“Do not blame anybody for your mistakes and failures”—good advice from Bernard Baruch, trusted adviser to President Franklin D. Roosevelt. This article asks the question: Should a liability insurer in Florida be allowed to blame retained defense counsel for the insurer’s bad faith? The answer is no. Both public policy and practical considerations, as expressed by the courts and legislature, provide that an insurer’s obligations of good faith are personal to the insurer and nondelegable. Florida courts should not sanction the transfer of the insurers’ good faith obligations to defense counsel.
A related issue is currently before the Florida Supreme Court. In Arch Insurance v. Kubicki Draper, the court will decide whether a liability insurer has standing to sue defense counsel for legal malpractice. Under Florida law, generally only clients have the right to sue an attorney for malpractice. The lower courts held that Arch, who was not the client, lacked standing to sue defense counsel. Arch argues that it is the injured party and that the lower courts’ rulings allow negligent defense counsel to escape responsibility.
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