FloridaaEUR(TM)s new Assignment of Benefits (AOB) reform bill became law on July 1, 2019, a short time ahead of the peak of this yearaEUR(TM)s hurricane season. Time will tell if it results in the amelioration of the AOB litigation epidemic, fueled by FloridaaEUR(TM)s AttorneyaEUR(TM)s Fee Statute Section 627.428, awarding attorneyaEUR(TM)s fees to prevailing assignees in insurance disputes. The attorneyaEUR(TM)s fee statute is credited with having incentivized Florida contractors to litigate even minor differences[1] with insurers over repair work performed or proposed for insureds. Legal bills, rather than the merits of the claims themselves, have often powered these disputes through the Florida courts.  

With the new Florida Statute 627.7152 in effect, the attorneyaEUR(TM)s fees statute has been leveled such that an assignee will recover attorneyaEUR(TM)s fees only where the difference between the judgment and the presuit settlement offer is at least 50 percent of the disputed amount. Moreover, if the difference is less than 25 percent of the disputed amount, the insurer may be entitled to attorneyaEUR(TM)s fees.[2] With the bar raised for winning attorneyaEUR(TM)s fees, and a penalty for a nominal win, we expect assignees will think carefully before instituting a lawsuit, thereby stemming the numbers of AOB lawsuits and reducing the frivolity. Of immediate concern to claims departments, however, the AOB reform statute institutes key logistical changes that claim managers must integrate into their toolkit. Key provisions are:

• Policyholders may rescind the AOB without penalty within 14 days
• The assignee must provide the executed AOB contract to the insurer within three days
• The scope of the AOB must be limited to work performed by the assignee
• The assignee must cooperate in the claim investigation
  • Including Examinations Under Oath and Recorded Statements
• The assignee must participate in appraisal if required by the policy
• Before filing a lawsuit, the assignee must:
  • Wait until the carrier makes a final determination of coverage
  • Provide the carrier a detailed itemized invoice of services
  • Provide proof that work was performed according to industry standards
  • Give 10 daysaEUR(TM) notice to the carrier before filing suit with:
    • A statement of the damages in dispute,
    • The amount claimed, and
    • A pre-suit settlement demand
• The carrier must respond to the presuit notice in writing within 10 business days to avoid suit with:
  • A pre-suit settlement offer; or
  • Demand for appraisal

• The carrier must inspect the loss within seven days of first notice of loss (FNOL)
• Or no fee recovery for carrier

The statute, including its claims handling timelines, notice requirements, and the fee shifting rule are in effect for AOBaEUR(TM)s executed on or after July 1, 2019. The claim handling and fee shifting mechanisms should incentivize contractors to resolve claims before instituting suit and to reduce overall litigation. Insurers must implement the claims handling timeline into their practices in order to fully benefit from the reform. Florida is implementing data gathering to take place before January 30, 2022 in order to gauge the impact of this reform.

[1] AOB litigation has sometimes reaped absurd results. For example, after a personal injury protection lawsuit brought by an assignee, attorneys secured $790 for their aEURoeprevailingaEUR? client and $40,000 in attorneyaEUR(TM)s fees for themselves. Fernandez, Frank. aEURoeSmall Claims, Big Impact: Surge in Lawsuits Drives Up Costs for Volusia-Flagler Motorists.aEUR? September 23, 2018. The Daytona Beach News-Journal.

[2] Where the difference between the judgment and presuit settlement offer is between 25 percent and 50 percent, neither party may be awarded attorneyaEUR(TM)s fees.