25 Fla. L. Weekly Fed. D116a
Insurance — Bad faith — Statutory bad faith claim is premature where liability and damages have not yet been determined — Premature bad faith claim should be dismissed without prejudice, rather than abated — Motion for extension of time to file case management report denied as moot
HOLLI R. THORNE, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. U.S. District Court, Middle District of Florida, Tampa Division. Case No. 8:14-CV-827-T-17AEP. February 25, 2015. Elizabeth A. Kovachevich, Judge.
This cause is before the Court on: Dkt. 3-7 Motion to Dismiss Dkt. 3-8 Response in OppositionDkt. 12 Joint Motion for Extension of Time to File Case Management Report
Defendant State Farm Mutual Automobile Insurance Company removed the Statutory Bad Faith Claim, Count III of Plaintiff’s Third Amended Complaint on April 8, 2014. The Court has denied Plaintiff’s Motion to Remand. The Court has outlined the posture of this case in that Order, and incorporates it by reference.
Defendant State Farm Mutual Automobile Insurance Company moves to dismiss or to strike Count III of Plaintiff’s Third Amended Complaint. Defendant State Farm argues that the statutory bad faith claim does not exist, and may never come into existence. Defendant State Farm argues that dismissal, rather than abatement, is the proper remedy. Shuck v. Bank of America. N.A., 862 So.2d 20, 24 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D2191d] (where the premature element of an action is curable by the passage of time, abatement until the cause matures is appropriate; where one of the essential elements is contingent on an event that may or may not occur, dismissal is required).
Plaintiff Thorne responds that the Court deny Defendant’s Motion and exercise its authority to abate only the portion of Plaintiff’s bad faith claim regarding the issue of Defendant’s bad faith claims handling. Plaintiff argues that Defendant’s Motion has caused the waste of resources, and the inevitable consequence of inconsistent verdicts.
The Court notes that in the underlying case in Hillsborough County Circuit Court, Case No. 08-CA-007591, the Parties will proceed to trial on liability and damages as to Count I and II of the Third Amended Complaint.
The Court recognizes that there are conflicting opinions as to removal of a bad faith claim, as outlined in Defendant’s Motion, and as to whether a premature bad faith claim should be dismissed or abated. Plaintiff’s concern with inconsistent verdicts is unfounded. There are conflicting opinions as to whether a jury verdict in the underlying case is binding in determining total damages that may be awarded to a plaintiff who prevails in a bad faith claim. The Court has found that a jury verdict in the underlying case is binding.
The Court notes that a bad faith claim is entirely a creature of statute. “Florida does not recognize a common law first-party action for bad faith failure to settle a claim under an insurance contract.” Bollinger v. State Farm Mut. Auto Ins. Co., supra (citing Chalfonte Condo. Apartment Assn. v. QBE Ins. Corp., 561 F.3d 1267, 1271 (11th Cir. 2009) [23 Fla. L. Weekly Fed. D159a]; Talat Enter., Inc. v. Aetna Cas. & Surety Co., 753 So.2d 1278, 1281 (Fla. 2000) [25 Fla. L. Weekly S172a]). The statutory notice to the insurer and the Department of Financial Services is a condition precedent to a bad faith claim, after which the insurer has sixty days to cure the violation of the statute. In Vest v. Travelers Ins. Co., 753 So.2d 1270, 1275 (Fla. 2000) [25 Fla. L. Weekly S177a], the Florida Supreme Court states: “We continue to hold in accord with Blanchard that bringing a cause of action in court for violation of section 825.155(1)(b)(1) is premature until there is a determination of liability and the extent of damages owed on the first-party insurance contract . This avoids the problem Blanchard dealt with, which was the splitting of causes of action. However, a claim brought prematurely is not subject to a summary judgment. Such a claim should be dismissed as premature.”
Because liability and damages have not yet been determined, Plaintiff’s bad faith claim is premature. The Court therefore grants Plaintiff’s Motion to Dismiss under Fed. R. Civ. P. 12(b)(6). This case will be dismissed without prejudice as premature. Accordingly, it is
ORDERED that the Joint Motion for Extension of Time to File Case Management Report (Dkt. 12) is denied as moot. Defendant’s Motion to Dismiss or to Strike is granted as to dismissal and denied as to striking Count III. Count Ill is dismissed without prejudice as premature. The Clerk of Court shall close this case.
* * *