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Notice: Proposed instruction dealing with med mal bad faith


Notice: Proposed instruction dealing with med mal bad faith

The Supreme Court Committee on Standard Jury Instructions in Civil Cases is presently considering an instruction on medical malpractice insurer’s bad faith failure to settle. After reviewing the comments received in response to this notice, the committee may submit its proposal to the Florida Supreme Court. Send all comments to Scott Makar, Committee Chair, Office of the Attorney General, # PL-01, The Capitol, Tallahassee 32399-1050. Comments also may be e-mailed to [email protected] or fax to (850) 410-2672. Comments must be received by December 1to ensure that they are considered by the committee.


In determining whether (defendant) acted in bad faith, you shall consider the following factors or circumstances;

[(defendant’s) willingness to negotiate with (claimant) in anticipation of settlement],
[the propriety of (defendant’s) methods of investigating and evaluating the claim of (claimant) ],
[whether (defendant) timely informed (insured) of an offer to settle within the limits of coverage, the right to retain personal counsel, and the risk of litigation],
[whether (insured) denied liability or requested that the case be defended after (defendant) fully advised (insured) as to the facts and risks],
[whether (claimant) imposed any condition, other than the tender of the policy limits, on the settlement of the claim],
[whether (claimant) provided relevant information to (defendant) on a timely basis],
[whether and when other defendants in the case settled or were dismissed from the case],
[whether there were multiple claimants seeking, in the aggregate, compensation in excess of policy limits from (insured) or from (defendant) ],
[whether (insured) misrepresented material facts to (defendant) or made material omissions of fact to (defendant)],
[and (list such additional factors as the court may determine to be relevant) ].


This instruction lists the factors that the jury “shall consider” under section 766.1185(2), Florida Statutes, and should be used only in cases to which that statute applies. It should be given in conjunction with and immediately after MI 3.1. The Committee recommends that specific factors should be omitted from the instruction when they are not an issue in the case.

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