USA – FLORIDA Trends and Developments Contributed by: John David Dickenson, Nicole Connors and Juan Garrido, Cozen O’Connor
coverage defences before compelling appraisal of the amount of loss. The Court held that a trial court has discretion to compel appraisal before ruling on a pending cover- age defence, even where the insurer alleges fraud or a material misrepresentation that could void the policy. In approving this “dual-track” approach, the Court rejected the stricter coverage-first rule. Apprais- al remains appropriate only where there is a genuine dispute over the amount of loss, while questions of coverage remain for the court or jury. An appraisal panel cannot determine whether a policy should be voided. With that sequencing rule established, the 2026 deci- sions have begun to define its practical operation, showing that courts will strictly enforce the applicable policy language and statutory framework. In Citizens Property Insurance Corporation v Diaz , 435 So. 3d 1193 (Fla. 3d DCA 2026), the Third District held that an insurer’s own appraisal demand did not trigger the appraisal process because it failed to comply with the policy, which required an estimate of the disputed amount and an itemised description of the damage. In a related development, Hien Tang v Citizens Property Insurance Corporation , 432 So. 3d 674 (Fla. 3d DCA 2026) confirmed that Citizens may require disputes concerning coverage, scope and value to be resolved before the Division of Administrative Hearings. An out- right denial of the claim did not waive that right. Whether an insurer has waived appraisal remains highly dependent on the facts. In People ’ s Trust Insur- ance Company v Fernandez , No 5D2025-3174, 2026 WL 2274107 (Fla. 5th DCA 2026), the Fifth District reversed a finding of waiver, holding that an insurer did not act inconsistently with its appraisal right where it pleaded appraisal as an affirmative defence and promptly moved to compel it. The forward-looking question returns to San Marco. The court relied in part on the absence of policy lan- guage governing the timing of appraisal. That rea- soning may encourage insurers to adopt express sequencing provisions. It also leaves unresolved whether compelling a full appraisal is appropriate after
an insurer has denied a claim entirely on coverage grounds. Modified Comparative Fault: A Hard Cut-Off for Claimants More Than 50% at Fault Florida’s shift from pure to modified comparative fault is the tort-reform change with the broadest application to liability claims. Under Section 768.81 of the Florida Statutes, a claimant found more than 50% at fault for his or her own harm may not recover damages. The change applies to causes of action filed on or after 24 March 2023, while cases filed earlier remain subject to Florida’s former pure-comparative-fault regime. See Gonzalez v Seabest , Inc ., No 22-cv-62403-ALTMAN/ Strauss, 2024 U.S. Dist. LEXIS 141014 (S.D. Fla. Aug. 7, 2024). The apportionment framework underlying the new bar remains largely unchanged. The factfinder allo- cates fault among those who contributed to the harm, including qualifying non-party “Fabre” tortfeasors, with the percentages totalling 100%. Each liable party generally pays only its allocated share because Flor- ida has abolished joint and several liability. See Mil- lette v Tarnove , 435 F. App’x 848 (11th Cir. 2011). The statute contains one express exception: the bar does not apply to medical-negligence actions governed by Chapter 766 of the Florida Statutes. A developing issue lies at the intersection of fault allocation and vicarious liability. Where an employer’s liability is based on a theory such as negligent hiring, Florida authority has generally treated that exposure as derivative of the employee’s conduct rather than as a separate share of independently allocable fault. See Grobman v Posey , 863 So. 2d 1230 (Fla. 4th DCA 2003). In Jackson v Shipes , No 4:25cv225-RH-MAF, 2026 LX 164128 (N.D. Fla. Feb. 27, 2026), a federal court applying Florida law predicted that an additional share of fault could not be assigned to the employer on top of the employee’s share, while acknowledging that the Florida Supreme Court has not squarely resolved the issue. The question bears watching because its reso- lution will affect whether, and to what extent, fault and resulting exposure may be allocated among defend- ants in multiparty liability cases.
317 I NSURANCE L I T IGATI O N 2026
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