Skip to Content

Extra-Contractual

The justification for the existence of an extra-contractual cause of action is this. When an insurer has not handled a claim – first-party or third – in “good faith,” and thus has caused damages or exposed the insured to damages in excess to the policy limits, or damages not covered by the policy, there ought to be a remedy. The insured ought to be able to sue for such “extra-contractual” damages. Sounds plausible. In practice though, “bad faith” law and litigation have turned out to be something quite different.

Let’s be frank. Although there is no perfect claim file, actual “bad faith” claim handling is exceedingly rare and never, in our experience, knowingly sanctioned by an insurer. So, naturally, the ever-resourceful plaintiffs’ bar has striven mightily, and with much success, refining myriad techniques intended to “trip up” the insurer, disrupt the claim and create the appearance of “bad faith” claim handling. For that reason, as we know, great battles often must be fought before the “bad faith” lawsuit is even filed. By which we mean vigilant and proactive countermeasures and responses to such “myriad techniques.”A few general examples of the kind of proactive representation we can provide will have to suffice, some pertinent to first-party claims, some to third party claims, some to both.

Valuable guidance at every turn

  • Responding to persistent unsupported allegations of improper claim handling, and demands for immediate rectification;
  • Responding to official complaints such as civil remedy notices;
  • Overseeing property loss appraisals;
  • Settling multiple claimant liability exposures;
  • Resolving claims against multiple insureds;
  • Responding to confusingly complex or intentionally vague settlement demands meant to “trip up” the insurer;
  • Handling proactive tenders of policy limits when there are difficult conditions such as hospital liens and deceased or incompetent claimants.

Notwithstanding such diligence, “bad faith” lawsuits will be filed whether counsel has been involved previously or not. Once filed, every “bad faith” lawsuit must immediately be subjected to an honest and frank evaluation. This we can do.

Then, of course, once it has been filed, litigating the “bad faith” lawsuit presents challenges not encountered in ordinary civil matters.

Experience you can count on

  • Removing cases to Federal court when possible and defeating motions to remand;
  • Preparing adjusters and corporate representatives for deposition, and defending those depositions;
  • Responding to discovery not normally allowed in ordinary civil matters, such as production of the claim file;
  • Resisting abusive and extortionate discovery;
  • Identifying appropriate claim handling experts.

To sum up, we at Butler have long labored to keep abreast of the law and one step ahead of every “bad faith” tactic. We can offer the results of those labors.

Events | Mediator/Coverage Counsel Perspectives – Mediating Coverage Issues

August 12, 2022 | By Scott Damon

Partner Scott Damon presented with Gerald Albrecht (Albrecht Mediation) for the FDLA Florida Insurance Network Symposium on August 12, 2022. In this presentation they will…

Blog Posts | Seventh Circuit Affirms Judgment on the Pleadings for Insurer in Covid-19 Business Interruption Claim by Shopping Mall Food Court Restaurant

Jun 17, 2022 | By K. Clark Schirle, Jonathan Barger

Butler Weihmuller Katz Craig LLP attorneys Clark Schirle and Jon Barger obtained a victory for their client in the case of Melcorp, Inc. v. West…

Blog Posts | Florida Streamlines Admitting Satellite and Mapping Images into Evidence

Jun 10, 2022 | By William Collum, Michael Berkowitz

Satellite and mapping imagery has an important role in the litigation of property insurance claims, from its use to question a witness under oath, its…

Blog Posts | Bad Faith Claim Brought Under Florida Law Foreclosed by the Insurance Policy’s Choice of Law Provision

Jun 06, 2022 | By William Collum, Kristina Harris

When contained in an insurance policy, a choice of law provision generally provides that the law of a certain state will apply to the policy…

Show More

Blog Posts | Attorney’s Fees as an Element Damages in an Uninsured Motorist Bad Faith Lawsuit Make the Plaintiff Whole, not His or Her Attorneys

May 11, 2022 | By Matthew Lavisky

A plaintiff cannot recover attorney’s fees in a Florida lawsuit for Uninsured Motorist (“UM”) benefits unless there is a dispute about whether the insurance policy…

Publications/ Whitepapers | Removing Your Case to Federal Court and Keeping it There (Article)

May 10, 2022 | By Matthew Lavisky, Jamie Combee Novaes, Latasha Lordes Scott

Defendants often prefer that their cases be heard in federal court. Rice, Jill Cranston, The Federal Rules are Right for our State Courts, 59 No….

Blog Posts | ADDRESSING THE PROPERTY INSURANCE CRISIS BY CONTRACT LANGUAGE: New Endorsement Approved By The Florida Department Of Insurance Regulation

May 09, 2022 | By John Garaffa

On November 16, 2021 American Integrity Insurance Company of Florida filed a request for approval for an endorsement to its Homeowners multi-peril policy. The proposed…

Events | PLRB Claims Conference 2022 – Property Claim Ethics: Adjusting In Good Faith

April 5, 2022 | By Jonathan Barger

Join Partner Jonathan Barger along with co-presenter Nanci L. Smilie, as they present in San Antonio, TX at the PLRB Claims Conference on the topic…

Events | The Latest Developments With Business Interruption Claims

March 23, 2022 | By J. Pablo Cáceres

Join Partner Pablo Cáceres as he presents at the 2022 Insurance Coverage and Claims Institute on March 23, 2022. This session is designed to provide…

Events | The Latest Developments With Business Interruption Claims

March 21, 2022 | By J. Pablo Cáceres

Join Partner Pablo Cáceres as he presents for the 2022 DRI Insurance Coverage and Claims Institute on March 21-23 in Houston, TX! This session is…

Blog Posts | THE CONTINUED QUESTION OF DISINTERESTED APPRAISERS FOR FLORIDA APPRAISALS

Oct 28, 2021 | By William Collum

In most circumstances involving an insurer’s extension of coverage for a property loss, an appraisal provision in an insurance policy provides an insured and an…

Blog Posts | Dodge’n Expert Bias Discovery Issues Raised in Worley

Oct 22, 2021 | By Abraham Mohammad Shakfeh, Vincent Fernandez

Expert witnesses are a critical part of litigation.  A good expert can properly assess a case, help position a case for settlement and provide helpful…

Blog Posts | Good Faith: Plaintiffs’ Complaints About Release Held Invalid

Sep 28, 2021 | By David Krouk

The United States Court of Appeals for the Eleventh Circuit recently addressed the issue of whether tendering a policy limits check on a liability policy…

Blog Posts | More than one collision, but how many accidents?

Aug 25, 2021 | By Matthew Lavisky

Automobile insurance policies specify a maximum amount the insurer will pay for a single accident. This coverage limit applies both to liability and uninsured/underinsured motorist…

News | Partner Kathy Maus Appointed Co-Chair for ACCC Litigation Committee

August 4, 2021 | By Kathy Maus

Join us in congratulating Partner Kathy Maus for being selected as Co-Chair of the Extra-Contractual and Bad Faith Claims Litigation Committee of the American College…

Blog Posts, News | Partner Kathy Maus Quoted in Insurance Law360: “Policyholders’ Hack Coverage Hopes Surge with Landry’s Win”

July 28, 2021 | By Kathy Maus

Partner Kathy Maus of Butler’s Tallahassee office was recently quoted in an Insurance Law360 article titled “Policyholders’ Hack Coverage Hopes Surge with Landry’s Win,” detailing…

News | Butler Proudly Sponsors the DRI Insurance Bad Faith Seminar

July 22, 2021

Butler is proud to be a sponsor for the DRI Insurance Bad Faith and Extra-Contractual Liability Seminar. This seminar will provide attendees with the latest…

Blog Posts | One Step Forward, Two Steps Back: Roofers, Insurance and Commercial Speech

Jul 14, 2021 | By John Garaffa

On July 11, 2021 Chief Judge Mark Walker of the U.S. District Court for the Northern District of Florida entered an order enjoining the Secretary…

Events | Insurance Coverage and COVID-19 Claims

August 13, 2021 | By Thomas Keller

Join Partner Thomas Keller and co-presenter Gabrielle Mercadante (Robinson Cole) as they present “Insurance Coverage and COVID-19 Claims” for the 2021 FDLA Florida Insurance Network…

Events | Defense of the Multiple Claimant Bad Faith Claim

August 12, 2021 | By David Krouk, S. Cristina Perez

Join Partners David Krouk and Cristina Perez as they present for the FDLA Florida Insurance Network Symposium on August 12-13, 2021 in Tampa, FL. This…

Blog Posts | Recent Changes in Florida’s Property Insurance Law for Admitted and Surplus Lines Insurers: The Basics of What You Need to Know

May 04, 2021 | By William Collum

Hours before the close of Florida’s 2021 annual legislative session, the Florida Legislature passed SB 76, legislating wide changes to the handling and litigation of…

Events | Appraisals in Hurricane Alley

June 21, 2021 | By J. Pablo Cáceres, T. Nicholas Goanos

Partners Pablo Cáceres and Nicholas Goanos presented “Appraisals in Hurricane Alley” for the LEA Webinar Series on June 21, 2021. The Insurance appraisal law and…

Blog Posts | The Unpredictability of Florida’s Supposedly Predictable Choice-of-Law Test

Mar 11, 2021 | By Ryan Hilton

For purposes of determining contract interpretation, Florida courts apply the lex loci contractus choice-of-law rule. The Supreme Court of Florida observed that lex loci contractus…

News | Jonathan Kernizan | Featured on STU Law News

Feb 17, 2021

Attorney Jonathan Kernizan was recently featured on an article showcasing prominent alumni from St. Thomas University College of Law in celebration of Black History Month….

Blog Posts | Butler Feature | LinkedIn Pages

Feb 09, 2021

We are pleased to announce the launch of our new LinkedIn showcase pages. Our showcase pages are an extension of Butler’s practice area pages and…

Blog Posts | How will Florida’s amended summary judgment standard affect bad faith cases?

Jan 04, 2021 | By Matthew Lavisky

The Florida Supreme Court ended 2020 with a bang!  The Supreme Court amended Florida Rule of Civil Procedure 1.510 to adopt the federal summary judgment…

Publications/ Whitepapers | How Carriers Implement Fair Claims Practices in a Hands-Off World

Nov 02, 2020 | By Kathy Maus, Julius “Rick” Parker III

This article was originally published in the DRI For The Defense magazine, October 2020 edition. Legal opinions may vary when based on subtle factual differences….

Events | From AOBs to Bad Faith – Past and Potential Legislation

October 6, 2020 | By Matthew Lavisky

Partner Matthew Lavisky and co-presenter Michael Beltran (Ansa Assuncao LLP) presented “From AOBs to Bad Faith: Past and Potential Legislation” for the Florida Insurance Network…

Videos | Butler’s Thursday Tips #7 | Civil Remedy Notices

Jun 04, 2020 | By James Michael Shaw , Jr.

Join us for this week’s Thursday Tip as Partner James Shaw, Jr. discusses Civil Remedy Notices.

Blog Posts | Can A Post-Suit Civil Remedy Notice Trigger Removal To Federal Court?

May 21, 2020

Can an insured’s post-suit Civil Remedy Notice demanding over $75,000 satisfy the amount-in-controversy diversity jurisdiction requirement and trigger the thirty-day removal period for an insurer?…

Spotlights | Starr Brookins – Caring for the Community

Apr 04, 2020

Attorney Starr Brookins is a prominent figure in her community, helping mentor many at-risk children and guiding them towards a better future. Andrea Romero-Fisher sat…

Publications/ Whitepapers | Covid-19—When Civil Authorities Take Over, Are You Covered?

Apr 03, 2020 | By W. Douglas Berry, John Garaffa

This article is originally a publication of International Risk Management Institute on March 2020. Legal opinions may vary when based on subtle factual differences. All…

Blog Posts | Taking Interest in the Disinterested: Analyzing State Farm Florida Ins. Co. V. Crispin

Feb 11, 2020

Florida courts continue to refine the roles and limitations of appraisers in Florida property claims.  Florida’s Fifth District Court of Appeal recently held that a…

Blog Posts, Court Decisions | Insurer has No Duty to Enter into a Cunningham Agreement or to Agree to a Consent Judgment in Excess of Policy Limits

Jan 23, 2020

Kropilak v. 21st Century Ins. Co., 806 F.3d 1062 (11th Cir. 2015). Significance The court held that Florida law does not impose a duty on…

Blog Posts | The Evolving Limitations on Appraisers in Florida: Analyzing State Farm Florida Ins. Co. v. Sanders

Aug 13, 2019

Appraisers are frequently involved in Florida property claims. Accordingly, Florida courts continue to refine the roles and limitations with respect to appraisers and the appraisal…

Blog Posts | Unsuccessfully Using Requests for Admissions as a Sword for Attorney’s Fees

Apr 15, 2019 | By J. Blake Hunter

As a defense attorney practicing in the areas of auto accidents, premises liability, and products liability cases, I observe plaintiff’s counsel serving my clients with…

Blog Posts | The Markovits Decision: Considerations and Implications

Feb 26, 2019

Recently, Florida’s First District Court of Appeal held that for purposes of determining the timeliness of a proposal for settlement, the complaint is considered served…

Blog Posts | Not Off the Hook…Trouble in Paradise for Puerto Rico Insurers

Feb 21, 2019 | By Thais Passerieu

Recent legislative and judicial developments in Puerto Rico may very well have revived thousands of claims that insurers believed to be time-barred, per the terms…

Blog Posts | Checking the Vitals of Hospital Liens

Jan 14, 2019 | By S. Cristina Perez

Claims adjusters, plaintiffs’ attorneys and defense attorneys all deal with the headaches of hospital liens. And recent case law and inconsistent recording of liens by…

Publications/ Whitepapers | Comparative Bad Faith

Oct 17, 2018

This podcast is originally a publication of Timely Notice, October 2018. The Timely Notice Podcast is owned and produced by Goldberg Segalla. Legal opinions may vary when…

Publications/ Whitepapers | Fighting Removal Spoiler Claims Against Adjusters, Attorneys, And Agents In Bad-Faith Lawsuits

Oct 15, 2018 | By Matthew Lavisky

This article is originally a publication of the Defense Research Institute, October 2018. Legal opinions may vary when based on subtle factual differences. All rights reserved. Partner…

Publications/ Whitepapers | Fla. High Court Bolsters Policyholders In Bad Faith Cases

Sep 24, 2018 | By Kathy Maus

Partner Kathy Maus was featured in a Law360 article titled “Fla. High Court Bolsters Policyholders in Bad Faith Cases.” This article discusses actions an insurer…

Blog Posts | Not so Fast! The Confession of Judgment Doctrine in Dispute-Over-Amount Cases

Aug 16, 2018 | By Matthew Lavisky

Florida law allows an insured to recover attorney’s fees if the insured prevails in a lawsuit against the insurer for insurance benefits. See § 627.428,…

Publications/ Whitepapers | Good-Faith Claim Handling In Florida

Feb 05, 2018 | By Timothy Engelbrecht, Matthew Lavisky

This article is originally a publication of Southern Loss Association, Newsletter February 2018. Legal opinions may vary when based on subtle factual differences. All rights reserved….

Blog Posts | Butler Wins Dismissal of a First-Party Bad Faith Claim Involving a Civil Remedy Notice That Listed a Different Household Policy

Jan 22, 2018 | By J. Pablo Cáceres

In Florida, an insured cannot bring a first-party bad faith claim based on a claim for UM coverage unless the insured first files a Civil…

Blog Posts | Federal Diversity Jurisdiction: Proving Citizenship of Limited Liability Companies

Mar 07, 2017 | By Hudson Jones

Jurisdiction gives a federal court the power to hear a case. Jurisdiction matters at the outset of a lawsuit. It matters during discovery. It even…

Publications/ Whitepapers | The Pitfalls Affecting Admission Of Expert Bad Faith Testimony Under Daubert

Nov 28, 2016 | By Ryan Hilton

This article originally appeared in Claims Management, a publication of the Claims & Litigation Management Alliance (CLM). Legal opinions may vary when based on subtle…

Blog Posts | Southern District Applies Fridman v. Safeco to Preclude Bifurcation

Apr 01, 2016 | By Julius “Rick” Parker III

Following the issuance of the Supreme Court’s decision in Fridman v. Safeco, the Southern District of Florida had occasion to consider a unique set of circumstances…

Blog Posts | Insured is Entitled to a Determination of Liability and Damages in a UIM Case Despite the Insurer’s Confession of Judgment

Mar 31, 2016 | By Julius “Rick” Parker III

The Florida Supreme Court recently resolved a conflict among Florida’s lower state and federal courts regarding an insured’s right to a determination of its damages…

Publications/ Whitepapers | Good Faith, Bad Faith: A Legal View

Mar 07, 2016

This article originally appeared in Insurance Committee for Arson Control (ICAC) publication. Any discussion on the subject of insurer bad faith can begin with the…

Extra-Contractual