Could the New Florida Court of Appeals Help with Insurance Litigation?

The Florida Supreme Court’s appeal for an additional appellate court and six – now seven – new justices in the state has met with mixed reviews, with some lawyers welcoming the idea, while others including a few justices , said the workload did not justify the expense.

An insurance lawyer said in at least parts of the state, the redistribution of district lines of appellate courts could impact the types of decisions that have resulted in significant legal fees for plaintiffs. and major judgments against insurers.

“The Fifth District has been very supportive of plaintiffs over the past few years,” said Katie Koerner, insurance defense lawyer with Kelley Kronenberg in Tampa. “And the second was more favorable to insurance companies.”

Adding a sixth appellate court would mean redesigning most of the state’s district lines. If approved by the Florida Legislature, which meets next week, the plan would move two heavily populated counties surrounding Orlando from the Fifth District to the more rural Second District, based in Lakeland.

The Supreme Court’s recommendation would also consolidate four counties in the Tampa area into the new sixth district. Three northeastern counties would move from District 1 to District 5, with transplants at Daytona Beach. And five of the seven proposed new judge positions would go to the Fifth District, which could significantly alter the behavior of the judiciary there.

Koerner cited a number of appeals court rulings from the 5^e District Court of Appeal in recent years, which has driven insurers mad. In one, Hugh Hicks v American Integrity Insurance Co., the court agreed with the plaintiff that a policy that excluded damage caused by water leaks “over a period of 14 days or more” provided cover for the first 13 days of the leak. .

Insurance lawyers have found this reasoning very difficult to swallow, in part because it is impossible to know exactly when the leak occurred.

On the other hand, the 2 based in Lakeland^sd The District Court of Appeal has made important decisions in favor of insurers, Koerner said. In other districts, insurers also appear to be on a winning streak in recent months. An informal tally of appeal decisions shows insurance companies have won in at least seven cases since September.

The Supreme Court said an additional tribunal was needed, not only for an expected increase in the overall caseload, but also to rebalance the number of judges in the districts. One district now has 10 judges while another has 16, the court said in its opinion. In the 1^st DCA, which covers the northern part of the state, about a third of appeals come from the Jacksonville area, but only 13 percent of appeals court judges are from that part of the state, a declared the court.

“The configuration proposed in the committee’s plurality plan would help remedy this geographic anomaly existing in the current district court system,” Chief Justice Charles Canady wrote in the court opinion.

Some lawyers were unsure of the need or potential impact of a new tribunal.

“I was surprised when I read the review. I’m not sure what to make of that, frankly, ”said Elaine Walter, Miami lawyer and director of the Florida Defense Lawyers Association.

The court is required by the Florida Constitution to certify annually whether there is a need for more or fewer courts and judges in the state. In its opinion released in November, for the first time in more than four decades, the court called for an additional appeals court and a total of 70 appeals judges, statewide. In December, the court revised its opinion and said that due to recent changes in the residence of some judges, the state now needs an additional seat, for a total of 71 judges.

Judge Canada also noted in the November notice that the court expects a significant increase in the number of cases and appeals as the COVID-19 pandemic ends and businesses and wards hearing reopen completely.

“These operational impacts at the trial court level have a direct bearing on the number of appeals filed in district courts,” Canady wrote. “An increase in the workload of the District Courts is expected as the Courts of First Instance fully resume their normal activities. “

It is now up to the Florida legislature to decide whether to approve and fund the plan. An additional tribunal could cost at least $ 1 million a year, just to cover the salaries of six new judges. Judges are paid close to $ 170,000 per year. And a new courthouse could turn out to be costly as the cost of building materials and labor increases.

“Do they need another building, with employees, security and all that?” Asked David Langham, the chief workers’ compensation judge for Florida. He noted that a tribunal could cost $ 40 million to build and furnish.

It is not certain that a new court and more judges will help solve one of Florida’s biggest problems – the flood of litigation resulting from property insurance litigation.

Insurance industry advocates have repeatedly pointed out that contentious insurance claims in the state have exploded in recent years, leading to huge financial losses in the industry and higher premiums for policyholders. , as well as a crippling effect on the number of carriers in the state.

But it is not clear that these types of cases result in the need for another court of appeal.

Data compiled by CaseGlide, a manufacturer of litigation management software that tracks insurance disputes, shows that contentious insurance claims have increased significantly at the trial court level, from 16,300 in 2014 to 52,209 in 2020. Cases of transfer of services represent 22% of these. , compared to 17% in 2014.

The firm does not collect data on insurance claim appeals. But the Supreme Court committee that recommended the additional judicial district reported that the total number of appeals of all types has dropped significantly during this period. Florida appeals court cases fell from 23,730 in 2016 to 17,785 in 2020, a drop of 21%.

On the one hand, more judges could mean faster case resolution, which could have the effect of encouraging more litigation, some said. Others said faster resolutions would help insurers as much as claimants.

“It could help remove a bottleneck and move cases forward faster,” said Julie Nevins, who manages insurance coverage and bad faith cases in Miami.

Judge Ricky Polston objected to court certification of the need for more judges.

“As I explained in my dissent to the majority opinion of November 24, 2021, no additional District Appeals Judge is required. Nothing. Not six. Not seven, ”Polston wrote. “This revised certification makes my point. It is based on where the current judges live, not on an objective basis of a need for more judges to do the job.

The court recommended no longer having circuit judges and a single additional county court judge in the state.

One idea that has been discussed is to set up an appeals court to deal with insurance claims cases, much like the one in Florida 1^st The District Court of Appeal deals with all appeals concerning industrial accidents.

“I think there is merit in this thought process,” said Langham, the competition judge. “We are asking a lot of judges” who have to hear a wide variety of cases, he added. But having an insurance tribunal “could get things done faster.”

Others said such a plan might prove impractical and not help much. Litigation overload is more at the trial court level, especially in South Florida, and not in appellate courts, said David Henry, insurance defense and third party litigation lawyer in Fort Lauderdale.

Decisions of appellate courts are often considered quite important, as some cases are not appealed to the state Supreme Court and the high court refuses to hear others, leaving the court’s decision of appeal as the law of the land. One of Florida’s largest workers’ compensation cases, the Miles vs. City of Edgewater by the 1^st The District Court of Appeal in 2016 allowed plaintiffs to enter into a contract with their attorneys to fix attorney fees. The case has not been considered by the High Court and continues to have an impact on costs.

Florida appears to have more appellate courts and judges than some larger states, fewer than others. Texas, with a similar population, for example, has 14 appellate courts and 80 judges. New York has about sixty judges. California has over 100 appellate judges.

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Lawsuits in Florida