DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CARLA BAY,

Appellant,

v.

UNITED SERVICES AUTOMOBILE ASSOCIATION,

Appellee.

No. 4D19-3332

[October 21, 2020]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Michael A. Robinson, Judge; L.T. Case No. CACE18-

023962.

George A. Vaka and Nancy A. Lauten of Vaka Law Group, Tampa, and 

Kelly L. Kubiak of Merlin Law Group, Tampa, for appellant.

Kansas R. Gooden of Boyd & Jenerette, P.A., Miami, and Kristen M. 

Van Der Linde of Boyd & Jenerette, P.A., Jacksonville, for appellee.

GERBER, J.

The insured appeals from the circuit court’s final order granting the

insurer’s motion to dismiss her amended complaint for bad faith with 

prejudice. She argues the circuit court erred in finding her civil remedy 

notice was ineffective as a matter of law because she misidentified the 

insurer as “USAA Casualty Insurance Company” instead of “United States 

Automobile Association” or “USAA.” She also argues the circuit court 

further erred in not finding the insurer waived this argument by not raising 

the argument in its response to the civil remedy notice.

While we agree with the circuit court’s finding that the misidentification

failed to strictly comply with section 624.155, Florida Statutes (2017), we 

conclude the circuit court erred in not finding that the insurer waived this 

argument by not raising the argument in its response to the civil remedy 

notice. Therefore, we reverse the circuit court’s final order granting the 

insurer’s motion to dismiss the insured’s amended complaint for bad faith 

with prejudice.
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We present this opinion in six parts:

1. The insured’s amended complaint;

2. The insurer’s motion to dismiss;

3. The insured’s response to the motion to dismiss;

4. The circuit court’s order granting the motion to dismiss;

5. The parties’ arguments on appeal; and

6. Our review.

1. The Insured’s Amended Complaint

The insured’s amended complaint alleged as follows. The insured 

purchased a homeowner’s policy which insured her home. While the 

policy was in effect, a hurricane damaged the insured’s home. The insured 

timely reported the loss to the insurer. According to the insured, the 

insurer then “grossly undervalued the claim,” “admitted that the loss was 

covered but underpaid the claim,” and “refused to negotiate the damages.” 

An appraisal panel found damages in the insured’s favor, further 

supporting the insured’s allegation that the insurer “lowballed this claim.”

The amended complaint further alleged that, as a condition precedent 

to bringing the bad faith action, the insured had filed a civil remedy notice 

with the Department of Financial Services and the insurer. The 

Department accepted the civil remedy notice, and the insurer filed a 

response to the civil remedy notice. Within sixty days of the Department’s 

acceptance of the civil remedy notice, the insurer “did not pay damages or 

correct the circumstances” leading to the civil remedy notice. Thus, 

according to the insured, the insurer committed bad faith in adjusting the 

insured’s claim, in violation of sections 624.155(1)(b)1. and 626.9541(1)(i), 

Florida Statutes (2017). 

The insured’s civil remedy notice, and the insurer’s response thereto, 

both of which were attached to the insured’s amended complaint, are 

pivotal to this appeal.

The insured’s civil remedy notice misidentified the insurer as “USAA 

Casualty Insurance Company.” (The insured’s policy was with “United 

Services Automobile Association,” also known simply as “USAA”). 

The insurer’s online response was completed by a person whose user 

ID ended with the domain name “usaa.com,” without any further 

identifying information as to which USAA entity he represented. The 

response stated:
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As an initial matter, the CRN lacks the specificity required 

by §624.155(3)(b), Fla. Stat. The Department of Financial 

Services should have rejected and returned the CRN based 

upon that deficiency. Further, the CRN fails to provide certain 

facts and circumstances giving rise to [the insured’s] stated 

allegations. Notwithstanding the lack of specificity, and 

without waiving any objections to, or remedies or defenses 

available to USAA because of those deficiencies or otherwise, 

USAA denies each and every allegation of insurer violation or 

wrongdoing set forth in the CRN. USAA has complied with the 

provisions of its policy and Florida law in addressing the 

above[-]referenced claim.

USAA received notice of this loss, due to Hurricane Irma, 

on 09-16-17. The applicable Hurricane Deductible, under the 

subject policy, is $8,000.

USAA inspected the loss location, and the damage claimed, 

on 09-28-17.

The total covered damage captured by USAA was noted as 

$3,111.55 under Dwelling Coverage and $162.94 under Other 

Structures Protection Coverage for a gross total of $3,274.49 

in covered damage.

The total covered damage does not exceed our insured’s 

noted $8,000 Hurricane Deductible for this loss.

USAA issued a written formal denial for this loss, to our 

insured, due to the loss having not exceeded the referenced 

Hurricane Deductible on 10-06-17.

USAA Field Appraiser [name deleted] re-inspected this loss 

on 12-07-17 and again, noted that potential covered damages 

did not exceed the noted applicable Hurricane Deductible. 

[The field appraiser] is currently assigning an engineer to 

examine the purported scope of damages claimed.

As can be seen above, the insurer identified itself as “USAA” eight times 

in its response, but did not argue the insured’s civil remedy notice was 

deficient because the insured had misidentified the insurer as the separate 

entity known as “USAA Casualty Insurance Company.” Instead, the 

insurer’s response argued other alleged deficiencies in the civil remedy 

notice, and otherwise disputed the insured’s claim on the merits.
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2. The Insurer’s Motion to Dismiss

The insurer filed a motion to dismiss the insured’s amended complaint 

with prejudice on two grounds: (1) the insured failed to file the civil remedy 

notice against the proper entity; and (2) the insured’s amended complaint 

failed to state a cause of action.

On the first ground, the insurer argued “[t]he property was insured by 

UNITED SERVICES AUTOMOBILE ASSOCIATION (‘USAA’),” but the 

insured filed the civil remedy notice “against the incorrect entity, USAA 

CASUALTY INSURANCE COMPANY (‘USAA CIC’).” The insurer further 

argued:

USAA, the correct entity, timely responded to the CRN to 

protect its interests but the response is in no way a waiver of 

the statutory requirements of section 624.155. ... USAA was 

not afforded proper notice and time to cure any alleged bad 

faith violations because [the insured] failed to strictly comply 

with the requirements of section 624.155. Thus, [the 

insured’s] Amended Complaint should be dismissed with 

prejudice.

To support the argument that a court could dismiss a bad faith action 

where the insured failed to file the civil remedy notice against the correct 

entity, the insurer relied upon two federal district court cases – Lopez v. 

Geico Casualty Co., 968 F. Supp. 2d 1202 (S.D. Fla. 2013) (dismissing the 

insured’s bad faith action against her insurer, because the insured filed 

her civil remedy notice against the insurer’s related entity, not her insurer), 

and Sandalwood Estates Homeowner’s Association v. Empire Indemnity 

Insurance Co., 665 F. Supp. 2d 1355 (S.D. Fla. 2009) (dismissing the 

insured’s bad faith action against its insurer’s parent company, because 

the insured filed its civil remedy notice against its insurer, not the insurer’s 

parent company).

On the second ground of failure to state a cause of action, the insurer 

argued the insured’s civil remedy notice had “failed to state with specificity 

the facts and circumstances giving rise to the alleged violation as required 

by section 624.155(3)(b)(2).”

3. The Insured’s Response to the Motion to Dismiss

The insured filed an amended response to the insurer’s motion to 

dismiss. In the amended response, the insured raised three arguments: 
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(1) the insurer had waived any right to attack the civil remedy notice’s 

insufficiency as to both the insurer’s name and the insurer’s alleged 

statutory violations; (2) the Department’s acceptance of the civil remedy 

notice demonstrated the insured satisfied the statutory requirements for 

a sufficient notice; and (3) the civil remedy notice was sufficient on its face.

To support the first argument, the insured cited the following facts:

USAA’s response did not dispute that USAA received the 

CRN filed by [the insured] despite that [the insured] wrote 

“USAA Casualty Insurance Company” once in the CRN. In 

fact, USAA called itself “USAA” throughout its own response 

and likewise did not object to, or otherwise dispute, the entity 

name or name of the claimant. No dispute was raised as to 

the accuracy of the claim or policy number. USAA never even 

alleged that it could not identify the claimant or policy at 

issue.

Instead, USAA submitted a response to the CRN that cited 

to its own policy provisions and named the field inspector who 

inspected the Property. The CRN even acknowledged that 

USAA inspected the property on September 28, 2017.

Based on those facts, after citing the common law definition and 

elements of “waiver,” the insured argued:

USAA could have notified [the Department] of its specific 

objection(s) to the CRN but [USAA] did not do so. Instead, 

USAA responded to the CRN. [USAA] acknowledged receipt 

of the notice of violations and identified the correct policy and 

claim. [USAA] even admitted to having notice of the reported 

claim by describing the inspections USAA performed at the 

property by the field adjuster. Here, because [USAA] failed to 

raise these challenges with the [Department], and even 

acknowledged its receipt of the CRN, USAA effectively waived 

its right to such a challenge. [USAA] cannot do so now.

The insured later supplemented its amended response to the insurer’s 

motion to dismiss by filing this court’s opinion in Evergreen Lakes HOA, 

Inc. v. Lloyd’s Underwriters at London, 230 So. 3d 1 (Fla. 4th DCA 2017) 

(reversing order granting insurer’s motion for summary judgment, which 

had argued the insured had not timely served its civil remedy notice to the 

insurer, because the record indisputably established the insurer had 

received and responded to the civil remedy notice, without challenging the 
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timing of its service upon the insurer, four years before the insured filed 

its bad faith action).

4. The Circuit Court’s Order Granting the Motion to Dismiss

The circuit court entered an order granting the insurer’s motion to 

dismiss the insured’s amended complaint for bad faith with prejudice. 

The circuit court found the insurer “was not afforded proper notice and 

time to cure any alleged bad faith actions because [the insured] failed to 

strictly comply with the requirements of section 624.155.” More 

specifically, the circuit court found the insured “failed to file the CRN in 

accordance with section 624.155(3) by filing against the incorrect entity.” 

To support its finding, the circuit court quoted Lopez:

Because Fl. Stat. § 624.155 is in derogation of the common 

law, it must be and has been strictly construed by the courts. 

Accordingly, where an insured fails to file a CRN in accordance 

with Fla. Stat. § 624.155(3), her statutory bad faith claim will 

be dismissed. ...

Courts have interpreted the civil remedy notice 

requirement so strictly that they have dismissed bad faith 

actions against insurers where no CRN has been filed against 

them even though a CRN has been filed against a related 

entity.

(quoting Lopez, 968 F. Supp. 2d at 1208-09, and omitting the internal 

citations). The circuit court also stated it had looked to Sandalwood’s 

reasoning that “‘[t]he CRN is crucial to the procedural integrity of a 

statutory bad faith claim’ because the CRN’s purpose is to provide the 

insurer time to cure any bad faith allegations.” (quoting Sandalwood, 665 

F. Supp. 2d at 1361, and omitting the internal citations).

5. The Parties’ Arguments on Appeal

This appeal followed. The insured’s initial brief summarizes her 

argument for reversal, in pertinent part, as follows:

[The insurer] never established or even claimed that it was 

prejudiced by the incorrect entity being named on the CRN. It 

simply denied the claim, continued to contend the loss did not 

exceed the insurance policy’s deductible, and never attempted 

a cure. Second, [the insurer] had actual notice of [the 

insured’s] CRN within the cure period, and timely responded 
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to [the CRN]. Thus, to the extent §624.155(3)(a), Fla. Stat., 

may require service of the CRN on the insurer, that was 

accomplished in this case regardless of the correctness of the 

listed entity. Third, [the insurer] waived any claimed 

misnomer defect in the CRN by timely responding to the CRN 

without any objection, and thus, is estopped from asserting 

such defects as a basis for invalidating the CRN and the 

subsequently filed bad faith lawsuit. Fourth, [the insurer’s] 

failure to note any name defect in the CRN in its timely 

response, and failure to bring the defect to the attention of 

[the insured] for over a year and a half, warrant application of 

equitable estoppel principles.

In response, the insurer’s answer brief argues the circuit court properly 

dismissed the insured’s bad faith action for three reasons: (1) the CRN 

was filed against a different insurance company, and therefore the insured 

failed to satisfy the condition precedent of filing a CRN against the insurer; 

(2) the CRN was legally insufficient as it lacked the specificity which 

section 624.155 requires; and (3) the insurer could not cure the CRN 

because the insured never filed a CRN against it. The insurer summarizes 

its first argument, in pertinent part, as follows:

[The insured] failed to file a CRN against United Service[s] 

Automobile Association. Instead, [the insured] filed a CRN 

against USAA Casualty Insurance Company. This is 

insufficient to pursue a bad faith claim against United 

Services Automobile Association. Since section 624.155, 

Florida Statutes, must be strictly construed, [the insured] did 

not meet all conditions precedent to maintain this action.

Specifically, section 624.155, Florida Statutes, provides: 

“As a condition precedent to bringing an action under this 

section, the department and the authorized insurer must have 

been given 60 days’ written notice of the violation.” § 

624.155(3)(a), Fla. Stat. The use of the word “the” indicates 

that the CRN must be filed against the singular (and 

presumably the correct) insurance company. [The insured] 

did not strictly comply with this notice requirement and her 

lawsuit was properly dismissed by the trial court.

United Services Automobile Association did not waive its 

right to dispute the CRN. While United Services Automobile 

Association had notice of the violations against USAA 

Casualty Insurance Company, United Services Automobile 
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Association did not have any notice of any allegations against 

it. Filing against one corporate entity cannot be imputed to 

another separate entity.

6. Our Review

Our standard of review is de novo. See Diamond Aircraft Indus., Inc. v. 

Horowitch, 107 So. 3d 362, 367 (Fla. 2013) (“The issue before this Court 

is a matter of statutory construction, which we review de novo.”); Burgess 

v. N. Broward Hosp. Dist., 126 So. 3d 430, 433 (Fla. 4th DCA 2013) (“The 

standard of review of orders granting motions to dismiss with prejudice is 

de novo.”).

Section 624.155(3)(a), Florida Statutes (2017), provides in pertinent 

part that, “[a]s a condition precedent to bringing an action under this 

section, the department and the authorized insurer must have been given 

60 days’ written notice of the violation.” “Because this statute is in 

derogation of the common law,” the Florida Supreme Court has directed 

that “it must be strictly construed.” Talat Enters., Inc. v. Aetna Cas. & Sur. 

Co., 753 So. 2d 1278, 1283 (Fla. 2000); see also Evergreen Lakes HOA, Inc.

v. Lloyd’s Underwriters at London, 230 So. 3d 1, 2 (Fla. 4th DCA 2017) 

(recognizing Talat’s instruction that the statute’s “notice condition ‘must 

be strictly construed’”).

However, “one can waive any contractual, statutory or constitutional 

right.” Miami Dolphins, Ltd. v. Genden & Bach, P.A., 545 So. 2d 294, 296 

(Fla. 3d DCA 1989) (citations omitted). “The doctrine of waiver can 

encompass not only the intentional or voluntary relinquishment of known 

rights, but also conduct that warrants an inference of the relinquishment 

of those rights.” Id. (citations omitted).

As we held in Evergreen Lakes, an insurer can waive compliance with 

the statutory notice requirements of a bad faith action if not raised. In 

that case, discovery revealed the insured may have mailed the civil remedy 

notice to the wrong address. 230 So. 3d at 2. That violated section 

624.155, because written notice to the “authorized insurer” must be given 

as a condition precedent. Id. at 3. However, we held the insurer “waived 

compliance with any such requirement by responding to the CRN ... 

without challenging its timely receipt of the CRN.” Id. (citations omitted).

Similarly, here, the insured failed to satisfy the condition precedent of 

bringing a bad faith action against the “authorized insurer” by 

misidentifying the insurer as “USAA Casualty Insurance Company” in the 

civil remedy notice. § 624.155(3)(a), Fla. Stat. (2017). However, the 
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insurer waived the failure of the condition precedent by not raising the 

misidentification in its response to the civil remedy notice. The insurer 

conceded to the circuit court that “USAA, the correct entity, timely 

responded to the CRN to protect its interests.”

The circuit court here, without acknowledging Evergreen Lakes, instead 

relied upon the Southern District’s decisions in Lopez and Sandalwood. 

Both cases are distinguishable. Neither opinion indicates that after the 

insured had filed the civil remedy notice against the wrong entity, the 

proper entity filed a response disputing the notice’s merits but without 

disputing the notice’s misidentification of the proper entity. Here, in 

contrast, the proper entity “USAA” filed a response alleging deficiencies in 

the civil remedy notice, and otherwise disputing the insured’s claim on the 

merits, but without disputing the notice’s misidentification of “USAA 

Casualty Insurance Company” as the proper entity. Thus, the insurer

waived the civil remedy notice’s failure to properly identify the insurer. 

Accordingly, the circuit court erred in dismissing the action because of the 

misidentification.

Based on the foregoing, we reverse the circuit court’s final order 

granting the insurer’s motion to dismiss the insured’s amended complaint 

for bad faith with prejudice. Although the parties argued before the circuit 

court whether the civil remedy notice was sufficiently specific, the circuit 

court’s order granting the insurer’s motion to dismiss did not address 

those arguments. Thus, we remand for the circuit court to rule on that 

portion of the motion to dismiss arguing the civil remedy notice was not 

sufficiently specific, and for any further proceedings consistent therewith. 

See Landers v. State Farm Fla. Ins. Co., 234 So. 3d 856, 858 n.5 (Fla. 5th 

DCA 2018) (“[The insurer] argues alternatively that the CRN was invalid 

because it failed to comply with the bad-faith statute. Because we cannot 

determine whether the court ruled on this basis, we decline to address this 

issue for the first time on appeal. ... Therefore, ... [this] issue[] may be 

addressed on remand.”).

Reversed and remanded for proceedings consistent with this opinion.

WARNER and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.