Chalfonte Condominium Apartment Association, Inc. v. QBE Insurance Corporation

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 20, 2012
No. 08-10009
________________________ JOHN LEY
CLERK

D. C. Docket No. 06-81046-CV-DMM

CHALFONTE CONDOMINIUM APARTMENT ASSOCIATION, INC.,

Plaintiff-Appellee
Cross-Appellant,

versus

QBE INSURANCE CORPORATION,

Defendant-Appellant
Cross-Appellee.

________________________

No. 08-10783
________________________

D.C. Docket No. 06-81046-CV-DMM

CHALFONTE CONDOMINIUM APARTMENT ASSOCIATION, INC.,

Plaintiff-Appellant,

versus
QBE INSURANCE CORPORATION,

Defendant-Appellee.

________________________

No. 08-11337
________________________

D.C. Docket No. 06-81046-CV-DMM

CHALFONTE CONDOMINIUM APARTMENT ASSOCIATION, INC.,

Plaintiff-Appellee,

versus

QBE INSURANCE CORPORATION,

Defendant-Appellant.

________________________

Appeals from the United States District Court
for the Southern District of Florida
________________________

(September 20, 2012)

Before DUBINA, Chief Judge, CARNES, Circuit Judge, and RESTANI,* Judge.

PER CURIAM:

*
Honorable Jane A. Restani, Judge of the United States Court of International Trade, sitting
by designation.

2
 In October 2005, Hurricane Wilma caused extensive damage to property

owned by Chalfonte Condominium Apartment Association, Inc. (“Chalfonte”).

Chalfonte filed a claim with its property insurer, QBE Insurance Corporation

(“QBE”), pursuant to an insurance policy providing property coverage to

Chalfonte. Chalfonte submitted an estimate of damages to QBE in December

2005 then submitted a sworn proof of loss to QBE in July 2006. After a period of

time, Chalfonte became dissatisfied with QBE’s investigation and processing of its

claim and filed suit against QBE in federal district court. In its amended

complaint, Chalfonte asserted claims for declaratory judgment, breach of contract

for failure to provide coverage, and breach of contract for the breach of the

implied warranty of good faith and fair dealing. The complaint also claimed that

QBE had violated Section 627.701(4)(a) of the Florida Statutes. QBE moved to

dismiss that claim, and the district court granted its motion, concluding that

Section 627.701(4)(a) does not create a private right of action.

The remaining claims proceeded to trial. The jury reached a verdict for

Chalfonte on all of its claims and in a special verdict form awarded Chalfonte

$7,868,211 for QBE’s failure to provide coverage and $271,888.68 for breach of

the implied warranty of good faith and fair dealing. The jury also found that the

insurance policy did not comply with Section 627.701(4)(a) of the Florida

3
Statutes, even though Chalfonte’s claim based on that provision had been

dismissed before trial.

The district court entered a final judgment in favor of Chalfonte in the

amount of $8,140,099.68 and post-judgment interest. QBE filed a motion for

judgment as a matter of law, a motion for new trial, and a motion to alter or amend

the judgment. The district court denied all motions except the motion to alter or

amend the judgment. The district court granted that motion and amended the

judgment by applying the hurricane deductible contained in the policy. After the

district court entered an amended judgment, QBE filed a notice of appeal.

On appeal, we certified five questions to the Supreme Court of Florida

because these unanswered questions of state law affected the disposition of the

case. Chalfonte Condo. Apartment Ass’n, Inc. v. QBE Ins. Corp., 561 F.3d 1267,

1274–75 (11th Cir. 2009). The specific questions we certified were as follows:

(1) Does Florida law recognize 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?

(2) If Florida law recognizes a claim for breach of the implied

warranty of good faith and fair dealing based on an insurer’s failure to

4
 investigate and assess its insured’s claim within a reasonable period

of time, is the good faith and fair dealing claim subject to the same

bifurcation requirement applicable to a bad faith claim under Fla.

Stat. § 624.155?

(3) May an insured bring a claim against an insurer for failure to

comply with the language and type-size requirements established by

Fla. Stat. § 627.701(4)(a)?

(4) Does an insurer’s failure to comply with the language and type-

size requirements established by Fla. Stat. § 627.701(4)(a) render a

noncompliant hurricane deductible provision in an insurance policy

void and unenforceable?

(5) Does language in an insurance policy mandating payment of

benefits upon “entry of a final judgment” require an insurer to pay its

insured upon entry of judgment at the trial level?

Id. at 1274–75.

Recently, the Supreme Court of Florida answered all the questions, save

number two, in the negative. QBE Ins. Corp. v. Chalfonte Condo. Apartment

Ass’n Inc., ___ So. 3d ___ (Fla. May 31, 2012). Because the state supreme court

answered the first question in the negative, the court did not need to answer the

5
second certified question, which had been rendered moot. Specifically, the state

supreme court concluded that first-party claims are actually statutory bad- faith

claims that must be brought under Section 624.155 of the Florida Statutes; that an

insured cannot bring a claim against an insurer for failure to comply with the

language and type-size requirements; that an insurer’s failure to comply with the

language and type-size requirements does not render a noncompliant hurricane

deductible provision in an insurance contract void and unenforceable; and that a

contractual provision mandating payment of benefits upon “entry of a final

judgment” does not waive an insurer’s procedural right to post a bond and stay the

execution of the money judgment pending any appeal. Id. at ___. Accordingly,

based on the Florida Supreme Court’s answers to our certified questions, attached

hereto as an appendix, we affirm in part and reverse in part the district court’s

judgment. We affirm the district court’s judgment of dismissal of Chalfonte’s

claim under Section 627.701(4)(a) of the Florida Statutes, because an insured

cannot bring a claim against an insurer for failure to comply with the language and

type-size requirements established under that statutory provision, and we instruct

the district court on remand to disallow any evidence of the policy’s failure to

comply with these requirements. We reverse the district court’s order denying

QBE a new trial and instruct the court on remand to bifurcate the contract claim

6
from the bad faith claim and to apply the deductible to any judgment Chalfonte

may obtain on retrial.

AFFIRMED in part, REVERSED and REMANDED in part.

7
 APPENDIX

Supreme Court of Florida
____________

No. SC09-441

____________

QBE INSURANCE CORPORATION,

Appellant,

vs.

CHALFONTE CONDOMINIUM APARTMENT ASSOCIATION, INC.,

Appellee

[May 31, 2012]

CORRECTED OPINION

QUINCE, J.

8
 This case is before the Court for review of five questions of Florida law

certified by the Eleventh Circuit Court of Appeals as being determinative of a

cause pending in that court and for which there appears to be no controlling

precedent. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const. Based on the

facts and analysis outlined below, we answer the first, third, fourth, and fifth

questions certified by the Eleventh Circuit in the negative. In doing so, we need

not reach the second certified question.

FACTS

This action arises from an appeal to the United States Court of Appeals for

the Eleventh Circuit wherein the plaintiff-appellee and cross-appellant Chalfonte

Condominium Apartments Association, Inc. (Chalfonte) appealed the dismissal of

claims under section 627.701(4)(a), Florida Statutes (2009), and the denial of a

motion to enforce execution of the judgment, and the defendant-appellant and

cross-appellee QBE Insurance Corporation (QBE) appealed the denial of motions

for a new trial and for judgment as a matter of law.

The facts in this case are succinctly set forth in Chalfonte Condominium

Apartment Ass’n v. QBE Insurance Corp., 561 F.3d 1267, 1269-70 (11th Cir.

2009):

On October 24, 2005, Hurricane Wilma struck Boca Raton,
Florida, causing significant damage to property owned by Chalfonte.

9
Shortly thereafter, Chalfonte filed a claim with QBE, its property
insurer, pursuant to an insurance policy (the “Policy”) providing
property coverage to Chalfonte for the twelve month period
commencing January 1, 2005. Chalfonte submitted an estimate of
damages to QBE on December 18, 2005, and then submitted a sworn
proof of loss to QBE on July 12, 2006. Dissatisfied with QBE’s
investigation and processing of its claim, Chalfonte filed suit in the
United States District Court for the Southern District of Florida.

In the district court, Chalfonte raised claims for declaratory
judgment (Count I), breach of contract—failure to provide coverage
(Count II), breach of contract—breach of the implied warranty of
good faith and fair dealing (Count III), and violation of Fla. Stat. §
627.701(4)(a) (Count IV). The district court dismissed Count IV of
the complaint, concluding that § 627.701 does not provide a private
right of action, and then held a jury trial on Chalfonte’s remaining
claims. The jury found for Chalfonte on all of its claims, awarding
Chalfonte $7,868,211 for QBE’s failure to provide coverage
($2,000,000 of which was awarded for “ordinance or law” coverage)
and $271,888.68 for breach of the implied warranty of good faith and
fair dealing, for a total award of $8,140,099.68. The jury also
concluded that the Policy did not comply with § 627.701(4)(a).

The district court entered a final judgment in favor of
Chalfonte in the amount of $8,140,099.68, with post-judgment
interest accruing in accordance with 28 U.S.C. § 1961. QBE then
filed a motion for judgment as a matter of law, a motion for a new
trial, and a motion to alter or amend the judgment. The district court
denied QBE’s motions for judgment as a matter of law and for a new
trial, but granted QBE’s motion to amend the judgment by applying
the hurricane deductible contained in the Policy despite the jury’s
conclusion that the Policy did not comply with the requirements for
hurricane deductible provisions set forth in § 627.701(4)(a).
Chalfonte also filed a motion to amend the final judgment. The
district court granted Chalfonte’s motion to amend the judgment to
include prejudgment interest and calculated prejudgment interest for
the period beginning August 1, 2006, twenty days after Chalfonte

10
 submitted a sworn proof of loss, and ending September 6, 2007, the
date that judgment was entered. On December 18, 2007, the district
court entered an amended final judgment in favor of Chalfonte in the
amount of $7,237,223.88, with post-judgment interest accruing in
accordance with 28 U.S.C. § 1961. QBE filed a notice of appeal of
the amended final judgment and posted a supersedeas bond
amounting to 110% of the amended final judgment.

Id. (footnote omitted). Chalfonte moved to enforce the judgment, claiming that

the policy waived QBE’s right to stay execution and obligated QBE to pay

Chalfonte within thirty days of the judgment. In support of this motion, Chalfonte

relied on the following provision in the insurance policy:

Provided you have complied with all the terms of the Coverage Part,
we will pay for covered loss or damage: . . . (2) Within 30 days after
we receive the sworn proof of loss and: (a) There is an entry of final
judgment . . . .

The district court rejected Chalfonte’s argument, finding that QBE had

complied with the applicable procedural rules in filing its supersedeas bond and

had not waived its right to a stay under the policy. On appeal, the Eleventh Circuit

deemed it necessary to certify five questions to this Court, noting that “Florida

courts have not definitively answered these questions.” The Eleventh Circuit asks:

1. Does Florida law recognize 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?
2. If Florida law recognizes a claim for breach of the implied
warranty of good faith and fair dealing based on an insurer’s failure
to investigate and assess its insured’s claim within a reasonable

11
 period of time, is the good faith and fair dealing claim subject to the
same bifurcation requirement applicable to a bad faith claim under
Fla. Stat. § 624.155?

3. May an insured bring a claim against an insurer for failure to
comply with the language and type-size requirements established by
Fla. Stat. § 627.701(4)(a)?

4. Does an insurer’s failure to comply with the language and type-
size requirements established by Fla. Stat. § 627.701(4)(a) render a
noncompliant hurricane deductible provision in an insurance policy
void and unenforceable?

5. Does language in an insurance policy mandating payment of
benefits upon “entry of a final judgment” require an insurer to pay its
insured upon entry of judgment at the trial level?

Id. at 1274-75. We address each question in turn below by reviewing the history

of the law and analyzing its application to the certified questions.

ANALYSIS

This Court has recounted the evolution of insurance contract litigation in

Florida in a number of its previous cases. See, e.g., Allstate Indem. Co. v. Ruiz,

899 So. 2d 1121, 1125-1129 (Fla. 2005); Talat Enters., Inc. v. Aetna Cas. & Sur.

Co., 753 So. 2d 1278, 1281 (Fla. 2000); State Farm Mut. Auto. Ins. Co. v. Laforet,

658 So. 2d 55, 58-59 (Fla. 1995). Until the twentieth century, actions for breaches

of insurance contracts were treated the same as any other breach of contract action.

Laforet, 658 So. 2d at 58. However, as insurance took on a larger institutional

role and liability policies began to replace traditional indemnity polices as the

12
standard policy form, insurance contracts began to be seen as distinguishable

from other types of contracts. Id. Under the liability policies, insurance

companies took on the obligation of defending the insured and the power to settle

or refuse to settle a claim. Id. In light of this, courts began to recognize that

insurers owed a duty to their insureds to refrain from acting solely in the insurers’

own interests in settlement. Id. “This concern gave life to the concept that

insurance companies had an obligation of good faith and fair dealing.” Ruiz, 899

So. 2d at 1125; see also Laforet, 658 So. 2d at 58 (“This duty became known as

the ‘exercise of good faith’ or the ‘avoidance of bad faith.’”).

For many years, Florida courts imposed an independent duty on liability

insurers to act in good faith when defending insureds against third-party claims,

see, e.g., Butchikas v. Travelers Indem. Co., 343 So. 2d 816, 817-18 (Fla. 1976),

and recognized a common law cause of action for bad faith within the context of

third-party actions. Boston Old Colony Ins. Co. v. Gutierrez, 386 So. 2d 783, 785

(Fla. 1980). In fact, Florida common law recognized third-party bad-faith actions

involving insurance as early as 1938. See Auto Mut. Indem. Co. v. Shaw, 184 So.

852 (Fla. 1938). These third-party bad-faith actions involved a claim “in which an

insured sues his liability insurance company for bad faith in failing to settle a

claim which ultimately results in a third-party judgment against him in excess of

13
the policy limits.” Time Ins. Co. v. Burger, 712 So. 2d 389, 391 (Fla. 1998).

Even though the bad faith occurred between an insurer and its insured, Florida

courts have also allowed the injured third party to bring a bad-faith action directly

against the first party’s insurer without an assignment of the cause of action by the

insured first party. See Thompson v. Commercial Union Ins. Co. of New York,

250 So. 2d 259 (Fla. 1971).

However, at the time, no analogous bad-faith action existed for first-party

claimants1 in Florida common law. Ruiz, 899 So. 2d at 1125; Laforet, 658 So. 2d

at 59. Florida was among a number of states upholding a distinction between the

duty owed to first- and third-party claimants, with insurers owing no fiduciary

duty in first-party claims because their legal relationship was that of “debtor and

creditor.” Baxter v. Royal Indem. Co., 285 So. 2d 652, 657 (Fla. 1st DCA 1973).

In 1982, the Legislature enacted section 624.155 of the Florida Statutes, the

so-called “Bad Faith Statute.” See ch. 82-243, § 9, Laws of Fla. This statute was

“designed and intended to provide a civil remedy for any person damaged by an

insurer’s conduct.” Ruiz, 899 So. 2d at 1124. Section 624.155(1)(b)1, Florida

Statutes (2009), provides:

1
A first-party bad-faith action involves a case in which an insured sues his or her own
insurance company for improper denial of benefits. Time Ins., 712 So. 2d at 391.

14
 (1) Any person may bring a civil action against an insurer when
such person is damaged:
....
(b) By the commission of any of the following acts by the insurer:
1. Not attempting in good faith to settle claims when, under all the
circumstances, it could and should have done so, had it acted fairly
and honestly toward its insured and with due regard for her or his
interests . . . .

Thus, section 624.155(1)(b)1 created a statutory first-party bad-faith cause of

action and codified prior decisions authorizing a third party to bring a bad-faith

action under the common law. Talat, 753 So. 2d at 1283 (“[T]he civil remedy

provided in subdivision (1)(b)1 was not in existence for first-party insureds before

the adoption of the civil remedy statute.”); State Farm Fire & Cas. Co. v.

Zebrowski, 706 So. 2d 275, 277 (Fla. 1997) (concluding that the statute

“authorizes a third party to file a bad-faith claim directly against the liability

insurer without an assignment by the insured upon obtaining a judgment in excess

of the policy limits”); Macola v. Gov’t Emps. Ins. Co., 953 So. 2d 451, 456 (Fla.)

(explaining that statute also codified the Court?s prior decisions authorizing a third

party to bring a bad-faith action under the common law). “Therefore, the same

obligations of good faith that existed for insurers dealing with their insureds in the

third-party context were extended by statute to the first-party context.” Macola,

953 So. 2d at 456.

15
 Since the statute’s enactment, both federal and Florida courts have found

that section 624.155 extends bad-faith actions to the first-party context. See, e.g.,

Jones v. Continental Ins. Co., 920 F.2d 847, 849 (11th Cir. 1991) (citing a number

of cases in which the courts have reached this conclusion); Porcelli v. OneBeacon

Ins. Co., 635 F. Supp. 2d 1312, 1316 (M.D. Fla. 2008); Laforet, 658 So. 2d at 58-

59; Opperman v. Nationwide Mut. Fire Ins. Co., 515 So. 2d 263, 265-66 (Fla. 5th

DCA 1987); see also United Guar. Residential Ins. Co. of Iowa v. Alliance Mortg.

Co., 644 F. Supp. 339, 341 (M.D. Fla.1986) (“The language of section 624.155

indicates that the overall purpose of the legislature was to impose civil liability on

insurers who act inequitably vis-a-vis their insureds, not simply to restate or

clarify the common law.”).

Relevant legislative history also supports the conclusion that there was no

first-party bad-faith action prior to the enactment of section 624.155. A 1982

Staff Report to the House Committee on Insurance states that section 624.155

“requires insurers to deal in good faith to settle claims. Current case law requires

this standard in liability claims, but not in insured motorist coverage; the sanction

is that a company is subject to a judgment in excess of policy limits. This section

would apply to all insurance policies.” Fla. H.R. Comm. on Ins., HB 4-F(1982),

Staff Analysis 12 (June 3, 1982) (on file with Florida State Archives). “This

16
language indicates the Legislature recognized that prior to this statute, case law

did not permit first parties, such as those covered under uninsured motorists

policies, to sue their insurance companies for bad faith refusal to pay claims.”

Rowland v. Safeco Ins. Co. of America, 634 F. Supp. 613, 615 (M.D. Fla. 1986).

Based on this case law and legislative history, it is clear that there is no

common law first-party bad-faith action in Florida. However, Chalfonte asserts

that its claim for a violation of the implied contractual warranty of good faith and

fair dealing is not the same as a bad-faith claim by a first party. Chalfonte cites a

number of federal cases in which the courts have recognized a separate common

law claim for breach of the implied warranty of good faith and fair dealing. See,

e.g., Townhouses of Highland Beach Condo. Ass’n v. QBE Ins. Corp., 504 F.

Supp. 2d 1307, 1311 (S.D. Fla. 2007) (explaining that this action “relates to the

express contractual provision breached and does not contemplate the parties’

wrongful conduct, only whether a contractual term was breached and whether the

parties? reasonable contractual expectations have been thwarted”). Chalfonte also

relies on the Third District Court of Appeal’s decision in O’Shields v. United

Automobile Insurance Co., 790 So. 2d 570 (Fla. 3d DCA 2001), which is cited by

the Eleventh Circuit in the instant case as “implicitly recogniz[ing] that a good

17
faith and fair dealing claim can be distinct from a statutory bad faith claim in a

first-party action on an insurance contract.” Chalfonte, 561 F.3d at 1272.

In fact, other federal courts have disagreed and have determined that a

breach of the implied covenant of good faith and fair dealing does not exist as a

separate claim from a statutory bad-faith claim in first-party insurance claims in

Florida. See Portofino South Condo. Ass’n v. QBE Ins. Corp., 664 F. Supp. 2d

1265 (S.D. Fla. 2009) (concluding that under Florida law a cause of action for

breach of the implied warranty of good faith and fair dealing is subsumed in a bad-

faith action pursuant to section 624.155); Nirvana Condo. Ass’n v. QBE Ins.

Corp., 589 F. Supp. 2d 1336, 1342 (S.D. Fla. 2008) (dismissing a contractual

claim for breach of implied warranty of good faith and fair dealing “as a matter of

law” because the insured’s “relief for the unreasonable or untimely payment of its

claim is limited to a section 624.155 action that does not ripen until [the coverage]

litigation is concluded”); QBE Ins. Corp. v. Dome Condo. Ass’n, 577 F. Supp. 2d

1256, 1261 (S.D. Fla. 2008) (dismissing a claim for breach of the implied

covenant of good faith and fair dealing because “no such cause of action exists

under Florida law”); cf. Trief v. Am. Gen. Life Ins. Co., 444 F. Supp. 2d 1268,

1270 (S.D. Fla. 2006) (describing plaintiff’s allegations regarding insurer’s failure

to adjust, investigate, and pay claim as “resembl[ing] a claim for statutory bad

18
faith rather than one for breach of implied obligation of good faith” and

dismissing it as premature until the underlying coverage dispute was determined).

Further, as the Eleventh Circuit noted, the plaintiff in O’Shields “did not sue his

insurer for failure to investigate and assess his claim within a reasonable time, but

rather for failure to provide information relating to the settlement of his claim,”

which was an express term of the insurance contract. Chalfonte, 561 F.3d at 1272.

One Florida court has at least implicitly recognized that section 624.155

constituted a change in the law regarding first-party claims based on an insurance

company’s bad-faith refusal to settle or pay claims. See Indus. Fire & Cas. Ins.

Co. v. Romer, 432 So. 2d 66, 67 n.2 (Fla. 4th DCA 1983).

In most cases, federal courts that have dismissed breach of the implied

warranty of good faith claims have concluded that no such cause of action exists

in Florida. See Nirvana, 589 F. Supp. 2d at 1340-42; Dome, 577 F. Supp. 2d at

1260-61. Those federal courts that have not dismissed the implied warranty

claims have relied on the general proposition that “[u]nder Florida law, the

covenant of good faith and fair dealing is implied in every contract, requiring the

parties to follow standards of good faith and fair dealing designed to protect the

parties’ reasonable contractual expectations.” Townhouses of Highland Beach,

504 F. Supp. 2d at 1310. But see Portofino, 664 F. Supp. 2d at 1269 (concluding

19
that federal cases that found a claim for breach of implied warranty of good faith

and fair dealing to be separate and distinct from a cause of action for first-party

bad faith had “incorrectly applied Florida law”).

Florida contract law does recognize an implied covenant of good faith and

fair dealing in every contract. Burger King Corp. v. Weaver, 169 F.3d 1310, 1315

(11th Cir. 1999); Barnes v. Burger King Corp., 932 F. Supp. 1420, 1438 (S.D. Fla.

1996); County of Brevard v. Miorelli Eng’g, Inc., 703 So. 2d 1049, 1050 (Fla.

1997); Ins. Concepts & Design, Inc. v. Healthplan Servs., Inc., 785 So. 2d 1232,

1234-35 (Fla. 4th DCA 2001). This covenant is intended to protect “the

reasonable expectations of the contracting parties in light of their express

agreement.” Barnes, 932 F. Supp. at 1438. However, there are two limitations on

such claims: (1) where application of the covenant would contravene the express

terms of the agreement; and (2) where there is no accompanying action for breach

of an express term of the agreement. Ins. Concepts, 785 So. 2d at 1234. A duty of

good faith must “relate to the performance of an express term of the contract and

is not an abstract and independent term of a contract which may be asserted as a

source of breach when all other terms have been performed pursuant to the

contract requirements.” Id. (quoting Hosp. Corp. of Am. v. Fla. Med. Ctr., Inc.,

710 So. 2d 573, 575 (Fla. 4th DCA 1998)).

20
 Despite this broad language, Florida courts have not found that this implied

covenant creates a separate first-party action against an insurance company based

on its bad-faith refusal to pay a claim. See, e.g., Romer, 432 So. 2d at 67 (“Bad

faith refusal to pay gives rise to a cause of action only if the facts involving the

bad faith refusal amount to an independent tort such as fraud or intentional

infliction of emotional distress.”).

In fact, this Court has repeatedly described the statutory bad-faith action

with reference to the duty of good faith and fair dealing. See Ruiz, 899 So.2d at

1126 (explaining that the statutory remedy in section 624.155 “essentially

extended the duty of an insurer to act in good faith and deal fairly in those

instances where an insured seeks first-party coverage or benefits under a policy of

insurance”) (emphasis added); Laforet, 658 So. 2d at 59 (“Through this statute, the

Legislature created a first-party bad faith cause of action by an insured against the

insured?s uninsured or underinsured motorist carrier, thus extending the duty of an

insurer to act in good faith to those types of actions.”) (emphasis added). Further,

in discussing the legislative intent behind the enactment of section 624.155, this

Court has repeatedly referred to the duty to act in good faith and to deal fairly.

Ruiz, 899 So. 2d at 1127 (“The Legislature has mandated that insurance

companies act in good faith and deal fairly with insureds regardless of the nature

21
of the claim presented, whether it be a first-party claim or one arising from a claim

against an insured by a third party.”) (emphasis added); Id. at 1128 (“The

Legislature has clearly chosen to impose on insurance companies a duty to use

good faith and fair dealing in processing and litigating the claims of their own

insureds as insurers have had in dealing with third-party claims.”) (emphasis

added). Similarly, one federal court has described “good faith” and “bad faith” as

“two sides of the same coin.” Continental Cas. Co. v. City of Jacksonville, 550 F.

Supp. 2d 1312, 1337 (M.D. Fla. 2007), aff’d, 283 F. App’x 686 (11th Cir. 2008).

“Put differently, the absence of ‘good faith’ constitutes ‘bad faith,’ and qualitative

descriptions of ‘good faith’ conduct are often compared to qualitative descriptions

of ‘bad faith’ conduct composed of terms that are simply the antonyms of terms

used to describe ‘good faith.’” Id.

Federal courts have interpreted this Court’s various decisions as evidence

that there is no common law action for breach of the implied warranty of good

faith and fair dealing in the first-party coverage context and the only remedy

available is the statutory bad-faith action created by section 624.155. Nirvana,

589 Supp. 2d at 1342 (“[A]s the Florida Supreme Court has repeatedly made clear,

no theory of liability was ever available to an insured against the insurer until

1982. That clearly includes a contractual theory of liability based on the implied

22
covenant or warranty of good faith and fair dealing.”); Dome, 577 F. Supp. 2d at

1261 (stating that a claim for breach of the implied covenant of good faith and fair

dealing did not exist prior to the passage of section 624.155).

Finally, the federal cases that have held that there is a separate common law

first-party claim for the breach of the covenant of good faith and fair dealing based

on the insurance company’s failure to promptly settle a claim have not explained

how this action fits into Florida insurance jurisprudence. The covenant is intended

to protect “the reasonable expectations of the contracting parties in light of their

express agreement.” Ins. Concepts, 785 So. 2d at 1234 (quoting Barnes, 932 F.

Supp. at 1438). However, this Court has specifically declined to adopt the

doctrine of reasonable expectations in the context of insurance contracts,

concluding that construing insurance policies under this doctrine “can only lead to

uncertainty and unnecessary litigation.” Deni Assocs. of Fla., Inc. v. State Farm

Fire & Cas. Ins. Co., 711 So. 2d 1135, 1140 (Fla. 1998); see also Lenhart v.

Federated Nat’l Ins. Co., 950 So.2d 454, 461 (Fla. 4th DCA 2007) (explaining that

a reasonable belief contrary to the plain meaning of insurance policy, or even to

unclear text capable of being fairly read to provide coverage, is irrelevant to

construction of the policy); State Farm Fire & Cas. Co. v. Castillo, 829 So. 2d 242,

23
247 (Fla. 3d DCA 2002) (explaining that “it is the policy’s terms which define

[insurance] coverage, not the insured’s reasonable expectations”).

For the reasons discussed above, the Court answers the first certified

question in the negative and concludes that such first-party claims are actually

statutory bad-faith claims that must be brought under section 624.155 of the

Florida Statutes. Since we have answered the first certified question in the

negative, the second certified question is rendered moot.

Accordingly, we address the third and fourth certified questions, which both

involve the language and type-size requirements established by section

627.701(4)(a) of the Florida Statutes.2 Chalfonte raised a claim alleging a

violation of this section by QBE. The trial court dismissed that claim, concluding

that the statute does not provide a private right of action. Despite the dismissal of

the claim, the jury concluded that the insurance policy did not comply with section

627.701(4)(a). Following the jury trial, the district court granted QBE’s motion to

amend the judgment by applying the hurricane deductible in the policy. The

application of the hurricane deductible reduced the award to Chalfonte by

2. Section 627.701(4)(a), Florida Statutes (2009), provides in pertinent part:

(4)(a) Any policy that contains a separate hurricane deductible must on its face
include in boldfaced type no smaller than 18 points the following statement:
“THIS POLICY CONTAINS A SEPARATE DEDUCTIBLE FOR HURRICANE
LOSSES, WHICH MAY RESULT IN HIGH OUT-OF-POCKET EXPENSES
TO YOU.”

24
$1,605,653. On appeal, Chalfonte argued that the district court erred in dismissing

its section 627.701(4)(a) claim. Chalfonte also argued that the district court

should not have applied the hurricane deductible to reduce the jury award of

damages because the jury found that the policy did not comply with the

requirements set forth in the statute. The Eleventh Circuit certified questions as

to what remedy may be pursued by an insured that is aggrieved by noncompliance

with the statute and whether noncompliance with the statutory requirements

renders such a provision void and unenforceable.

The policy at issue in this case substantially complied with the statutory

requirements by including the required notice on the first page of the policy in all

capital letters in a larger size font than that on the rest of the page. However, the

notice did not comply with the statutory requirements in two ways: the font used

was 16.2-point instead of 18-point, and the statement contained the word

“windstorm” instead of “hurricane.”

Our determination as to whether section 627.701(4)(a) creates a private

cause of action for its violation is a question of statutory interpretation. Therefore,

our review is de novo. Horowitz v. Plantation Gen. Hosp. Ltd. P’ship, 959 So. 2d

176, 179 (Fla. 2007). The plain language of the statute does not provide for either

a private cause of action or a penalty for a violation of its requirements. Thus, the

25
Court must determine whether either will be judicially implied. First, we address

whether there is a private cause of action for noncompliance with the statutory

requirements.

The seminal Florida case on whether a statutory cause of action exists

without an express provision imposing civil liability is this Court’s decision in

Murthy v. N. Sinha Corp., 644 So. 2d 983 (Fla. 1994), which involved the

licensing and regulatory statutes in chapter 489, Florida Statutes (1991),

governing construction contracting. We had to determine whether there was a

statutory cause of action against an agent who failed to supervise a corporation’s

construction project when the relevant statute did not expressly provide for a civil

cause of action. Id. at 984-85.

In determining whether to judicially imply a cause of action, courts have

historically focused on whether the statute “imposed a duty to benefit a class of

individuals” and “simply concluded that a cause of action arose when a class

member was injured by a breach of that duty.” Id. at 985. However, as we

explained in Murthy, legislative intent has become the primary factor that most

courts, including the United States Supreme Court, use to determine whether to

judicially infer a cause of action when a statute does not expressly provide for one.

Id. (citing Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16

26
(1979), and Freehauf v. Sch. Bd. of Seminole County, 623 So. 2d 761, 763 (Fla.

5th DCA 1993)).

In determining whether the Legislature intended to provide a private cause

of action against a qualifying agent in chapter 489, we first recognized that the

applicable statutes had imposed a duty on agents to supervise a corporation’s

construction projects. However, we explained that the recognition of a duty did

not answer the question of whether a breach of that duty would give rise to civil

liability. Id. at 985-86. To determine the existence of civil liability, we looked at

the stated scope of chapter 489, which established licensing procedures and

regulatory duties for the construction industry and created a licensing board to

enforce the procedures and duties. Id. at 986. We concluded that there was “no

evidence in the language of the statute or the statutory structure that a private

cause of action against a qualifying agent was contemplated by the legislature in

enacting this statute.” Id. Rather, the “language of chapter 489 indicates that it

was created merely to secure the safety and welfare of the public by regulating the

construction industry.” Id. We noted that “[i]n general, a statute that does not

purport to establish civil liability but merely makes provision to secure the safety

or welfare of the public as an entity, will not be construed as establishing a civil

liability.” Id. (quoting Moyant v. Beattie, 561 So. 2d 1319, 1320 (Fla. 4th DCA

27
1990) (quoting 49 Fla. Jur. 2d, Statutes § 223(1984))). We further explained that

even in the prior statute the “sole provision . . . authorizing private suits” had

authorized them only against unlicensed or uncertified contractors and that even

that provision had been removed. Id. Without evidence of legislative intent in the

“language or the legislative history” of chapter 489, we declined to recognize a

private remedy against a qualifying agent. Id.

Since Murthy, we have reaffirmed the principle that whether a statutory

cause of action should be judicially implied is a question of legislative intent. See

Horowitz, 959 So. 2d at 182; Aramark Unif. & Career Apparel, Inc. v. Easton, 894

So. 2d 20, 23 (Fla. 2004); Villazon v. Prudential Health Care Plan, Inc., 843 So.

2d 842, 852 (Fla. 2003). Legislative intent in this context is a “shorthand

reference to the ordinary tools for discerning statutory meaning: text, context, and

purpose.” Horowitz, 959 So. 2d at 182 (quoting Plantation Gen. Hosp. Ltd. P’ship

v. Horowitz, 895 So. 2d 484, 486 (Fla. 4th DCA 2005)). The primary guide in

determining whether the Legislature intended to create a private cause of action is

the “actual language used in the statute.” Borden v. East-European Ins. Co., 921

So. 2d 587, 595 (Fla. 2006). In determining the meaning of the language used, the

court must look not only to the words themselves but also to “the context in which

28
the language lies.” Miele v. Prudential-Bache Sec., Inc., 656 So. 2d 470, 472 (Fla.

1995).

There is nothing in the text of section 627.701(4)(a) from which one can

deduce that the Legislature intended an insured to have a private right of action

against an insurer for failure to follow the notice requirements. Nor does the

legislative history contain any guidance of whether the Legislature intended to

create a private cause of action for the section’s violation. In fact, there is hardly

any mention of this section in the legislative history. It was originally codified as

section 627.701(3)(c), which required the notice language in reference to

“windstorms.” Ch. 95-276, § 12, at 2589, Laws of Fla. The purpose of the

provision was to “shift[] more wind risk to consumers, and require[] certain

disclosures on the policy to that effect.” Fla. S. Comm. on Banking & Ins., CS/SB

3018 (1995) Staff Analysis 10 (Apr. 17, 1995). The statute was renumbered in

1996 as subsection 4(a), and the required language was changed from

“windstorm” to “hurricane.” Ch. 96-194, § 12, at 609, Laws of Fla. The Senate

Staff Analysis of the 1996 bill discusses the objective of “restoring the Florida

homeowner insurance marketplace” and restructuring the insurance system to

“ensure adequate hurricane catastrophe insurance at an affordable price.” Fla. S.

29
Comm. on Banking & Ins., CS/SB 2314 (1996) Staff Analysis 1, 11 (Apr. 5,

1996).

Other subsections of section 627.701 also offer clues as to the context of

subsection (4)(a). Section 627.701(6)(a) expresses the legislative intent “to

encourage higher hurricane deductibles as a means of increasing the effective

capacity of the hurricane insurance market in this state and as a means of limiting

the impact of rapidly changing hurricane insurance premiums.” Section

627.701(2)(a) provides that a property insurer may not issue an insurance policy

containing a hurricane deductible provision unless the Department of Insurance

determines that the deductible provision is clear and unambiguous. Thus, the

hurricane deductible notice was a “by-product” of the Legislature’s intent to

increase the availability of homeowner’s insurance in Florida at an affordable

price through higher hurricane deductibles. The hurricane deductible notice is the

means of putting the insurance purchaser on notice of the higher deductibles. The

specific statutory requirements as to point size, type, and language ensure that the

notice serves its purpose. When a statute “merely makes provision to secure the

safety or welfare of the public,” it will not be construed as establishing civil

liability. Murthy, 644 So. 2d at 986 (quoting Moyant v. Beattie, 561 So. 2d 1319,

1320 (Fla. 4th DCA 1990)).

30
 Based upon the above, we answer the third certified question in the negative

and find that an insured cannot bring a claim against an insurer for failure to

comply with the language and type-size requirements established by section

627.701(4)(a).

Chalfonte argues that QBE’s failure to strictly comply with the notice

requirements specified in section 627.701(4)(a) should render the hurricane

deductible void and unenforceable. In his analysis of this issue, Judge

Middlebrooks correctly noted that the Legislature did not specify any penalty or

consequence for failure to comply with the requirements of section 627.701(4)(a).

Chalfonte Condo. Apartment Ass’n v. QBE Ins. Corp., 526 F. Supp. 2d 1251,1256

(S.D. Fla. 2007). The Legislature included penalties in many other sections of the

Insurance Code, which expressly state that a violation of the statute would render

the policy provision invalid or void. See, e.g., § 627.6474, Fla. Stat. (2009) (“Any

contract provision that violates this section [about health insurance provider

contracts] is void.”); id. § 627.415 (“Any policy provision in violation of this

section [about charter, bylaw provisions] is invalid.”). In other sections, the

Legislature has crafted specific remedies for an insurance company’s

noncompliance with a statutory requirement. See, e.g., § 627.410(7)(e), Fla. Stat.

§ 627.410(7)(3), Fla. Stat. (2009) (providing that the Department of Insurance may

31
order an insurer to discontinue the issuance of policies when the insurer fails to

meet the filing requirements and may also impose any other penalty authorized by

law). In other instances, the Legislature has provided that the Department of

Insurance may levy a fine as a penalty for noncompliance. See, e.g., § 624.310(5),

Fla. Stat. (2009) (allowing the Department to impose a fine “against any person

found in the proceeding to have violated any provision of the Insurance Code”);

id. § 624.4211(1) (allowing the Department to impose a fine on an insurance

company instead of suspending or revoking a certificate of authority). Most

notably, in section 627.418(1), Florida Statutes (2009), the Legislature seems to

suggest that in the absence of an express penalty, courts should assume that a

policy provision is valid despite noncompliance with the Insurance Code. See §

627.418(1), Fla. Stat. (2009) (“Any insurance policy, rider, or endorsement

otherwise valid which contains any condition or provision not in compliance with

the requirements of this code shall not be thereby rendered invalid, except as

provided in s. 627.415, but shall be construed and applied in accordance with

such conditions and provisions as would have applied had such policy, rider, or

endorsement been in full compliance with this code.”).

Thus, the Insurance Code supports the conclusion that the Legislature is

perfectly capable of crafting an express penalty for section 627.701(4)(a) and that

32
there is no good reason for the courts to select one penalty over another.

Chalfonte, 526 F. Supp. 2d at 1257; see also RTG Furniture Corp. v. Indus. Risk

Insurers, 616 F. Supp. 2d 1258, 1267 (S.D. Fla. 2008) (“[I]n the absence of an

express penalty attached to this statute [section 627.701(4)(a)] which prescribes

the manner in which property insurers are to alert their insureds that the policy

contains a separate hurricane deductible, the court is not at liberty to supply

one.”).

Our conclusion that courts cannot provide a remedy when the Legislature

has failed to do so is also entirely consistent with the position of Florida courts in

other contexts. See, e.g., Jolley v. Seamco Labs. Inc., 828 So. 2d 1050, 1051 (Fla.

1st DCA 2002) (declining to provide a remedy for a violation of Florida’s

Wrongful Death Act); see also Carter v. Dep’t of Prof’l Regulation, 633 So. 2d 3,

6 (Fla.1994) (finding that if Legislature had intended penalty for a violation of a

time limit to be dismissal of the administrative complaint, it would have expressly

included that sanction within section 455.225, Florida Statutes (Supp. 1986)).

Two Florida district courts have reached opposite conclusions as to the

consequences for failure of an insurance policy to strictly comply with statutory

requirements which did not specify a penalty for noncompliance. Compare U.S.

Fire Ins. Co. v. Roberts, 541 So. 2d 1297 (Fla. 1st DCA 1989) with Prida v.

33
Transamerica Ins. Fin. Corp., 651 So. 2d 763 (Fla. 3d DCA 1995). In Roberts, the

First District declared void a policy’s coinsurance clause because it did not

comply with the requirements of section 627.701(1). This statute provides that a

property insurer may only issue a policy containing coinsurance provisions if it

meets three requirements: (1) a verification on either the face of the policy or

attached to the policy that the rate charged was based on use of a coinsurance

clause with the consent of the insured; (2) a clear identification of the coinsurance

clause in the policy; and (3) the rate for insurance with and without the

coinsurance clause is furnished to the insured upon request. The policy at issue in

Roberts did not contain the required language either on the face of the policy or in

a form attached to the policy. Thus, the required language was entirely missing

from the policy. Roberts, 541 So. 2d at 1299. The First District based its decision

in significant part upon the legislative history of the statute. Id. In its earlier

version, the statute provided that failure to comply with the statutory

requirements would render the clause null and void. When the statute was

amended in 1982, this language was removed from the statute. However, the staff

analysis of the amendment provided that the new language was a “technical

rewrite of current law to make it more readable,” thereby indicating no legislative

34
intent to remove the consequences of noncompliance. Id. (quoting Fla. H. R.

Comm. on Ins., HB 4-F (1982), Staff Analysis 91 (June 3, 1982)).

In Prida, the Third District did not void the notice of cancellation of an

automobile liability insurance policy for failure to fully comply with the

requirements of section 627.848(3), Florida Statutes (1993). That statute required

the notice of cancellation to contain language advising the insured that certain

insurance coverage is required by the financial responsibility law and that the

required language be in 12-point type. Prida, 651 So. 2d at 763-64. While the

notice in Prida contained the required language in contrasting red color, it was in

9.5-point type. Id. at 764. The Third District concluded that the 12-point type

requirement was permissive and that the statute did not provide consequences for

a violation of the requirements. Id.

We conclude that the instant case is more like Prida than Roberts in several

important ways. First, QBE substantially complied with the notice requirements,

as did the insurance company in Prida. Second, the hurricane deductible notice

statute had never included a penalty provision as the coinsurance statute in

Roberts did. Third, the coinsurance statute at issue in Roberts was not the

coinsurance notice provision that was also included in section 627.701(4)(a). It

was a separate statute specifying three requirements that a policy insurer must

35
follow in order to issue a policy with a coinsurance clause. Finally, Chalfonte did

not assert that it received no notice of the hurricane deductible provision, which

was clearly noted on the front page of the policy, but only that the font size and

one of the words in the notice did not comply with the statutory requirement.

Furthermore, if this Court were to void the hurricane deductible provision

and permit coverage under the remaining policy as Chalfonte wants, it would have

the effect of altering the terms of the insurance contract, because the insurance

contract bargained for by the parties and the lower premiums paid by Chalfonte

included this hurricane deductible. “Voidance of exclusion to an insurance policy

is a severe penalty which alters the very terms of the deal between the parties. It

requires the insurer to provide coverage for uncontracted risk, coverage for which

the insured has not paid.” Fed. Deposit Ins. Corp. v. Am. Cas. Co. of Reading,

Pa., 975 F.2d 677, 683 (10th Cir. 1992); see also Essex Ins. Co. v. Zota, 607 F.

Supp. 2d 1340, 1351 (S.D. Fla. 2009) (refusing to void insurance policy

endorsements based on surplus line commercial-general-liability insurer’s failure

to comply with the statute requiring the filing and approval of insurance policies

and forms); cf. AIU Ins. Co. v. Block Marina Inv., Inc., 544 So. 2d 998, 999 (Fla.

1989) (stating that the Legislature did not intend “to give an insured coverage

which is expressly excluded from the policy or to resurrect coverage under a

36
policy or an endorsement which is no longer in effect, simply because an insurer

fails to comply with the terms of the aforementioned statute”).

Based on the above analysis, we answer the fourth certified question in the

negative and find that an insurer’s failure to comply with the language and type

size requirements established in section 627.701(4)(a) does not render a

noncompliant hurricane deductible provision in an insurance policy void and

unenforceable, because the Legislature has not provided for this penalty.

The last certified question asks “whether the language in an insurance

policy mandating payment of benefits upon ‘entry of a final judgment’ requires an

insurer to pay its insured upon entry of judgment at the trial level.” The insurance

policy provision at issue here states:

Provided you have complied with all terms of this Coverage Part, we
will pay for covered loss or damage:
(1) Within 20 days after we receive the sworn proof of loss and reach
written agreement with you; or
(2) Within 30 days after we receive the sworn proof of loss and:
(a) There is an entry of a final judgment; or
(b) There is a filing of an appraisal award with us.

Chalfonte argues that the phrase “entry of a final judgment” unambiguously

means the conclusion of proceedings at the trial level. Chalfonte contends that by

using the phrase “entry of a final judgment,” QBE waived its procedural right to

stay execution of the judgment pending appeal by posting a supersedeas bond.

37
QBE responds that “final judgment” unambiguously means the conclusion of the

appellate process as a matter of Florida law. Moreover, QBE argues that the

policy does not explicitly reference the right to stay execution by posting a

supersedeas bond and thus the policy cannot constitute a waiver of this right.

Federal Rule of Civil Procedure 62(d) provides that an appellant may obtain

a stay on appeal by posting a supersedeas bond. The purpose of the supersedeas

bond is to secure the prevailing party against the risk that the judgment debtor will

be unable to meet the obligations pending appeal and to protect the prevailing

party from the costs that it incurs in foregoing execution of judgment until the

appeal is decided. Poplar Grove Planting & Refining Co. v. Bache Halsey Stuart,

Inc., 600 F.2d 1189, 1190 (5th Cir. 1979).

The Florida counterpart of this federal rule provides that if an order “is a

judgment solely for the payment of money, a party may obtain an automatic stay

of execution pending review, without the necessity of a motion or order, by

posting a good and sufficient bond.” Fla. R. App. P. 9.310(b)(1) (emphasis

added). When a stay has been entered, it “shall remain in effect during the

pendency of all review proceedings in Florida courts until a mandate issues, or

unless otherwise modified or vacated.” Fla. R. App. P. 9.310(e). The purpose of

an appellate stay is to maintain the status quo in the lower tribunal while an appeal

38
proceeds. If no bond is posted, the judgment creditor may execute on the

judgment during the appeal. Palm Beach Heights Dev. & Sales Corp. v. Decillis,

385 So. 2d 1170, 1171 (Fla. 3d DCA 1980). If the judgment is reversed, then the

appellant is entitled to have its property restored by the appellee. Ronette

Commc’ns Corp. v. Lopez, 475 So. 2d 1360, 1361 (Fla. 5th DCA 1985).

However, an appellant who does not post a bond runs the risk that at the time of

reversal, the appellee may no longer have the money and may be judgment-proof.

Id.

Under Florida law, the posting of a “good and sufficient bond” as provided

in rule 9.310(b) results in an automatic stay pending appeal of an adverse money

judgment. Palm Beach Heights, 385 So. 2d at 1171; Proprietors Ins. Co. v.

Valsecchi, 385 So. 2d 749, 750 (Fla. 3d DCA 1980). The trial court has no

discretion to change this amount or deny a stay when the bond requirements have

been met.

Based on the above, we answer the fifth certified question in the negative.

We conclude that a contractual provision mandating payment of benefits upon

“entry of final judgment” does not waive the insurer’s procedural right to post a

bond pursuant to rule 9.310(b) to stay execution of a money judgment pending

resolution of the appeal.

39
 CONCLUSION

For the foregoing reasons, we answer the first, third, fourth, and fifth

certified questions in the negative. Specifically, we conclude that under Florida

law (1) first-party claims are actually statutory bad-faith claims that must be

brought under section 624.155 of the Florida Statutes; (2) an insured cannot bring

a claim against an insurer for failure to comply with the language and type-size

requirements established by section 627.701(4)(a) of the Florida Statutes; (3) an

insurer’s failure to comply with the language and type-size requirements

established in section 627.701(4)(a) does not render a noncompliant hurricane

deductible provision in an insurance policy void and unenforceable as the

Legislature has not provided for this penalty; and (4) a contractual provision

mandating payment of benefits upon “entry of a final judgment” does not waive

the insurer’s procedural right to post a bond and stay the execution of a money

judgment pending resolution of appeal.

Having answered the certified questions, we return this case to the United

States Court of Appeals for the Eleventh Circuit.

It is so ordered.

PARIENTE, LABARGA, and PERRY, JJ., concur.
CANADY, C.J., and LEWIS and POLSTON, JJ., concur in result.

40
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Certified Question of Law from the United States Court of Appeals for the
Eleventh Circuit - Case Nos. 08-10009, 08-10783, 08-11337

Raoul G. Cantero, III, of White and Case, LLP, Miami, Florida, Rodolfo Sorondo,
Jr. and Monica Vila of Holland and Knight LLP, Miami, Florida, and William S.
Berk of Berk Merchant and Sims, PLC, Coral Gables, Florida,

for Appellant

Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort
Lauderdale, Florida, Daniel S. Rosenbaum and John M. Siracusa of Rosenbaum
Mollengarde, et al., West Palm Beach, Florida, Pamela Jo Bondi, Attorney
General, Tallahassee, Florida, and Richard C. Valuntas, Assistant Attorney
General, West Palm Beach, Florida,

for Appellee

Anthony J. Russo of Butler, Pappas, Weihmuller, Katz, Craig, LLP, Tampa,
Florida, and Caryn L. Bellus of Kubicki, Draper, P.A., Miami, Florida, on behalf
of Florida Defense Lawyers Association and Federation of Defense and Corporate
Counsel; William F. Merlin, Jr. and Mary Kestenbaum Fortson of Merlin Law
Group, P.A., Tampa, Florida, on behalf of United Policyholders?; and Stephen A.
Marino, Jr. and Danya J. Pincavage of Ver Ploeg & Lumpkin, P.A., Miami,
Florida, on behalf of Florida Justice Association,

As Amicus Curiae

41