EVERGREEN LAKES HOA, INC. v. LLOYD'S UNDERWRITERS AT LONDON, ETC.
230 So. 3d 1 (2017)
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Rule of Law:
An insurer waives its right to challenge the timeliness or sufficiency of service of a statutory pre-suit Civil Remedies Notice (CRN) if it receives the notice and responds to its substance without contemporaneously objecting to the defective service.
Facts:
- In 2005, property owned by Evergreen Lakes HOA, Inc. was damaged during Hurricane Wilma.
- Evergreen filed an insurance claim with its insurer, Lloyd's Underwriters at London.
- Becoming dissatisfied with Underwriters' handling of the claim, Evergreen drafted a Civil Remedies Notice (CRN) on the form provided by the Florida Department of Financial Services (DFS) in July 2006.
- Evergreen mailed the CRN to DFS and also claims to have mailed a copy to Underwriters at the address listed in the DFS database.
- DFS accepted the CRN as of August 15, 2006, starting a 60-day statutory clock.
- Before the 60-day period lapsed, Underwriters replied to the CRN.
- In its response, Underwriters challenged the substantive sufficiency of the CRN's allegations but did not raise any issue regarding the timeliness or method of service.
Procedural Posture:
- Evergreen Lakes HOA, Inc. sued Lloyd’s Underwriters at London in a Florida trial court for bad faith.
- The bad faith litigation was abated (paused) pending the resolution of Evergreen's underlying breach of insurance policy claim.
- After litigation resumed, Underwriters filed a motion for summary judgment, arguing Evergreen failed to prove that Underwriters timely received the mandatory Civil Remedies Notice (CRN).
- The trial court granted summary judgment in favor of Underwriters.
- Evergreen, as the appellant, appealed the trial court’s entry of final summary judgment to the intermediate court of appeal.
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Issue:
Does an insurer waive its right to later challenge the timeliness of a pre-suit Civil Remedies Notice (CRN) as a basis for summary judgment if it received the CRN and responded to its substance within the statutory 60-day cure period without objecting to improper service?
Opinions:
Majority - Buchanan, Laurie E., Associate Judge.
Yes. An insurer waives compliance with the pre-suit notice requirements of section 624.155, Florida Statutes, if it responds to the substance of a Civil Remedies Notice (CRN) without challenging its timely receipt. The court reasoned that the purpose of the CRN statute is to provide the insurer with an opportunity to cure the alleged violation and avoid litigation. Here, Underwriters undisputedly received the CRN and had nearly four years to cure the alleged violation before the bad faith suit was filed. By responding to the CRN's merits within 60 days of the DFS acceptance date and failing to object to how or when it was served, Underwriters waived its right to later use an alleged service defect to preclude the lawsuit. The court analogized this to other statutory pre-suit notice schemes where a party's participation in the process can excuse or waive defects in notice, as established in cases like Ingersoll v. Hoffman and Schumacher v. Town of Jupiter.
Analysis:
This decision solidifies the application of the waiver doctrine to the otherwise strictly construed pre-suit notice requirements of Florida's bad faith insurance statute. It prevents insurers from using a technical service defect as a post-hoc defense after having already received actual notice and engaged with the substance of the claim. The ruling emphasizes the statutory purpose of providing a cure period over hyper-technical compliance with service, thereby protecting policyholders from having valid claims dismissed years later due to an initial, un-objected-to procedural error. This precedent provides a crucial equitable backstop for insureds, ensuring that an insurer's active participation in the pre-suit process can override a later claim of defective notice.
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