Objections to the Adequacy of a Civil Remedy Notice Can Be Waived

The Second District Court of Appeals considered whether an insurer can raise, as the basis of a motion to dismiss or as an affirmative defense, for the first time, compliance with the insured’s statutory requirements of Fla. Stat. § 624.155.

Prior to filing a bad faith suit, the plaintiff served a Civil Remedy Notice (CRN) on the defendant. The defendant sent a detailed response denying “all assertions of improper claim handling,” but did not comment on the sufficiency of the notice. Thereafter, the plaintiff filed suit and received a plaintiff’s verdict in his first-party suit for policy benefits. He then amended his complaint to add a bad faith claim. The defendant attempted to dismiss the action, which was denied, but then included the inadequacy of the CRN as an affirmative defense and moved for summary judgment, which was granted. The plaintiff appealed.

The Second District Court of Appeal reasoned that “one can waive any contractual, statutory or constitutional right.” Bay v. United Servs. Auto. Ass’n, 395 So. 3d 294, 299 (Fla. 4th DCA 2020). This includes pre-litigation notices. Ingersoll v. Hoffman, 589 So. 2d 223, 224-25 (Fla. 1991). As it relates to a CRN response, an insurer that responds to the merits of a CRN without raising defects in the notice waives the right to later make any such objection. Neal v. GEICO Gen. Ins. Co., 358 So. 3d 749, 753 (Fla. 4th DCA 2023); Bay, 395 So. 3d at 299; Evergreen Lakes HOA, Inc v. Lloyd’s Underwriters at London, 230 So. 3d 1, 3 (Fla. 4th DCA 2017); Home Ins. Co. v. Owens, 573 So. 2d 343, 346 (Fla. 4th DCA 1990).

The defendant attempted to circumvent the waiver doctrine by arguing it “should not apply when the alleged deficiencies in a CRN are more than ‘technical’.” However, the defendant could not provide any authority to support this distinction. Regardless, the District Court stated the defendant’s theory “defies logic” as “it is easier to infer a knowing waiver when a party fails to object to insufficiencies that are not merely technical.” Further, the District Court pointed to Ingersoll, where the Florida Supreme Court held that waiver can be applied to non-technical deficiencies in pre-suit notices.

As a result, the District Court “easily concluded” the circuit court erred in granting summary judgment to the defendant.