24 Fla. L. Weekly Fed. D314a
Insurance — Automobile — Bad faith — Refusal to settle —
Summary judgment in favor of insurer is appropriate because, based upon record
evidence and totality of circumstances, no reasonable jury could find insurer
acted in bad faith by allegedly failing to settle the claim within plaintiff’s
policy limits — Record does not reflect a lack of urgency on behalf of insurer,
and plaintiff does not present any legal authority with similar facts that
suggests insurer’s behavior did not rise to the level of a reasonably prudent
person — Record does not indicate that any of insurer’s actions were done to
delay or avoid settlement, to place its interests before plaintiff’s, or to
obstruct settlement of claim — Insurer acted in good faith and complied with
its legal duties towards insured — Bad faith standard of care articulated in
Boston Old Colony v. Guiterrez is applicable standard of care in
evaluating insurer’s behavior in bad faith cases — Plaintiff’s arguments that
insurer is collaterally and equitably estopped from arguing that it could not
settle claim within policy limits are untenable and fail as matter of law
Summary judgment in favor of insurer is appropriate because, based upon record
evidence and totality of circumstances, no reasonable jury could find insurer
acted in bad faith by allegedly failing to settle the claim within plaintiff’s
policy limits — Record does not reflect a lack of urgency on behalf of insurer,
and plaintiff does not present any legal authority with similar facts that
suggests insurer’s behavior did not rise to the level of a reasonably prudent
person — Record does not indicate that any of insurer’s actions were done to
delay or avoid settlement, to place its interests before plaintiff’s, or to
obstruct settlement of claim — Insurer acted in good faith and complied with
its legal duties towards insured — Bad faith standard of care articulated in
Boston Old Colony v. Guiterrez is applicable standard of care in
evaluating insurer’s behavior in bad faith cases — Plaintiff’s arguments that
insurer is collaterally and equitably estopped from arguing that it could not
settle claim within policy limits are untenable and fail as matter of law
JOSHUA P. KINCAID, Plaintiff, v. ALLSTATE PROPERTY & CASUALTY INSURANCE
COMPANY, Defendant. U.S. District Court, Southern District of Florida, Ft.
Pierce Division. Case No. 13-14030-GRAHAM/LYNCH. January 2, 2014. Donald L.
Graham, Judge.
COMPANY, Defendant. U.S. District Court, Southern District of Florida, Ft.
Pierce Division. Case No. 13-14030-GRAHAM/LYNCH. January 2, 2014. Donald L.
Graham, Judge.
ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT
THIS CAUSE comes before the Court upon Joshua P. Kincaid’s Motion for Summary
Judgment [D.E. 51] and Defendant Allstate Property & Casualty Insurance
Company’s Motion for Summary Judgment [D.E. 52].
Judgment [D.E. 51] and Defendant Allstate Property & Casualty Insurance
Company’s Motion for Summary Judgment [D.E. 52].
THE COURT has considered the Motions, the Responses and Replies thereto,
pertinent portions of the record, and is otherwise fully advised in the
premises. For the reasons stated below, Defendant Allstate Property &
Casualty Insurance Company’s Motion for Summary Judgment is GRANTED and
Plaintiff Joshua P. Kincaid’s Motion for Summary Judgment is DENIED.
pertinent portions of the record, and is otherwise fully advised in the
premises. For the reasons stated below, Defendant Allstate Property &
Casualty Insurance Company’s Motion for Summary Judgment is GRANTED and
Plaintiff Joshua P. Kincaid’s Motion for Summary Judgment is DENIED.
I. Factual & Procedural Background
This case arises from a car accident that occurred on April 7, 2006 in Martin
County, Florida, when a motorcycle operated by Mr. Deon S. Van Zyl (“Claimant”)
collided with an automobile operated by Joshua P. Kincaid (“Plaintiff”) and
owned by his mother, Christine Fain (“Mrs. Fain”). (D.E. 1]. As a result of the
accident, Claimant was left paralyzed. [D.E. 1 at ¶11; 51-1 at 4; 63-1 at 4]. At
the time, Plaintiff was a minor and was insured, along with his parents, by
Allstate under an automobile policy with bodily injury limits of $100,000.00.
[D.E. 1]. Allstate became aware of Plaintiff’s accident on April 10, 2006. [D.E.
51-1 at 2; 63-1 at 1]. Upon learning the full extent of Claimant’s injuries,
Allstate sent letters to Plaintiff, his step-father (“Mr. Fain”), and their
attorney, Daren Steele, Esq., informing them that “[t]he value of the bodily
injury claim of: [Claimant] may exceed the limits under [their] policy.” [D.E.
51-2]. These letters also indicated that Allstate “[would] make every effort to
settle this case in exchange for a full and final release of all claims” and
that Plaintiff had the right “to hire an attorney of [his] own choosing and
expense for advise [sic] and counsel.” Id.
County, Florida, when a motorcycle operated by Mr. Deon S. Van Zyl (“Claimant”)
collided with an automobile operated by Joshua P. Kincaid (“Plaintiff”) and
owned by his mother, Christine Fain (“Mrs. Fain”). (D.E. 1]. As a result of the
accident, Claimant was left paralyzed. [D.E. 1 at ¶11; 51-1 at 4; 63-1 at 4]. At
the time, Plaintiff was a minor and was insured, along with his parents, by
Allstate under an automobile policy with bodily injury limits of $100,000.00.
[D.E. 1]. Allstate became aware of Plaintiff’s accident on April 10, 2006. [D.E.
51-1 at 2; 63-1 at 1]. Upon learning the full extent of Claimant’s injuries,
Allstate sent letters to Plaintiff, his step-father (“Mr. Fain”), and their
attorney, Daren Steele, Esq., informing them that “[t]he value of the bodily
injury claim of: [Claimant] may exceed the limits under [their] policy.” [D.E.
51-2]. These letters also indicated that Allstate “[would] make every effort to
settle this case in exchange for a full and final release of all claims” and
that Plaintiff had the right “to hire an attorney of [his] own choosing and
expense for advise [sic] and counsel.” Id.
Allstate also sent a letter to Claimant, who remained hospitalized, and
tendered a check in the amount of $100,000.00. [D.E. 63-12]. This amount
represented the bodily injury coverage limits available under Plaintiff’s
policy. Id. In addition, Allstate enclosed its “standard bodily injury
liability coverage release” for Claimant’s review and signature. Id.
Thereafter, Allstate received a notice of representation and demand for
statutory insurance disclosures from attorney, Brandon Peters, Esq., on May 16,
2006. [D.E. 51-5; 63-5; 63-1 at 11]. In response, Allstate sent the required
documentation to Mr. Peters on May 18, 2006; however, Allstate’s response did
not include a certified statement of the insured. [D.E. 51-6; 63-6]. On May 31,
2006, Allstate sent a certified copy of Plaintiff’s insurance policy as
requested. [D.E. 51-28 at ¶8]. After a period of investigation, Allstate sent a
letter to Mr. Peters, dated September 6, 2006, which indicated that the
$100,000.00 policy limit check was tendered to Claimant on April 27, 2006 and
requested medical records and billing statements to substantiate the claim.
[D.E. 51-10; 53-12; 63-1 at 23]. The letter also stated that Allstate
“remain[ed] prepared to resolve [the] claim for the applicable policy limits of
$100,000.00.” Id.
tendered a check in the amount of $100,000.00. [D.E. 63-12]. This amount
represented the bodily injury coverage limits available under Plaintiff’s
policy. Id. In addition, Allstate enclosed its “standard bodily injury
liability coverage release” for Claimant’s review and signature. Id.
Thereafter, Allstate received a notice of representation and demand for
statutory insurance disclosures from attorney, Brandon Peters, Esq., on May 16,
2006. [D.E. 51-5; 63-5; 63-1 at 11]. In response, Allstate sent the required
documentation to Mr. Peters on May 18, 2006; however, Allstate’s response did
not include a certified statement of the insured. [D.E. 51-6; 63-6]. On May 31,
2006, Allstate sent a certified copy of Plaintiff’s insurance policy as
requested. [D.E. 51-28 at ¶8]. After a period of investigation, Allstate sent a
letter to Mr. Peters, dated September 6, 2006, which indicated that the
$100,000.00 policy limit check was tendered to Claimant on April 27, 2006 and
requested medical records and billing statements to substantiate the claim.
[D.E. 51-10; 53-12; 63-1 at 23]. The letter also stated that Allstate
“remain[ed] prepared to resolve [the] claim for the applicable policy limits of
$100,000.00.” Id.
In response to Allstate’s September 6th letter, Mr. Peters sent a letter
dated October 3, 2006 and returned the previously issued $100,000.00 check with
a request that the funds be re-issued to add his firm as payee. [D.E. 51-11;
63-8]. This letter also referenced Allstate’s need to provide certain unnamed
disclosures Mr. Peters. Id. Then, on October 13, 2006, Allstate received
a settlement offer for Claimant’s property and bodily injury claims dated
October 6, 2006. [D.E. 51-12; 63-10; 63-1 at 27-28]. The offer included a
request for Allstate’s “basic mutual general release” and had a “Property Damage
Release” enclosed. Id. The deadline to accept settlement of the bodily
injury claim was October 21, 2006. Id. On the same day, Allstate
forwarded a copy of this letter to Plaintiff, Mr. Fain, and their attorney, Mr.
Steele. [D.E. 51-13; 63-1 at 28; 74-2]. Allstate also faxed a copy of this
letter to their legal counsel, David de Armas, Esq. [D.E. 51-14].
dated October 3, 2006 and returned the previously issued $100,000.00 check with
a request that the funds be re-issued to add his firm as payee. [D.E. 51-11;
63-8]. This letter also referenced Allstate’s need to provide certain unnamed
disclosures Mr. Peters. Id. Then, on October 13, 2006, Allstate received
a settlement offer for Claimant’s property and bodily injury claims dated
October 6, 2006. [D.E. 51-12; 63-10; 63-1 at 27-28]. The offer included a
request for Allstate’s “basic mutual general release” and had a “Property Damage
Release” enclosed. Id. The deadline to accept settlement of the bodily
injury claim was October 21, 2006. Id. On the same day, Allstate
forwarded a copy of this letter to Plaintiff, Mr. Fain, and their attorney, Mr.
Steele. [D.E. 51-13; 63-1 at 28; 74-2]. Allstate also faxed a copy of this
letter to their legal counsel, David de Armas, Esq. [D.E. 51-14].
In the following weeks, Allstate re-issued the $100,000.00 check listing Mr.
Peters’s firm as payee per his request and communicated with Mr. Fain on
numerous occasions concerning the settlement. [D.E. 51-15; 51-16; 63-1 at 28-33;
74-2]. However, Allstate encountered difficulty in communicating with Mr. Peters
concerning Claimant’s request for a “basic mutual general release.” [D.E. 63-1
at 29-31; 54 at 32-35]. Despite this confusion, Mr. de Armas “decided to revise
the releases after going back and reviewing the release that Mr. Peters had
sent.” [D.E. 51-21]. Instead of a mutual release, Mr. de Armas sent two
unilateral releases without first clarifying exactly what Mr. Peters meant in
his letter. Claimant interpreted Mr. de Armas’s response as a rejection of the
settlement offer and returned the $100,000.00 check to Allstate. Within days,
Claimant filed suit against Plaintiff and Mrs. Fain in the Circuit Court of the
Nineteenth Judicial Circuit in and for Martin County, Florida. Claimant also
refused to accept Mr. de Armas’s subsequent mutual release documents.
Peters’s firm as payee per his request and communicated with Mr. Fain on
numerous occasions concerning the settlement. [D.E. 51-15; 51-16; 63-1 at 28-33;
74-2]. However, Allstate encountered difficulty in communicating with Mr. Peters
concerning Claimant’s request for a “basic mutual general release.” [D.E. 63-1
at 29-31; 54 at 32-35]. Despite this confusion, Mr. de Armas “decided to revise
the releases after going back and reviewing the release that Mr. Peters had
sent.” [D.E. 51-21]. Instead of a mutual release, Mr. de Armas sent two
unilateral releases without first clarifying exactly what Mr. Peters meant in
his letter. Claimant interpreted Mr. de Armas’s response as a rejection of the
settlement offer and returned the $100,000.00 check to Allstate. Within days,
Claimant filed suit against Plaintiff and Mrs. Fain in the Circuit Court of the
Nineteenth Judicial Circuit in and for Martin County, Florida. Claimant also
refused to accept Mr. de Armas’s subsequent mutual release documents.
In the underlying suit, Allstate handled the defense for Plaintiff and Mrs.
Fain. The Circuit Court entered partial summary judgment in favor of Claimant
and concluded that a settlement had not been reached because “[t]he sending of
two new proposed unilateral releases constituted a new settlement offer by
[Allstate] which [Claimant] was not obliged to accept.” [D.E. 51-28 at 9].
Thereafter, the case proceeded to trial on the issue of damages. The jury
returned a verdict in Claimant’s favor and a final judgment was entered against
Plaintiff and Mrs. Fain in the amount of $16,299,163.88. [D.E. 51-29 at 3].
Allstate, on Plaintiff’s behalf, unsuccessfully sought remittitur and took a
full appeal of the case. The Fourth District Court of Appeal of Florida affirmed
the actions of the Circuit Court in a per curiam decision. [D.E.
51-31].1 After receiving approximately
$852,404.04 in payments toward the final judgment amount, Claimant filed a
partial satisfaction of judgment as to Plaintiff and a full satisfaction of
judgment as to Mrs. Fain. [D.E. 51-30].
Fain. The Circuit Court entered partial summary judgment in favor of Claimant
and concluded that a settlement had not been reached because “[t]he sending of
two new proposed unilateral releases constituted a new settlement offer by
[Allstate] which [Claimant] was not obliged to accept.” [D.E. 51-28 at 9].
Thereafter, the case proceeded to trial on the issue of damages. The jury
returned a verdict in Claimant’s favor and a final judgment was entered against
Plaintiff and Mrs. Fain in the amount of $16,299,163.88. [D.E. 51-29 at 3].
Allstate, on Plaintiff’s behalf, unsuccessfully sought remittitur and took a
full appeal of the case. The Fourth District Court of Appeal of Florida affirmed
the actions of the Circuit Court in a per curiam decision. [D.E.
51-31].1 After receiving approximately
$852,404.04 in payments toward the final judgment amount, Claimant filed a
partial satisfaction of judgment as to Plaintiff and a full satisfaction of
judgment as to Mrs. Fain. [D.E. 51-30].
Plaintiff then brought the instant suit for common law bad faith asserting
that, as a result of Allstate’s bad faith, the underlying claim resulted in an
excess judgment against him. [D.E. 1]. Having conducted discovery, the Parties
now move for summary judgment. [D.E. 51; D.E. 52]. In support of their
respective Motions, the Parties have submitted affidavits from Plaintiff, Mr.
and Mrs. Fain; deposition testimony from Allstate’s claim handlers and legal
representatives; copies of the correspondence exchanged between the Parties; and
Allstate’s internal claim log for the Court’s consideration and
review.2 After reviewing the record
evidence and the arguments presented by the Parties, the Court finds that
summary judgment is appropriate in Allstate’s favor.
that, as a result of Allstate’s bad faith, the underlying claim resulted in an
excess judgment against him. [D.E. 1]. Having conducted discovery, the Parties
now move for summary judgment. [D.E. 51; D.E. 52]. In support of their
respective Motions, the Parties have submitted affidavits from Plaintiff, Mr.
and Mrs. Fain; deposition testimony from Allstate’s claim handlers and legal
representatives; copies of the correspondence exchanged between the Parties; and
Allstate’s internal claim log for the Court’s consideration and
review.2 After reviewing the record
evidence and the arguments presented by the Parties, the Court finds that
summary judgment is appropriate in Allstate’s favor.
II. Standard of Review
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue of material fact and that the moving party
is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving
party bears the initial burden of stating the basis for its motion and
identifying those portions of the record demonstrating the absence of genuine
issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
(1986). That burden is discharged if the moving party shows the Court that there
is “an absence of evidence to support the nonmoving party’s case.” Id. at
325.
interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue of material fact and that the moving party
is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving
party bears the initial burden of stating the basis for its motion and
identifying those portions of the record demonstrating the absence of genuine
issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
(1986). That burden is discharged if the moving party shows the Court that there
is “an absence of evidence to support the nonmoving party’s case.” Id. at
325.
Once the moving party has discharged its burden, the nonmoving party must
designate specific facts showing that there is a genuine issue of material
fact. Id. at 324. Issues of fact are “genuine” only if a reasonable fact
finder considering the evidence presented could find for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Material facts
are those that will affect the outcome of the trial under the substantive
law. Id. at 248. In determining whether a material fact exists, the court
must consider all the evidence in the light most favorable to the nonmoving
party. Id. at 261 n.2. All doubt as to the existence of a genuine issue
of material fact must be resolved against the moving party. Hayden v. First
Nat’l Bank of Mt. Pleasant, 595 F.2d 994, 996-97 (5th Cir. 1979).3
designate specific facts showing that there is a genuine issue of material
fact. Id. at 324. Issues of fact are “genuine” only if a reasonable fact
finder considering the evidence presented could find for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Material facts
are those that will affect the outcome of the trial under the substantive
law. Id. at 248. In determining whether a material fact exists, the court
must consider all the evidence in the light most favorable to the nonmoving
party. Id. at 261 n.2. All doubt as to the existence of a genuine issue
of material fact must be resolved against the moving party. Hayden v. First
Nat’l Bank of Mt. Pleasant, 595 F.2d 994, 996-97 (5th Cir. 1979).3
III. Discussion
Plaintiff argues that judgment as a matter of law is appropriate in this case
because Allstate acted in bad faith by failing to settle the claim within
Plaintiff’s policy limits when it could have and should have done so. [D.E. 51
at 4]. Specifically, Plaintiff argues that summary judgment is appropriate
because: (1) Allstate is collaterally and equitably estopped from arguing that
it could not have settled the underlying claim within the policy limits; (2)
Allstate was not confused about any of the settlement terms included in the
October 6, 2006 demand letter; and (3) Allstate did not respond to the
settlement demand as a reasonably prudent person would. [D.E. 51].
because Allstate acted in bad faith by failing to settle the claim within
Plaintiff’s policy limits when it could have and should have done so. [D.E. 51
at 4]. Specifically, Plaintiff argues that summary judgment is appropriate
because: (1) Allstate is collaterally and equitably estopped from arguing that
it could not have settled the underlying claim within the policy limits; (2)
Allstate was not confused about any of the settlement terms included in the
October 6, 2006 demand letter; and (3) Allstate did not respond to the
settlement demand as a reasonably prudent person would. [D.E. 51].
In opposition, Allstate argues that the record evidence supports judgment as
a matter of law in its favor because: (1) Plaintiff relies on an incomplete
legal standard in asserting his bad faith claim; (2) Plaintiff’s arguments
concerning collateral and equitable estoppel fail as a matter of law; (3) there
was no realistic or reasonable opportunity for Allstate to settle the bodily
injury claim against Plaintiff; and (4) Allstate satisfied its legal obligations
towards Plaintiff in its attempts to settle the underlying claim within the
policy limits.
a matter of law in its favor because: (1) Plaintiff relies on an incomplete
legal standard in asserting his bad faith claim; (2) Plaintiff’s arguments
concerning collateral and equitable estoppel fail as a matter of law; (3) there
was no realistic or reasonable opportunity for Allstate to settle the bodily
injury claim against Plaintiff; and (4) Allstate satisfied its legal obligations
towards Plaintiff in its attempts to settle the underlying claim within the
policy limits.
The Court finds Allstate’s arguments to be well-taken and supported by record
evidence. Accordingly, it is well-settled that “when an insurer undertakes the
defense of an insured, the insured becomes dependent upon the acts of the
insurer.” Maldonado v. First Liberty Ins. Corp., 546 F.Supp.2d 1347,
1352-53 (S.D. Fla. 2008) (citing Macola
v. Government Employees Ins. Co., 953 So.2d 451, 455 (Fla. 2006) [31
Fla. L. Weekly S690b]). As a result, the insurer is placed into a “fiduciary
relationship with the insured, and the insurer owes a duty to the insured to
refrain from acting solely on the basis of the insurer’s own best interest in
considering settlement.” Id. (citing Allstate
Indem. Co. v. Ruiz, 899 So.2d 1121, 1125 (Fla. 2005) [30 Fla. L. Weekly
S219c]; State
Farm Mut. Auto Ins. Co. v. Laforet, 658 So.2d 55, 58 (Fla. 1995) [20
Fla. L. Weekly S173a]). An insured must also show that “it acted in good faith
and dealt fairly with the insured.” Id. (quoting Auto Mut. Indent. Co.
v. Shaw, 184 So. 852, 859 (Fla. 1938) (internal quotations omitted)).
Essentially, the basis “of an insurance bad faith claim is that the insurer
acted in its own best interests, failed to properly and promptly defend the
claim, and thereby exposed the insured to an excess judgment.” Id.
(citing Macola, 953 So.2d at 452; Cunningham v. Standard Guar. Ins.
Co., 630 So.2d 179, 181 (Fla. 1994)). However, “an excess judgment is not
always a prerequisite — in other words, the claimed damages must be caused
by the bad faith.” Perera
v. U.S. Fidelity and Guarantee Co., 35 So.3d 893, 901 (Fla. 2010) [35
Fla. L. Weekly S235a] (emphasis added); see also North
American Van Lines v. Lexington Ins. Co., 678 So.2d 1325 (Fla. 4th DCA
1996) [21 Fla. L. Weekly D1564e].
evidence. Accordingly, it is well-settled that “when an insurer undertakes the
defense of an insured, the insured becomes dependent upon the acts of the
insurer.” Maldonado v. First Liberty Ins. Corp., 546 F.Supp.2d 1347,
1352-53 (S.D. Fla. 2008) (citing Macola
v. Government Employees Ins. Co., 953 So.2d 451, 455 (Fla. 2006) [31
Fla. L. Weekly S690b]). As a result, the insurer is placed into a “fiduciary
relationship with the insured, and the insurer owes a duty to the insured to
refrain from acting solely on the basis of the insurer’s own best interest in
considering settlement.” Id. (citing Allstate
Indem. Co. v. Ruiz, 899 So.2d 1121, 1125 (Fla. 2005) [30 Fla. L. Weekly
S219c]; State
Farm Mut. Auto Ins. Co. v. Laforet, 658 So.2d 55, 58 (Fla. 1995) [20
Fla. L. Weekly S173a]). An insured must also show that “it acted in good faith
and dealt fairly with the insured.” Id. (quoting Auto Mut. Indent. Co.
v. Shaw, 184 So. 852, 859 (Fla. 1938) (internal quotations omitted)).
Essentially, the basis “of an insurance bad faith claim is that the insurer
acted in its own best interests, failed to properly and promptly defend the
claim, and thereby exposed the insured to an excess judgment.” Id.
(citing Macola, 953 So.2d at 452; Cunningham v. Standard Guar. Ins.
Co., 630 So.2d 179, 181 (Fla. 1994)). However, “an excess judgment is not
always a prerequisite — in other words, the claimed damages must be caused
by the bad faith.” Perera
v. U.S. Fidelity and Guarantee Co., 35 So.3d 893, 901 (Fla. 2010) [35
Fla. L. Weekly S235a] (emphasis added); see also North
American Van Lines v. Lexington Ins. Co., 678 So.2d 1325 (Fla. 4th DCA
1996) [21 Fla. L. Weekly D1564e].
A. Florida Standard of Care in Bad Faith Cases
Plaintiff principally relies on Florida Standard Jury Instruction 404.4 for
his assertion of the applicable standard of care in bad faith cases. [D.E. 51 at
3]. Per that instruction, a jury would be charged with the following: “Bad faith
on the part of an insurance company is failing to settle a claim when, under all
circumstances, it could and should have done so, had it acted fairly and
honestly towards [its insured] and with due regard for their interests.”
See Florida Standard Jury Instruction 404.44. This instruction is derived almost verbatim from
the language contained in F.S.S. §624.155(1)(b)(1).
his assertion of the applicable standard of care in bad faith cases. [D.E. 51 at
3]. Per that instruction, a jury would be charged with the following: “Bad faith
on the part of an insurance company is failing to settle a claim when, under all
circumstances, it could and should have done so, had it acted fairly and
honestly towards [its insured] and with due regard for their interests.”
See Florida Standard Jury Instruction 404.44. This instruction is derived almost verbatim from
the language contained in F.S.S. §624.155(1)(b)(1).
However, Allstate is correct in arguing that Plaintiff’s sole reliance on the
language in the jury instruction is an incomplete recitation of the applicable
standard of care in Florida bad faith cases. Allstate’s position finds support
in the Notes on Use for 404.4 which states, in part: “Instruction 404.4 is
applicable when the particular matter in issue is the insurance company’s
failure to settle a claim. This instruction does not exhaust the subject. Other
instructions may be necessary if liability is asserted for the insurance
company’s violation of some other duty.” See Florida Standard Jury
Instruction 404.4 (citing Boston Old Colony, 386 So.2d at 785). This
implies that the language of Florida Standard Jury Instruction 404.4 does not
fully articulate an insurer’s duties and obligations to an insured because other
instructions may apply when other breaches are asserted.
language in the jury instruction is an incomplete recitation of the applicable
standard of care in Florida bad faith cases. Allstate’s position finds support
in the Notes on Use for 404.4 which states, in part: “Instruction 404.4 is
applicable when the particular matter in issue is the insurance company’s
failure to settle a claim. This instruction does not exhaust the subject. Other
instructions may be necessary if liability is asserted for the insurance
company’s violation of some other duty.” See Florida Standard Jury
Instruction 404.4 (citing Boston Old Colony, 386 So.2d at 785). This
implies that the language of Florida Standard Jury Instruction 404.4 does not
fully articulate an insurer’s duties and obligations to an insured because other
instructions may apply when other breaches are asserted.
Moreover, in Boston Old Colony Ins. Co. v. Guiterrez, 386 So.2d 783
(Fla. 1980), the Florida Supreme Court set forth the appropriate standard of
care in bad faith cases through its interpretation of F.S.S.§624.155 as follows:
(Fla. 1980), the Florida Supreme Court set forth the appropriate standard of
care in bad faith cases through its interpretation of F.S.S.§624.155 as follows:
An insurer, in handling the defense of claims against an insured,
has a duty to use the same degree of care and diligence as a person of ordinary
care and prudence should exercise in the management of his own business. . . .
The good faith duty obligates the insurer to advise the insured of settlement
opportunities, to advise as to the probable outcome of the litigation, to warn
of the possibility of an excess judgment, and to advise the insured of any steps
he might take to avoid same. The insurer must investigate the facts, give fair
consideration to a settlement offer that is not unreasonable under the facts,
and settle, if possible, where a reasonably prudent person, faced with the
prospect of paying the total recovery, would do so.
Boston Old Colony, 386 So.2d at 785; see also Maldonado,
546 F.Supp.2d at 1353. This standard is more encompassing and delineates an
insurer’s specific duties towards an insured. Therefore, the Court will rely on
the bad faith standard of care articulated in Boston Old Colony in
evaluating Allstate’s behavior towards Plaintiff.
546 F.Supp.2d at 1353. This standard is more encompassing and delineates an
insurer’s specific duties towards an insured. Therefore, the Court will rely on
the bad faith standard of care articulated in Boston Old Colony in
evaluating Allstate’s behavior towards Plaintiff.
B. Collateral & Equitable Estoppel
Having arrived at the applicable standard in this case, the Court now turns
to Plaintiff’s first argument concerning collateral and equitable estoppel.
Stemming from his reliance on Florida Standard Jury Instruction 404.4 as the
appropriate standard for bad faith cases, Plaintiff argues that Allstate is
collaterally and equitably estopped from arguing that it could not settle the
claim within the policy limits. However, Plaintiff’s argument is untenable and
fails as a matter of law.
to Plaintiff’s first argument concerning collateral and equitable estoppel.
Stemming from his reliance on Florida Standard Jury Instruction 404.4 as the
appropriate standard for bad faith cases, Plaintiff argues that Allstate is
collaterally and equitably estopped from arguing that it could not settle the
claim within the policy limits. However, Plaintiff’s argument is untenable and
fails as a matter of law.
First, the basis of Plaintiff’s argument is belied by his erroneous reliance
on Florida Standard Jury Instruction 404.4 as the applicable standard of care as
discussed above. Second, Florida law requires five factors to be present for the
doctrine of collateral estoppel to apply:
on Florida Standard Jury Instruction 404.4 as the applicable standard of care as
discussed above. Second, Florida law requires five factors to be present for the
doctrine of collateral estoppel to apply:
(1) an identical issue must have been presented in the prior
proceedings; (2) the issue must have been a critical and necessary part of the
prior determination; (3) there must have been a full and fair opportunity to
litigate that issue; (4) the parties in the two proceedings must be identical;
and (5) the issues must have been actually litigated.
Cook
v. State, 921 So.2d 631, 634 (Fla. 2d DCA 2005) [30 Fla. L. Weekly
D2195a]; see also Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374
(Fla. 1977). The issue presented in this case is readily distinguishable from
those litigated in the underlying suit. Here, the question on summary judgment
is whether, under the circumstances, Allstate breached its duties towards
Plaintiff and acted solely in its own best interest in considering settlement.
Maldonado, 546 F.Supp.2d at 1352-53; Laforet, 658 So.2d at 58. In
the underlying suit, the Circuit Court applied common law principles of contract
formation and determined, on summary judgment, that no settlement had been
reached. [D.E. 51-28]. Allstate’s position in that case, albeit on behalf of
Plaintiff, was that it “performed the essential terms of the settlement
agreement.” Id. at ¶4-5, 23. Hence, the two issues are materially
different from one another through the evaluation of relevant evidence and in
applicable law. One is based purely in contract law and the other requires a
subjective evaluation of the evidence given the totality of the circumstances.
v. State, 921 So.2d 631, 634 (Fla. 2d DCA 2005) [30 Fla. L. Weekly
D2195a]; see also Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374
(Fla. 1977). The issue presented in this case is readily distinguishable from
those litigated in the underlying suit. Here, the question on summary judgment
is whether, under the circumstances, Allstate breached its duties towards
Plaintiff and acted solely in its own best interest in considering settlement.
Maldonado, 546 F.Supp.2d at 1352-53; Laforet, 658 So.2d at 58. In
the underlying suit, the Circuit Court applied common law principles of contract
formation and determined, on summary judgment, that no settlement had been
reached. [D.E. 51-28]. Allstate’s position in that case, albeit on behalf of
Plaintiff, was that it “performed the essential terms of the settlement
agreement.” Id. at ¶4-5, 23. Hence, the two issues are materially
different from one another through the evaluation of relevant evidence and in
applicable law. One is based purely in contract law and the other requires a
subjective evaluation of the evidence given the totality of the circumstances.
Furthermore, whether Allstate’s behavior amounted to bad faith was not “a
critical and necessary part of the prior determination.” Cook, 921 So.2d
at 634. The Circuit Court did not have to resolve the question of Allstate’s bad
faith in reaching its decision on summary judgment. Allstate’s legal duties
towards Plaintiff and the ultimate issue of bad faith were simply not litigated
in the underlying suit. To accept otherwise would place Allstate in a position
to assert collateral estoppel as a defense to Plaintiff’s instant suit. Such is
not the case here and this result illustrates the untenable nature of
Plaintiff’s argument.
critical and necessary part of the prior determination.” Cook, 921 So.2d
at 634. The Circuit Court did not have to resolve the question of Allstate’s bad
faith in reaching its decision on summary judgment. Allstate’s legal duties
towards Plaintiff and the ultimate issue of bad faith were simply not litigated
in the underlying suit. To accept otherwise would place Allstate in a position
to assert collateral estoppel as a defense to Plaintiff’s instant suit. Such is
not the case here and this result illustrates the untenable nature of
Plaintiff’s argument.
Third, Florida law requires the satisfaction of three elements for the
doctrine of equitable estoppel to apply:
doctrine of equitable estoppel to apply:
(1) the party against whom the estoppel is sought must have made a
representation about a material fact that is contrary to a position it later
assets; (2) the party claiming estoppel must have relied on that representation;
and (3) the party seeking estoppel must have changed his position to his
detriment based in the representation and his reliance in it.
Winans
v. Weber, 979 So.2d 269, 274-75 (Fla. 2d DCA 2007) [32 Fla. L. Weekly
D2954a]. Plaintiff’s argument is that Allstate cannot take the position that it
could not settle the underlying claim within Plaintiff’s policy limits. Although
Allstate takes a contrary position on whether settlement occurred or was
possible in the underlying suit, the record, viewed most favorably to Plaintiff,
does not show any detrimental reliance with respect to Allstate’s
representations. Therefore, the Court finds that Plaintiff’s collateral and
equitable estoppel arguments are untenable and fail as a matter of law.
v. Weber, 979 So.2d 269, 274-75 (Fla. 2d DCA 2007) [32 Fla. L. Weekly
D2954a]. Plaintiff’s argument is that Allstate cannot take the position that it
could not settle the underlying claim within Plaintiff’s policy limits. Although
Allstate takes a contrary position on whether settlement occurred or was
possible in the underlying suit, the record, viewed most favorably to Plaintiff,
does not show any detrimental reliance with respect to Allstate’s
representations. Therefore, the Court finds that Plaintiff’s collateral and
equitable estoppel arguments are untenable and fail as a matter of law.
C. Allstate’s Actions
As mentioned above, the legal obligations Allstate owed to Plaintiff are as
follows:
follows:
An insurer, in handling the defense of claims against an insured,
has a duty to use the same degree of care and diligence as a person of ordinary
care and prudence should exercise in the management of his own business. . . .
The good faith duty obligates the insurer to advise the insured of settlement
opportunities, to advise as to the probable outcome of the litigation, to warn
of the possibility of an excess judgment, and to advise the insured of any steps
he might take to avoid same. The insurer must investigate the facts, give fair
consideration to a settlement offer that is not unreasonable under the facts,
and settle, if possible, where a reasonably prudent person, faced with the
prospect of paying the total recovery, would do so.
Boston Old Colony, 386 So.2d at 785. In addition, “the insurer owes a
duty to the insured to refrain from acting solely on the basis of the insurer’s
own best interest in considering settlement.” Maldonado, 546 F.Supp.2d at
1352-53. This standard places the focus of the Court’s analysis solely on
Allstate’s actions in fulfilling its obligations to Plaintiff. Berges
v. Infinity Ins. Co., 896 So.2d 665, 677 (Fla. 2004) [29 Fla. L. Weekly
S679a; corrected
opinion at 29 Fla. L. Weekly S787c]. Viewing the record evidence in a light
most favorable to Plaintiff, the Court finds that Allstate acted in good faith
and complied with its legal duties towards Plaintiff.
duty to the insured to refrain from acting solely on the basis of the insurer’s
own best interest in considering settlement.” Maldonado, 546 F.Supp.2d at
1352-53. This standard places the focus of the Court’s analysis solely on
Allstate’s actions in fulfilling its obligations to Plaintiff. Berges
v. Infinity Ins. Co., 896 So.2d 665, 677 (Fla. 2004) [29 Fla. L. Weekly
S679a; corrected
opinion at 29 Fla. L. Weekly S787c]. Viewing the record evidence in a light
most favorable to Plaintiff, the Court finds that Allstate acted in good faith
and complied with its legal duties towards Plaintiff.
1. Good Faith Duties
It is undisputed that Allstate became aware of Plaintiff’s accident on April
10, 2006. [D.E. 51-1 at 2; 63-1 at 1]. It is also undisputed that Allstate
became aware of Claimant’s paralysis on April 24, 2006. [D.E. 51-1 at 4; 63-1 at
4]. Upon learning the full extent of Claimant’s injuries, record evidence shows
that Allstate sent letters to Plaintiff, Mr. Fain, and their attorney, Daren
Steele, Esq., on April 27, 2006, informing them that “[t]he value of the bodily
injury claim of: [Claimant] may exceed the limits under [their] policy.” [D.E.
51-2]. These letters indicate that Allstate “[would] make every effort to settle
this case in exchange for a full and final release of all claims” and that
Plaintiff had the right “to hire an attorney of [his] own choosing and expense
for advise [sic] and counsel.” Id.
10, 2006. [D.E. 51-1 at 2; 63-1 at 1]. It is also undisputed that Allstate
became aware of Claimant’s paralysis on April 24, 2006. [D.E. 51-1 at 4; 63-1 at
4]. Upon learning the full extent of Claimant’s injuries, record evidence shows
that Allstate sent letters to Plaintiff, Mr. Fain, and their attorney, Daren
Steele, Esq., on April 27, 2006, informing them that “[t]he value of the bodily
injury claim of: [Claimant] may exceed the limits under [their] policy.” [D.E.
51-2]. These letters indicate that Allstate “[would] make every effort to settle
this case in exchange for a full and final release of all claims” and that
Plaintiff had the right “to hire an attorney of [his] own choosing and expense
for advise [sic] and counsel.” Id.
On the same day, Allstate also sent a letter to Claimant and tendered a check
in the amount of $100,000.00, which represented the bodily injury coverage
limits available under Plaintiff’s policy. [D.E. 63-12]. In addition, Allstate
enclosed its “standard bodily injury liability coverage release” for Claimant’s
review and signature. Id. Plaintiff takes issue with Allstate over where
this specific correspondence was sent; however, the record reflects that
Allstate sent the letter, release, and check to the address provided by
Claimant’s father, Mr. Gerrit Van Zyl. [D.E. 51-1 at 6-7; 63-1 at 6].
in the amount of $100,000.00, which represented the bodily injury coverage
limits available under Plaintiff’s policy. [D.E. 63-12]. In addition, Allstate
enclosed its “standard bodily injury liability coverage release” for Claimant’s
review and signature. Id. Plaintiff takes issue with Allstate over where
this specific correspondence was sent; however, the record reflects that
Allstate sent the letter, release, and check to the address provided by
Claimant’s father, Mr. Gerrit Van Zyl. [D.E. 51-1 at 6-7; 63-1 at 6].
Thereafter, it is undisputed that Allstate received a notice of
representation and demand for statutory insurance disclosures from attorney,
Brandon Peters, Esq., on May 16, 2006. [D.E. 51-5; 63-5; 63-1 at 11]. In
response, Allstate sent the required documentation to Mr. Peters on May 18,
2006; however, Allstate’s response did not include a certified statement of the
insured. [D.E. 51-6; 63-6]. On May 31, 2006, Allstate sent a certified copy of
Plaintiff’s insurance policy as requested. [D.E. 51-28 at ¶8]. After a period of
investigation, Allstate sent a letter to Mr. Peters, dated September 6, 2006,
which indicated that the $100,000.00 policy limit check was tendered to Claimant
on April 27, 2006 and requested medical records and billing statements to
substantiate the claim. [D.E. 51-10; 53-12; 63-1 at 23]. The letter also stated
that Allstate “remain[ed] prepared to resolve [the] claim for the applicable
policy limits of $100,000.00.” Id.
representation and demand for statutory insurance disclosures from attorney,
Brandon Peters, Esq., on May 16, 2006. [D.E. 51-5; 63-5; 63-1 at 11]. In
response, Allstate sent the required documentation to Mr. Peters on May 18,
2006; however, Allstate’s response did not include a certified statement of the
insured. [D.E. 51-6; 63-6]. On May 31, 2006, Allstate sent a certified copy of
Plaintiff’s insurance policy as requested. [D.E. 51-28 at ¶8]. After a period of
investigation, Allstate sent a letter to Mr. Peters, dated September 6, 2006,
which indicated that the $100,000.00 policy limit check was tendered to Claimant
on April 27, 2006 and requested medical records and billing statements to
substantiate the claim. [D.E. 51-10; 53-12; 63-1 at 23]. The letter also stated
that Allstate “remain[ed] prepared to resolve [the] claim for the applicable
policy limits of $100,000.00.” Id.
Responding to Allstate’s September 6th letter, Mr. Peters sent a letter dated
October 3, 2006 and returned the previously issued $100,000.00 check with a
request that the check be reissued to add his firm as payee. [D.E. 51-11; 63-8].
This letter also referenced Allstate’s need to provide certain unnamed
disclosures to Mr. Peters. Id. Then, on October 13, 2006, Allstate
received a settlement offer for Claimant’s property and bodily injury claims
dated October 6, 2006. [D.E. 51-12; 63-10; 63-1 at 27-28]. The offer included a
request for Allstate’s “basic mutual general release.” Id. On the same
day, Allstate forwarded a copy of this letter to Plaintiff, Mr. Fain, and their
attorney, Mr. Steele. [D.E. 51-13; 63-1 at 28; 74-2]. Allstate also faxed a copy
of this letter to outside counsel hired to assist with the legal aspects of the
claim, David de Armas, Esq. [D.E. 51-14]. Therein, Allstate indicated that “this
primarily boils down to 2 issues: the disclosure response and the release
wording. . . . I’m sure we can accommodate Mr. Peters’ [sic] very reasonable
requests.” Id. In the following weeks, Allstate re-issued the $100,000.00
check listing Mr. Peters’s firm as payee twice and communicated with Mr. Fain on
numerous occasions concerning the settlement. [D.E. 51-15; 51-16; 63-1 at 28-33;
74-2]. Given the aforementioned facts, it would appear that Allstate satisfied
its good faith obligations under Boston Old Colony;however, the Court’s
inquiry does not end here.
October 3, 2006 and returned the previously issued $100,000.00 check with a
request that the check be reissued to add his firm as payee. [D.E. 51-11; 63-8].
This letter also referenced Allstate’s need to provide certain unnamed
disclosures to Mr. Peters. Id. Then, on October 13, 2006, Allstate
received a settlement offer for Claimant’s property and bodily injury claims
dated October 6, 2006. [D.E. 51-12; 63-10; 63-1 at 27-28]. The offer included a
request for Allstate’s “basic mutual general release.” Id. On the same
day, Allstate forwarded a copy of this letter to Plaintiff, Mr. Fain, and their
attorney, Mr. Steele. [D.E. 51-13; 63-1 at 28; 74-2]. Allstate also faxed a copy
of this letter to outside counsel hired to assist with the legal aspects of the
claim, David de Armas, Esq. [D.E. 51-14]. Therein, Allstate indicated that “this
primarily boils down to 2 issues: the disclosure response and the release
wording. . . . I’m sure we can accommodate Mr. Peters’ [sic] very reasonable
requests.” Id. In the following weeks, Allstate re-issued the $100,000.00
check listing Mr. Peters’s firm as payee twice and communicated with Mr. Fain on
numerous occasions concerning the settlement. [D.E. 51-15; 51-16; 63-1 at 28-33;
74-2]. Given the aforementioned facts, it would appear that Allstate satisfied
its good faith obligations under Boston Old Colony;however, the Court’s
inquiry does not end here.
2. The Reasonably Prudent Person & Settlement
The crux of Plaintiff’s argument for bad faith lies with Allstate’s alleged
failure to behave as a reasonably prudent person would in response to Claimant’s
settlement offer and request for mutual release. Specifically, Plaintiff points
to Allstate’s “lack of urgency” regarding the settlement deadline and failure to
request more time for clarification. [D.E. 51 at 27]. Against this point,
Allstate asserts that it was confused about the request in Mr. Peter’s demand
letter when it responded by sending two unilateral releases for the bodily
injury claims and that any additional requests from them would have jeopardized
the settlement. [D.E. 74 at 22-27]. Again, “[t]he insurer must investigate the
facts, give fair consideration to a settlement offer that is not unreasonable
under the facts, and settle, if possible, where a reasonably prudent person,
faced with the prospect of paying the total recovery, would do so.” Boston
Old Colony, 386 So.2d at 785.
failure to behave as a reasonably prudent person would in response to Claimant’s
settlement offer and request for mutual release. Specifically, Plaintiff points
to Allstate’s “lack of urgency” regarding the settlement deadline and failure to
request more time for clarification. [D.E. 51 at 27]. Against this point,
Allstate asserts that it was confused about the request in Mr. Peter’s demand
letter when it responded by sending two unilateral releases for the bodily
injury claims and that any additional requests from them would have jeopardized
the settlement. [D.E. 74 at 22-27]. Again, “[t]he insurer must investigate the
facts, give fair consideration to a settlement offer that is not unreasonable
under the facts, and settle, if possible, where a reasonably prudent person,
faced with the prospect of paying the total recovery, would do so.” Boston
Old Colony, 386 So.2d at 785.
With respect to Plaintiff’s argument concerning response time and requests
for an extension, the record does not reflect a “lack of urgency” on behalf of
Allstate. The clock presumably started when Allstate received the settlement
offer on October 13, 2006. [D.E. 51-12; 63-10; 63-1 at 27-28]. This allowed
Allstate six (6) business days to respond to the offer. Id. Upon receipt,
Allstate contacted Mr. Fain to discuss the offer, mailed and faxed copies of the
offer to Plaintiff and Mr. Fain, and faxed a copy to outside counsel. [D.E. 51-1
at 28; 63-1 at 28-29]. Allstate sent multiple disclosures for execution to Mr.
Fain as well as followed up concerning the property and bodily injury release
issues. [D.E. 63-1 at 28-31]. Despite all of this activity, it is undisputed
that Allstate failed to request additional time to respond to the settlement
offer. [D.E. 51 at 8; 51-34 at 6-7]. However, the record does not reflect a lack
of urgency of behalf of Allstate. Furthermore, Plaintiff does not present any
legal authority with similar facts that suggests Allstate’s behavior did not
rise to the level of a reasonably prudent person.
for an extension, the record does not reflect a “lack of urgency” on behalf of
Allstate. The clock presumably started when Allstate received the settlement
offer on October 13, 2006. [D.E. 51-12; 63-10; 63-1 at 27-28]. This allowed
Allstate six (6) business days to respond to the offer. Id. Upon receipt,
Allstate contacted Mr. Fain to discuss the offer, mailed and faxed copies of the
offer to Plaintiff and Mr. Fain, and faxed a copy to outside counsel. [D.E. 51-1
at 28; 63-1 at 28-29]. Allstate sent multiple disclosures for execution to Mr.
Fain as well as followed up concerning the property and bodily injury release
issues. [D.E. 63-1 at 28-31]. Despite all of this activity, it is undisputed
that Allstate failed to request additional time to respond to the settlement
offer. [D.E. 51 at 8; 51-34 at 6-7]. However, the record does not reflect a lack
of urgency of behalf of Allstate. Furthermore, Plaintiff does not present any
legal authority with similar facts that suggests Allstate’s behavior did not
rise to the level of a reasonably prudent person.
On the other hand, Allstate maintains that there was no realistic or
reasonable opportunity to perfect a settlement with Claimant. [D.E. 52 at 15].
In support, Allstate cites to a number of cases that infer a six (6) day
response time effectively eliminates a reasonable opportunity for settlement.
See DeLaune v. Liberty Mut. Ins. Co., 314 So.2d 601, 603 (Fla. 4th
DCA 1975) (claimant’s ten-day offer acceptance deadline was deemed “totally
unreasonable”); Clauss v. Fortune Ins. Co., 523 So.2d 1177, 1178 (Fla.
5th DCA 1988) (“[a] one-month period to verify a claim was not excessive, and
certainly does not rise to the level of bad faith, particularly when Fortune
tendered the policy limits one day after the notice of the bad-faith failure to
settle was sent by Clauss”); see also Berges v. Infinity Ins. Co.,
896 So.2d 665, 692-93 (Fla. 1980). Although Allstate bears the burden of
showing that there was no realistic possibility of settlement, it is not
necessary to resolve this question because the proper “focus of an insurance bad
faith case is not on the motive of the claimant but of the insurer in fulfilling
its duty to the insured.” Barry
v. GEICO Gen. Ins. Co., 938 So.2d 613, 618 (Fla. 4th DCA 2006) [31 Fla.
L. Weekly D2467a] (citing Berges, 896 So.2d at 677); see also Powell
v. Prudential Prop. & Cas. Ins. Co., 584 So.2d 12 (Fla. 3d DCA 1991).
reasonable opportunity to perfect a settlement with Claimant. [D.E. 52 at 15].
In support, Allstate cites to a number of cases that infer a six (6) day
response time effectively eliminates a reasonable opportunity for settlement.
See DeLaune v. Liberty Mut. Ins. Co., 314 So.2d 601, 603 (Fla. 4th
DCA 1975) (claimant’s ten-day offer acceptance deadline was deemed “totally
unreasonable”); Clauss v. Fortune Ins. Co., 523 So.2d 1177, 1178 (Fla.
5th DCA 1988) (“[a] one-month period to verify a claim was not excessive, and
certainly does not rise to the level of bad faith, particularly when Fortune
tendered the policy limits one day after the notice of the bad-faith failure to
settle was sent by Clauss”); see also Berges v. Infinity Ins. Co.,
896 So.2d 665, 692-93 (Fla. 1980). Although Allstate bears the burden of
showing that there was no realistic possibility of settlement, it is not
necessary to resolve this question because the proper “focus of an insurance bad
faith case is not on the motive of the claimant but of the insurer in fulfilling
its duty to the insured.” Barry
v. GEICO Gen. Ins. Co., 938 So.2d 613, 618 (Fla. 4th DCA 2006) [31 Fla.
L. Weekly D2467a] (citing Berges, 896 So.2d at 677); see also Powell
v. Prudential Prop. & Cas. Ins. Co., 584 So.2d 12 (Fla. 3d DCA 1991).
Turning to the issue of Allstate’s purported confusion, the Court concludes
that Allstate’s outside counsel, Mr. de Armas, elected to send two unilateral
releases without first clarifying exactly what Mr. Peters meant in his
settlement offer. Testimony from Allstate’s claim handlers and legal
representatives, Sharon Cathcart and Diane Campbell-Brown, Mr. de Armas, and
Allstate’s in-house counsel, John Connolly, support Allstate’s position that it
was confused. See [D.E. 51-32 at 7; 51-34 at 5; 51-36 at 3-4; 51-37 at
2-3; 55 at 90-91]. Further, Ms. Campbell-Brown noted in the claim log that “we
just need to clarify the release wording and what exactly [Mr. Peters] needs for
disclosure response.” [D.E. 631 at 29]. The record also reflects Allstate’s
difficulty in communicating with Mr. Peters. [D.E. 63-1 at 29-31; 54 at 32-35].
However, in light of this confusion, record evidence shows that Mr. de Armas
“decided to revise the releases after going back and reviewing the release that
Mr. Peters had sent.” [D.E. 51-21]. Thus, Mr. de Armas erroneously sent two
unilateral releases without first clarifying exactly what Mr. Peters meant in
his settlement offer.
that Allstate’s outside counsel, Mr. de Armas, elected to send two unilateral
releases without first clarifying exactly what Mr. Peters meant in his
settlement offer. Testimony from Allstate’s claim handlers and legal
representatives, Sharon Cathcart and Diane Campbell-Brown, Mr. de Armas, and
Allstate’s in-house counsel, John Connolly, support Allstate’s position that it
was confused. See [D.E. 51-32 at 7; 51-34 at 5; 51-36 at 3-4; 51-37 at
2-3; 55 at 90-91]. Further, Ms. Campbell-Brown noted in the claim log that “we
just need to clarify the release wording and what exactly [Mr. Peters] needs for
disclosure response.” [D.E. 631 at 29]. The record also reflects Allstate’s
difficulty in communicating with Mr. Peters. [D.E. 63-1 at 29-31; 54 at 32-35].
However, in light of this confusion, record evidence shows that Mr. de Armas
“decided to revise the releases after going back and reviewing the release that
Mr. Peters had sent.” [D.E. 51-21]. Thus, Mr. de Armas erroneously sent two
unilateral releases without first clarifying exactly what Mr. Peters meant in
his settlement offer.
Although Plaintiff emphasizes this point in argument, he does not present any
legal authority resting on similar facts that suggests Allstate’s negligence
amounts to bad faith. To the contrary, in exercising its duty to protect
Plaintiff’s interests as a reasonably prudent person would, Allstate is not
obligated to act perfectly. Novoa v. GEICO, 2013 WL 172913, *4 (S.D. Fla.
2013). Even though an insurer’s negligence is a factor to be considered under
the totality of the circumstances, the presence of such does not automatically
equate to bad faith. Berges, 896 So.2d at 667; see also
Campbell v. Gov’t Emps. Ins. Co., 306 So.2d 525, 530 (Fla. 1974). In
Berges, Justice Cantero correctly states in his dissenting opinion that
in order “[t]o establish a breach of [the duties set forth in Boston Old
Colony,]claimants must demonstrate more than mere negligence; . . . That is,
the evidence must show that the insurer . . . ‘wrongfully refus[ed] to settle
the case within the police limits.’ ” Id. at 667 (quoting Dunn v.
Nat’l Sec. Fire & Cas. Co., 631 So.2d 1103, 1106 (Fla. 5th DCA 1993)
(emphasis in original); cf. Southern Gen. Ins. Co. v. Holt, 416
S.E.2d 274, 276 (Ga. 1992) (“An insurance company does not act in bad faith
solely because it fails to accept a settlement offer within the deadline set be
the injured person’s attorney”). Here, the record does not indicate that any of
Allstate’s actions were done to delay or avoid settlement, to place Allstate’s
interests before Plaintiff’s, or to obstruct settlement of the claim.
Maldonado, 546 F.Supp.2d at 1354. “This is the type of conduct that is
the essence of bad faith, and it is utterly lacking here.” Id. Therefore,
the Court finds that, based upon record evidence and the totality of the
circumstances, no reasonable jury could find Allstate acted in bad faith towards
Plaintiff and that summary judgment in Allstate’s favor is appropriate.
Id.; Anderson, 477 U.S. at 248.
legal authority resting on similar facts that suggests Allstate’s negligence
amounts to bad faith. To the contrary, in exercising its duty to protect
Plaintiff’s interests as a reasonably prudent person would, Allstate is not
obligated to act perfectly. Novoa v. GEICO, 2013 WL 172913, *4 (S.D. Fla.
2013). Even though an insurer’s negligence is a factor to be considered under
the totality of the circumstances, the presence of such does not automatically
equate to bad faith. Berges, 896 So.2d at 667; see also
Campbell v. Gov’t Emps. Ins. Co., 306 So.2d 525, 530 (Fla. 1974). In
Berges, Justice Cantero correctly states in his dissenting opinion that
in order “[t]o establish a breach of [the duties set forth in Boston Old
Colony,]claimants must demonstrate more than mere negligence; . . . That is,
the evidence must show that the insurer . . . ‘wrongfully refus[ed] to settle
the case within the police limits.’ ” Id. at 667 (quoting Dunn v.
Nat’l Sec. Fire & Cas. Co., 631 So.2d 1103, 1106 (Fla. 5th DCA 1993)
(emphasis in original); cf. Southern Gen. Ins. Co. v. Holt, 416
S.E.2d 274, 276 (Ga. 1992) (“An insurance company does not act in bad faith
solely because it fails to accept a settlement offer within the deadline set be
the injured person’s attorney”). Here, the record does not indicate that any of
Allstate’s actions were done to delay or avoid settlement, to place Allstate’s
interests before Plaintiff’s, or to obstruct settlement of the claim.
Maldonado, 546 F.Supp.2d at 1354. “This is the type of conduct that is
the essence of bad faith, and it is utterly lacking here.” Id. Therefore,
the Court finds that, based upon record evidence and the totality of the
circumstances, no reasonable jury could find Allstate acted in bad faith towards
Plaintiff and that summary judgment in Allstate’s favor is appropriate.
Id.; Anderson, 477 U.S. at 248.
IV. Conclusion
Based on the aforementioned, it is hereby
ORDERED AND ADJUDGED that Joshua P. Kincaid’s Motion for Summary Judgment
[D.E. 51] is DENIED. It is further
[D.E. 51] is DENIED. It is further
ORDERED AND ADJUDGED that Defendant Allstate Property & Casualty
Insurance Company’s Motion for Summary Judgment [D.E. 52] is GRANTED. It is
further
Insurance Company’s Motion for Summary Judgment [D.E. 52] is GRANTED. It is
further
ORDERED AND ADJUDGED that this case is removed from the Court’s trial
calendar and is CLOSED and all other pending motions are DENIED AS MOOT.
Defendant shall submit a proposed Final Judgment within fourteen (14) days of
this Order.
calendar and is CLOSED and all other pending motions are DENIED AS MOOT.
Defendant shall submit a proposed Final Judgment within fourteen (14) days of
this Order.
__________________
1The Court will take judicial notice of
the decisions of the Circuit Court of the Nineteenth Judicial Circuit in and for
Martin County, Florida, and the Fourth District Court of Appeal for the State of
Florida as they relate to the Parties in this action.
the decisions of the Circuit Court of the Nineteenth Judicial Circuit in and for
Martin County, Florida, and the Fourth District Court of Appeal for the State of
Florida as they relate to the Parties in this action.
2“The general rule is that inadmissible
hearsay ‘cannot be considered on a motion for summary judgment.’ ” Macuba v.
Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999). “This rule also applies to
testimony given on deposition.” Id. However, “a district court may
consider a hearsay statement in passing on a motion for summary judgment if the
statement could be ‘reduced to admissible evidence at trial’ or ‘reduced to
admissible form.’ ” Id. at 1323. Therefore, the Court will consider the
above-mentioned statements and documents on record as they may be reduced to an
admissible form at trial.
hearsay ‘cannot be considered on a motion for summary judgment.’ ” Macuba v.
Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999). “This rule also applies to
testimony given on deposition.” Id. However, “a district court may
consider a hearsay statement in passing on a motion for summary judgment if the
statement could be ‘reduced to admissible evidence at trial’ or ‘reduced to
admissible form.’ ” Id. at 1323. Therefore, the Court will consider the
above-mentioned statements and documents on record as they may be reduced to an
admissible form at trial.
3The newly formed Eleventh Circuit in
Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en
banc), held that the decisions of the Fifth Circuit delivered prior to October
1, 1981 are binding precedent.
Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en
banc), held that the decisions of the Fifth Circuit delivered prior to October
1, 1981 are binding precedent.
4Full text of the Jury Instruction 404.4
and advisory notes can be found at:
http://www.floridasupremecourt.org/civ_jury_instructions/2010/400/404(4).rtf
and advisory notes can be found at:
http://www.floridasupremecourt.org/civ_jury_instructions/2010/400/404(4).rtf
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