Yesterday, we filed an amicus curiae brief on behalf of United Policyholders in the Florida Supreme Court. This type of legal argument is often called a “Friend of the Court” brief because it is not filed by a party to the lawsuit, but it is filed by a person or entity with an interest in the outcome of the case. In theory, amicus briefs provide courts with information needed to reach the right decision. Usually, amicus briefs address the public policy or state or nation wide effects of a legal decision, while the parties to the case focus solely on how the outcome will affect them.
In our Motion For Leave Of Court to file the brief, we wrote:
“1. The financial security that insurance policies provide is critical to business and property owners and to the fabric of our economy and our society. United Policyholders ("UP") is a unique non-profit charitable organization founded in 1991 that is helping preserve the integrity of the insurance system by serving as an information resource and a voice for policyholders’ interests. Donations, grants and volunteer labor support the organization’s work.
2. United Policyholders monitors the national insurance marketplace with a particular focus on regions impacted by large-scale natural disasters. The organization hosts and participates in public forums, disseminates information about the claim process, works with individuals and elected officials to solve insurance problems, and files amicus briefs in cases involving coverage and claim disputes. UP serves as a clearinghouse for information on coverage and claim issues related to commercial and personal lines insurance products.
3. United Policyholders has focused its efforts since the 2005 hurricane season on providing education and support to businesses and homeowners in the Gulf Coast states and working to help solve insurance problems. The organization hosts a free on-line "Road Map to Recovery" for Florida, Louisiana and Mississippi, and created and is maintaining a Hurricane Claim Help Library for residents of the impacted states. For more information, visit www.unitedpolicyholders.org.
4. United Policyholders seeks to fulfill the "classic role of amicus curiae in a case of general public interest, supplementing the efforts of counsel, and drawing the court’s attention to law that escaped consideration." Miller-Wohl Co. v. Commissioner of Labor & Indus., 694 F.2d 203,204 (9th Cir. 1982). This is an appropriate role for amicus curiae. As commentators have often stressed, an amicus is often in a superior position to "focus the court’s attention on the broad implications of various possible rulings." Robert L. Stem, et al., Supreme Court Practice 570-71 (1986), quoting Ennis, Effective Amicus Briefs, 33 Cath. U. L. Rev. 603, 608 (1984).
5. United Policyholders has filed over two hundred and thirty-five amicus briefs, since it was founded, in state and federal appellate courts throughout the United States. United Policyholders’ amicus brief was cited in the U.S. Supreme Court’s opinion in Humana Inc. v. Forsyth, 525 U.S. 229 (1999). UP was the only national consumer organization to submit an amicus brie/in the landmark case of State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003). The organization has participated by court invitation in briefing and oral argument, and many of the arguments from United Policyholders’ amicus curiae briefs have been cited with approval by reviewing courts.
6. The issue involved in this case, concerning whether or not Florida law recognizes a claim for breach of the implied warranty of good faith and fair dealing by an insured against its insurer based on the insurer’s failure to investigate and assess the insured’s claim within a reasonable period of time, has significant ramifications for insurance policyholders seeking to hold their insurance companies responsible for their insurers’ actions. This is an area of law in which United Policyholders and the undersigned attorneys submit it would be useful to the Court to allow the insurance policyholders’ perspective to be heard.
7. The undersigned counsel for United Policyholders have significant experience in first-party property insurance litigation against major insurance companies, such as QBE Insurance Corporation, and honestly believe that they will be able to provide assistance to jurists analyzing the insurance issues of this case and their public policy implications in a way that compliments and dovetails with the arguments raised by counsel for the parties to this appeal. Counsel for United Policyholders is retained pro bono, and will accept no money for their legal work in this case.”
Obviously, this matter is extremely important to Florida policyholders. Florida has never recognized a common law cause of action for the breach of the duty of good faith arising from a first party property insurance claim. In the summary of our argument, we noted:
“Nowhere is the contractual concept of an "implied warranty of good faith and fair dealing" more important than in the insurance setting, due to the unique nature of the product and the disparate circumstances of the parties to the contract. Although Florida courts have previously and explicitly recognized a common law claim arising from the nature of an insurer’s obligation to its insured in the third party setting, Florida should join the majority of states that recognize a common law remedy for damages caused by first party insurers breaching their recognized obligations of good faith and fair dealing.
Legislation passed in Florida recognizes the obligation of insurers to act in the utmost of good faith and fair dealing to their insureds. § 624.155, Fla. Stat., and § 626.9541, Fla. Stat. These obligations are further evidenced by pertinent portions of the Florida Administrative Code, requiring claims adjusters to provide ethical and good faith treatment to policyholders. The insurance industry recognizes its obligation to act in the utmost of good faith and fair dealing as evidenced in the training and reference textbooks for claims handlers and in internal claims handling documents prepared by individual insurance companies. Since Florida public policy, demonstrated in legislation and regulation, recognize a duty of good faith, and even the insurance industry recognizes such a duty, it would be a strange quirk in Florida common law for it to not to recognize what everybody else is requiring insurers to do-act in accordance of a duty of good faith and fair dealing to its own customers.
Florida should align itself with that majority of states, and allow this important alternative remedy to stand.”
I suggest those interested in this topic to read our entire brief—it may also be better than a sleeping pill for those in need of a good night’s rest. The last paragraph of the argument sums up my feelings on this issue:
“Making an insurer accountable for causing additional damages that naturally flow from the breach of its mandated obligation of utmost good faith is good public policy and logically required if accountability is important to the law. Without accountability for breaches of these insurance good faith duties that most recognize as involving the public trust, the law would minimize these concepts and the importance of personal responsibility for insurers to do what they are obligated to do.”
