Attention liability insurers and their counsel – the Florida Supreme Court has given the green light to immediate appeals of non-final orders that determine the existence and enforceability of settlement agreements.

The Florida Supreme Court issued its regular cycle report containing amendments to the Florida Rules of Appellate Procedure. In Re: Amendments To The Florida Rules Of Appellate Procedure—2017 Regular-Cycle Report, No. SC17-152 (Fla. October 25, 2018).

In this year’s report, the Florida Supreme Court has expanded the appellate jurisdiction of district courts of appeal in a way that is significant to insurers, and especially liability insurers. The new rule is this: “[N]on-final orders that determine, as a matter of law, that a settlement agreement is unenforceable, is set aside, or never existed” may now be appealed immediately.

The pre-suit negotiation process to resolve bodily injury claims often ends with a disagreement as to whether the insurer has satisfied all aspects of the injured party’s settlement demands. The parties often dispute that a settlement on behalf of the policyholder has been achieved.

The injured party may assert no that settlement was reached, or has become unenforceable. Suit against the policyholder may follow.

The question then arises: How does the insurer, on behalf of the insured, prove an enforceable settlement exists? The trial court in the bodily injury suit might determine the question, but the question isn’t really answered until an appellate court reviews the decision. Before this rule change, such appellate review would occur at the conclusion of the bodily injury suit.

A  petition for writ of certiorari, being discretionary with the appellate court, and subject to a stricter standard of proof, is no substitute for immediate appellate review, granted as a matter of right.

The new rule, 9.130(a)(3)(C)(xii), changes all that. Immediate review of the trial court’s order is now a right. The new rule becomes effective January 1, 2019. 

Insurers and their counsel should assure their presuit negotiations are properly documented; the defense of settlement is properly pleaded; and that dispositive motions for summary judgment based on settlement are drafted with an eye to immediate appeal under this new rule.