Insurance — Medical malpractice liability — Bad faith — Insurer’s timely tender of its policy limits barred an action against insurer for bad faith failure to pay its policy limits

Insurance
— Medical malpractice liability — Bad faith — Insurer’s timely tender of its
policy limits barred an action against insurer for bad faith failure to pay its
policy limits, but did not bar action alleging that insurer acted in bad faith
in making an offer to arbitrate which entailed admitting liability without
making the offer contingent upon a limit of general damages — Trial court
erred in entering summary judgment for insurer where there was factual issue as
to whether insurer participated in deciding to offer to arbitrate

MOHAMAD R. SAMIIAN, M.D., individually and formally doing
business as AESTHETIC AND PLASTIC SURGERY CLINIC OF JACKSONVILLE, Appellants,
v. FIRST PROFESSIONALS INSURANCE COMPANY, INC. and M. REZA SAMIIAN, M.D., P.A.,
Appellees. 1st District. Case No. 1D14-3656. Opinion filed December 1, 2015. An
appeal from the Circuit Court for Duval County. W. Gregg McCaulie, Judge.
Counsel: Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola; Michael
S. Rywant of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Gainesville;
Robert J. Mayes and Jonathan R. Mayes of Mayes Law Firm, P.A., Gulf Breeze, for
Appellant Mohamad R. Samiian, M.D. Joseph T. Kissane and Daniel R. Duello of
Cole, Scott & Kissane, P.A., Jacksonville; Raoul G. Cantero, David P.
Draigh, and Ryan A. Ulloa of White & Case, LLP, Miami, for Appellee First
Professionals Insurance Company, Inc.

(BENTON, J.) Dr. Mohamad Samiian asks us to reverse the
summary final judgment exonerating his medical malpractice insurer, First
Professionals Insurance Company, Inc. (FPIC). The trial court ruled that Dr.
Samiian’s bad faith action against FPIC was barred by the “safe harbor”
provision in section 766.1185(1)(a), Florida Statutes (2005). But, because
subsection (2), not subsection (1)(a), controls, disputed issues of material
fact precluding summary judgment remain. We reverse summary judgment,
accordingly, and remand for further proceedings.

After Dr. Samiian performed liposuction on April 13, 2004,
his patient remained in a bed on the clinic premises. At the end of the work
day, Dr. Samiian left him in the care of a surgical technologist who
administered medication intravenously. The patient suffered cardiac arrest and
died at 8:40 p.m., despite the best efforts of the emergency medical
technicians the technologist summoned. He left a wife and two minor children.
The very next day Dr. Samiian notified FPIC of a potential malpractice claim.

On behalf of his widow, his children and the estate,
pursuant to section 766.106(2), Florida Statutes (2003), the personal
representative served a notice of intent to initiate medical negligence
litigation on April 13, 2005. FPIC retained Bradley Johnson, Esq., to represent
Dr. Samiian and conduct a presuit investigation. FPIC’s claims adjuster, Eric
Roberts, indicated in a June 30, 2005 note that the “case ha[d] become
indefensible at least by post-op care” and “[w]e . . . have been unsuccessful
in finding support [for] the overnight stay without an R.N. present. After
discussions with [FPIC’s] management, it was decided to not only offer the
policy limits, but to tender them to the plaintiffs. . . . Settlement check is
being requested. Plan to offer it prior to 7/14/05, end of presuit.”1 As planned, FPIC delivered a check in
the amount of policy limits to the personal representative’s attorney on July
11, 2005.2

Two days later Mr. Johnson sent a letter to counsel for the
personal representative, offering to submit the case to binding arbitration.
While the letter made clear FPIC was not altering its outstanding offer to
settle for policy limits, the offer to arbitrate changed the situation dramatically.3 The offer to arbitrate was not
contingent upon any limitation of damages. Confident any arbitration award would
exceed the $250,000 policy limit tendered earlier, the personal representative
accepted the offer to arbitrate.4 In due course, an arbitration panel
awarded the estate and survivors $35,315,789, and the award was affirmed on
appeal on May 21, 2010. Samiian v. Gottlieb, 36 So. 3d 661 (Fla. 1st DCA
2010). Final judgment, including costs, attorney’s fees and prejudgment interest
on the arbitration award, was entered against Dr. Samiian for $43,347,183.28.

The present case began when Dr. Samiian and his professional
association filed an action for damages against FPIC on August 12, 2010,
alleging FPIC breached the insurance contract and acted in bad faith in
handling the medical negligence claim against them. FPIC filed a motion for
summary judgment, principally on two grounds: (1) because FPIC had tendered its
policy limits promptly in response to the notice of intent to initiate a
medical negligence action, any bad faith action was barred by virtue of the
safe harbor provision in section 766.1185(1)(a)1., Florida Statutes (2005);5 and (2) FPIC was not legally
responsible for the decision to offer to arbitrate the medical negligence
claim, a decision which FPIC contended Dr. Samiian made in consultation with
his legal team, independently of FPIC.

The trial court granted the motion for summary judgment on
the first ground and entered final judgment in favor of FPIC, concluding that
section 766.1185(1)(a) was “specifically designed and enacted to limit claims
for insurer bad faith against medical malpractice carriers where the insurer’s
full policy limits were tendered within the safe harbor period.” The trial
court rejected Dr. Samiian’s contention that his bad faith claim fell under
section 766.1185(2), stating only: “If subsection (1) does apply, the Plaintiff
does not have the ability to recover for bad faith due to an improper method of
investigating or evaluating the claim. Since the insurer tendered his policy
limits within the safe harbor timeframe, subsection (1) applies.” On the other
hand, the trial court rejected FPIC’s second ground, its argument that summary
judgment was appropriate because Dr. Samiian and his attorneys, not FPIC, made
the decision to offer to arbitrate, noting evidence that FPIC’s claims adjuster
participated in discussions with Dr. Samiian and his attorneys regarding
whether to offer to arbitrate.

The record is clear that FPIC tendered its policy limits
well before time had run under section 766.1185(1)(a), Florida Statutes (2005),
and no party claims the tender was defective in any way. But section
766.1185(1)(a) does not bar an action for bad faith on any ground other than
failure to settle promptly (before the deadline it specifies) when settlement
is indicated. Where the insurer timely “tenders its policy limits and meets
other reasonable conditions of settlement,” subsection (1)(a) bars only an
action against an insurer for “bad faith for failure to pay its policy limits.”

Dr. Samiian’s bad faith claim did not allege FPIC’s failure
to pay or tender its policy limits. The complaint contends instead that FPIC
breached duties owed him and his professional association and acted in bad
faith in making an offer to arbitrate which entailed admitting liability,
without making the offer “contingent upon a limit of general damages.” §
766.106(3)(b)3., Fla. Stat. (2003). The complaint asserts that the deceased
patient earned over $2,000,000 a year and that admitting liability for economic
damages (by offering to arbitrate) could not possibly have been in Dr.
Samiian’s best interest. The complaint also maintains that FPIC’s employees and
agents breached a duty they owed to advise him fully of the consequences of
admitting legal liability, including waiving any defense of proximate cause or
third parties’ comparative negligence, and that FPIC failed to recognize that
the patient’s claim was defensible (or at least that damages could be reduced
by apportioning fault to the patient or to third parties). Dr. Samiian also
claimed FPIC acted in its own best interest,6 not his, by offering to submit the
claim to binding arbitration, thereby limiting its exposure to attorney’s fees
and costs that it would have incurred if the claim had gone to trial and
liability had been litigated.

The bad faith action Dr. Samiian and his professional
association pleaded falls under section 766.1185(2), Florida Statutes (2005),
which specifies ten factors that must be considered on the question of bad
faith, where section 766.1185(1) does not apply. The trial court erred in
entering summary final judgment in favor of FPIC on the purported authority of
section 766.1185(1)(a), Florida Statutes (2005). Based on the “pleadings and summary
judgment evidence on file,” Fla. R. Civ. P. 1.510(c), the safe harbor provision
in section 766.1185(1)(a) does not apply in the present case. Whether FPIC
acted in bad faith as alleged in the complaint depends on numerous factual
questions that cannot, on this record, be resolved by summary judgment.

Summary judgment may not be granted “[i]f there is even the
slightest doubt that material factual issues remain.” Alpha Data Corp. v.
HX5, L.L.C., 139 So. 3d 907, 910 (Fla. 1st DCA 2013). See Feizi
v. Dep’t of Mgmt. Servs., State of Fla., 988 So. 2d 1192, 1193 (Fla. 1st
DCA 2008) (“ ‘If the evidence raises any issue of material fact, if it is
conflicting, if it will permit different reasonable inferences, or if it tends
to prove the issues, it should be submitted to the jury as a question of fact
to be determined by it.’ ” (quoting Moore v. Morris, 475 So. 2d 666, 668
(Fla.1985))); see also Fla. R. Civ. P. 1.510(c) (“The [summary] judgment
sought shall be rendered forthwith if the pleadings and summary judgment
evidence on file show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.”). We
review orders granting summary judgment de novo. See Dianne v.
Wingate, 84 So. 3d 427, 429 (Fla. 1st DCA 2012). “Our task is to determine
whether, after reviewing every inference in favor of [a]ppellants as the
non-moving party, no genuine issue of material fact exists and the moving party
is entitled to a judgment as a matter of law.” Id.

We decline FPIC’s suggestion that we affirm on the second
ground it argued below — the ground the trial court rejected — under the
“tipsy coachman” doctrine. See Dade Cty. Sch. Bd. v. Radio Station
WQBA, 731 So. 2d 638, 644-45 (Fla. 1999) (holding that, although arrived at
by erroneous reasoning, a decision may be affirmed if the evidence supports it
on an alternative theory). Even summary judgment can be affirmed, if right for
the wrong reason, where the right reason was adequately presented to the trial
court in support of the motion. Cf. Hope v. Citizens Prop. Ins. Corp.,
114 So. 3d 457, 459 (Fla. 3d DCA 2013) (“ ‘[A]s Loranger v. State Dep’t of
Transp., 448 So. 2d 1036, 1039 (Fla. 4th DCA 1983) makes clear, the “right
for the wrong reason” appellate maxim does not apply in summary judgment
proceedings where the issue was never raised in the motion for summary
judgment.’ ” (citation omitted)).

But, with regard to the second ground FPIC argued in support
of its motion for summary judgment,7 the trial court rightly identified
“whether or not it [the decision to offer to arbitrate] was Dr. Samiian’s
unilateral decision or not” as a material factual issue, and concluded it could
not resolve factual disputes on motion for summary judgment. The learned trial
judge was aware of evidence from which a jury could find that Mr. Roberts,
FPIC’s claims adjuster, participated with Dr. Samiian, Mr. Johnson, and another
lawyer, Mr. Tromberg, in deciding to offer to arbitrate.8 If FPIC is legally responsible for the
offer to arbitrate — a question we do not decide — there are also material
issues of disputed fact regarding whether the offer to arbitrate was in the
best interest of Dr. Samiian, and whether waiving all defenses to liability
while an offer to settle for policy limits was pending served his, as opposed
to the insurer’s, interests.

Reversed and remanded. (ROWE and MARSTILLER, JJ., CONCUR.)

__________________

1Section 766.106, Florida Statutes
(2003), provides in part:

(3)
PRESUIT INVESTIGATION BY PROSPECTIVE DEFENDANT. —  

(a)
No suit may be filed for a period of 90 days after notice is mailed to any
prospective defendant. During the 90-day period, the prospective defendant or
the defendant’s insurer or self-insurer shall conduct a review . . . to determine
the liability of the defendant. . . .

(b)
At or before the end of the 90 days, the prospective defendant or the
prospective defendant’s insurer or self-insurer shall provide the claimant with
a response: 

1.
Rejecting the claim; 

2.
Making a settlement offer; or 

3.
Making an offer to arbitrate in which liability is deemed admitted and
arbitration will be held only on the issue of damages. This offer may be made
contingent upon a limit of general damages.

2On July 7, 2005 [prior to FPIC’s
tender of policy limits], Mr. Johnson sent an email to Mr. Roberts and to Fred
Tromberg, Dr. Samiian’s personal attorney, addressing whether to offer binding
arbitration pursuant to section 766.207, Florida Statutes (2003). Attached to
the email were drafts of two letters addressed to counsel for the estate — one
offering binding arbitration and the other denying liability.

3When Dr. Samiian later questioned
whether he was bound by the offer to arbitrate, the estate filed a motion to
compel arbitration. The trial court granted the motion, and its ruling was
affirmed. See Samiian v. Gottlieb, 958 So. 2d 926 (Fla. 1st DCA
2007).

4Mr. Johnson then withdrew from
representation and FPIC retained Craig Dennis to represent Dr. Samiian.

5Section 766.1185, Florida Statutes
(2005), provides, in relevant part:

Bad
faith actions. — In all actions for bad faith against a medical malpractice
insurer relating to professional liability insurance coverage for medical
negligence, and in determining whether the insurer could and should have
settled the claim within the policy limits had it acted fairly and honestly
towards its insured with due regard for her or his interest, whether under
statute or common law: 

(1)(a)
An insurer shall not be held in bad faith for failure to pay its policy limits
if it tenders its policy limits and meets other reasonable conditions of
settlement by the earlier of either: 

1.
The 210th day after service of the complaint in the medical negligence action
upon the insured. . . .; or 

2.
The 60th day after the conclusion of [specific depositions, initial disclosure
of witness and document production, and mediation as provided in section
766.108, Florida Statutes].

. .
. . 

(d)
The fact that the insurer did not tender policy limits during the time periods
specified in this paragraph is not presumptive evidence that the insurer acted
in bad faith. 

(2)
When subsection (1) does not apply, the trier of fact, in determining whether
an insurer has acted in bad faith, shall consider: 

(a)
The insurer’s willingness to negotiate with the claimant in anticipation of
settlement. 

(b)
The propriety of the insurer’s methods of investigating and evaluating the
claim. 

(c)
Whether the insurer timely informed the insured of an offer to settle within
the limits of coverage, the right to retain personal counsel, and the risk of
litigation. 

(d)
Whether the insured denied liability or requested that the case be defended
after the insurer fully advised the insured as to the facts and risks. 

(e)
Whether the claimant imposed any condition, other than the tender of the policy
limits, on the settlement of the claim. 

(f)
Whether the claimant provided relevant information to the insurer on a timely
basis. 

(g)
Whether and when other defendants in the case settled or were dismissed from
the case. 

(h)
Whether there were multiple claimants seeking, in the aggregate, compensation
in excess of policy limits from the defendant or the defendant’s insurer. 

(i)
Whether the insured misrepresented material facts to the insurer or made
material omissions of fact to the insurer. 

(j)
In addition to the foregoing, the court shall allow consideration of such
additional factors as the court determines to be relevant.

(Boldface omitted).

6Section 627.4147(1)(b)1., Florida
Statutes (2005), requires that “any offer of admission of liability, settlement
offer, or offer of judgment made by an insurer or self-insurer shall be made in
good faith and in the best interests of the insured.”

7FPIC argues it is not liable for any
legal malpractice on the part of Mr. Johnson regarding the decision to offer to
arbitrate. See Zurich Am. Ins. Co. v. Frankel Enters., 287 F.
App’x 775, 779 (11th Cir. 2008) (“Under Florida law, any defense counsel hired
to represent the insured is an independent contractor, and the insurer is not
vicariously liable for counsel’s acts and omissions.”); Marlin v. State Farm
Mut. Auto. Ins. Co., 761 So. 2d 380, 381 (Fla. 4th DCA 2000) (concluding
that because “the insurer has no obligation or right to supervise or control
the professional conduct of the attorney, it is not liable for the litigation
decisions of counsel”); Aetna Cas. & Sur. Co. v. Protective Nat’l Ins.
Co. of Omaha, 631 So. 2d 305, 306 (Fla. 3d DCA 1993) (holding “an insurance
company is not vicariously liable for the malpractice of the attorney it
selects to defend the insured”).

8We reject Dr. Samiian’s assertion
that pursuant to section 627.4147, Florida Statutes (2005), the insurer retains
exclusive control over the decision whether to admit liability and offer
arbitration. See §§ 627.4147(1); (1)(b)1., Fla. Stat. (2005) (“[E]ach .
. . insurance policy providing coverage for claims arising out of the rendering
of, or the failure to render, medical care or services, . . . shall include” “a
clause authorizing the insurer or self-insurer to determine, to make, and to
conclude, without the permission of the insured, any offer of admission of
liability and for arbitration pursuant to s. 766.106, settlement offer, or
offer of judgment, if the offer is within the policy limits. It is
against public policy for any insurance or self-insurance policy to contain a
clause giving the insured the exclusive right to veto any offer for admission
of liability and for arbitration made pursuant to s. 766.106, settlement offer,
or offer of judgment, when such offer is within the policy limits.”
(emphasis added)). The offer to arbitrate in this case was not “within the
policy limits.”

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