Stephen A. Marino Jr., left, and Benjamin C. Hassebrock, right, of Ver Ploeg & Lumpkin.

The Florida Supreme Court's latest bad faith ruling, Harvey v. GEICO, leaves the insurer's standard of care unchanged since 1938. Despite its consistency with 80 years of precedent, the dissents provoked controversy by forecasting a “vast and unwarranted expansion of liability for bad faith claims.” The dissent in Berges v. Infinity Insurance made the same dire prediction in 2005. We predict that the result will be the same here as it was then: the checks and balances that exist under long standing bad faith law will continue to maintain appropriate boundaries on bad faith claims, and policyholders will applaud Harvey for providing clarity to Florida's courts.

Harvey restored a jury verdict against GEICO for failing to settle an auto injury claim against its policyholder. Focusing on the fiduciary relationship between an insurance company and its policyholder, Harvey reaffirmed that, when undertaking the defense and settlement of claims against their policyholders, Florida's insurers must “use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business.” An insurer that fails to settle when it could and should have done so is liable for the resulting excess judgment.

The remedy for an insurer's failure to settle is commonly known as bad faith because it evolved out of the duty of good faith and fair dealing that exists in every contract, including insurance policies. Bad faith emerged a convenient label, but it does not accurately reflect Florida's legal standard of ordinary care owed by a fiduciary. The ordinary care standard is necessary to protect policyholders that sacrifice control over the defense and settlement of claims against them. Insurers assume the role of defender and decision maker, so they are fiduciaries and must act in the policyholder's best interest. An insurer's bad faith is a breach of its fiduciary duty, which can be the product of negligence. As Harvey correctly reiterated, proof that an insurer acted in its own interest has never been required to establish a breach of an insurer's fiduciary duty to its insured. And while insurers persist in their efforts to distinguish negligence from bad faith, the ordinary care standard correctly survives every assault.

In Boston Old Colony v. Gutierrez, the high court's 1980 touchstone on bad faith liability, a concurring justice stated: “No one can today question the legal right of the insured to sue the insurer for negligence or bad faith in failing to settle a claim within the policy limits.” Fourteen years ago, the insurance industry succeeded in fracturing Florida's high court on the distinction between negligence and bad faith in Berges. The Berges majority reaffirmed that juries must determine whether an insurer's negligence warrants bad faith liability based on the totality of the circumstances. But three dissenting justices accepted the industry's unsupported narrative that plaintiffs attorneys were outwitting claims personnel to manufacture bad faith claims and wreak havoc on liability insurance markets. The dissenters predicted disaster: “It is an undeniable fact which follows logic and common sense that bad faith judgments against insurers drive up the premium costs for all insureds.”

The anticipated spike in premiums never materialized, of course, because Section 627.0651 prohibits an insurer from using bad faith judgments and settlements in its rate base or to justify increased premiums. Florida policyholders have witnessed premium increases and pay some of the highest auto insurance rates in the country, but pricing is commensurate with state's equally high accident, fatality, and uninsured motorist rates. Policyholders need protection in this environment, and evidence shows that Florida's bad faith remedy accomplishes its purpose.

Berges should have provided the clarity that Harvey will hopefully achieve, but the divided opinion exposed a rift between Florida's state and federal courts. Some sympathized with the Berges dissent and cited it as grounds to enter summary judgment for the insurer despite its negligence. One unpublished Eleventh Circuit decision, Novoa v. GEICO, claimed insurers had no duty to act prudently toward their policyholders; Harvey pointed out Novoa's inconsistency with 80 years of Florida precedent. Others decisions, like this summer's Eleventh Circuit decision in Bannon v. GEICO, followed the Berges majority and upheld bad faith jury verdicts based on the insurer's negligence in failing to fairly evaluate and settle a claim against its insured.

The Harvey dissents (and some recent commentary) lament that “mere negligence has now become bad faith” and warn of market chaos. This scenario was debunked in Berges' wake, and the insurer's standard of ordinary care remains unchanged. Harvey is not an expansion of existing law, it's a preservation of the status quo. The court's majority again spoke with clarity, and policyholders can be confident that Harvey's uniform application will produce beneficial results for our state.

Stephen A. Marino, of Ver Ploeg & Lumpkin, focuses his litigation practice on insurance coverage and bad faith litigation.

Benjamin Hassebrock, an attorney with the firm, represents policyholders in all types of insurance coverage and bad faith litigation.