News & Insights

Recent Posts

WSHB Partner Janice Michaels Named to The Best Lawyers in America© 2020 List

One Bad Apple: Navigating through Sexual Battery and other Intentional Torts

Leading Construction Litigator Cynthia Tari Joins WSHB's Dallas Office

WSHB’s Philadelphia Partner Secures Summary Judgment in Catastrophic Premises Liability Matter

WSHB Welcomes New Partner Andrew Kessler

New Bill In New York Proposed for Signature by Governor Andrew Cuomo is Set To Make Employers "SWEAT"

Renowned Litigator Jason Williams Joins WSHB's Nevada Office

Litigator Richard Young Joins WSHB's Nevada Office

Published Appellate Opinion Upholding Summary Judgment in Favor of Commercial Tenant Against $3.5M Subrogation Suit

17 WSHB Lawyers Honored as 2019's Rising Stars

Arizona Supreme Court Allows Court of Appeals Decision Expanding Defendants' Ability to Enforce Settlements to Stand

WSHB’s Jason Klein Breaks Down the Good, the Sad and the Funny Sides of Claims

Litigating Sexual Battery and Other Intentional Torts: Navigating the One Bad Apple in Medical Negligence

WSHB Partner Michelle Arbitrio to Moderate Panel on Insurance and Risk Management in the Age of Mass Shootings

WSHB Cannabis Attorney Finalist for "Lawyer of the Year"

Girl on Fire: The Price of Pursuing the Truth in the #MeToo World

Pragmatic Issues on Settlement Versus Trial for Legal Malpractice Cases

WSHB Partner Jade Tran Named to Lawyers of Color's "Nation's Best" List

WSHB Senior Associate Selected for 2020 Diversity Leadership & Mentoring Program

A Withering Assault

The Natural Progression of Natural Disasters

Nevada’s Governor Signs Chapter 40 Reform Bill

WA Condo Law Changes Hope to Curtail Frivolous Defect Lawsuits and Stimulate Production

WSHB Co-Founder Stephen Henning Steps Into the Spotlight at this Year's West Coast Casualty Seminar

Professional Liability Expert Weighs In On Protecting Your Practice From Opioid Doc Arrest Fallout

Penalties, Punitives, and Granny Cams: The Escalating Lure of Elder Abuse Litigation

Are Structured Settlements Still Relevant

Game Changing Trends Affecting Construction

He's Not My Guy: The Joint-Employer Doctrine

WSHB Case Update: DOL Proposes Increase to Minimum Salary Threshold

WSHB and DWF Announce Exclusive Association

Brooke Bohlke Takes to the Stage at CLM's 2019 Nevada Chapter Education and Networking Event

WSHB Partner Constance Endelicato Named to The Best Lawyers in America© 2020 List

Is the Mandatory Notice Process in Chapter 558, Florida Statutes, A “Suit” Within the Meaning of a Particular Commercial General Liability Policy?

December 28, 2017

The answer to this certified question (from the 11th Circuit to the Florida Supreme Court, Altman vs. Crum & Forster (“C&F”), SC16-1420) directly impacts Florida construction defect lawsuits and the cost of insurance. If a 558 notice (a mandatory pre-suit notice requirement in Florida expressly designed to provide a voluntary opportunity to resolve a construction defect claim “through confidential settlement negotiations without resort to further legal process”) is not a “suit” triggering a defense, then those in the construction industry (builders, contractors, design professionals, etc.) might decline the pre-suit alternative dispute resolution process. As the 558 notice is intended to avoid litigation, this course of action would instead actually invite costly litigation in order to secure a defense under an insurance policy, and defending a lawsuit would necessarily involve costly attorneys’ fees (not good for the insurer), and potentially drive up premiums (not good for the insured) – a lose-lose situation. Both insured and insurer fought over policy and legal definitions, along with legislative intent and insurer consent, during contested oral arguments on April 6, 2017, before Florida’s Supreme Court. On December 14, 2017, the Court issued its highly-anticipated opinion.

In short, the Florida Supreme Court found that C&F’s definition of “suit” in its policy included “alternative dispute resolution proceeding,” which is expressly what Chapter 558 provides. However, in doing so, the Court rejected that the 558 pre-suit notice is a civil “suit” or “civil proceeding,” and instead found that it could be an “alternative dispute resolution proceeding” – if the insurer consents to the insured’s participation (as required under C&F’s policy). The Court found that C&F’s consent was not before the Court and, therefore, did not address that issue. The case was decided on the facts before the Court, and the holding is based on the language and definitions contained in the C&F policy.

The Court’s decision concerning the mandatory 558 pre-suit notice puts the ball squarely into the insurer’s court to participate and/or provide a defense in pre-suit defect cases, depending on the express language in the policy. The decision may be viewed as a positive one for insurers, in that a statutory pre-suit notice for defects does not automatically trigger the duty to defend; at least one concurring Justice is of the view that the statutory process to cure defective work may not be covered at all. The decision is also positive for builders, contractors, and design professionals faced with a 558 notice, in that the decision clarifies the 558 process and affords them a reasoned argument to enforce the insurer’s duty to defend under a particular policy.

PRINT

Privacy Policy      |      Site Map

© 2019 Wood Smith Henning & Berman LLP

Subscribe to our mailing list

* indicates required