 1278, 1283 (Fla. 2000). Essentially, there is no statutory civil remedy absent the statutory notice to the Department and the insured. See Talat , 753 So. 2d at 1283–84.
Because the resolution of this Motion to Reconsider turns, in part, on a question of statutory interpretation, I will reproduce the precise language of the statute to the extent practicable. Section 624.155(3)(a) provides: "As a condition precedent to bringing an action under this section, the department and the authorized insurer must have been given 60 days’ written notice of the violation."
This notice is commonly referred to as a "civil remedy notice" or "CRN." Section 624.155(3)(b) prescribes that "[t]he notice shall be on a form provided by the [D]epartment and shall state with specificity" five expressly enumerated pieces of information, including:
1. The statutory provision, including the specific language of the statute, which the authorized insurer allegedly violated.
2. The facts and circumstances giving rise to the violation.
3. The name of any individual involved in the violation.
4. Reference to specific policy language that is relevant to the violation, if any. If the person bringing the civil action is a third party claimant, she or he shall not be required to reference the specific policy language if the authorized insurer has not provided a copy of the policy to the third party claimant pursuant to written request.
5. A statement that the notice is given in order to perfect the right to pursue the civil remedy authorized by this section.
Subdivision 624.155(3)(b) further provides that, in addition to these five criteria, the CRN "shall state with specificity ... such other information as the [D]epartment may require. " (emphasis added). Pursuant to the statute's directive that "[t]he notice shall be on a form provided by the [D]epartment," the Department of Financial Services promulgated Rule 69J-123.002, which states, in relevant part, that CRNs "shall be electronically submitted on Form DFS-10-363." Fla. Admin. Code Ann. r. 69J-123.002. Form DFS-10-363 contains the following fields:
1. Complainant name;
2. Complainant address;
3. Complainant email address;
4. Complainant type (insured, third party, or other);
5. Insured name;
6. Insurance policy number;
7. Insurance claim number;
8. Attorney name;
9. Attorney address;
10. Attorney email address;
11. Insurer name;
12. Type of insurance; and
13. Reason for notice.
Form DFS-10-363, Civil Remedy Notice of Insurer Violation. Accordingly, the five criteria listed in § 624.155 and the additional information requested on Form DFS-10-363 must be "state[d] with specificity." § 624.155(3)(b).
This form is available through the Department of Financial Services’ website at https://apps.fldfs.com/CivilRemedy/Default.aspx.
B. Pin-Pon's Civil Remedy Notices
Pin-Pon utilized Form DFS-10-363 to submit three different CRNs to the Department and Landmark in connection with the instant lawsuit. (DE 24-3; DE 24-4; DE 24-5). In its Motion to Dismiss, Landmark argued that each CRN contained defects in the basic identifying information and that the descriptions of the facts and circumstances giving rise to the insurer's violations were inadequate. (DE 25 at 10–17). Pin-Pon argued that its CRNs were legally adequate under § 624.155 and provided Landmark with sufficient notice of the alleged violations. (DE 26; DE 32). Because the legal sufficiency of Pin-Pon's civil remedy notices is at the heart of this Motion to Reconsider, I will describe the CRNs attached to the Amended Complaint that I relied on in ruling on the Motion to Dismiss and Landmark's responses thereto, which Pin-Pon submitted as "Supplemental Authority" to its Response to the Motion to Dismiss.
I properly considered the CRNs, as "[a] district court can generally consider exhibits attached to a complaint in ruling on a motion to dismiss, and if the allegations of the complaint about a particular exhibit conflict with the contents of the exhibit itself, the exhibit controls." Hoefling v. City of Miami , 811 F.3d 1271, 1277 (11th Cir. 2016). In addition, a court "may consider a document attached to a motion to dismiss without converting the motion into one for summary judgment if the attached document is (1) central to the plaintiff's claim and (2) undisputed ... [which i]n this context ... means that the authenticity of the document is not challenged." Horsley v. Feldt , 304 F.3d 1125, 1134 (11th Cir. 2002). I will extend this principle to consider documents attached to motion to dismiss briefing in general, consisting here of Landmark's responses to the CRNs, because I find them central to Pin-Pon's claim in that they bear on a critical dispute in this lawsuit—whether and, if so, to what extent Landmark waived technical challenges to the CRNs by not raising them in their responses. Moreover, I find that the responses’ authenticity has not been questioned. In fact, both Parties rely on them in their briefing on this Motion to Reconsider to support their respective positions. (See DE 46 at 9 n.6; DE 49 at 9).
First CRN. Pin-Pon submitted its first CRN on July 7, 2008. (DE 24-3). CRN One identifies Estefan Enterprises, Inc.—not Pin-Pon, Inc.—as the Complainant and the Insured. (Id. ). It also does not list the Complainant's email address or the Insurer's address. Landmark responded in the form of a letter on September 3, 2008. (DE 29-2). Therein, Landmark summarized the contents of the CRN, denied the allegations, and substantively responded to the claims. (Id. ). Landmark made no mention of the technical defects that it later raised in its Motion to Dismiss.
Second CRN. Pin-Pon submitted its second CRN on October 25, 2011. (DE 24-4). CRN Two lists the same email address (smarino@vpl-law.com) for both the Complainant and the Attorney and does not include the Insurer's address. (Id. ). Landmark responded through the Department's website on November 23, 2011. (DE 29-3). In its response, Landmark asserted that the CRN was "defective" due to its failure to adequately specify Landmark's alleged wrongdoing. (Id. at 4). Despite such a supposed defect, Landmark nonetheless summarized the contents of the CRN, denied the allegations, and responded on the merits. (Id. at 4–8). Landmark did not argue, or even mention, the above-listed technical defects that it later raised in its Motion to Dismiss.
Third CRN. Pin-Pon submitted its third CRN on November 7, 2016. (DE 24-5). CRN Three lists the incorrect address for the Complainant and does not include an email address for the Complainant or the address of the Insurer. (Id. ). Landmark responded in the form of a letter on January 4, 2017. (DE 29-4). In that correspondence, Landmark argued that the CRN was defective because it failed to specify the facts and circumstances giving rise to the violation and to provide the names of all of the individuals involved in the violation. (Id. ). Unlike in its responses to CRN One and CRN Two, however, it did argue that the provision of an incorrect mailing address for the Insured rendered the CRN defective. (Id. at 1–2). After raising these defects, Landmark proceeded to summarize the factual background of the subject claim. (Id. at 2–4).
C. Order Granting Motion to Dismiss and Motion to Reconsider
Pin-Pon now requests that I vacate my Order granting Landmark's Motion to Dismiss. (DE 46 at 5). In the Motion to Dismiss briefing, the Parties largely, but not exclusively, disputed the technical sufficiency of Pin-Pon's three CRNs. (DE 25; DE 26; DE 27; DE 32). Ultimately, I concluded that Pin-Pon could not sustain its first-party bad faith action against Landmark because it had not satisfied the statutory notice condition precedent by failing to submit a CRN that stated with specificity all of the required information on the Form DFS-10-363, as necessitated by a strict construction of § 624.155. (DE 45 at 6). I further rejected Pin-Pon's arguments that its three CRNs could be considered in combination with one another to fulfill the condition precedent and that the Department's failure to return Pin-Pon's CRNs established their statutory compliance. (Id. at 6–7).
In its Motion to Reconsider, Pin-Pon argues that: (1) Fla. Stat. § 624.155 is remedial in nature and therefore entitled to liberal, rather than strict, construction; (2); Pin-Pon substantially complied with the statute and thereby satisfied its purpose; (3) Landmark waived any technical defects in the CRNs by substantively responding to the notices; (4) the defective information is optional on DFS Form 10-363 and thus not required by the statute; and (5) until 2019, DFS's acceptance of CRNs established their statutory compliance. (DE 45 at 1–2). II. LEGAL STANDARD
On July 3, 2020, the day after timely filing its Motion for Reconsideration, Pin-Pon filed a Notice of Appeal with the Eleventh Circuit Court of Appeals. (DE 47). While the filing of a notice of appeal generally divests a district court of jurisdiction over all issues involved in the appeal, district courts retain jurisdiction to adjudicate certain post-judgment motions, including those brought pursuant to Rule 59 and Rule 60 of the Federal Rules of Civil Procedure. Fed. R. App. P. 4(a)(4) ("If a party files a notice of appeal after the court announces or enters a judgment—but before it disposes of any motion listed in Rule 4(a)(4)(A) —the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered."); see also Mahone v. Ray , 326 F.3d 1176, 1179–80 (11th Cir. 2003).
Under Rule 59(e) of the Federal Rules of Civil Procedure, reconsideration is proper when there is: (1) newly discovered evidence, (2) an intervening change in controlling law, or (3) a need to correct a clear error of law or fact or prevent manifest injustice. See Bd. of Trs. of Bay Med. Ctr. v. Humana Military Healthcare Servs., Inc. , 447 F.3d 1370, 1377 (Fed. Cir. 2006) (citations omitted). Similarly, under Rule 60(b), relief from a final order is appropriate on the basis of: "(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b) ; (3) fraud, misrepresentation, or other misconduct of an adverse party; ... or (4) any other reason that justifies relief." To prevail on a motion to reconsider, the moving party must demonstrate why the court should reverse its prior decision by setting forth facts or law of a strongly convincing nature. A motion to reconsider should not be used as a vehicle "to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment." Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005).
III. DISCUSSION
A. Statutory construction of § 624.155
Since § 624.155 ’s enactment in 1982, the Supreme Court of Florida has twice concluded that § 624.155 is a statute in derogation of the common law and thus should be strictly construed. In Time Ins. Co. v. Burger , the question before the court was whether § 624.155 ’s directive that recoverable damages "shall include those damages which are a reasonably foreseeable result of a specified violation of this section by the authorized insurer" permitted recovery of emotional distress damages against health insurers. 712 So. 2d 389, 392 (Fla. 1998). The court answered that question in the affirmative. Id. To arrive at that conclusion, the court reasoned "that the legislature ... specifically authorized first parties to recover damages in bad faith actions suggests that it may have contemplated more than the recovery of the same damages already available" at common law, which were limited to damages in breach of contract actions and, in the case of emotional distress damages, required satisfaction of the "impact rule." Id. at 392–93. Noting that § 624.155 did not specify the standard of recovery for mental and emotional anguish damages, the Florida Supreme Court determined that it "must narrowly construe the scope of recovery for such damages," given the presumption that a statute in derogation of the common law "was not intended to alter the common law other than as clearly and plainly specified in the statute." Id. at 393 (citing S. Attractions, Inc. v. Grau , 93 So. 2d 120 (Fla. 1956) for the proposition that a "statute in derogation of the common law must be strictly construed" as well as Ady v. Am. Honda Fin. Corp. , 675 So. 2d 577 (Fla. 1996) and Law Offices of Harold Silver, P.A. v. Farmers Bank & Tr. Co. , 498 So. 2d 984 (Fla. 1st DCA 1986) for the proposition that a "statute designed to alter the common law must speak in unequivocal terms").
Both cases were before the Florida Supreme Court on certified questions from the United States Court of Appeals for the Eleventh Circuit. See Talat Enters., Inc. v. Aetna Cas. & Sur. Co. , 217 F.3d 1318 (11th Cir. 2000) ; Burger v. Time Ins. Co. , 115 F.3d 880 (11th Cir. 1997).
Shortly thereafter, the Florida Supreme Court decided Talat Enters., Inc. v. Aetna Cas. & Sur. Co. , 753 So. 2d 1278 (Fla. 2000). In Talat , the court was tasked with determining whether under § 624.155(2)(c) , a first-party bad faith action seeking recovery of extra-contractual damages is foreclosed if the insurer had already paid the contractually owed damages or otherwise corrected the circumstances giving rise to the violation within the 60-day statutory notice or "cure" period. 753 So. 2d at 1280–81. The court answered that question in the affirmative. It reasoned that because "the civil remedy provided in subdivision (1)(b)1 was not in existence for first-party insureds before the adoption of the civil remedy statute," it is "in derogation of the common law [and] must be strictly construed." Id. at 1283 (citing Burger , 712 So. 2d at 393 ). Against the backdrop that § 624.155 is in derogation of the common law, the court continued that "the Legislature intended the notice to the Department to serve as a basis for the Department to assist in the settling of claims and to monitor the insurance industry [and] that the sixty-day period was a time in which the insurer could act to ‘cure’ a violation of subdivision (1)(a) or (b) about which it had been served notice." Id. Ultimately, the court concluded that § 624.155(1)(b) "authorize[s] a civil remedy for extra contractual damages if a first-party insurer does not pay the contractual amount due the insured after all the policy conditions have been fulfilled within sixty days after a valid notice has been filed under section 624.155(2)(a) ...." Id.
At the time that Talat was decided, the relevant subsection was located at § 624.155(2)(d). Notwithstanding the intervening reorganization, the content of the subsection remains unchanged and provides: "No action shall lie if, within 60 days after the insurer receives notice from the department in accordance with this subsection, the damages are paid or the circumstances giving rise to the violation are corrected." Fla. Stat. § 624.155(2)(c).
Subdivision (1)(b)1 sets forth that "[a]ny person may bring a civil action against an insurer when such person is damaged ... by the insurer [n]ot attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests...."
Pin-Pon submits that conceiving of § 624.155 as a statute in derogation of the common law is a "misunderstanding" that originates with dicta from the Burger decision that was later perpetuated by Talat . (DE 46 at 4 & n.3). Pin-Pon argues that § 624.155 is a remedial statute and therefore should be liberally construed, regardless of whether it is also in derogation of the common law (which Pin-Pon submits it is not). (DE 46 at 4; DE 51 at 3). In response, Landmark asserts that it is "crystal clear" that § 624.155 must be strictly construed and string cites 23 cases for that proposition—20 from federal district courts, one unpublished opinion from the Eleventh Circuit, one from the Fourth District Court of Appeals, and one from the Florida Supreme Court (Talat ). (DE 49 at 5). In its Reply, Pin-Pon provides a summary of 21 of these cases in support of its position that though these decisions "innocently propogate[ ] the ‘strict construction’ dicta from Burger and Talat [, they] provide no support for a rule of strict compliance" because many of those cases do not deal with CRN defects, and the facts of those that do are distinguishable from this case. I do not disagree with Pin-Pon that § 624.155 is remedial in nature. After all, it is the "civil remedy statute" of the Florida Insurance Code. Talat , 753 So. 2d at 1281 (emphasis added). But the Florida Supreme Court has expressly stated in no uncertain terms that § 624.155 is a statute in derogation of the common law and for that reason must be strictly construed. Pin-Pon asks this Court to ignore such assertions as mere dicta and to liberally construe § 624.155. The holdings in both Burger and Talat were premised upon the idea that § 624.155 is a statute in derogation of the common law that must be strictly construed, and I decline to adopt a position that is contrary to the reasoning employed in those cases. Accordingly, I will not disturb my prior conclusion that § 624.155 must be strictly construed.
B. Strict versus substantial compliance with § 624.155
Pin-Pon next argues that even if § 624.155 must be strictly construed, such strict construction need not foreclose statutory compliance with § 624.155 if a party substantially complies with the strict technical requirements, thereby fulfilling the statute's purpose of providing fair notice, and where the insurer suffers no prejudice. (DE 46 at 5). Landmark contends that a strict construction of § 624.155 ’s notice provision demands strict compliance therewith, and the court should not consider "substantial compliance." (DE 49 at 7). Though a thin line divides the two and one may bear upon (and in some cases, nearly subsume) the other, I am persuaded that, at least theoretically, statutory construction and statutory compliance are distinct exercises. Courts construe statutes to discern their meaning and to conform their rulings as nearly as possible to the law as the legislature intended. See Diamond Aircraft Indus., Inc. v. Horowitch , 107 So. 3d 362, 367 (Fla. 2013) ("Legislative intent is the polestar that guides our analysis regarding the construction and application of the statute."). Those governed by statutes comply (or seek to comply with them) to comport themselves with the law and, in the case of a remedial statute like § 624.155, to preserve access to a statutorily provided remedy. See, e.g. , Horowitz v. Plantation Gen. Hosp. Ltd. P'ship , 959 So. 2d 176, 182–85 (Fla. 2007) (construing physician financial responsibility statute to determine what is required of those attempting to comply with same). Notwithstanding this analytical divide, some Florida courts and federal courts applying Florida law that have interpreted § 624.155 ’s notice provision have tended to equate the Florida Supreme Court's mandate that § 624.155 be strictly construed with an insured's strict compliance therewith. See, e.g. , Bollinger v. State Farm Mut. Auto. Ins. Co. , 538 F. App'x 857, 864–66 (11th Cir. 2013) (rejecting insured's argument that she "substantially complied" with § 624.155 ’s pre-suit notice requirement when she mailed a letter that she intended to serve as her civil remedy notice, instead of filling out the form on the Department's website because the statute must be strictly construed). Others have strictly construed § 624.155 as requiring that a "specificity" standard of compliance be met. See, e.g. , Fox v. Starr Indem. & Liab. Co. , No. 8:16-cv-3254-T-23MAP, 2017 WL 1541294 (M.D. Fla. Apr. 28, 2017) ("Under [ § 624.155 ], sufficiency means ‘specificity.’ ").
For our purposes, I find that, at the very least, a strict construction of § 624.155 requires that the requisite information be stated with specificity. Fla. Stat. § 624.155(3)(b) (providing that the CRN "shall state with specificity [five expressly enumerated pieces of information and] such other information as the [D]epartment may require" (emphasis added)). Therefore, consistent with my Order granting Landmark's Motion to Dismiss, the technical defects or omissions in each of Pin-Pon's three CRNs, see Section I.B. supra , resulted in each failing to meet the specificity standard. (DE 45 at 6).
But the inquiry into whether a statutory bad faith action must be dismissed for failure to strictly comply with the specificity standard does not necessarily end there. Where the party seeking to comply with a notice statute fails to meet the requisite level of compliance, a court may allow an action to proceed if the defect was of a purely technical nature, the party substantially complied, the notice purpose of the statute has been fulfilled, and the opposing party has not been prejudiced by the error. See QBE Ins. Corp. v. Chalfonte Condominium Apartment Ass'n, Inc. , 94 So. 3d 541 (Fla. 2012). Chalfonte concerned the interpretation of § 627.701(4)(a) of the Florida Insurance Code, which requires that any policy containing a separate hurricane deductible contain a notice on its face in "boldfaced type no smaller than 18 points" that utilizes the word "hurricane." Fla. Stat. § 627.701(4)(a). The property insurer in Chalfonte included such a notice in its policy, but the notice appeared in 16.2-point font, instead of 18, and contained the word "windstorm," instead of "hurricane." Chalfonte , 94 So. 3d at 550. The relevant question before the Florida Supreme Court was "whether noncompliance with the statutory requirements render[ed] such a provision void and unenforceable." Id. In answering the foregoing question in the negative, the court found that: (1) the insurer "substantially complied with the notice requirements," (2) the statute at issue "had never included a penalty provision"; and (3) the insured did not assert that it lacked notice but rather argued solely that the notice provided in the policy did not strictly comply with the technical mandates of the statute. Id. at 554 (emphasis in original). The court found it especially instructive that the legislature had provided penalties or consequences for noncompliance with other statutes within the Insurance Code, such as rendering the policy provision void or invalid but had not done so in § 627.701. See id. at 552–53 (collecting statutes).
At the time the court decided Chalfonte , the provision at issue was codified at § 627.701(2)(a) ; if has since been reorganized to appear at § 627.701(4)(a).
Although Chalfonte did not interpret § 624.155, it construed another mandatory provision of the Florida Insurance Code involving technical notice requirements with which a party failed to strictly comply and a challenger who argued that such noncompliance should render the notice a nullity. Here, like in Chalfonte , Pin-Pon substantially complied with the technical notice requirements of § 624.155 in that it filed three CRNs with nearly complete and accurate identifying information. There is no indication in the statute that the legislature intended a minor technical deficiency or omission to render a CRN invalid such that it would serve as the sole basis for precluding an insured from proceeding with a bad faith lawsuit. In addition, there is no dispute that Landmark had actual notice of Pin-Pon's intent to bring a statutory bad faith action, considering that Landmark substantively responded to each CRN. (DE 29-2; DE 29-3; DE 29-4). Moreover, Landmark does not assert, nor does the record indicate, that Landmark was prejudiced by Pin-Pon's less than strict compliance with § 624.155 ’s notice requirements.
Lastly, I note that this result does not seem to contradict the legislature's intent in enacting § 624.155. As a general matter, § 624.155 was "designed and intended to provide a civil remedy for any person damaged by an insurer's conduct." Allstate Indem. Co. v. Ruiz, 899 So. 2d 1121, 1124 (Fla. 2005). With respect to the statute's notice provision, "the Legislature provided this sixty-day window as a last opportunity for insurers to comply with their claim-handling obligations when a good-faith decision by the insurer would indicate that contractual benefits are owed." Talat , 753 So. 2d at 1283–84. The notice provision was also designed to assist the Department of Financial Services in overseeing the insurance industry in the state. Id. It thus appears that the legislature intended for the statute to provide a remedy to aggrieved insureds and that the notice requirement was not meant to hinder such a remedy but rather to encourage the early resolution of statutory bad faith claims, to avoid unnecessary litigation, and to facilitate the Department's monitoring of the industry. To foreclose an insured's opportunity to recover damages for alleged bad faith conduct by an insurer on purely technical grounds where the insurer unquestionably had notice of the insured's intent to bring the action and where the insurer was not prejudiced by the technical defects would seem to run counter to the legislature's purpose behind enacting this remedial statute with its pre-suit notice requirement.
In summary, I find that strict construction of § 624.155 demands a specificity level of compliance with the requisite provision of information to the Department and the insurer. However, failure to strictly comply with this specificity standard will not foreclose a statutory bad faith action where (1) Form DFS-10-363 contains a purely technical defect in the identifying information; (1) the insured substantially complied with the specificity standard; (3) the insurer received actual, fair notice in furtherance of the purpose of the statute's notice requirement; (4) and the insurer was not prejudiced by the technical defect. On this basis, despite any technical deficiencies in Pin-Pon's CRNs, I decline to conclude that such defects alone are fatal to its statutory bad faith action. In addition, as explained below, Landmark's waiver of almost all of its technical defect challenges by not raising them in its responses to the CRNs serves as an alternative ground on which to grant the Motion to Reconsider.
C. Waiver of technical defects
Pin-Pon next contends that Landmark waived its arguments that the CRNs were legally insufficient due to their defects or omissions because Landmark failed to raise such technical errors in its responses to the CRNs. (DE 46 at 9). Pin-Pon argues that Landmark's substantive responses to the CRNs also demonstrate that Landmark received notice of Pin-Pon's intent to bring a statutory bad faith action, thereby fulfilling the purpose of the statute's notice requirement. (DE 46 at 9–10). Landmark counters that equitable doctrines, such as waiver and estoppel, do not apply to Fla. Stat. § 624.155 but even if they did, Landmark "specifically raised the defective condition of the civil remedy notices in its responses and pleadings." (DE 49 at 8–11).
Subsequent to the filing of the instant Motion to Reconsider, Florida's Fourth District Court of Appeal decided Bay v. United Servs. Auto. Ass'n , No. 4D19-3332, 305 So.3d 294 (Fla. 4th DCA 2020). In Bay , the civil remedy notice misidentified the insured as "USAA Casualty Insurance Company," instead of by its correct name "United Services Automobile Association" or "USAA." Id. at 294–95. USAA submitted an online response to the civil remedy notice in which it stated that "the CRN lacks the specificity required by § 624.155(3)(b)" by failing to provide "certain facts and circumstances" underlying the insured's allegations. Id. at 295. Notwithstanding its assertion that the CRN lacked specificity, USAA proceeded to dispute the insured's claim on the merits but never argued that the CRN was deficient for failure to properly identify the insured. Id. Instead, USAA raised this argument for the first time before the state trial court in its motion to dismiss. Id. The trial court ultimately ruled in favor of USAA on the basis that the insured "failed to strictly comply with the requirements of section 624.155" and thereby did not provide the insurer "proper notice and time to cure any alleged bad faith actions." Id. at 297 (internal quotation marks omitted). The trial court predicated its ruling on the proposition that § 624.155 is a statute "in derogation of the common law" and thus "must be and has been strictly construed by the courts." Id. at 298 (quoting Lopez v. Geico Casualty Co. , 968 F. Supp. 2d 1202, 1208–09 (S.D. Fla. 2013) ) (internal quotation marks omitted). The appellate court reversed and concluded that while "the misidentification failed to strictly comply with [ § 624.155 ] ... the insurer waived this argument by not raising the argument in its response to the civil remedy notice." Id. at 295. Relying on its prior holding in Evergreen Lakes HOA, Inc. v. Lloyd's Underwriters at London , 230 So. 3d 1 (Fla. 4th DCA 2017) that "an insurer can waive compliance with the statutory notice requirements of a bad faith action if not raised," the Fourth DCA found that USAA "waived the failure of the condition precedent by not raising the misidentification in its response to the civil remedy notice." Id. at 299.
In Evergreen Lakes HOA, Inc. , discovery revealed that the insured may have mailed its civil remedy notice to an incorrect address for the insurer. On this ground, the insurer moved to dismiss the statutory bad faith action, and the trial court ruled in the insurer's favor. 230 So. 3d at 2. The Fourth DCA reversed, concluding that even if it were to find that the insured had failed to comply with the statute's delivery requirement, the insurer "waived compliance with any such requirement by responding to the CRN within 60 days of the DFS acceptance date without challenging its timely receipt of the CRN." Id. at 3.
Here, in its Motion to Dismiss, Landmark argued that Pin-Pon's first civil remedy notice was legally insufficient because it misidentified the Complainant and Insured as Estefan Enterprises, Inc., instead of Pin-Pon, Inc. (DE 25 at 10). In its September 3, 2008 letter, Landmark expressly stated that it was responding to the "Civil Remedy Notice of Insurer Violations dated July 7, 2008, (the "Notice"), filed on behalf of Estefan Enterprises, Inc. (the "Insured")," which it attached as an exhibit to its response. (DE 29-2 at 1). Landmark then summarized the contents of the CRN—including the reasons stated for the notice, the allegedly violated statutory provisions, and the facts and circumstances giving rise to the violation—and proceeded to deny the allegations and substantively respond thereto. (Id. at 1–2). At no point in its response did Landmark even identify, let alone argue, that the technical defect concerning the name of the Complainant and Insured that it later raised in its motion to dismiss rendered the CRN legally insufficient. As such, I find that Landmark waived this argument and therefore cannot rely on it to seek dismissal of Pin-Pon's statutory bad faith action.
As to the second CRN, Landmark argued its legal insufficiency in its Motion to Dismiss because (1) the same email address is listed for both the Complainant and the Attorney and (2) the notice omits the Insurer's address. (DE 25 at 10–12). In its November 23, 2011 electronic submission through the Department's website, Landmark stated that it was responding to the "Civil Remedy Notice of Insurer Violations dated October 2[5], 2011, (the "Notice"), filed on behalf of Pin Pon, Inc. (the "Insured")." (DE 29-3 at 4). Landmark's response to the second CRN argued that the CRN was "defective" because it contained "general ‘boiler plate’ allegations of wrongdoing but d[id] not specify what Landmark allegedly did wrong on this claim ...." (Id. ). Landmark than proceeded to summarize the CRN, deny its allegations, and respond on the merits. (Id. at 4–8). Landmark did not argue, or even raise, the contention that the CRN failed to satisfy § 624.155 ’s condition precedent by providing a duplicate email address for both the Complainant and the Attorney and omitting the Insurer's address. Assuming for the sake of argument that these technicalities would render the CRN legally insufficient, Landmark waived such arguments when it did not raise them in its response to the CRN. Accordingly, such cannot serve as the basis to dismiss Pin-Pon's statutory bad faith action.
Landmark's CRN response designates the filing date of the CRN as October 21, 2011; however, the CRN itself to which the response is attached identifies the filing date as October 25, 2011. (DE 29-4 at 2, 4). Accordingly, the quotation has been altered to reflect the correct date.
With respect to the third CRN, Landmark argued in its Motion to Dismiss that it was legally infirm because it listed the incorrect address for the Complainant. (DE 25 at 14). In its January 4, 2017 correspondence, Landmark stated that it was responding to the "Civil Remedy Notice of Insurer Violations, ("Civil Remedy Notice") submitted ... on behalf of complainant Pin-Pon Corp. ... with an acceptance date of November 7, 2016." (DE 29-4 at 1). Again, Landmark asserted that the CRN was "defective" for want of specificity as to the facts and circumstances giving rise to the violation and failure to provide the names of all of the individuals involved in the violation. (Id. ). In addition, unlike in its responses to the first two CRNs, Landmark argued that the third CRN was defective because it provided an incorrect mailing address for the Complainant. (Id. at 1–2). Thereafter, Landmark summarized the factual background of the subject claim. (Id. at 2–4). Because Landmark raised the technical defect with respect to the provision of a mailing address that was not Complainant's in its response to the CRN, I find that Landmark did not waive this argument. Notwithstanding its non-waiver, however, based on my discussion in Section III.B. supra , I decline to conclude that this purported error renders a CRN legally insufficient such that it would foreclose a statutory bad faith action from proceeding to a resolution on the merits.
In light of my conclusions regarding Pin-Pon's first three arguments, I need not rule on remaining two concerning whether the defective or omitted information on DFS Form 10-363 was of an optional or required nature and whether the Department's acceptance and non-rejection of the CRNs conclusively established their statutory compliance.
CONCLUSION
Based on the foregoing, and after careful consideration of the Parties’ written submissions, the record as a whole, and the applicable law, I find that the technical defects raised by Landmark in its Motion to Dismiss may not serve as the grounds for dismissing this lawsuit, given that Landmark waived the majority of them in failing to raise same in its responses to the CRNs. Notwithstanding that § 624.155 must be strictly construed, the one technical defect argument that Landmark did not waive is not fatal to this lawsuit proceeding, given that the defect was of a purely technical nature, Pin-Pon substantially complied with the specificity standard of compliance, Landmark had actual notice of Pin-Pon's intent to sue, and Landmark was not prejudiced by the defect.
This Order does not address any argument raised in the Motion to Dismiss that I did not reach in the Order on same—namely, the legal sufficiency of the "facts and circumstances" sections of the CRNs and whether the allegations concerning misrepresentation satisfied Rule 9 ’s heightened pleading standard.
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Accordingly, it is hereby
ORDERED AND ADJUDGED that
(1) Plaintiff Pin-Pon Corporation's Motion for Reconsideration of Order Granting Motion to Dismiss (DE 46) is GRANTED . The Order Granting Motion to Dismiss (DE 45) is VACATED .
(2) The Clerk of Court shall RE-OPEN this case.
(3) A trial date will be set and a new litigation schedule will be established by way of a separate Order.
DONE AND ORDERED in Chambers in West Palm Beach, Florida on this 9th day of November, 2020.