Setting Up a Bad Faith Claim

When involved in a Florida personal injury case plaintiff’s attorneys will often try to establish or “set up” a bad faith claim. The set up can often be part of the negotiation process with the insurance company and deal with settlement deadlines as they pertain to demand letters. This approach has been challenged by Florida case law.

First, Florida case law establishes that a bad faith action is against the insurer and not the plaintiff. Further, the Florida Supreme Court has established that the “focus in a bad faith case is not on the actions of the claimant but rather on those of the insurer in fulfilling its obligations to the insured.” Berges v. Infinity Co., 896 So.2d 665 (Fla. 2004). However, the circumstances on how the bad faith claim was established are strictly scrutinized by the court’s whom disfavor a “set up” approach.

For instance, in the case of DeLuane v. Liberty Mutual Ins. Co, 314 So.2d 601 (Fla 4th DCA 1975) the court held that a ten-day time limit on a settlement offer was totally unreasonable. Further, the court found that circumstances of the negotiation “demonstrated that this whole charade might have been a “set up” for just such a suit” .

While case law has not recognized an insurance companies’ theory of a “set up” as an affirmative defense to a bad faith insurance action it has established that the circumstances on how the bad faith case arose will be under strict scrutiny. Thus it is important to ensure all steps are taken to properly establish and maintain a bad faith case

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