Part I: The Shift in Florida Insurance Litigation with the End of One-Way Attorneys’ Fees

In December 2022, the Florida Legislature held a crucial special session to stabilize the state’s struggling insurance market. The outcome was Senate Bill 2A, a comprehensive piece of legislation that significantly impacted property insurance lawsuits. Notably, the bill repealed the long-standing one-way attorneys’ fee provision, which had favored policyholders in legal disputes against insurers. Although other provisions in the bill also brought substantial changes, the focus this blog is to shed light on the effects of the elimination of one-way attorneys’ fees on Florida homeowners, exploring both the challenges and opportunities that lie ahead.

The End of One-Way Attorney’s Fees

For years, Florida Statute § 627.428 granted insured policyholders the right to reasonable attorneys’ fees if they secured any amount in a lawsuit against their insurers. This provision was seen as essential leverage for policyholders to engage in fair disputes with insurance companies. However, the unintended consequence was an increase in litigation.

Senate Bill 2A made a clear statement by revising Florida Statute Sections 627.428 and 626.9373, expressly stating that “there is no right to attorney fees” in a suit arising under a residential or commercial property insurance policy. Furthermore, the bill removed references to attorneys’ fees from the pre-suit notice provision found in Section 627.70152, effectively eliminating its use as a fee-shifting mechanism.

Impact on Homeowners

The elimination of one-way attorneys’ fees is undoubtedly a major shift in the landscape for homeowners in Florida. For policyholders, this change raises several crucial considerations:

1. Increased Financial Risk: Without the assurance of recovering attorneys’ fees, policyholders face heightened financial risks when pursuing claims against insurers. Legal battles may become more expensive and potentially deter homeowners from seeking the compensation they deserve.
2. Impact on Access to Justice: The removal of one-way attorneys’ fees could impede access to justice for policyholders, especially those with limited financial resources. The costs of litigation may become prohibitive for some homeowners, leading to potential inequities in pursuing legitimate claims.
3. Reducing Frivolous Claims: On the positive side, the fee repeal aims to discourage frivolous lawsuits and reduce predatory litigation, leading to a more efficient and fair resolution of disputes. Policyholders with genuine claims may benefit from expedited settlements and a more level playing field.

Addressing the Homeowner Insurance Crisis

Florida has faced a homeowner insurance crisis, with an overwhelming number of lawsuits contributing to the insolvencies of several insurance companies. This crisis prompted the Legislature to take decisive action through Senate Bill 2A, which aims to strengthen the property insurance market and reduce the burden on homeowners. By eliminating one-way attorneys’ fees, the bill seeks to promote market competition in the private insurance industry and ultimately lower costs for homeowners.

Legal Ambiguity and Uncertainty

While Senate Bill 2A was signed into law on December 16, 2022, there remains a question of whether it will be applied retroactively. Attorneys on behalf of policyholders continue to sue property insurance carriers, claiming attorneys’ fees under the previous statute, arguing that the law in effect at the time the insurance contract was signed governs. On the other hand, attorneys for the carriers contend that claims for attorneys’ fees should be stricken under the new law if the homeowner filed suit after Senate Bill 2A became effective.

Conclusion

The elimination of one-way attorneys’ fees in Florida property insurance litigation has brought significant changes for homeowners. Policyholders now face increased financial risks and must adapt their litigation strategies in the absence of fee recovery. While there are concerns about potential access to justice issues, the fee repeal aims to address the homeowner insurance crisis, reduce frivolous lawsuits, and foster competition in the insurance market. As the legal landscape evolves, homeowners will need to navigate the uncertainties and complexities of this new era in property insurance litigation in Florida.