Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.
The strategic time-limited demand has long been the entry point for third-party bad faith litigation in Florida — a carefully calibrated letter that either extracts a within-limits settlement or builds the evidentiary record for an excess judgment action. The 2023 tort reform legislation reshaped this practice without eliminating it. For plaintiffs' counsel, the new statutory architecture rewards technical precision more than ever and penalizes inattention to the 90-day safe harbor framework that HB 837 grafted onto Fla. Stat. § 624.155.
Florida's Third-Party Bad Faith Framework
Florida's bad faith framework for third-party claims rests on two pillars: the common law duty recognized in Boston Old Colony Insurance Co. v. Gutierrez, 386 So. 2d 783 (Fla. 1980), which obligates an insurer to exercise the same degree of care as a person of ordinary prudence in managing the insured's interests; and the statutory cause of action under Fla. Stat. § 624.155. The Florida Supreme Court synthesized these streams in Berges v. Infinity Insurance Co., 896 So. 2d 665 (Fla. 2004), which remains the foundational statement of Florida's totality-of-the-circumstances standard.
Berges made clear that the "focus in a bad faith case is not on the actions of the claimant but rather on those of the insurer in fulfilling its obligations to the insured." Berges, 896 So. 2d at 677. The insurer's duties include investigating the facts, giving fair consideration to settlement offers that are not unreasonable under the facts, and settling where a reasonably prudent person faced with the prospect of paying the total recovery would do so. The case reinforced that negligence is relevant to the good faith inquiry — the duty is not mere honesty but diligence and care.
The statutory predicate for bad faith in third-party cases under § 624.155 focuses on the insurer "[n]ot 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 his or her interests." Fla. Stat. § 624.155(1)(b)1. (2024). Importantly, a § 624.155 claim accrues only after the underlying liability has been established and a Civil Remedy Notice has been filed and the cure period has run.
The 2022–2023 Statutory Reforms
Florida's tort reform unfolded in two legislative waves. Senate Bill 2A, signed December 16, 2022, made changes primarily to first-party property insurance bad faith under § 624.1551, notably extending the cure period for residential property claims to allow appraisal proceedings to run before a CRN may be filed.
House Bill 837, signed March 24, 2023 (Ch. 2023-15, L.O.F.), overhauled § 624.155 in ways that directly affect time-limited demand practice:
The 90-Day Safe Harbor. New § 624.155(4)(a) provides that "[a]n action for bad faith involving a liability insurance claim, including any such action brought under the common law, shall not lie if the insurer tenders the lesser of the policy limits or the amount demanded by the claimant within 90 days after receiving actual notice of a claim which is accompanied by sufficient evidence to support the amount of the claim." This safe harbor applies to both statutory and common law third-party bad faith claims.
The interpretive battleground is the phrase "sufficient evidence to support the amount of the claim." Until appellate courts define this phrase, carriers will argue that absent detailed medical records establishing the full extent of injury, the 90-day clock has not started. Plaintiffs must therefore load their initial demand letters with documentation — full medical records, billing, wage loss evidence, and liability support — to start the clock running as a factual matter.
Inadmissibility Provision. If the insurer fails to tender within 90 days, § 624.155(4)(b) makes the existence of the safe harbor period and the fact that no bad faith action could have arisen had the insurer tendered — inadmissible in the subsequent bad faith action. This is a peculiar provision: it protects the non-tendering carrier from having the jury learn that a simple timely tender would have shielded it. Practitioners should not interpret this as eliminating the evidentiary significance of delayed tender; the totality of the circumstances inquiry under Berges survives, and delay remains a powerful circumstance.
Tolling. Under § 624.155(4)(c), if the insurer fails to tender within the 90-day period, any applicable statute of limitations is extended for an additional 90 days. This tolling provision acknowledges that the safe harbor structure was designed to encourage pre-litigation resolution.
Duty of Good Faith on Claimants. New § 624.155(5)(b) imposes a duty on "the insured, claimant, and representative of the insured or claimant" to act in good faith in furnishing information, making demands, setting deadlines, and attempting to settle. A fact-finder who determines that any of these parties failed to act in good faith "may reasonably reduce the amount of bad faith damages awarded." This statutory codification of what carriers long characterized as "bad faith set-up" doctrine converts an insurer's litigation defense into an affirmative damages-reduction mechanism.
Negligence Codification. Section 624.155(5)(a) codifies the pre-existing common law principle that "[m]ere negligence alone is insufficient to constitute bad faith." This statutory anchor gives defense counsel a directed verdict motion vehicle they did not previously have in codified form.
CRN Now Required for All Bad Faith Claims. Prior to HB 837, the CRN requirement under § 624.155(3) applied to statutory bad faith claims but not common law claims. HB 837 harmonized these by requiring a CRN as a condition precedent in both first-party and third-party statutory bad faith actions. The cure period remains 60 days.
Drafting the Time-Limited Demand
Against this statutory backdrop, a time-limited demand must accomplish three objectives: (1) start the 90-day safe harbor clock, (2) be substantively fair so that a refusal to tender is not attributable to the claimant's own bad faith, and (3) preserve the record for the excess-judgment litigation if the carrier fails to respond adequately.
Deadline. The pre-reform practice of setting artificial short deadlines — often 14 to 21 days — has been significantly disrupted. Section 624.155(5)(b)'s duty of good faith in "setting deadlines" now provides carriers with a statutory hook to argue that the demand itself constituted bad faith if the deadline was unreasonably short. The safer approach post-HB 837 is to set a deadline no shorter than 30 days while ensuring the demand is sent early enough that the full 90-day safe harbor period does not give the carrier an automatic defense.
A practitioner who sends a well-documented demand and then sets a 14-day deadline risks giving the carrier evidence of claimant-side bad faith under § 624.155(5)(b). Conversely, if counsel wants to preserve the leverage of demanding prompt action, the demand should explain why prompt resolution is necessary — for example, because the insured faces an impending trial date or the insured has incurred ongoing exposure.
Scope and Release Language. The demand must specify precisely what is being demanded. If the demand seeks limits from a single carrier, it should clearly define the coverage at issue. Where multiple insurers are involved, HB 837's competing-claims safe harbor under § 624.155(4) — which allows interpleader or arbitration as alternative procedures — must be accounted for. A demand that purports to require joint tender by multiple insurers runs into the Brightman framework: each insurer may respond within its own control.
Release language is equally consequential. A demand conditioned on a global release of all parties for all claims, when the claimant has pending claims against non-insurer parties, creates arguable grounds for rejection. Demands should clearly identify the parties being released, the claims being resolved, and whether the release is of the insured personally or of the insured and the insurer derivatively. Contested release language can halt tender, and under post-Berges Florida law, the insurer bears the duty to communicate the obstacle to the insured.
Condition Precedents. The demand should avoid embedding conditions the carrier cannot satisfy — a demand requiring tender within 14 days plus a simultaneously executed covenant not to execute from a third party is structured to fail. Each condition should be within the carrier's unilateral ability to satisfy.
Documentation Package. To start the 90-day clock under § 624.155(4), the accompanying evidence must be "sufficient to support the amount of the claim." Best practice is to include: all available medical records; billing documentation; liability support (police reports, witness statements, photos); proof of the tortfeasor's relationship to the insured; and a demand that specifies the policy and limits being demanded. Counsel should confirm receipt of the demand with a follow-up letter and preserve the delivery record.
Civil Remedy Notice Practice in the Post-Reform Framework
The CRN is the statutory predicate for a § 624.155 action and must specify the facts and circumstances giving rise to the violation. For third-party liability bad faith, the CRN should be filed after the excess judgment or stipulated excess has been obtained and the 90-day safe harbor period has been exhausted. The CRN gives the carrier 60 days to pay the full amount owed or cure the circumstances giving rise to the claim. Fla. Stat. § 624.155(3)(d).
A careful CRN identifies the specific subsection violated, the specific acts and omissions constituting the violation, and the amount owed. Courts have interpreted the CRN requirement strictly: a vague CRN that merely alleges "bad faith" without specifying the conduct at issue will not satisfy the statutory predicate. See Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So. 2d 1289 (Fla. 1991) (establishing the framework for accrual of § 624.155 claims post-underlying resolution).
Carriers have argued that if they cure within the 60-day period by tendering the amount owed, the bad faith action cannot proceed. Post-HB 837, the claimant now has the right to offer the insurer an opportunity to cure, and the statute preserves that cure mechanism. If the carrier timely cures, the bad faith action is cut off. Structuring the CRN to make cure impractical — while tempting — runs into § 624.155(5)(b)'s good faith duty on claimants.
Open Questions and Practice Notes
HB 837 is recent and Florida courts have not yet produced a body of interpretive precedent on the "sufficient evidence" trigger, the scope of the claimant's good faith duty, or the interplay between the 90-day safe harbor and short deadlines in pre-suit demands. Practitioners should monitor decisions from the First, Second, Third, Fourth, and Fifth District Courts of Appeal carefully.
Several open questions warrant attention:
Does a demand that sets a deadline shorter than 90 days automatically constitute bad faith under § 624.155(5)(b)? Almost certainly not — the duty is good faith, not a requirement of the maximum possible accommodation. But artificial deadlines are now evidence that can be marshaled against the claimant.
Can a carrier that fails to tender within 90 days still argue claimant bad faith to reduce damages? Yes — § 624.155(5)(b) operates at the damages phase, not as a bar to the claim.
Does the statute of limitations tolling under § 624.155(4)(c) operate independently for each claim in a multi-claimant case? Unresolved. The interpleader safe harbor suggests the Legislature contemplated discrete per-claimant analysis, but the statute's text is not pellucid.
The time-limited demand remains the plaintiff's primary tool for building third-party bad faith cases in Florida. The post-reform practice requires more documentation up front, more careful deadline selection, and greater attention to the mutual good faith framework. Carriers that ignore well-documented demands within the 90-day window will continue to face excess judgment exposure; the safe harbor is narrow and requires actual tender, not mere investigation.
Talk to Yates Anderson
If you are litigating a matter in this area — or weighing whether to — the working analysis above only goes so far. Request a case evaluation and a Yates Anderson attorney will respond within one business day.
Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.