source: Caselaw Access Project

author: QUINCE, J.

license: Public Domain

text:
    QBE INSURANCE CORPORATION, Appellant, v. CHALFONTE CONDOMINIUM APARTMENT ASSOCIATION, INC., Appellee.
    No. SC09-441.
    Supreme Court of Florida.
    May 31, 2012.

      Raoul G. Cantero, III, of White and Case, LLP, Miami, FL, Rodolfo Sorondo, Jr. and Monica Vila of Holland and Knight LLP, Miami, FL, and William S. Berk of Berk Merchant and Sims, PLC, Coral Gables, FL, for Appellant.
    Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, FL, Daniel S. Rosenbaum and John M. Siracusa of Rosenbaum Mollengarde, et ah, West Palm Beach, FL, Pamela Jo Bon-di, Attorney General, Tallahassee, FL, and Richard C. Valuntas, Assistant Attorney General, West Palm Beach, FL, for Appel-lee.
    Anthony J. Russo of Butler, Pappas, Weihmuller, Katz, Craig, LLP, Tampa, Florida, and Caryn L. Bellus of Kubicki, Draper, P.A., Miami, Florida, on behalf of Florida Defense Lawyers Association and Federation of Defense and Corporate Counsel; William F. Merlin, Jr. and Mary Kestenbaum Fortson of Merlin Law Group, P.A., Tampa, Florida, on behalf of United Policyholders’; and Stephen A. Marino, Jr. and Danya J. Pincavage of Ver Ploeg & Lumpkin, P.A., Miami, Florida, on behalf of Florida Justice Association, as Amicus Curiae.
   QUINCE, J.

This case is before the Court for review of five questions of Florida law certified by the Eleventh Circuit Court of Appeals as being determinative of a cause pending in that court and for which there appears to be no controlling precedent. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const. Based on the facts and analysis outlined below, we answer the first, third, fourth, and fifth questions certified by the Eleventh Circuit in the negative. In doing so, we need not reach the second certified question.

FACTS

This action arises from an appeal to the United States Court of Appeals for the Eleventh Circuit wherein the plaintiff-ap-pellee and cross-appellant Chalfonte Condominium Apartments Association, Inc. (Chalfonte) appealed the dismissal of claims under section 627.701(4)(a), Florida Statutes (2009), and the denial of a motion to enforce execution of the judgment, and the defendant-appellant and cross-appellee QBE Insurance Corporation (QBE) appealed the denial of motions for a new trial and for judgment as a matter of law.

The facts in this ease are succinctly set forth in Chalfonte Condominium, Apartment Ass’n v. QBE Insurance Corp., 561 F.3d 1267, 1269-70 (11th Cir.2009):

On October 24, 2005, Hurricane Wilma struck Boca Raton, Florida, causing significant damage to property owned by Chalfonte. Shortly thereafter, Chal-fonte filed a claim with QBE, its property insurer, pursuant to an insurance policy (the “Policy”) providing property coverage to Chalfonte for the twelve month period commencing January 1, 2005. Chalfonte submitted an estimate of damages to QBE on December 18, 2005, and then submitted a sworn proof of loss to QBE on July 12, 2006. Dissatisfied with QBE’s investigation and processing of its claim, Chalfonte filed suit in the United States District Court for the Southern District of Florida.
In the district court, Chalfonte raised claims for declaratory judgment (Count I), breach of contract — failure to provide coverage (Count II), breach of contract — breach of the implied warranty of good faith and fair dealing (Count III), and violation of Fla. Stat. § 627.701(4)(a) (Count IV). The district court dismissed Count IV of the complaint, concluding that § 627.701 does not provide a private right of action, and then held a jury trial on Chalfonte’s remaining claims. The jury found for Chalfonte on all of its claims, awarding Chalfonte $7,868,211 for QBE’s failure to provide coverage ($2,000,000 of which was awarded for “ordinance or law” coverage) and $271,888.68 for breach of the implied warranty of good faith and fair dealing, for a total award of $8,140,099.68. The jury also concluded that the Policy did not comply with § 627.701(4)(a).
The district court entered a final judgment in favor of Chalfonte in the amount of $8,140,099.68, with post-judgment interest accruing in accordance with 28 U.S.C. § 1961. QBE then filed a motion for judgment as a matter of law, a motion for a new trial, and a motion to alter or amend the judgment. The district court denied QBE’s motions for judgment as a matter of law and for a new trial, but granted QBE’s motion to amend the judgment by applying the hurricane deductible contained in the Policy despite the jury’s conclusion that the Policy did not comply with the requirements for hurricane deductible provisions set forth in § 627.701(4)(a).
Chalfonte also filed a motion to amend the final judgment. The district court granted Chalfonte’s motion to amend the judgment to include prejudgment interest and calculated prejudgment interest for the period beginning August 1, 2006, twenty days after Chalfonte submitted a sworn proof of loss, and ending September 6, 2007, the date that judgment was entered. On December 18, 2007, the district court entered an amended final judgment in favor of Chalfonte in the amount of $7,237,223.88, with post-judgment interest accruing in accordance with 28 U.S.C. § 1961. QBE filed a notice of appeal of the amended final judgment and posted a supersedeas bond amounting to 110% of the amended final judgment.

Id. (footnote omitted). Chalfonte moved to enforce the judgment, claiming that the policy waived QBE’s right to stay execution and obligated QBE to pay Chalfonte within thirty days of the judgment. In support of this motion, Chalfonte relied on the following provision in the insurance policy:

Provided you have complied with all the terms of the Coverage Part, we will pay for covered loss or damage: ... (2) Within 30 days after we receive the sworn proof of loss and: (a) There is an entry of final judgment....

The district court rejected Chalfonte’s argument, finding that QBE had complied with the applicable procedural rules in filing its supersedeas bond and had not waived its right to a stay under the policy. On appeal, the Eleventh Circuit deemed it necessary to certify five questions to this Court, noting that “Florida courts have not definitively answered these questions.” The Eleventh Circuit asks:

1. Does Florida law recognize a claim for breach of the implied warranty of good faith and fair dealing by an insured against its insurer based on the insurer’s failure to investigate and assess the insured’s claim within a reasonable period of time?
2. If Florida law recognizes a claim for breach of the implied warranty of good faith and fair dealing based on an insurer’s failure to investigate and assess its insured’s claim within a reasonable period of time, is the good faith and fair dealing claim subject to the same bifurcation requirement applicable to a bad faith claim under Fla. Stat. § 624.155? 8. May an insured bring a claim against an insurer for failure to comply with the language and type-size requirements established by Fla. Stat. § 627.701(4)(a)?
4. Does an insurer’s failure to comply with the language and type-size requirements established by Fla. Stat. § 627.701(4)(a) render a noncompliant hurricane deductible provision in an insurance policy void and unenforceable?
5. Does language in an insurance policy mandating payment of benefits upon “entry of a final judgment” require an insurer to pay its insured upon entry of judgment at the trial level?

Id. at 1274-75. We address each question in turn below by reviewing the history of the law and analyzing its application to the certified questions.

ANALYSIS

This Court has recounted the evolution of insurance contract litigation in Florida in a number of its previous cases. See, e.g., Allstate Indem. Co. v. Ruiz, 899 So.2d 1121, 1125-1129 (Fla.2005); Talat Enters., Inc. v. Aetna Cas. & Sur. Co., 758 So.2d 1278, 1281 (Fla.2000); State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 58-59 (Fla.1995). Until the twentieth century, actions for breaches of insurance contracts were treated the same as any other breach of contract action. Laforet, 658 So.2d at 58. However, as insurance took on a larger institutional role and liability policies began to replace traditional indemnity polices as the standard policy form, insurance contracts began to be seen as distinguishable from other types of contracts. Id. Under the liability policies, insurance companies took on the obligation of defending the insured and the power to settle or refuse to settle a claim. Id. In light of this, courts began to recognize that insurers owed a duty to their insureds to refrain from acting solely in the insurers’ own interests in settlement. Id. “This concern gave life to the concept that insurance companies had an obligation of good faith and fair dealing.” Ruiz, 899 So.2d at 1125; see also Laforet, 658 So.2d at 58 (“This duty became known as the ‘exercise of good faith’ or the ‘avoidance of bad faith.’ ”).

For many years, Florida courts imposed an independent duty on liability insurers to act in good faith when defending insureds against third-party claims, see, e.g., Butchikas v. Travelers Indem. Co., 343 So.2d 816, 817-18 (Fla.1976), and recognized a common law cause of action for bad faith within the context of third-party actions. Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980). In fact, Florida common law recognized third-party bad-faith actions involving insurance as early as 1938. See Auto Mut. Indem. Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938). These third-party bad-faith actions involved a claim “in which an insured sues his liability insurance company for bad faith in failing to settle a claim which ultimately results in a third-party judgment against him in excess of the policy limits.” Time Ins. Co. v. Burger, 712 So.2d 389, 391 (Fla.1998). Even though the bad faith occurred between an insurer and its insured, Florida courts have also allowed the injured third party to bring a bad-faith action directly against the first party’s insurer without an assignment of the cause of action by the insured first party. See Thompson v. Commercial Union Ins. Co. of New York, 250 So.2d 259 (Fla.1971).

However, at the time, no analogous bad-faith action existed for first-party claimants in Florida common law. Ruiz, 899 So.2d at 1125; Laforet, 658 So.2d at 59. Florida was among a number of states upholding a distinction between the duty owed to first- and third-party claimants, with insurers owing no fiduciary duty in first-party claims because their legal relationship was that of “debtor and creditor.” Baxter v. Royal Indem. Co., 285 So.2d 652, 657 (Fla. 1st DCA 1973).

In 1982, the Legislature enacted section 624.155 of the Florida Statutes, the so-called “Bad Faith Statute.” See ch. 82-243, § 9, Laws of Fla. This statute was “designed and intended to provide a civil remedy for any person damaged by an insurer’s conduct.” Ruiz, 899 So.2d at 1124. Section 624.155(l)(b)l, Florida Statutes (2009), provides:

(1) Any person may bring a civil action against an insurer when such person is damaged:
(b) By the commission of any of the following acts by the insurer:
1. Not attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests....

Thus, section 624.155(l)(b)l created a statutory first-party bad-faith cause of action and codified prior decisions authorizing a third party to bring a bad-faith action under the common law. Talat, 753 So.2d at 1283 (“[T]he civil remedy provided in subdivision (l)(b)l was not in existence for first-party insureds before the adoption of the civil remedy statute.”); State Farm Fire & Cas. Co. v. Zebrowski, 706 So.2d 275, 277 (Fla.1997) (concluding that the statute “authorizes a third party to file a bad-faith claim directly against the liability insurer without an assignment by the insured upon obtaining a judgment in excess of the policy limits”); Macola v. Gov’t Emps. Ins. Co., 953 So.2d 451, 456 (Fla.2006) (explaining that statute also codified the Court’s prior decisions authorizing a third party to bring a bad-faith action under the common law). “Therefore, the same obligations of good faith that existed for insurers dealing with their insureds in the third-party context were extended by statute to the first-party context.” Macó-la, 953 So.2d at 456.

Since the statute’s enactment, both federal and Florida courts have found that section 624.155 extends bad-faith actions to the first-party context. See, e.g., Jones v. Continental Ins. Co., 920 F.2d 847, 849 (11th Cir.1991) (citing a number of cases in which the courts have reached this conclusion); Porcelli v. OneBeacon Ins. Co., 635 F.Supp.2d 1312, 1316 (M.D.Fla.2008); Laforet, 658 So.2d at 58-59; Opperman v. Nationwide Mut. Fire Ins. Co., 515 So.2d 263, 265-66 (Fla. 5th DCA 1987); see also United Guar. Residential Ins. Co. of Iowa v. Alliance Mortg. Co., 644 F.Supp. 339, 341 (M.D.Fla.1986) (“The language of section 624.155 indicates that the overall purpose of the legislature was to impose civil liability on insurers who act inequitably vis-a-vis their insureds, not simply to restate or clarify the common law.”).

Relevant legislative history also supports the conclusion that there was no first-party bad-faith action prior to the enactment of section 624.155. A 1982 Staff Report to the House Committee on Insurance states that section 624.155 “requires insurers to deal in good faith to settle claims. Current case law requires this standard in liability claims, but not in insured motorist coverage; the sanction is that a company is subject to a judgment in excess of policy limits. This section would apply to all insurance policies.” Fla. H.R. Comm, on Ins., HB 4-F(1982), Staff Analysis 12 (June 3, 1982) (on file with Florida State Archives). “This language indicates the Legislature recognized that prior to this statute, case law did not permit first parties, such as those covered under uninsured motorists policiés, to sue their insurance companies for bad faith refusal to pay claims.” Rowland v. Safeco Ins. Co. of America, 634 F.Supp. 613, 615 (M.D.Fla.1986).

Based on this case law and legislative history, it is clear that there is no common law first-party bad-faith action in Florida. However, Chalfonte asserts that its claim for a violation of the implied contractual warranty of good faith and fair dealing is not the same as a bad-faith claim by a first party. Chalfonte cites a number of federal cases in which the courts have recognized a separate common law claim for breach of the implied warranty of good faith and fair dealing. See, e.g., Townhouses of Highland Beach Condo. Ass’n v. QBE Ins. Corp., 504 F.Supp.2d 1307, 1311 (S.D.Fla.2007) (explaining that this action “relates to the express contractual provision breached and does not contemplate the parties’ wrongful conduct, only whether a contractual term was breached and whether the parties’ reasonable contractual expectations have been thwarted”). Chalfonte also relies on the Third District Court of Appeal’s decision in O’Shields v. United Automobile Insurance Co., 790 So.2d 570 (Fla. 3d DCA 2001), which is cited by the Eleventh Circuit in the instant case as “implicitly recognizing] that a good faith and fair dealing claim can be distinct from a statutory bad faith claim in a first-party action on an insurance contract.” Chalfonte, 561 F.3d at 1272.

In fact, other federal courts have disagreed and have determined that a breach of the implied covenant of good faith and fair dealing does not exist as a separate claim from a statutory bad-faith claim in first-party insurance claims in Florida. See Portofino South Condo. Ass’n v. QBE Ins. Corp., 664 F.Supp.2d 1265 (S.D.Fla.2009) (concluding that under Florida law a cause of action for breach of the implied warranty of good faith and fair dealing is subsumed in a bad-faith action pursuant to section 624.155); Nirvana Condo. Ass’n v. QBE Ins. Corp., 589 F.Supp.2d 1336, 1342 (S.D.Fla.2008) (dismissing a contractual claim for breach of implied warranty of good faith and fair dealing “as a matter of law” because the insured’s “relief for the unreasonable or untimely payment of its claim is limited to a section 624.155 action that does not ripen until [the coverage] litigation is concluded”); QBE Ins. Corp. v. Dome Condo. Ass’n, 577 F.Supp.2d 1256, 1261 (S.D.Fla.2008) (dismissing a claim for breach of the implied covenant of good faith and fair dealing because “no such cause of action exists under Florida law”); cf. Trief v. Am. Gen. Life Ins. Co., 444 F.Supp.2d 1268, 1270 (S.D.Fla.2006) (describing plaintiffs allegations regarding insurer’s failure to adjust, investigate, and pay claim as “resembling] a claim for statutory bad faith rather than one for breach of implied obligation of good faith” and dismissing it as premature until the underlying coverage dispute was determined). Further, as the Eleventh Circuit noted, the plaintiff in O’Shields “did not sue his insurer for failure to investigate and assess his claim within a reasonable time, but rather for failure to provide information relating to the settlement of his claim,” which was an express term of the insurance contract. Chalfonte, 561 F.3d at 1272. One Florida court has at least implicitly recognized that section 624.155 constituted a change in the law regarding first-party claims based on an insurance company’s bad-faith refusal to settle or pay claims. See Indus. Fire & Cas. Ins. Co. v. Romer, 432 So.2d 66, 67 n. 2 (Fla. 4th DCA 1983).

In most cases, federal courts that have dismissed breach of the implied warranty of good faith claims have concluded that no such cause of action exists in Florida. See Nirvana, 589 F.Supp.2d at 1340-42; Dome, 577 F.Supp.2d at 1260-61. Those federal courts that have not dismissed the implied warranty claims have relied on the general proposition that “[u]nder Florida law, the covenant of good faith and fair dealing is implied in every contract, requiring the parties to follow standards of good faith and fair dealing designed to protect the parties’ reasonable contractual expectations.” Townhouses of Highland Beach, 504 F.Supp.2d at 1310. But see Portofino, 664 F.Supp.2d at 1269 (concluding that federal cases that found a claim for breach of implied warranty of good faith and fair dealing to be separate and distinct from a cause of action for first-party bad faith had “incorrectly applied Florida law”).

Florida contract law does recognize an implied covenant of good faith and fair dealing in every contract. Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir.1999); Barnes v. Burger King Corp., 932 F.Supp. 1420, 1438 (S.D.Fla.1996); County of Brevard v. Miorelli Eng’g, Inc., 703 So.2d 1049, 1050 (Fla.1997); Ins. Concepts & Design, Inc. v. Healthplan Servs., Inc., 785 So.2d 1232, 1234-35 (Fla. 4th DCA 2001). This covenant is intended to protect “the reasonable expectations of the contracting parties in light of their express agreement.” Barnes, 932 F.Supp. at 1438. However, there are two limitations on such claims: (1) where application of the covenant would contravene the express terms of the agreement; and (2) where there is no accompanying action for breach of an express term of the agreement. Ins. Concepts, 785 So.2d at 1234. A duty of good faith must “relate to the performance of an express term of the contract and is not an abstract and independent term of a contract which may be asserted as a source of breach when all other terms have been performed pursuant to the contract requirements.” Id. (quoting Hosp. Corp. of Am. v. Fla. Med. Ctr., Inc., 710 So.2d 573, 575 (Fla. 4th DCA 1998)).

Despite this broad language, Florida courts have not found that this implied covenant creates a separate first-party action against an insurance company based on its bad-faith refusal to pay a claim. See, e.g., Romer, 432 So.2d at 67 (“Bad faith refusal to pay gives rise to a cause of action only if the facts involving the bad faith refusal amount to an independent tort such as fraud or intentional infliction of emotional distress.”).

In fact, this Court has repeatedly described the statutory bad-faith action with reference to the duty of good faith and fair dealing. See Ruiz, 899 So.2d at 1126 (explaining that the statutory remedy in section 624.155 “essentially extended the duty of an insurer to act in good faith and deal fairly in those instances where an insured seeks first-party coverage or benefits under a policy of insurance”) (emphasis added); Laforet, 658 So..2d at 59 (“Through this statute, the Legislature created a first-party bad faith cause of action by an insured against the insured’s uninsured or underinsured motorist carrier, thus extending the duty of an insurer to act in good faith to those types of actions.”) (emphasis added). Further, in discussing the legislative intent behind the enactment of section 624.155, this Court has repeatedly referred to the duty to act in good faith and to deal fairly. Ruiz, 899 So.2d at 1127 (“The Legislature has mandated that insurance companies act in good faith and deal fairly with insureds regardless of the nature of the claim presented, whether it be a first-party claim or one arising from a claim against an insured by a third party.”) (emphasis added); Id. at 1128 (“The Legislature has clearly chosen to impose on insurance companies a duty to use good faith and fair dealing in processing and litigating the claims of their own insureds as insurers have had in dealing with third-party claims.”) (emphasis added). Similarly, one federal court has described “good faith” and “bad faith” as “two sides of the same coin.” Continental Cas. Co. v. City of Jacksonville, 550 F.Supp.2d 1312, 1337 (M.D.Fla.2007), aff'd, 283 Fed.Appx. 686 (11th Cir.2008). “Put differently, the absence of ‘good faith’ constitutes ‘bad faith,’ and qualitative descriptions of ‘good faith’ conduct are often compared to qualitative descriptions of ‘bad faith’ conduct composed of terms that are simply the antonyms of terms used to describe ‘good faith.’ ” Id.

Federal courts have interpreted this Court’s various decisions as evidence that there is no common law action for breach of the implied warranty of good faith and fair dealing in the first-party coverage context and the only remedy available is the statutory bad-faith action created by section 624.155. Nirvana, 589 F.Supp.2d at 1342 (“[A]s the Florida Supreme Court has repeatedly made clear, no theory of liability was ever available to an insured against the insurer until 1982. That clearly includes a contractual theory of liability based on the implied covenant or warranty of good faith and fair dealing.”); Dome, 577 F.Supp.2d at 1261 (stating that a claim for breach of the implied covenant of good faith and fair dealing did not exist prior to the passage of section 624.155).

Finally, the federal cases that have held that there is a separate common law first-party claim for the breach of the covenant of good faith and fair dealing based on the insurance company’s failure to promptly settle a claim have not explained how this action fits into Florida insurance jurisprudence. The covenant is intended to protect “the reasonable expectations of the contracting parties in light of their express agreement.” Ins. Concepts, 785 So.2d at 1234 (quoting Barnes, 932 F.Supp. at 1438). However, this Court has specifically declined to adopt the doctrine of reasonable expectations in the context of insurance contracts, concluding that construing insurance policies under this doctrine “can only lead to uncertainty and unnecessary litigation.” Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1140 (Fla.1998); see also Lenhart v. Federated Nat’l Ins. Co., 950 So.2d 454, 461 (Fla. 4th DCA 2007) (explaining that a reasonable belief contrary to the plain meaning of insurance policy, or even to unclear text capable of being fairly read to provide coverage, is irrelevant to construction of the policy); State Farm Fire & Cas. Co. v. Castillo, 829 So.2d 242, 247 (Fla. 3d DCA 2002) (explaining that “it is the policy’s terms which define [insurance] coverage, not the insured’s reasonable expectations”).

For the reasons discussed above, the Court answers the first certified question in the negative and concludes that such first-party claims are actually statutory bad-faith claims that must be brought under section 624.155 of the Florida Statutes. Since we have answered the first certified question in the negative, the second certified question is rendered moot.

Accordingly, we address the third and fourth certified questions, which both involve the language and type-size requirements established by section 627.701(4)(a) of the Florida Statutes. Chalfonte raised a claim alleging a violation of this section by QBE. The trial .court dismissed that claim, concluding that the statute does not provide a private right of action. Despite the dismissal of the claim, the jury concluded that the insurance policy did not comply with section 627.701 (4)(a). Following the jury trial, the district court granted QBE’s motion to amend the judgment by applying the hurricane deductible in the policy. The application of the hurricane deductible reduced the award to Chalfonte by $1,605,653. On appeal, Chalfonte argued that the district court erred in dismissing its section 627.701(4)(a) claim. Chalfonte also argued that the district court should not have applied the hurricane deductible to reduce the jury award of damages because the jury found that the policy did not comply with the requirements set forth in the statute. The Eleventh Circuit certified questions as to what remedy may be pursued by an insured that is aggrieved by noncompliance with the statute and whether noncompliance with the statutory requirements renders such a provision void and unenforceable.

The policy at issue in this case substantially complied with the statutory requirements by including the required notice on the first page of the policy in all capital letters in a larger size font than that on the rest of the page. However, the notice did not comply with the statutory requirements in two ways: the font used was 16.2-point instead of 18-point, and the statement contained the word “windstorm” instead of “hurricane.”

Our determination as to whether section 627.701(4)(a) creates a private cause of action for its violation is a question of statutory interpretation. Therefore, our review is de novo. Horowitz v. Plantation Gen. Hosp. Ltd. P’ship, 959 So.2d 176, 179 (Fla.2007). The plain language of the statute does not provide for either a private cause of action or a penalty for a violation of its requirements. Thus, the Court must determine whether either will be judicially implied. First, we address whether there is a private cause of action for noncompliance with the statutory requirements.

The seminal Florida case on whether a statutory cause of action exists without an express provision imposing civil liability is this Court’s decision in Murthy v. N. Sin-ha Corp., 644 So.2d 983 (Fla.1994), which involved the licensing and regulatory statutes in chapter 489, Florida Statutes (1991), governing construction contracting. We had to determine whether there was a statutory cause of action against an agent who failed to supervise a corporation’s construction project when the relevant statute did not expressly provide for a civil cause of action. Id. at 984-85.

In determining whether to judicially imply a cause of action, courts have historically focused on whether the statute “imposed a duty to benefit a class of individuals” and “simply concluded that a cause of action arose when a class member was injured by a breach of that duty.” Id. at 985. However, as we explained in Murthy, legislative intent has become the primary factor that most courts, including the United States Supreme Court, use to determine (whether to judicially infer a cause of action when a statute does not expressly provide for one. Id. (citing Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979), and Freehauf v. Sch. Bd. of Seminole County, 623 So.2d 761, 763 (Fla. 5th DCA 1993)).

In determining whether the Legislature intended to provide a private cause of action against a qualifying agent in chapter 489, we first recognized that the applicable statutes had imposed a duty on agents to supervise a corporation’s construction projects. However, we explained that the recognition of a duty did not answer the question of whether a breach of that duty would give rise to civil liability. Id. at 985-86. To determine the existence of civil liability, we looked at the stated scope of chapter 489, which established licensing procedures and regulatory duties for the construction industry and created a licensing board to enforce the procedures and duties. Id. at 986. We concluded that there was “no evidence in the language of the statute or the statutory structure that a private cause of action against a qualifying agent was contemplated by the legislature in enacting this statute.” Id. Rather, the “language of chapter 489 indicates that it was created merely to secure the safety and welfare of the public by regulating the construction industry.” Id. We noted that “[i]n general, a statute that does not purport to establish civil liability but merely makes provision to secure the safety or welfare of the public as an entity, will not be construed as establishing a civil liability.” Id. (quoting Moyant v. Beattie, 561 So.2d 1319, 1320 (Fla. 4th DCA 1990) (quoting 49 Fla. Jur.2d, Statutes § 223(1984))). We further explained that even in the prior statute the “sole provision ... authorizing private suits” had authorized them only against unlicensed or uncertified contractors and that even that provision had been removed. Id. Without evidence of legislative intent in the “language or the legislative history” of chapter 489, we declined to recognize a private remedy against a qualifying agent. Id.

Since Murthy, we have reaffirmed the principle that whether a statutory cause of action should be judicially implied is a question of legislative intent. See Horowitz, 959 So.2d at 182; Aramark Unif. & Career Apparel, Inc. v. Easton, 894 So.2d 20, 23 (Fla.2004); Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 852 (Fla.2003). Legislative intent in this context is a “shorthand reference to the ordinary tools for discerning statutory meaning: text, context, and purpose.” Horowitz, 959 So.2d at 182 (quoting Plantation Gen. Hosp. Ltd. P’ship v. Horowitz, 895 So.2d 484, 486 (Fla. 4th DCA 2005)). The primary guide in determining whether the Legislature intended to create a private cause of action is the “actual language used in the statute.” Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006). In determining the meaning of the language used, the court must look not only to the words themselves but also to “the context in which the language lies.” Miele v. Prudential-Bache Sec., Inc., 656 So.2d 470, 472 (Fla.1995).

There is nothing in the text of section 627.701(4)(a) from which one can deduce that the Legislature intended an insured to have a private right of action against an insurer for failure to follow the notice requirements. Nor does the legislative history contain any guidance of whether the Legislature intended to create a private cause of action for the section’s violation. In fact, there is hardly any mention of this section in the legislative history. It was originally codified as section 627.701(3)(c), which required the notice language in reference to “windstorms.” Ch. 95-276, § 12, at 2589, Laws of Fla. The purpose of the provision was to “shift[ ] more wind risk to consumers, and require[] certain disclosures on the policy to that effect.” Fla. S. Comm, on Banking & Ins., CS/SB 3018 (1995) Staff Analysis 10 (Apr. 17, 1995). The statute was renumbered in 1996 as subsection 4(a), and the required language was changed from “windstorm” to “hurricane.” Ch. 96-194, § 12, at 609, Laws of Fla. The Senate Staff Analysis of the 1996 bill discusses the objective of “restoring the Florida homeowner insurance marketplace” and restructuring the insurance system to “ensure adequate hurricane catastrophe insurance at an affordable price.” Fla. S. Comm, on Banking & Ins., CS/SB 2314 (1996) Staff Analysis 1, 11 (Apr. 5, 1996).

Other subsections of section 627.701 also offer clues as to the context of subsection (4)(a). Section 627.701(6)(a) expresses the legislative intent “to encourage higher hurricane deductibles as a means of increasing the effective capacity of the hurricane insurance market in this state and as a means of limiting the impact of rapidly changing hurricane insurance premiums.” Section 627.701 (2)(a) provides that a property insurer may not issue an insurance policy containing a hurricane deductible provision unless the Department of Insurance determines that the deductible provision is clear and unambiguous. Thus, the hurricane deductible notice was a “byproduct” of the Legislature’s intent to increase the availability of homeowner’s insurance in Florida at an affordable price through higher hurricane deductibles. The hurricane deductible notice is the means of putting the insurance purchaser on notice of the higher deductibles. The specific statutory requirements as to point size, type, and language ensure that the notice serves its purpose. When a statute “merely makes provision to secure the safety or welfare of the public,” it will not be construed as establishing civil liability. Murthy, 644 So.2d at 986 (quoting Moyant v. Beattie, 561 So.2d 1319, 1320 (Fla. 4th DCA1990)).

Based upon the above, we answer the third certified question in the negative and find that an insured cannot bring a claim against an insurer for failure to comply with the language and type-size requirements established by section 627.701(4)(a).

Chalfonte argues that QBE’s failure to strictly comply with the notice requirements specified in section 627.701(4)(a) should render the hurricane deductible void and unenforceable. In his analysis of this issue, Judge Middlebrooks correctly noted that the Legislature did not specify any penalty or consequence for failure to comply with the requirements of section 627.701(4)(a). Chalfonte Condo. Apartment Ass’n v. QBE Ins. Corp., 526 F.Supp.2d 1251, 1256 (S.D.Fla.2007). The Legislature included penalties in many other sections of the Insurance Code, which expressly state that a violation of the statute would render the policy provision invalid or void. See, e.g., § 627.6474, Fla. Stat. (2009) (“Any contract provision that violates this section [about health insurance provider contracts] is void.”); id. § 627.415 (“Any policy provision in violation of this section [about charter, bylaw provisions] is invalid.”). In other sections, the Legislature has crafted specific remedies for an insurance company’s noncompliance with a statutory requirement. See, e.g., § 627.410(7)(e), Fla. Stat. (2009) (providing that the Department of Insurance may order an insurer to discontinue the issuance of policies when the insurer fails to meet the filing requirements and may also impose any other penalty authorized by law). In other instances, the Legislature has provided that the Department of Insurance may levy a fine as a penalty for noncompliance. See, e.g., § 624.310(5), Fla. Stat. (2009) (allowing the Department to impose a fine “against any person found in the proceeding to have violated any provision of the Insurance Code”); id. § 624.4211(1) (allowing the Department to impose a fine on an insurance company instead of suspending or revoking a certificate of authority). Most notably, in section 627.418(1), Florida Statutes (2009), the Legislature seems to suggest that in the absence of an express penalty, courts should assume that a policy provision is valid despite noncomplianee with the Insurance Code. See § 627.418(1), Fla. Stat. (2009) (“Any insurance policy, rider, or endorsement otherwise valid which contains any condition or provision not in compliance with the requirements of this code shall not be thereby rendered invalid, except as provided in s. 627.415, but shall be construed and applied in accordance with such conditions and provisions as would have applied had such policy, rider, or endorsement been in full compliance ■with this code.”).

Thus, the Insurance Code supports the conclusion that the Legislature is perfectly capable of crafting an express penalty for section 627.701(4)(a) and that there is no good reason for the courts to select one penalty over another. Chalfonte, 526 F.Supp.2d at 1257; see also RTG Furniture Corp. v. Indus. Risk Insurers, 616 F.Supp.2d 1258, 1267 (S.D.Fla.2008) (“[I]n the absence of an express penalty attached to this statute [section 627.701(4)(a) ] which prescribes the manner in which property insurers are to alert their insureds that the policy contains a separate hurricane deductible, the court is not at liberty to supply one.”).

Our conclusion that courts cannot provide a remedy when the Legislature has failed to do so is also entirely consistent with the position of Florida courts in other contexts. See, e.g., Jolley v. Seamco Labs. Inc., 828 So.2d 1050, 1051 (Fla. 1st DCA 2002) (declining to provide a remedy for a violation of Florida’s Wrongful Death Act); see also Carter v. Dep’t of Prof'l Regulation, 633 So.2d 3, 6 (Fla.1994) (finding that if Legislature had intended penalty for a violation of a time limit to be dismissal of the administrative complaint, it would have expressly included that sanction within section 455.225, Florida Statutes (Supp.1986)).

Two Florida district courts have reached opposite conclusions as to the consequences for failure of an insurance policy to strictly comply with statutory requirements which did not specify a penalty for noncompliance. Compare U.S. Fire Ins. Co. v. Roberts, 541 So.2d 1297 (Fla. 1st DCA 1989) with Prida v. Transamerica Ins. Fin. Corp., 651 So.2d 763 (Fla. 3d DCA 1995). In Roberts, the First District declared void a pokey’s coinsurance clause because it did not comply with the requirements of section 627.701(1). This statute provides that a property insurer may only issue a policy containing coinsurance provisions if it meets three requirements: (1) a verification on either the face of the policy or- attached to the policy that the rate charged was based on use of a coinsurance clause with the consent of the insured; (2) a clear identification of the coinsurance clause in the policy; and (3) the rate for insurance with and without the coinsurance clause is furnished to the insured upon request. The policy at issue in Roberts did not contain the required language either on the face of the policy or in a form attached to the policy. Thus, the required language was entirely missing from the policy. Roberts, 541 So.2d at 1299. The First District based its decision in significant part upon the legislative history of the statute. Id. In its earlier version, the statute provided that failure to comply with the statutory requirements would render the clause null and void. When the statute was amended in 1982, this language was removed from the statute. However, the staff analysis of the amendment provided that the new language was a “technical rewrite of current law to make it more readable,” thereby indicating no legislative intent to remove the consequences of noncompliance. Id. (quoting Fla. H.R. Comm, on Ins., HB 4-F (1982), Staff Analysis 91 (June 8,1982)).

In Prida, the Third District did not void the notice of cancellation of an automobile liability insurance policy for failure to fully comply with the requirements of section 627.848(3), Florida Statutes (1993). That statute required the notice of cancellation to contain language advising the insured that certain insurance coverage is required by the financial responsibility law and that the required language be in 12-point type. Prida, 651 So.2d at 763-64. While the notice in Prida contained the required language in contrasting red color, it was in 9.5-point type. Id. at 764. The Third District concluded that the 12-point type requirement was permissive and that the statute did not provide consequences for a violation of the requirements. Id.

We conclude that the instant case is more like Prida than Roberts in several important ways. First, QBE substantially complied with the notice requirements, as did the insurance company in Prida. Second, the hurricane deductible notice statute had never included a penalty provision as the coinsurance statute in Roberts did. Third, the coinsurance statute at issue in Roberts was not the coinsurance notice provision that was also included in section 627.701(4)(a). It was a separate statute specifying three requirements that a policy insurer must follow in order to issue a policy with a coinsurance clause. Finally, Chalfonte did not assert that it received no notice of the hurricane deductible provision, which was clearly noted on the front page of the policy, but only that the font size and one of the words in the notice did not comply with the statutory requirement.

Furthermore, if this Court were to void the hurricane deductible provision and permit coverage under the remaining policy as Chalfonte wants, it would have the effect of altering the terms of the insurance contract, because the insurance contract bargained for by the parties and the lower premiums paid by Chalfonte included this hurricane deductible. “Voi-dance of exclusion to an insurance policy is a severe penalty which alters the very terms of the deal between the parties. It requires the insurer to provide coverage for uncontracted risk, coverage for which the insured has not paid.” Fed. Deposit Ins. Corp. v. Am. Cas. Co. of Reading, Pa., 975 F.2d 677, 683 (10th Cir.1992); see also Essex Ins. Co. v. Zota, 607 F.Supp.2d 1340, 1351 (S.D.Fla.2009) (refusing to void insurance policy endorsements based on surplus line commercial-general-liability insurer’s failure to comply with the statute requiring the filing and approval of insurance policies and forms); cf. AIU Ins. Co. v. Block Marina Inv., Inc., 544 So.2d 998, 999 (Fla.1989) (stating that the Legislature did not intend “to give an insured coverage which is expressly excluded from the policy or to resurrect coverage under a policy or an endorsement which is no longer in effect, simply because an insurer fails to comply with the terms of the aforementioned statute”).

Based on the above analysis, we answer the fourth certified question in the negative and find that an insurer’s failure to comply with the language and type-size requirements established in section 627.701(4)(a) does not render a noncompli-ant hurricane deductible provision in an insurance policy void and unenforceable, because the Legislature has not provided for this penalty.

The last certified question asks “whether the language in an insurance policy mandating payment of benefits upon ‘entry of a final judgment’ requires an insurer to pay its insured upon entry of judgment at the trial level.” The insurance policy provision at issue here states:

Provided you have complied with all terms of this Coverage Part, we will pay for covered loss or damage:
(1) Within 20 days after we receive the sworn proof of loss and reach written agreement with you; or
(2) Within 30 days after we receive the sworn proof of loss and:
(a) There is an entry of a final judgment; or
(b) There is a filing of an appraisal award with us.

Chalfonte argues that the phrase “entry of a final judgment” unambiguously means the conclusion of proceedings at the trial level. Chalfonte contends that by using the phrase “entry of a final judgment,” QBE waived its procedural right to stay execution of the judgment pending appeal by posting a supersedeas bond. QBE responds that “final judgment” unambiguously means the conclusion of the appellate process as a matter of Florida law. Moreover, QBE argues that the policy does not explicitly reference the right to stay execution by posting a supersedeas bond and thus the policy cannot constitute a waiver of this right.

Federal Rule of Civil Procedure 62(d) provides that an appellant may obtain a stay on appeal by posting a superse-deas bond. The purpose of the supersede-as bond is to secure the prevailing party against the risk that the judgment debtor will be unable to meet the obligations pending appeal and to protect the prevailing party from the costs that it incurs in foregoing execution of judgment until the appeal is decided. Poplar Grove Planting & Refining Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1190 (5th Cir.1979).

The Florida counterpart of this federal rule provides that if an order “is a judgment solely for the payment of money, a party may obtain an automatic stay of execution pending review, without the necessity of a motion or order, by posting a good and sufficient bond.” Fla. R.App. P. 9.310(b)(1) (emphasis added). When a stay has been entered, it “shall remain in effect during the pendency of all review proceedings in Florida courts until a mandate issues, or unless otherwise modified or vacated.” Fla. R.App. P. 9.310(e). The purpose of an appellate stay is to maintain the status quo in the lower tribunal while an appeal proceeds. If no bond is posted, the judgment creditor may execute on the judgment during the appeal. Palm Beach Heights Dev. & Sales Corp. v. Decillis, 385 So.2d 1170, 1171 (Fla. 3d DCA 1980). If the judgment is reversed, then the appellant is entitled to have its property restored by the appellee. Ronette Commc’ns Corp. v. Lopez, 475 So.2d 1360, 1361 (Fla. 5th DCA 1985). However, an appellant who does not post a bond runs the risk that at the time of reversal, the appellee may no longer have the money and may be judgment-proof. Id.

Under Florida law, the posting of a “good and sufficient bond” as provided in rule 9.310(b) results in an automatic stay pending appeal of an adverse money judgment. Palm Beach Heights, 385 So.2d at 1171; Proprietors Ins. Co. v. Valsecchi, 385 So.2d 749, 750 (Fla. 3d DCA 1980). The trial court has no discretion to change this amount or deny a stay when the bond requirements have been met.

Based on the above, we answer the fifth certified question in the negative. We conclude that a contractual provision mandating payment of benefits upon “entry of final judgment” does not waive the insurer’s procedural right to post a bond pursuant to rule 9.810(b) to stay execution of a money judgment pending resolution of the appeal.

CONCLUSION

For the foregoing reasons, we answer the first, third, fourth, and fifth certified questions in the negative. Specifically, we conclude that under Florida law (1) first-party claims are actually statutory bad-faith claims that must be brought under section 624.155 of the Florida Statutes; (2) an insured cannot bring a claim against an insurer for failure to comply with the language and type-size requirements established by section 627.701(4)(a) of the Florida Statutes; (3) an insurer’s failure to comply with the language and type-size requirements established in section 627.701(4)(a) does not render a noncompli-ant hurricane deductible provision in an insurance policy void and unenforceable as the Legislature has not provided for this penalty; and (4) a contractual provision mandating payment of benefits upon “entry of a final judgment” does not waive the insurer’s procedural right to post a bond and stay the execution of a money judgment pending resolution of appeal.

Having answered the certified questions, we return this case to the United States Court of Appeals for the Eleventh Circuit.

It is so ordered.

PARIENTE, LABARGA, and PERRY, JJ., concur.

CANADY, C.J., and LEWIS and POLSTON, JJ., concur in result.

      . A first-party bad-faith action involves a case in which an insured sues his or her own insurance company for improper denial of benefits. Time Ins., 712 So.2d at 391.

      . Section 627.70 l(4)(a), Florida Statutes (2009), provides in pertinent part:
      (4)(a) Any policy that contains a separate hurricane deductible must on its face include in boldfaced type no smaller than 18 points the following statement: "THIS POLICY CONTAINS A SEPARATE DEDUCTIBLE FOR HURRICANE LOSSES, WHICH MAY RESULT IN HIGH OUT-OF-POCKET EXPENSES TO YOU.” .


author: PER CURIAM.

text:
    Johnny Ray GAFFNEY, Petitioner, v. Kenneth S. TUCKER, etc., Respondent.
    No. SC11-2136.
    Supreme Court of Florida.
    June 7, 2012.
    Johnny Ray Gaffney, pro se, Raiford, FL, for Petitioner.
    Jennifer A. Parker, General Counsel, Florida Department of Corrections, Tallahassee, FL, for Respondent.
   PER CURIAM.

Johnny Ray Gaffney, an inmate in state custody, filed a pro se petition for writ of habeas corpus with this Court challenging his conviction and sentence. We dismissed the petition in this case by way of an unpublished order, determining that the petition was unauthorized pursuant to Baker v. State, 878 So.2d 1236 (Fla.2004). In disposing of the petition in this case, we expressly retained jurisdiction to pursue possible sanctions against Gaffney. See Fla. R.App. P. 9.410(a).

Gaffney was convicted and sentenced to life imprisonment for committing capital sexual battery in Putnam County, Florida (circuit court case number 85-CF-01064). Gaffney appealed his conviction and sentence to the Fifth District Court of Appeal, which affirmed the conviction and the sentence. Gaffney v. State, 497 So.2d 1292 (Fla. 5th DCA 1986). Since his criminal case became final, Gaffney has unsuccessfully brought numerous collateral proceedings in the district and trial courts seeking relief related to his criminal case. However, it is patently evident from the record before this Court that Gaffney is not entitled to bring further collateral attacks on his criminal case.

Since 1994, Gaffney has filed multiple extraordinary writ petitions with this Court seeking relief from his conviction and sentence. We observe that in none of the petitions Gaffney filed in this Court has any relief been granted. Because the petition filed in this ease was dismissed as unauthorized and also was his ninth extraordinary writ petition filed with this Court pertaining to his criminal case, we issued an order directing Gaffney to show cause why he should not be prohibited from filing any further pro se filings in this Court related to case number 85-CF-01064. After considering Gaffney’s response, we conclude that it fails to show cause why he should not be sanctioned. We further conclude that Gaffney’s unauthorized petition is a frivolous proceeding brought to this Court by a prisoner. See § 944.279, Fla. Stat. (2011). Gaffney has compiled a history of pro se filings in this Court that, like the instant habeas corpus petition, were devoid of merit or inappropriate for review in this Court.

Accordingly, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by Johnny Ray Gaffney that are related to circuit court case number 85-CF-01064, unless such filings are signed by a member in good standing of The Florida Bar. Counsel may file on Gaffney’s behalf if counsel determines that the proceeding may have merit and can be brought in good faith. Furthermore, since we have found Gaffney’s petition to be frivolous, we direct the Clerk of this Court, pursuant to section 944.279(1), Florida Statutes (2011), to forward a certified copy of this opinion to the Department of Corrections’ institution or facility where Gaffney is incarcerated.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(9), Fla. Const.

      . See id. at 1245-46 (“[W]e will dismiss as unauthorized, habeas corpus petitions filed by noncapital defendants that seek the kind of collateral postconviction relief available through a motion filed in the sentencing court, and which (1) would be untimely if considered' as a motion for postconviction relief under rule 3.850, (2) raise claims that could have been raised at trial or, if properly preserved, on direct appeal of the judgment and sentence, or (3) would be considered a second or successive motion under rule 3.850 that either fails to allege new or different grounds for relief, or alleges new or different grounds for relief that were known or should have been known at the time the first motion was filed.”).

      . Gaffney v. Tucker, No. SC11-2136, 79 So.3d 744, 2012 WL 130519 (Fla. Jan. 10, 2012) (dismissing the petition and ordering petitioner to show cause why sanctions should not be imposed and why the petition should not be deemed frivolous for purposes of applying section 944.279(1), Florida Statutes (2011)).

      . See, e.g., Gaffney v. State, 878 So.2d 470 (Fla. 5th DCA 2004) (No. 5D04-318) (affirming denial of motion for postconviction relief as successive; barring appellant from future pro se filings related to circuit court case number 85-CF-1064); Gaffney v. State, 854 So.2d 207 (Fla. 5th DCA 2003) (No. 5D03-2343) (affirming denial of motion for postcon-viction relief) (table decision); Gaffney v. State, 848 So.2d 338 (Fla. 5th DCA 2003) (No. 5D03-617) (affirming denial of motion for postconviction relief) (table decision); Gaffney v. State, No. 5D98-2446 (Fla. 5th DCA Sept. 23, 1998) (denying petition for belated appeal); Gaffney v. State, 722 So.2d 205 (Fla. 5th DCA 1998) (No. 5D98-2313) (affirming denial of motion for postconviction relief) (table decision); Gaffney v. State, No. 5D97-1370 (Fla. 5th DCA June 11, 1997) (denying habeas corpus petition); Gaffney v. State, 693 So.2d 36 (Fla. 2d DCA 1997) (No. 2D97-380) (dismissing appeal) (table decision); Gaffney v. State, No. 5D90-1264 (Fla. 5th DCA Sept. 5, 1990) (denying habeas corpus petition); Gaffney v. State, 527 So.2d 205 (Fla. 5th DCA 1988) (No. 88-418) (affirming denial of motion for postconviction relief) (table decision).

        .See, e.g., Gaffney v. State, 933 So.2d 1153 (Fla.2006) (No. SC06-654) (dismissing habeas corpus petition pursuant to Baker) (table decision); Gaffney v. Crosby, 917 So.2d 193 (Fla.2005) (No. SC05-1233) (dismissing habe-as corpus petition pursuant to Baker) (table decision); Gaffney v. State, 907 So.2d 518 (Fla.2005) (No. SC04-2110) (denying mandamus petition) (table decision); Gaffney v. State, No. SC03-1518 (Fla. Sept. 15, 2003) (transferring mandamus petition); Gaffney v. State, 857 So.2d 195 (Fla.2003) (SC03-1594) (administratively dismissing all writs petition) (table decision); Gaffney v. State, No. SC00-427 (Fla. May 11, 2000) (transferring habeas corpus petition); Gaffney v. State, 700 So.2d 685 (Fla.1997) (No. 91,171) (denying all writs petition) (table decision); Gaffney v. Singletary, 634 So.2d 624 (Fla.1994) (No. 83,098) (denying habeas corpus petition) (table decision).

        .See State v. Spencer, 751 So.2d 47, 48 (Fla.1999) ("[I]t is important for courts to first provide notice and an opportunity to respond before preventing that litigant from bringing further attacks on his or her conviction and sentence.”).

      . In recent years, we have imposed comparable sanctions on other litigants whose pro se filing practices have exhibited their disregard for abusing scarce judicial resources in this Court. See, e.g., James v. Tucker, 75 So.3d 231 (Fla.2011); Johnson v. Rundle, 59 So.3d 1080 (Fla.2011); Steele v. State, 14 So.3d 221 (Fla.2009); Pettway v. McNeil, 987 So.2d 20 (Fla.2008); Tate v. McNeil, 983 So.2d 502 (Fla.2008).

      . See, e.g., James, 75 So.3d at 232; Johnson, 59 So.3d at 1082; Steele, 14 So.3d at 224.


text:
    In re AMENDMENTS TO the FLORIDA FAMILY LAW RULES OF PROCEDURE—FORM 12.996(d).
    No. SC12-618.
    Supreme Court of Florida.
    June 28, 2012.
    John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, Ashley McCorvey Myers, Chair, McCorvey & Myers, Jacksonville, FL, for Petitioner.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Family Law Rules of Procedure and Forms. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Family Law Rules Committee (Committee) filed an “Emergency Petition to Adopt Florida Family Law Rules of Procedure Form 12.996(d).” Proposed form 12.996(d) is a Florida addendum to a federally approved income withholding form, “Income Withholding for Support,” OMB 0970-0154. The Committee also proposes the addition of form 12.996(d) to the list of family law forms contained in rule 12.015 (Family Law Forms). The Committee’s proposals were reviewed under the Committee’s fast-track procedures and were unanimously approved by the Committee and the Executive Committee of The Florida Bar Board of Governors.

Upon consideration, Florida Family Law Rules of Procedure Form 12.996(d) (Florida Addendum to Income Withholding Order) is hereby adopted as set forth in the appendix to this petition, fully engrossed. The form may also be accessed and downloaded from the Florida State Court’s website at www.flcourts.org/gen_public/family/ forms_rules/index.shtml. By adoption of this form, we express no opinion as to its correctness or applicability. Florida Family Law Rule of Procedure 12.015 is also amended to add this new form to the list of forms contained therein. New language is underlined, and deleted language is stricken through. The amended rule and the new form shall become effective immediately upon the release of this opinion. Additionally, because the amendment and the new form were not published for comment prior to. adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

RULE 12.015. FAMILY LAW FORMS

(a) Forms Adopted as Rules. The forms listed in this rule shall be adopted by the rulemaking process in Fla. R. Jud. Admin. 2.140. The Family Law Rules Committee of The Florida Bar shall propose amendments to these forms and any associated instructions. These forms shall be designated “Florida Family Law Rules of Procedure Forms.” Forms coming under this provision are:

(1) 12.900(a), Disclosure From Non-lawyer;
(2) 12.900(b), Notice of Limited Appearance;
(3) 12.900(c), Consent to Limited Appearance by Attorney;
(4) 12.900(d), Termination of Limited Appearance;
(5) 12.900(e), Acknowledgment of Assistance by Attorney;
(6) 12.900(f), Signature Block for Attorney Making Limited Appearance;
(7) 12.900(g), Agreement Limiting Representation;
(8) 12.900(h), Notice of Related Cases;
(9) 12.901(a), Petition for Simplified Dissolution of Marriage;
(10) 12.902(b), Family Law Financial Affidavit (Short Form);
(11) 12.902(c), Family Law Financial Affidavit;
(12) 12.902(e), Child Support Guidelines Worksheet;
(13) 12.902(f)(3), Marital Settlement Agreement for Simplified Dissolution of Marriage;
(14) 12.910(a), Summons: Personal Service on an Individual;
(15) 12.913(b), Affidavit of Diligent Search and Inquiry;
(16) 12.913(c), Affidavit of Diligent Search;
(17) 12.920(a), Motion for Referral to General Magistrate;
(18) 12.920(b), Order of Referral to General Magistrate;
(19) 12.920(c), Notice of Hearing Before General Magistrate;
(20) 12.928, Cover Sheet for Family Court Cases;
(21) 12.930(a), Notice of Service of Standard Family Law Interrogatories;
(22) 12.930(b), Standard Family Law Interrogatories for Original or Enforcement Proceedings;
(23) 12.930(c), Standard Family Law Interrogatories for Modification Proceedings;
(24) 12.932, Certificate of Compliance with Mandatory Disclosure;
(25) 12.984, Response by Parenting Coordinator;
(26) 12.990(a), Final Judgment of Simplified Dissolution of Marriage;
(27) 12.996(a), Income Deduction Order;
(28) 12.996(b), Notice to Payor;
(29) 12.996(c), Notice of Filing Return Receipt; and
(30) 12.996(d), Florida Addendum to Income Withholding Order; and
(301) 12.998, Order of Referral to Parenting Coordinator.
(b) [No Change]

Commentary

[No Change]

INSTRUCTIONS FOR FLORIDA FAMILY LAW RULES OF PROCEDURE FORM 12.996(d), FLORIDA ADDENDUM TO INCOME WITHHOLDING ORDER 06/12

When should this form be used?

This form should be used when the court has ordered that support be paid by income deduction and OMB Form 0970-0154, Income Withholding for Support, has been used. This form must be added to the OMB form to provide provisions required for income deduction orders by Florida law.

This form should be typed or printed in black ink. It should be attached to the OMB form and filed with the clerk of the circuit court in the county in which your action is pending.

What should I do next?

A copy of this form and a copy of the OMB Income Withholding for Support form, signed by the judge, should be sent to the obligor’s payor by certified mail, return receipt requested. The return receipt should be sent to the person who prepared this form, so that it can be filed with the court with Florida Family Law Rules of Procedure Form 12.996(c), Notice of Filing Return Receipt.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” in these instructions are defined there. For further information see sections 61.13 and 61.1301, Florida Statutes.

Special Instructions ...

Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

      . Minor corrections and editorial revisions were made to the form as proposed by the Committee.

      . An original and nine paper copies of all comments must be filed with the Court on or before August 27, 2012, with a certificate of service verifying that a copy has been served on the Committee Chair, Ashley J. McCorvey Myers, 1912 Hamilton St. Ste. 204, Jacksonville, Florida 32210-2078, and on the Bar Staff Liaison to the Committee, Ellen Sloyer, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The committee chair has until September 18, 2012 to file a response to any comments filed with the Court. Electronic copies of all comments also must be filed in accordance with the Court’s administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).


text:
    THE FLORIDA BAR, Complainant, v. Richard Scott DRAUGHON, Respondent.
    No. SC09-2056.
    Supreme Court of Florida.
    June 28, 2012.

      John F. Harkness, Jr., Executive Director and Kenneth L. Marvin, Staff Counsel, The Florida Bar, Tallahassee, and Frances R. Brown-Lewis, Bar Counsel, The Florida Bar, Orlando, FL, for Complainant.
    John A. Weiss of John A. Weiss, P.A., Tallahassee, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Respondent Richard Scott Draughon be found guilty of professional misconduct and receive a public reprimand. The Florida Bar has filed a petition for review of the report, challenging the referee’s recommended sanction. Draughon has filed a cross-petition for review. We have jurisdiction. See art. V, § 15, Fla. Const. As discussed below, we approve the referee’s findings of fact, as well as the referee’s recommendation that Draughon be found guilty of violating Rule Regulating the Florida Bar 3-4.3 (Misconduct and Minor Misconduct). However, we disapprove the referee’s recommended sanction, and instead impose a one-year suspension.

FACTS

The Florida Bar filed a disciplinary ease against Draughon alleging that he engaged in misconduct in violation of Rules Regulating the Florida Bar 3-4.3 (Misconduct and Minor Misconduct) and 4-4.3(a) (Dealing with Unrepresented Persons). A referee was appointed to consider the matter. Following a hearing, the referee submitted his report for the Court’s review, in which he makes the following findings and recommendations.

Draughon was first admitted to The Florida Bar in 1987. The transactions giving rise to this disciplinary case began several years later in 1993, when Drau-ghon was approached by a friend and client for help in purchasing residential property located in Johnstown, Pennsylvania, known as the “Heather Lane property.” The client had been unable to secure traditional mortgage financing to buy the property from the property owner, Sylvia Onusic, and he asked Draughon to facilitate the transaction. Draughon formed the National Lease Management Corporation (NLMC), an organization in which he was the sole shareholder. Indeed, the referee found that NLMC’s purpose was to purchase and manage the Heather Lane property, and lease it to Draughon’s client to use as a family residence. Accordingly, Draughon, on behalf of NLMC, drafted and signed a Letter of Intent (LOI) to purchase the Heather Lane property from Ms. Onusic. According to the LOI, the total purchase price was $315,000. Ms. Onusic received $7,500 as a down payment; the remaining balance would be financed through a promissory note which required NLMC to make monthly payments to Ms. Onusic over a period of several years.

The first promissory note was executed in June 1993. Several days later Ms. Onu-sic transferred the deed to the Heather Lane property to NLMC. At that time, Draughon’s client signed an agreement to lease the Heather Lane property from NLMC.

The referee found that over the course of the next several years, NLMC made some payments to Ms. Onusic as required under the LOI and the first promissory note. NLMC also executed a second and a third promissory note. Under the terms of the third promissory note, signed in January 2001, NLMC owed Ms. Onusic $110,000, plus interest.

Significantly, in September 2001, Drau-ghon transferred the Heather Lane property from NLMC to himself, individually. The referee found that Draughon did not pay NLMC any consideration for the transfer. As a result, the referee found that the corporation was left without any significant assets. Immediately after transferring the Heather Lane property, Draughon took out a mortgage against the property in the amount of $274,975. The referee found that Draughon used the money to pay his personal tax liabilities; none of the funds were used to pay the $110,000 outstanding balance owed Ms. Onusic under the third promissory note.

In 2003, Ms. Onusic hired a lawyer to pursue legal action against Draughon and NLMC. However, while the case was pending in Pennsylvania state court, Drau-ghon filed for bankruptcy in the United States Bankruptcy Court for the Western District of Pennsylvania, staying the state court action. Ms. Onusic then filed a “Complaint to Determine Dischargeability of Debt” in Draughon’s bankruptcy proceeding, seeking a determination that Draughon owed her a debt that was not dischargeable in bankruptcy. The bankruptcy court held a full hearing on the motion, and entered a Memorandum Opinion on August 21, 2007. In its opinion, the bankruptcy court identified the issue as whether Draughon and his wife committed “actual fraud” such that the debt was excepted from discharge. See In re Draughon, No. 06-70405 BM, 2007 WL 7645346, at *5 (Bankr.W.D.Pa. Aug. 21, 2007). The court found:

To alleviate their tax problem with the IRS, debtors Richard Draughon and Lynn McDaniel decided to take preemptive action against plaintiff [Ms. On-usic]. To have equity with which to obtain a loan and hold the IRS at bay, debtors decided that NLMC would convey the property to them without paying any consideration for the transfer before plaintiff took action and acquired a judgment lien against the property. Although debtors’ residence in Florida had sufficient equity to secure such a loan, they obviously chose not to do so.
By so doing, debtors undertook to cheat plaintiff by knowingly and intentionally depriving her of an opportunity to take action against NLMC to satisfy the amount owed under the third note. Their machination succeeded. Apart from real property, NLMC had assets of little or no value upon which plaintiff could levy to satisfy a judgment.

Id. at *7. The bankruptcy court concluded that NLMC’s conveyance of the property to Draughon, without considération, “unquestionably was fraudulent.” Id. at *8. The referee in this disciplinary case considered much of the same evidence presented to the bankruptcy court and has independently arrived at substantially the same findings — that is, in fraudulently transferring the Heather Lane property to himself, Draughon acted with the actual intent to defraud Ms. Onusic, the sole creditor of NLMC.

Based on these facts, the referee recommended that Draughon be found guilty of violating Bar rule 3-4.3 (the commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney’s relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline). Although it is clear that Draughon was not acting in a formal attorney-client relationship, the referee concluded that Draughon was bound by the Bar’s ethical rules. Moreover, the referee found that Drau-ghon’s actions in transferring the Heather Lane property to himself, without consideration, constituted a fraudulent transfer under both federal and state law, and was done with the actual intent to hinder or delay Ms. Onusic as a creditor of NLMC. The referee concluded that this action was not only unlawful, but also contrary to honesty and justice, in violation of Bar rule 3-4.3.

The referee found five aggravating factors: (1) Draughon had a dishonest or selfish motive; (2) he has refused to acknowledge the wrongful nature of his conduct; (3) Ms. Onusic was vulnerable to Draughon’s control over their financial transactions; (4) Draughon had substantial experience in the practice of law; and (5) until recently, Draughon had shown an indifference to making restitution. The referee also found several mitigating factors, including: (1) the absence of a prior disciplinary record; (2) the fraudulent transfer occurred while Draughon was suffering extreme economic pressure; (3) he consulted with an attorney in Pennsylvania in these transactions; and (4) his expert witnesses were able to advocate a defense for certain of his actions, although the referee found that their explanation was a “strained and aggressive interpretation” of the facts. Ultimately, based on the recommendation of guilt, as well as his findings in aggravation and mitigation, the referee recommended that Draughon receive a public reprimand. Further, the referee recommended that the Court award costs to the Bar.

As noted, the Bar has filed a petition seeking review of the referee’s recommended sanction. Draughon has also filed a cross-petition for review. He challenges the referee’s findings of fact, recommendation as to guilt, and findings in aggravation and mitigation.

ANALYSIS

The Referee’s Recommendation as to Guilt

In his cross-petition for review, Draughon argues that the referee’s recommendation that he be found guilty of violating Bar rule 3-4.3 is not supported. To the extent Draughon disputes the referee’s findings of fact, the Court’s standard of review for evaluating a referee’s factual findings is as follows: this Court’s review of such matters is limited, and if a referee’s findings of fact are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and substitute its judgment for that of the referee. Fla. Bar v. Frederick, 756 So.2d 79, 86 (Fla.2000); see also Fla. Bar v. Jordan, 705 So.2d 1387, 1390 (Fla.1998). To the extent he challenges the referee’s recommendation as to guilt, the Court has repeatedly stated that the referee’s factual findings must be sufficient under the applicable rules to support the recommendations as to guilt. See Fla. Bar v. Shour-eas, 913 So.2d 554, 557-558 (Fla.2005).

Draughon first contends that rule 3-4.3 cannot serve as an independent basis for imposing discipline. We do not agree. Rule 3-4.3 provides:

The standards of professional conduct to be observed by members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration herein of certain categories of misconduct as constituting grounds for discipline shall not be deemed to be all-inclusive nor shall the failure to specify any particular act of misconduct be construed as tolerance thereof. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney’s relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.

Thus, the rule expressly contemplates that the enumerated categories of misconduct — specifically the Rules of Professional Conduct contained in Chapter 4 of the Rules Regulating the Florida Bar — are not intended to be an exhaustive list of unethical conduct that may provide grounds for imposing discipline. Rather, the commission by a lawyer of any act that is “unlawful or contrary to honesty and justice” may be cause for discipline. Consistent with this reading of the rule, we have previously imposed discipline where the sole ethical violation was of rule 3-4.3. See Florida Bar v. Cocalis, 959 So.2d 163, 166 (Fla.2007) (holding that Cocalis’s conduct while representing a client in a personal injury suit was unprofessional and unethical and finding no need to address “whether the referee erred in concluding that Cocalis’s conduct did not violate rules 4 — 3.3(a)(1), 4-3.4(a), and 4-8.4(a)(c) and (d), because [it] violated 3-4.3”).

Draughon next argues that, even if rule 3-4.3 does provide a basis for discipline, in this case the referee’s recommendation of guilt is not supported. We disagree, and we approve the referee’s recommendation of guilt.

The primary basis for the referee’s recommendation is Draughon’s transfer of the Heather Lane property from NLMC to himself, individually. Draughon transferred the Heather Lane property without consideration, leaving NLMC without sufficient assets to satisfy its obligations to Ms. Onusic. His actions were knowing and intentional, and deprived Ms. Onusic of the opportunity to take action against NLMC to satisfy the amount owed under the third promissory note. Although Draughon has pointed to evidence in the record, particularly the testimony from his expert witnesses, to support his contention that NLMC did have some assets to cover its debt to Ms. Onusic, the referee rejected this testimony as not credible. This Court has long held, “The referee is in a unique position to assess the credibility of witnesses, and his judgment regarding credibility should not be overturned absent clear and convincing evidence that his judgment is incorrect.” Fla. Bar v. Tobkin, 944 So.2d 219, 224 (Fla.2006) (quoting Fla. Bar v. Thomas, 582 So.2d 1177, 1178 (Fla.1991)). Simply stated, Draughon has failed to present clear and convincing evidence to support his contention that the referee’s credibility assessments are incorrect.

It is notable that the United States Bankruptcy Court for the Western District of Pennsylvania also concluded that Drau-ghon’s transfer of the Heather Lane property was fraudulent. As set forth in the excerpts from the bankruptcy court’s Memorandum Opinion, quoted above, that court found that Draughon “undertook to cheat plaintiff by knowingly and intentionally depriving her of an opportunity to take action against NLMC to satisfy the amount owed under the third note. Their machination succeeded.” In re Draughon, No. 06-70405 BM, 2007 WL 7645346, at *7. The referee did not accept these findings as established facts. Instead, he considered much of the same evidence and testimony and arrived at substantially the same conclusion — in fraudulently transferring the Heather Lane property to himself, Draughon acted with the actual intent to defraud Ms. Onusic as a creditor of NLMC. Accordingly, we approve the referee’s recommendation that Draughon be found guilty of violating rule 3-4.3.

The Referee’s Recommendation as to Discipline

With regard to the referee’s recommended sanction, Draughon challenges the referee’s findings in aggravation and mitigation. However, we approve those findings without further discussion.

In its petition, the Bar urges the Court to disapprove the referee’s recommended discipline, a public reprimand, and impose a one-year suspension from the practice of law. In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is our responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, generally speaking this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

There is little case law from this Court addressing the appropriate sanction when an attorney is found guilty of violating only rule 3^4.3. In Cocalis, the referee found that the respondent engaged in “unprofessional, inappropriate, and sharp practice” while representing a client in a personal injury case. See Cocalis, 959 So.2d at 164. Although the referee recommended that Cocalis be found not guilty of violating of any Bar rules, and that he be referred to the Bar’s practice and professionalism program, the Court rejected this recommendation. The Court noted that Cocalis’s actions were not minor misconduct warranting diversion. Indeed, the Court was particularly troubled by Cocalis’s failure to advise opposing counsel of certain facts, as well as his submission into evidence of medical records that he knew were different from the medical records produced during discovery. Id. at 167. Based on this conduct, the Court found Cocalis in violation of rule 3-4.3 and imposed a public reprimand.

Draughon’s misconduct in this case is significantly more egregious than that in Cocalis. Draughon transferred the Heather Lane property to himself with the actual intent to hinder or delay Ms. Onusic as a creditor of NLMC. Although Drau-ghon was acting on behalf of his own corporation, and not as a lawyer representing a client in a transaction, he is nonetheless a member of The Florida Bar and subject to the disciplinary authority of this Court. See R. Regulating Fla. Bar 3-4.1. The Court expects members of the Bar “to conduct their personal business affairs with honesty and in accordance with the law.” Fla. Bar v. Hall, 49 So.3d 1254, 1261 (Fla.2010) (quoting Fla. Bar v. Baker, 810 So.2d 876, 882 (Fla.2002)). Moreover, we have consistently stated that basic fundamental dishonesty is a serious flaw, one which cannot be tolerated by a profession that relies on the truthfulness of its members. Fla. Bar v. Rotstein, 835 So.2d 241, 246 (Fla.2002) (citing Fla. Bar v. Korones, 752 So.2d 586, 591 (Fla.2000)). Thus, considering the serious nature of Draughon’s misconduct, and the aggravating and mitigating factors found by the referee, we find that a one-year suspension is the appropriate sanction.

CONCLUSION

Accordingly, Richard Scott Draughon is hereby suspended from the practice of law in Florida for one year. The suspension will be effective thirty days from the filing of this opinion so that Draughon can close out his practice and protect the interests of existing clients. If Draughon notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Draughon shall fully comply with Rule Regulating the Florida Bar 3 — 5.1(g). Further, Draughon shall accept no new business from the date this opinion is filed until the suspension is completed and respondent is reinstated.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Richard Scott Draughon in the amount of $12,150.21, for which sum let execution issue.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

      . It is undisputed that Draughon is not licensed to practice law in Pennsylvania. The referee found that he had some degree of communication with, or assistance from, a Pennsylvania attorney in these transactions.

      . The referee found that Ms. Onusic signed over the deed with the understanding that Draughon would hold the deed in escrow and not record it until she received full payment under the first promissory note. However, in December 1997, Draughon recorded the deed.

      . The referee also recommended that Drau-ghon be found not guilty of violating Rule Regulating the Florida Bar 4-4.3(a) ("In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.”). The Bar does not challenge the referee's findings of fact or recommendations as to guilt in this regard, and we approve them without further discussion.