HD Law Partners Blog

A limited liability company (LLC) provides a flexible mechanism for one or more people to form a business with protection from personal liability for business debts. Unlike a corporation, where shareholders often play no role in the day-to-day management of the business, an LLC may be structured so as to give the individual owners (known as “members”) direct control over management.

Of course, this can pose some challenges as well. For example, what if you have four members in an LLC and there is a 2-2 deadlock over an important business decision? Every LLC should have an operating agreement, which is a contract between the members, to detail how issues of governance should be handled. But even then, if the operating agreement requires a majority vote of the membership, what is the remedy for a deadlock?

Again, a well-drafted operating agreement should anticipate and provide for such contingencies. Here are a few examples of mechanisms for breaking a deadlock between LLC members:

If you own your own home and a car, you likely have insurance on both. There is a critical difference between the two types of insurance. Florida law requires drivers to carry a minimum amount of auto insurance known as personal injury protection (PIP) coverage. As far as your home goes, however, state law imposes no similar requirement. If you have a mortgage, the lender will usually require homeowners’ insurance to protect their interests. The State of Florida won’t punish the homeowner if the owner decides not to insure the house. 

Contractor Battles Insurer Over Water Damage Repairs 

Since homeowners’ insurance is not mandatory, it is purely a matter of contract between the policyholder and the insurer. As such, legal concepts that may apply to homeowners’ policies may not apply to auto insurance, and vice versa. This came up in a recent decision from the Florida Fourth District Court of Appeals, People’s Trust Insurance Company v. Restoration Genie Inc., which involved the interpretation of a homeowners’ policy. 

Filing a personal injury lawsuit means understanding and following a number of procedural rules. Many of these rules are strictly enforced. This means that failure to comply can result in dismissal of your case regardless of the merits. 

One rule that fits within this strict-compliance description is the statute of limitations. This is basically the deadline to initiate a lawsuit under Florida law. In other words, if you do not file and serve a complaint within the limitations period, the court is legally barred from hearing your lawsuit. 

Four Years Is the Statute of Limitations in (Most) Negligence Cases 

The statute of limitations is determined by the Florida legislature, and different types of cases may be subject to different limitations periods. For personal injury claims–i.e., an “action founded on negligence”–the statute of limitations is normally four (4) years. But to give a contrasting example, if you file a lawsuit based on a breach of contract–say you want to sue your insurance company for not paying a claim–then the statute of limitations is five (5) years. 

Insurance companies often take a proactive stance when asserting they do not have a “duty to defend” or cover a particular policyholder. This normally takes the form of asking a judge to issue a declaratory judgment stating as such. Obviously, the insured party may not be happy with such a judgment. But what about a third-party victim seeking to recover compensation? Do they have legal standing to appeal a declaratory judgment issued in favor of an insurer? 

11th Circuit Dismisses Sexual Abuse Victim’s Appeal for Lack of Legal Standing 

The U.S. 11th Circuit Court of Appeals–which has federal appellate jurisdiction over Florida, Alabama, and Georgia–recently addressed this issue. The case, Nationwide Mutual Insurance Company v. Barrow, involved an especially heinous criminal act. But the underlying insurance dispute proved rather simple for the court to resolve. 

Here is what happened, a young girl was sexually abused by her mother and her employer. More precisely, the victim’s mother “arranged” for the employer, a man named Barrow, to take sexually explicit photographs of her. This eventually led to Barrow molesting the victim at his house and at a local hotel. 

The Difference Between an Insurer’s Contractual and Statutory Duties Under Florida Law

Insurance companies have two independent duties when it comes to paying a claim filed by a policyholder. The first duty is contractual, i.e., the insurer’s responsibilities under the policy itself. This contractual duty extends to any requirements regarding the evaluation and payment of benefits.

The second legal duty is that imposed by statute, i.e., by the Florida legislature. State law requires all insurers to “act reasonably and in good faith” when evaluating a policyholder’s claim. Even if the insurer ultimately pays the claim–that is, fulfills its contractual duty–it can still be held liable for acting in bad faith with respect to its statutory duty.

Insurer Still Faces Bad Faith Claim Despite Paying Appraisal Award to Homeowner

The Florida Second District Court of Appeals recently addressed the interaction of these two duties in a first-party bad faith insurance lawsuit. In Williams v. State Farm Florida Insurance Company, a homeowner filed a claim with his insurer over lightning damage to his property.

If you own a car in Florida, you should know that you are required to carry a certain minimum amount of auto insurance. Florida is a “no-fault” state, your insurance is expected to pay for any personal injury that you sustain in an accident. But this personal injury protection (PIP) coverage is often insufficient to fully cover your medical expenses and other accident-related losses. PIP coverage does not address situations where your accident was caused by the negligence of another driver.

This brings up another issue. Even when you can prove that the other driver was responsible for the accident, they may have little (if any) insurance coverage of their own. So what do you do then? In many cases, your own insurance company may still be responsible assuming you purchased uninsured motorist (UM) coverage as part of your auto policy.

How UM Coverage Works And Why You Need It

UM coverage kicks in when you, or someone else covered by your policy, is injured by a driver with either no insurance or insufficient insurance to fully compensate the injured party for their legal damages. Keep in mind, an uninsured driver can also include an unknown party, such as a hit-and-run driver who flees the scene of an accident and is never identified by the police.

Historically, Florida common law has allowed parties to assign their contractual rights to third parties. There are some exceptions–such as agreements involving personal service obligations or that otherwise violate public policy–but generally speaking, one party cannot prohibit the other from assigning their rights under a contract. And although Florida statutes state that a contract for insurance “may be assignable, or not assignable, as provided by its terms,” courts have long held that an insurer cannot demand consent before allowing a policyholder to assign insurance benefits to a third party.

Judge: Insurer Cannot Require Consent for Assignment of Post-Loss Claims

A recent decision by a federal judge in Fort Myers, Florida, Sabran v. Rockhill Insurance Company, illustrates the difficulties faced by insurance companies in attempting to enforce restrictions on assigning policy benefits. This case revolved around a Florida property damaged by Hurricane Irma in 2017. The property owner, a limited liability company (LLC), filed a claim with its insurance carrier. The insurer denied the claim in 2019.

Even when an insurance company is required to cover some damages arising from a specific event, such as water damage, that does not necessarily mean the policy covers all damages incidental to the event. Of course, an insurer is required to pay a valid claim in good faith. But they are not under any legal obligation to go beyond the scope of the policy’s coverage.

Take this recent decision from the Florida Third District Court of Appeal, State Farm Insurance Company v. Shotwell. This case involved a dispute over water damage to a private residence. The homeowner’s toilet overflowed, causing substantial water damage to his master bathroom, master bedroom, and adjoining parts of the house.

The homeowner held an “all-risk” policy with State Farm. The insurer acknowledged coverage for some of the water damage and issued an initial payment of $888.72, which accounted for the homeowner’s deductible and depreciation.

Homeowner’s insurance policies often contain appraisal clauses. Appraisal is a form of alternative dispute resolution similar to arbitration. In its simplest form, an appraisal clause states that if the parties disagree as to the amount of an insured loss, each side will appoint an independent appraiser. If the appraisers cannot agree on a value, they will jointly appoint an umpire to act as a tie-breaker. The final decision is then binding on the insurance company and the policyholder.

Florida Court: Roofing Contractor Must Submit Insurance Claim to Appraisal

When an insurance policy provides for binding appraisal, then either party may initiate the process and the other party must comply. But what happens if the homeowner assigns their claim to a third party, such as a company hired to perform repairs? Does the appraisal process bind the third party as well?

Earlier this year, the Florida Second District Court of Appeal addressed just such a case, Webb Roofing & Construction v. FedNat Insurance Company. Here, the insurance company sought to compel appraisal over the objections of the third-party contractor.

Insurance disputes often involve complex questions of law and contract interpretation. Yet many cases boil down to a single question: Does the insurance policy actually cover the claim at issue? Sometimes this question proves relatively easy to answer.

For example, there is this recent decision from a federal judge in Tampa, Ditech Financial LLC v. AIG Specialty Insurance Company. The plaintiff in this case was a mortgage loan servicing company. The plaintiff ran into trouble with regulators in 2014 over purported “deficiencies” in its business practices. As relevant to this case, the plaintiff had failed to conduct annual escrow analysis for borrowers involved in Chapter 13 bankruptcy cases.

Basically, Ditech was supposed to analyze any changes to a borrowers’ property tax and insurance payments while they were in bankruptcy. The failure to conduct this analysis meant that there were shortages in the borrowers’ escrow accounts, which they remained liable for under their mortgages. Ditech made up for these shortfalls and then tried to get its money back from the borrowers after they exited bankruptcy.