Insurer’s Failure to Raise Deficiency in Civil Remedy Notice at Appropriate Stage Amounts to Waiver of Argument at Summary Judgment
Frisco v State Farm Fla. Ins. Co., Case No. 2D2024-0464 (Fla 2nd DCA December 3, 2025).
The plaintiffs appealed a final summary judgment granted in favor of State Farm in their bad faith lawsuit. The Friscos filed a homeowner’s insurance claim based on damage due to a contractor’s faulty work and later, filed a Civil Remedy Notice (CRN), frustrated by State Farm’s claim handling. The Friscos then filed a breach of contract action and State Farm responded by demanding appraisal. The trial court ordered appraisal, and State Farm paid the award. State Farm, in responding to the CRN, never mentioned a perceived deficiency in the CRN for the insured’s demand for attorney’s fees and costs.
The insureds then filed the bad-faith lawsuit. State Farm did not timely file an answer, following the parties’ agreed order for an extension of time to do so, but instead moved for dismissal, or alternatively, summary judgment. State Farm argued the CRN was deficient, but not because of the demand for attorney’s fees and costs. The court denied the motion, ordering State Farm to answer. In a renewed motion for summary judgment, State Farm argued, for the first time, that the CRN was deficient because it demanded as a cure “extra-contractual damages” in the form of attorney’s fees and costs. The trial court granted summary judgment, finding that the CRN was “legally deficient” because it “impermissibly required State Farm to pay extra-contractual damages, such as attorney’s fees and costs", contrary to Talat Enterprises, Inc. v Aetna Casualty and Surety Co., 753 So.2d. 1278 (Fla. 2000).
On appeal, the Second DCA found that State Farm waived its right to argue the Friscos’ allegedly deficient CRN by failing to raise it in its response or any other time before arguing its motion for summary judgment, more than four years after the Friscos filed the CRN. The court noted the well settled law that an insurer who responds to the merits of a CRN without raising defects in the notice waives the right to make any such objection later.
Judge Atkinson, who concurred in result only, noted that the majority failed to address the trial court’s alternative ground for its ruling: the Friscos did not file a reply to State Farm’s affirmative defenses, they were precluded from arguing at summary judgment that State Farm waived its defense regarding the sufficiency of the CRN. Atkinson noted that the trial court erred because State Farm never asserted an affirmative defense for this specific deficiency, so no reply was required. However, because the Friscos did not raise the issue on appeal that no reply was necessary, the party presentation principle prevented the court from considering such an argument. Nonetheless, Atkinson opined that the trial court’s granting of summary judgment was incorrect due to the precise CRN language on which summary judgment was premised was not supported by the language of the statute or any binding decisional authority. Atkinson stated that on the merits, the trial court was wrong to conclude that the CRN was “legally deficient” on the basis that it requires payment of “unrecoverable extra-contractual damages, such as attorney’s fees and costs.”
Based on the statutory language and the Talat analysis, a determination of whether an insured has satisfied the condition precedent described in Fla. Stat. 624.155(3) is not contingent on the insured’s contractual entitlement to the demands contained in a civil remedy notice. There is no controlling case law supporting the proposition that the lack of merit of what an insured demands in a CRN renders the notice deficient.