Insurance Services – Coverage & Bad Faith Litigation

Civil litigation in Florida is time-consuming. It always has been. Florida civil rules of procedure do not contain the procedural safeguards, like speedy trial rules, afforded to criminal defendants to expedite the process.

But that’s all about to change. 

The Florida Supreme Court is on a path to make amendments to the civil procedural rules with an intended purpose of prompt, efficient resolution of civil cases. On May 23, 2024, the court released two opinions announcing amendments to multiple civil rules and the creation of a new conferral requirement. In short, these changes were to: (1) case management; (2) discovery; and (3) motion practice.

Case Management 

Now, within 120 days of the filing of a lawsuit, trial judges must designate a case as complex, general or streamlined. Complex cases will be governed by amended rule 1.201, which allows courts to hold a hearing to determine whether a case should be designated as complex. 

Rewritten rule 1.200 will govern general and streamlined cases. For those cases, the trial court must issue a case management order that specifies the track and sets forth at least eight specified deadlines for: 

1.    service of complaints; 
2.    service under extensions; 
3.    adding new parties; 
4.    completion of fact discovery; 
5.    completion of expert discovery; 
6.    resolution of all objections to pleadings; 
7.    resolution of all pretrial motions; and 
8.    completion of alternative dispute resolution. These deadlines “must be strictly enforced unless changed by court order.”

In addition to case management orders with prescribed deadlines, trial courts will be able to fix the trial period without waiting for a party to declare that the case is “at issue.” Rewritten rule 1.440 now eliminates the “at issue” requirement. Instead, trial courts can issue orders fixing the trial period 45 days before any projected trial period in a case management order. 

This will likely result in cases being set for trial much sooner than previously. Prompt claims investigation will help ensure that the cases are tried with all of the necessary evidence to support the claims and defenses.

Another issue that has held up the resolution of cases involved availability of hearing time. Setting a motion for hearing in some circuits had become exceedingly difficult. Without resolution of the motion, it often adversely affected key issues in the case. 

With the rule amendments, hearing time may be easier to obtain. Rewritten rule 1.200 encourages the use of case management conferences on all motions, except for motions for summary judgment and evidentiary hearings. A court may set a case management conference on its own motion or by proper notice by a party. If a party notices the case management conference, then the party must identify specific issues to be addressed as well as a list of pending motions. 

Proper use of case management hearings may encourage judges to rule on pending motions instead of allowing the motions to languish. A prompt resolution of a critical motion may prompt a change in the evaluation of a claim. This could require claims professionals to look at the case in another light at any time in the litigation.

Discovery

Once a case is on track and in active litigation, the tenor of discovery often depends on the type of case and/or the lawyer litigating it. The new rules will eliminate some gamesmanship as it relates to who takes the lead in discovery. 

Parties will now be required to make initial disclosures within 60 days after service of the complaint. This rewritten rule 1.280(a)(1) models the initial disclosure requirement in federal court. 

Parties will have to disclose:

1.    the names and contact information of individuals likely to have discoverable information and the subject of that information; 
2.    a copy or a description by category and location of all documents, electronically stored information, and tangible things in the party’s possession; 
3.    a computation of each category of damages and evidentiary support unless privileged; and 
4.    a copy of any insurance policy or agreement where an insurance business may be liable to satisfy all or part of a judgment. 

Initial discovery disclosures will be based on information readily available. A party will not be excused from making its initial discovery disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s initial discovery disclosures or because another party has not made its initial discovery disclosures. 

Although this might seem burdensome at the outset of the case, rewritten rule 1.280(c) now limits the scope of discovery to any non-privileged matter that is relevant to any party’s claim or defense, but it must be proportional to the needs of the case. To determine proportionality, courts will consider the importance of the issues at stake in the action, the amount in controversy, the parties’ access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. 

Information within this scope of discovery need not be admissible in evidence to be discoverable. This language supplants the prior rule’s language that, “it is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

Requiring initial disclosures will likely get the case off to a running start. Plaintiffs typically have the advantage in discovery. After all, they have investigated the claim to be able to file the complaint within the statute of limitations period. However, with these new disclosure requirements for all parties, early investigation will be critical. The more investigation that is done pre-suit, the easier it will be to comply with this requirement at the onset of the case. 

If the investigation does not reveal everything, then rewritten rule 1.280(g) now requires a party to timely supplement interrogatory answers, requests for production, or requests for admission in a timely manner if the party learns that in some material respect the disclosure or response was incomplete or incorrect. It also requires supplemental responses as ordered by the court. This should help eliminate some unnecessary motions to compel better answers or responses.

In the event new information becomes available, it should be sent to the attorney immediately. That way the attorney can supplement the discovery. This is a big change from the previous rules, where there was no duty to supplement discovery once the initial response was made.

It is also noteworthy that, pursuant to rewritten rule 1.280(k), all initial disclosures, discovery requests, responses and objections must be signed by at least one attorney of record. The rule also provides that, “no party has a duty to act on an unsigned disclosure, request, response, or objection until it is signed.” In signing the discovery responses, attorneys and pro se litigants will be certifying as to the accuracy and compliance with the rules.

Motion Practice

To move cases along, parties will now be required to confer before filing certain motions. New rule 1.202 requires conferral with opposing counsel in a good-faith effort to resolve the issues raised in the motion before filing any motion, except for: motion for injunctive relief; motion for judgment on the pleadings; motions for summary judgment; motion to dismiss; motion to permit maintenance of class action; motion to dismiss for failure to state a claim upon which relief can be granted; or motion to involuntarily dismiss an action.

This conferral requirement may result in less motion practice. It will also likely narrow the scope of disputes that are ultimately brought to the court’s attention.

One of the exceptions to the conferral and case management requirements involves the summary judgment motion. Amended rule 1.510(b) will align the deadline for responses to summary judgment motions with the case management orders. Before the change, the deadline was tied to a hearing date, which was often impossible to obtain. This resulted in a logistical nightmare and often gave non-movants excessive amounts of time to respond. Now, pursuant to amended rule 1.510(c)(5), non-movants will be required to file a response and any counter evidence no later than 60 days after the service of a motion for summary judgment. 

This new requirement will provide another opportunity to review the strengths and weaknesses of a case well in advance of a hearing. This is a welcome change and will prevent the last-minute filings of counter-evidence that is often used to defeat a motion for summary judgment. Depending on what is filed, this might prompt an updated evaluation and could give claims professionals some more time to resolve the claim before the hearing, if desired.

Finally, since the deadlines will govern the case through trial, parties will have to move for a continuance under rewritten rule 1.460 to make any modifications. Rewritten rule now expressly states that, “motions to continue trial are disfavored and should be rarely granted and then only upon good cause shown.” Parties are expected to make efforts to avoid continuances. This means it will be next to impossible to get a continuance. 

With strict adherence to this continuance rule, cases will most likely move at lightning speed to trial. This might trigger settlements in cases that would not have settled had the parties had more time to work up the case. Failure to get a continuance of the trial or any deadline will provide yet another opportunity to evaluate the value of the claim and potential for an excess exposure. 

Conclusion

The new amendments alter case management, discovery and even motion practice requirements. Since the court amended the rules without allowing an opportunity for full comment, interested parties have until August 6, 2024, to express their views. These changes will take effect on January 1, 2025, and, if adopted in their entirety, will likely alter the way civil cases are handled in the future—litigation at lightning speed. Buckle up!  

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_{Legal Update for Florida Coverage & Property Litigation – July 2024 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}