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Fla. L. Weekly Fed. C1629aTop of Form
Fla. L. Weekly Fed. C1629aTop of Form
Insurance
— Uninsured motorist — Bad faith — Under Florida law, an insured is entitled
to a determination of liability and full extent of damages in UM contract
action before filing a first-party bad faith action, and that determination of
damages is binding in a subsequent bad faith case, with the caveat that parties
have a right to appellate review of statutory-damages determination before it
becomes binding in subsequent bad faith case — Statutory-damages determination
in parties’ underlying breach-of-contract action does not bind the parties in
the present bad faith case, where defendant UM insurance provider did not
receive appellate review of damages determination — Defendant insurer was
denied its right to appellate review of properly preserved claims of error in
the damages determination when district court of appeal did not review the
errors alleged to extent such errors may have impacted damages beyond policy
maximum — Insurer’s failure to take any additional actions after district
court of appeal issued its opinion did not waive insurer’s right to object to
using the damages verdict in subsequent bad-faith suit in district court —
District court erred in granting partial summary judgment on binding effect of
verdict in parties’ breach-of-contract case — Insurer is entitled to new damages
determination
— Uninsured motorist — Bad faith — Under Florida law, an insured is entitled
to a determination of liability and full extent of damages in UM contract
action before filing a first-party bad faith action, and that determination of
damages is binding in a subsequent bad faith case, with the caveat that parties
have a right to appellate review of statutory-damages determination before it
becomes binding in subsequent bad faith case — Statutory-damages determination
in parties’ underlying breach-of-contract action does not bind the parties in
the present bad faith case, where defendant UM insurance provider did not
receive appellate review of damages determination — Defendant insurer was
denied its right to appellate review of properly preserved claims of error in
the damages determination when district court of appeal did not review the
errors alleged to extent such errors may have impacted damages beyond policy
maximum — Insurer’s failure to take any additional actions after district
court of appeal issued its opinion did not waive insurer’s right to object to
using the damages verdict in subsequent bad-faith suit in district court —
District court erred in granting partial summary judgment on binding effect of
verdict in parties’ breach-of-contract case — Insurer is entitled to new damages
determination
MARY BOTTINI, as Personal
Representative of the Estate of Gerard Bottini, Plaintiff-Appellee, v. GEICO,
Defendant-Appellant. 11th Circuit. Case No. 15-12266. Argument Calendar. June
15, 2017. Appeal from the U.S. District Court for the Middle District of
Florida (No. 8:13-cv-00365-EAK-AEP).
Representative of the Estate of Gerard Bottini, Plaintiff-Appellee, v. GEICO,
Defendant-Appellant. 11th Circuit. Case No. 15-12266. Argument Calendar. June
15, 2017. Appeal from the U.S. District Court for the Middle District of
Florida (No. 8:13-cv-00365-EAK-AEP).
(Before TJOFLAT and MARCUS, Circuit
Judges, and STEELE,* District Judge.)
Judges, and STEELE,* District Judge.)
(TJOFLAT, Circuit Judge.) In this §
1292(b) interlocutory appeal, we consider a narrow issue concerning claims
against uninsured/underinsured motorist (“UM”) insurance1 providers under Florida law. Florida,
by statute, imposes a duty on insurers to settle their policyholders’ claims in
good faith. Fla. Stat. § 624.155. If a UM insurer fails to settle a legitimate
claim within the statutory time limit, its policyholder may obtain, through two
lawsuits, two sets of damages: one for breach of contract up to the policy
maximum and another for bad faith for the full amount of the policyholder’s
injury (“statutory damages”).2 Here, the parties disagree about
whether the Court in this bad-faith case is bound by the state court jury’s
determination of damages in the underlying UM breach-of-contract action.
1292(b) interlocutory appeal, we consider a narrow issue concerning claims
against uninsured/underinsured motorist (“UM”) insurance1 providers under Florida law. Florida,
by statute, imposes a duty on insurers to settle their policyholders’ claims in
good faith. Fla. Stat. § 624.155. If a UM insurer fails to settle a legitimate
claim within the statutory time limit, its policyholder may obtain, through two
lawsuits, two sets of damages: one for breach of contract up to the policy
maximum and another for bad faith for the full amount of the policyholder’s
injury (“statutory damages”).2 Here, the parties disagree about
whether the Court in this bad-faith case is bound by the state court jury’s
determination of damages in the underlying UM breach-of-contract action.
During the pendency of this appeal
— but prior to oral argument — the Florida Supreme Court held that the
determination of damages in a UM contract case is binding in a subsequent
bad-faith case. Fridman v. Safeco Ins. Co. of Ill., 185 So. 3d 1214,
1216 (Fla. 2016) [41 Fla. L. Weekly S62a]. Critical to this appeal, however, Fridman
contained a caveat that the parties have a right to appellate review of the
statutory-damages determination before it becomes binding in the subsequent
bad-faith case. Id. at 1226. We conclude that the defendant, GEICO, did
not receive appellate review of the statutory-damages determination in the
parties’ underlying breach-of-contract case. Therefore, that damages
determination does not bind the parties in this bad-faith case. We thus reverse
the District Court’s order granting partial summary judgment on the binding
effect of the verdict in the Circuit Court’s breach-of-contract case, and hold
that the parties must again litigate statutory damages.
— but prior to oral argument — the Florida Supreme Court held that the
determination of damages in a UM contract case is binding in a subsequent
bad-faith case. Fridman v. Safeco Ins. Co. of Ill., 185 So. 3d 1214,
1216 (Fla. 2016) [41 Fla. L. Weekly S62a]. Critical to this appeal, however, Fridman
contained a caveat that the parties have a right to appellate review of the
statutory-damages determination before it becomes binding in the subsequent
bad-faith case. Id. at 1226. We conclude that the defendant, GEICO, did
not receive appellate review of the statutory-damages determination in the
parties’ underlying breach-of-contract case. Therefore, that damages
determination does not bind the parties in this bad-faith case. We thus reverse
the District Court’s order granting partial summary judgment on the binding
effect of the verdict in the Circuit Court’s breach-of-contract case, and hold
that the parties must again litigate statutory damages.
I.
This case began tragically. On March
3, 2007 at around 12:10 AM, Gerard Bottini was traveling on I-75 in
Hillsborough County, Florida. A car ahead of him caught fire and began emitting
smoke, obscuring his view of the road. As a result, he lost control of his
vehicle, which left the roadway, rolled over, and ejected him. He died later
that day from his injuries.
3, 2007 at around 12:10 AM, Gerard Bottini was traveling on I-75 in
Hillsborough County, Florida. A car ahead of him caught fire and began emitting
smoke, obscuring his view of the road. As a result, he lost control of his
vehicle, which left the roadway, rolled over, and ejected him. He died later
that day from his injuries.
The vehicle Mr. Bottini was driving
was insured by a GEICO policy that provided $50,000 of UM coverage. The car
that caught fire was underinsured for purposes of Fla. Stat. § 627.727. After
Mr. Bottini’s death, Mary Bottini, his wife, became the personal representative
of Mr. Bottini’s estate. In the months following the crash, Ms. Bottini’s
lawyer sent two letters to GEICO demanding payment of the policy maximum
because Mr. Bottini was not at fault, and GEICO had possession of crash reports
supporting that conclusion. GEICO denied the requests, stating that it was
still conducting its own investigation to determine whether Mr. Bottini was at
fault for the accident, which would render the coverage inapplicable.
was insured by a GEICO policy that provided $50,000 of UM coverage. The car
that caught fire was underinsured for purposes of Fla. Stat. § 627.727. After
Mr. Bottini’s death, Mary Bottini, his wife, became the personal representative
of Mr. Bottini’s estate. In the months following the crash, Ms. Bottini’s
lawyer sent two letters to GEICO demanding payment of the policy maximum
because Mr. Bottini was not at fault, and GEICO had possession of crash reports
supporting that conclusion. GEICO denied the requests, stating that it was
still conducting its own investigation to determine whether Mr. Bottini was at
fault for the accident, which would render the coverage inapplicable.
On August 8, 2007, 104 days after
Ms. Bottini’s lawyer sent her first letter to GEICO and 158 days after the
crash, she filed a Civil Remedy Notice of Insurer Violation (“CRN”) with the
Florida Department of Financial Services. Filing the CRN is a statutory
prerequisite to filing a bad-faith claim against an insurer. Fla. Stat. §
624.155(3). As required by § 624.155(3)(b)(1), Ms. Bottini’s CRN listed the
statutory provisions that she alleged GEICO was violating by failing to honor
her claim.3 GEICO responded to Ms. Botini’s CRN
on October 5, 2007, stating that its investigation had led it to conclude that
smoke from the vehicle in front of Gerard Bottini did not cause him to lose
control of his vehicle, it had not acted in bad faith, and it would “continue
to make every attempt to resolve this claim amicably.” About two weeks later,
in an apparent change of heart, GEICO sent Ms. Bottini’s lawyer a check for the
full $50,000, including with it a complete release of liability for any related
claims.4 Ms. Bottini rejected the release of
liability and returned the check.
Ms. Bottini’s lawyer sent her first letter to GEICO and 158 days after the
crash, she filed a Civil Remedy Notice of Insurer Violation (“CRN”) with the
Florida Department of Financial Services. Filing the CRN is a statutory
prerequisite to filing a bad-faith claim against an insurer. Fla. Stat. §
624.155(3). As required by § 624.155(3)(b)(1), Ms. Bottini’s CRN listed the
statutory provisions that she alleged GEICO was violating by failing to honor
her claim.3 GEICO responded to Ms. Botini’s CRN
on October 5, 2007, stating that its investigation had led it to conclude that
smoke from the vehicle in front of Gerard Bottini did not cause him to lose
control of his vehicle, it had not acted in bad faith, and it would “continue
to make every attempt to resolve this claim amicably.” About two weeks later,
in an apparent change of heart, GEICO sent Ms. Bottini’s lawyer a check for the
full $50,000, including with it a complete release of liability for any related
claims.4 Ms. Bottini rejected the release of
liability and returned the check.
In April 2008, Ms. Bottini sued
GEICO in the Circuit Court for Hillsborough County, Florida seeking benefits
under the UM policy. GEICO defended on the basis that Mr. Bottini was negligent
in driving his vehicle and such negligence was either the sole or contributing
cause of the accident. Ms. Bottini countered that the vehicle that caught fire
ahead of Mr. Bottini was maintained and operated negligently, and that negligence
caused the crash, not any breach of duty committed by Mr. Bottini.
GEICO in the Circuit Court for Hillsborough County, Florida seeking benefits
under the UM policy. GEICO defended on the basis that Mr. Bottini was negligent
in driving his vehicle and such negligence was either the sole or contributing
cause of the accident. Ms. Bottini countered that the vehicle that caught fire
ahead of Mr. Bottini was maintained and operated negligently, and that negligence
caused the crash, not any breach of duty committed by Mr. Bottini.
The case was tried to a jury, and
the jury found for Ms. Bottini. It decided that Mr. Bottini was not negligent,
that both the operator and owner of the smoking vehicle were negligent, and
that GEICO was therefore liable. The jury also decided the full extent of
damages arising from the accident — $103,552 to the estate; $14,522,478 to Ms.
Bottini for loss of support, services, companionship, and pain and suffering;
and around $5,400,000 to each of Mr. Bottini’s three children for loss of
support and services, parental companionship, instruction and guidance, and
pain and suffering. In total, the jury found damages amounting to $30,872,266.
the jury found for Ms. Bottini. It decided that Mr. Bottini was not negligent,
that both the operator and owner of the smoking vehicle were negligent, and
that GEICO was therefore liable. The jury also decided the full extent of
damages arising from the accident — $103,552 to the estate; $14,522,478 to Ms.
Bottini for loss of support, services, companionship, and pain and suffering;
and around $5,400,000 to each of Mr. Bottini’s three children for loss of
support and services, parental companionship, instruction and guidance, and
pain and suffering. In total, the jury found damages amounting to $30,872,266.
Following the verdict, GEICO filed
motions for new trial and remittitur, but those were denied. It then filed a
motion in the Circuit Court to limit the judgment to the $50,000 policy
maximum, and that motion was granted. Thus, after reciting the jury’s
$30,872,266 damages verdict and assessing setoffs,5 the Court entered a final judgment
for $50,000.
motions for new trial and remittitur, but those were denied. It then filed a
motion in the Circuit Court to limit the judgment to the $50,000 policy
maximum, and that motion was granted. Thus, after reciting the jury’s
$30,872,266 damages verdict and assessing setoffs,5 the Court entered a final judgment
for $50,000.
GEICO appealed the judgment to the
Second District Court of Appeal. It sought a new trial on several grounds, three
of which were pertinent to the computation of damages. It argued that Ms.
Bottini’s counsel impermissibly attacked the character of the driver of the
vehicle that caught fire, that Ms. Bottini’s counsel made a highly inflammatory
closing argument, and that $30,000,000 in damages was excessive and against the
“manifest weight of the evidence.” GEICO also contended that the judgment
clearly reflected a “punitive component” as a result of “prejudicial and
improperly admitted evidence and argument.”
Second District Court of Appeal. It sought a new trial on several grounds, three
of which were pertinent to the computation of damages. It argued that Ms.
Bottini’s counsel impermissibly attacked the character of the driver of the
vehicle that caught fire, that Ms. Bottini’s counsel made a highly inflammatory
closing argument, and that $30,000,000 in damages was excessive and against the
“manifest weight of the evidence.” GEICO also contended that the judgment
clearly reflected a “punitive component” as a result of “prejudicial and
improperly admitted evidence and argument.”
The Second District affirmed the
judgment in a short per curiam opinion that reads in its entirety as follows:
judgment in a short per curiam opinion that reads in its entirety as follows:
Geico
General Insurance Company raised five issues in this appeal. We conclude that
none of the issues warrants reversal. We note that Geico’s arguments include
claims of error that impacted the amount of damages determined by the jury. The
jury verdict found that the Estate’s damages were $30,872,266. But the judgment
amount entered by the trial court against Geico is $50,000, based on the
applicable insurance policy limits. Based on the evidence presented, we are
satisfied that even if Geico were correct that errors may have affected the
jury’s computation of damages, in the context of this case and the amount of
the judgment, any such errors were harmless. Thus, we do not address further
Geico’s claims of error.
General Insurance Company raised five issues in this appeal. We conclude that
none of the issues warrants reversal. We note that Geico’s arguments include
claims of error that impacted the amount of damages determined by the jury. The
jury verdict found that the Estate’s damages were $30,872,266. But the judgment
amount entered by the trial court against Geico is $50,000, based on the
applicable insurance policy limits. Based on the evidence presented, we are
satisfied that even if Geico were correct that errors may have affected the
jury’s computation of damages, in the context of this case and the amount of
the judgment, any such errors were harmless. Thus, we do not address further
Geico’s claims of error.
Geico Gen. Ins. Co. v. Bottini, 93 So. 3d 476, 477 (Fla. Dist. Ct. App. 2012) [37 Fla. L.
Weekly D1731a].
Weekly D1731a].
Judge Altenbernd wrote separately to
address the elephant in the room — the effect of the jury’s calculation of
damages in the UM suit on the inevitable, forthcoming bad-faith lawsuit:
address the elephant in the room — the effect of the jury’s calculation of
damages in the UM suit on the inevitable, forthcoming bad-faith lawsuit:
This
appeal is motivated by the lawsuit that both parties know will follow. The
Estate will sue GEICO under section 624.155, Florida Statutes (2006), for failure
to settle this claim at an earlier time . . .
appeal is motivated by the lawsuit that both parties know will follow. The
Estate will sue GEICO under section 624.155, Florida Statutes (2006), for failure
to settle this claim at an earlier time . . .
The
statute does not explain how the finder of fact in the next lawsuit determines
the “total amount” of the claimant’s damages. Not unreasonably, both sides in
this appeal anticipate that the Estate will attempt to use the verdict in this
case as evidence of the total amount of damages in the next lawsuit.
statute does not explain how the finder of fact in the next lawsuit determines
the “total amount” of the claimant’s damages. Not unreasonably, both sides in
this appeal anticipate that the Estate will attempt to use the verdict in this
case as evidence of the total amount of damages in the next lawsuit.
Constitutionally,
this court is given power to review final judgments for reversible error. We
can also write an opinion affirming a judgment as to issues that, if we were to
reach an opposite result, would lead to a reversal of the judgment. But I am
unconvinced that we have a scope of review that allows us to rule on issues
that do not and cannot affect the judgment on appeal. In this case, given that we
decided to affirm on the issues relating to liability, GEICO essentially wants
this court to write an opinion that affirms the judgment, but “reverses” the
verdict as to elements of damage not included within the judgment. I simply
conclude that this court does not have the power to issue such an opinion. The
fact that such an opinion might be convenient for purposes of the next lawsuit
or facilitate its settlement does not change the authority given to me under
the Florida Constitution.
this court is given power to review final judgments for reversible error. We
can also write an opinion affirming a judgment as to issues that, if we were to
reach an opposite result, would lead to a reversal of the judgment. But I am
unconvinced that we have a scope of review that allows us to rule on issues
that do not and cannot affect the judgment on appeal. In this case, given that we
decided to affirm on the issues relating to liability, GEICO essentially wants
this court to write an opinion that affirms the judgment, but “reverses” the
verdict as to elements of damage not included within the judgment. I simply
conclude that this court does not have the power to issue such an opinion. The
fact that such an opinion might be convenient for purposes of the next lawsuit
or facilitate its settlement does not change the authority given to me under
the Florida Constitution.
Accordingly,
this concurrence permits both sides to know that at least one judge on this
panel has not decided that the verdict is correct or incorrect. . . . If I am
refusing to do that which the law requires me to do, I would assume that by
writ of mandamus the supreme court could order me to conduct such a review. If
so ordered, I would perform that review.
this concurrence permits both sides to know that at least one judge on this
panel has not decided that the verdict is correct or incorrect. . . . If I am
refusing to do that which the law requires me to do, I would assume that by
writ of mandamus the supreme court could order me to conduct such a review. If
so ordered, I would perform that review.
Id. at 478 (Altenbernd, J., concurring) (footnote omitted).
GEICO did not seek discretionary postjudgment review in the Second District or
in the Supreme Court of Florida.
GEICO did not seek discretionary postjudgment review in the Second District or
in the Supreme Court of Florida.
Ms. Bottini brought this action in
the District Court on February 8, 2013, invoking the Court’s diversity
jurisdiction under 28 U.S.C. § 1332. She alleged that GEICO acted in bad faith,
violating several provisions of Fla. Stat. § 624.155. She contended that she
was therefore entitled, in accordance with Fla. Stat. § 627.727(10), to the
full amount of damages designated by the jury in the UM breach-of-contract
lawsuit. Ms. Bottini then moved the District Court for summary judgment on the
issue of damages, arguing that the Circuit Court jury verdict fixed the damages
at $30,872,266. GEICO countered, arguing that it never received appellate
review of that damages verdict; therefore, giving effect to the verdict in the
bad-faith lawsuit would violate its right to procedural due process.
the District Court on February 8, 2013, invoking the Court’s diversity
jurisdiction under 28 U.S.C. § 1332. She alleged that GEICO acted in bad faith,
violating several provisions of Fla. Stat. § 624.155. She contended that she
was therefore entitled, in accordance with Fla. Stat. § 627.727(10), to the
full amount of damages designated by the jury in the UM breach-of-contract
lawsuit. Ms. Bottini then moved the District Court for summary judgment on the
issue of damages, arguing that the Circuit Court jury verdict fixed the damages
at $30,872,266. GEICO countered, arguing that it never received appellate
review of that damages verdict; therefore, giving effect to the verdict in the
bad-faith lawsuit would violate its right to procedural due process.
The District Court granted Ms.
Bottini’s motion, holding that the verdict was binding as the measure of
damages in the bad-faith suit. GEICO subsequently filed a motion for
reconsideration of the District Court’s order, or alternatively, to certify the
order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).6 The District Court denied reconsideration
but certified the order for interlocutory appeal. This Court agreed to hear the
appeal.
Bottini’s motion, holding that the verdict was binding as the measure of
damages in the bad-faith suit. GEICO subsequently filed a motion for
reconsideration of the District Court’s order, or alternatively, to certify the
order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).6 The District Court denied reconsideration
but certified the order for interlocutory appeal. This Court agreed to hear the
appeal.
II.
In this Part, we explain the
mechanics of an insurer-bad-faith suit under Florida law. Part II.A details the
history of Florida’s bad-faith cause of action. Part II.B explains the
requirements for a plaintiff to prevail on a bad-faith claim against a UM
insurer, including the Florida Supreme Court’s recent clarification in Fridman
that the underlying UM breach-of-contract suit determines forward-looking
damages.
mechanics of an insurer-bad-faith suit under Florida law. Part II.A details the
history of Florida’s bad-faith cause of action. Part II.B explains the
requirements for a plaintiff to prevail on a bad-faith claim against a UM
insurer, including the Florida Supreme Court’s recent clarification in Fridman
that the underlying UM breach-of-contract suit determines forward-looking
damages.
A.
In 1982, the Florida legislature
enacted § 624.155, which imposed on insurers a duty to administer
policyholders’ claims in good faith and equipped policyholders with a cause of
action against insurers that failed to do so. Fla. Stat. § 624.155(1)(b)(1); Fridman,
185 So. 3d at 1220. Accordingly, an insurer that fails to settle a legitimate
claim in good faith is subject to liability both for breaching its contract
with the policyholder — the insurance policy — and for violating Florida’s
bad-faith statute.
enacted § 624.155, which imposed on insurers a duty to administer
policyholders’ claims in good faith and equipped policyholders with a cause of
action against insurers that failed to do so. Fla. Stat. § 624.155(1)(b)(1); Fridman,
185 So. 3d at 1220. Accordingly, an insurer that fails to settle a legitimate
claim in good faith is subject to liability both for breaching its contract
with the policyholder — the insurance policy — and for violating Florida’s
bad-faith statute.
Before a policyholder can bring a
bad-faith claim under § 624.155, he must first give notice to the insurance
company. Fla. Stat. § 624.155(3)(a). The policyholder’s notice, the CRN, must
allege specific statutory violations and detail the facts giving rise to, and
the policy language relevant to, the claim.7 Fla. Stat. § 624.155(3)(b)(1)-(5).
After the insurer receives the CRN, it has sixty days to either pay the
policyholder or “correct[ ]” “the circumstances giving rise to the violation.”
Fla. Stat. § 624.155(3)(d). If the insurer pays or corrects the circumstances
giving rise to the violation, the policyholder’s bad-faith cause of action is
extinguished. Id. If the insurer does neither, like GEICO here, the
policyholder may proceed with his suit.
bad-faith claim under § 624.155, he must first give notice to the insurance
company. Fla. Stat. § 624.155(3)(a). The policyholder’s notice, the CRN, must
allege specific statutory violations and detail the facts giving rise to, and
the policy language relevant to, the claim.7 Fla. Stat. § 624.155(3)(b)(1)-(5).
After the insurer receives the CRN, it has sixty days to either pay the
policyholder or “correct[ ]” “the circumstances giving rise to the violation.”
Fla. Stat. § 624.155(3)(d). If the insurer pays or corrects the circumstances
giving rise to the violation, the policyholder’s bad-faith cause of action is
extinguished. Id. If the insurer does neither, like GEICO here, the
policyholder may proceed with his suit.
For several years after the statute
was enacted, Florida courts struggled to understand how to calculate damages in
UM bad-faith suits. The Florida Supreme Court initially interpreted the statute
to allow damages in excess of the UM policy only when the damages were “the
natural, proximate, probable, or direct consequence of the insurer’s bad faith
actions.” McLeod v. Cont’l Ins. Co., 591 So. 2d 621, 626 (Fla. 1992). In
other words, if an insurer’s bad-faith conduct amounted to a simple delay in
settling a legitimate claim, a policyholder ordinarily could not recover damages
beyond the policy maximum and the costs associated with litigation. Fridman,
185 So. 3d at 1221. The legislature rebuked the McLeod interpretation,
enacting § 627.627(10), which reads as follows:
was enacted, Florida courts struggled to understand how to calculate damages in
UM bad-faith suits. The Florida Supreme Court initially interpreted the statute
to allow damages in excess of the UM policy only when the damages were “the
natural, proximate, probable, or direct consequence of the insurer’s bad faith
actions.” McLeod v. Cont’l Ins. Co., 591 So. 2d 621, 626 (Fla. 1992). In
other words, if an insurer’s bad-faith conduct amounted to a simple delay in
settling a legitimate claim, a policyholder ordinarily could not recover damages
beyond the policy maximum and the costs associated with litigation. Fridman,
185 So. 3d at 1221. The legislature rebuked the McLeod interpretation,
enacting § 627.627(10), which reads as follows:
The damages recoverable from an uninsured motorist carrier
in an action brought under s. 624.155 shall include the total amount of the
claimant’s damages, including the amount in excess of the policy limits,
any interest on unpaid benefits, reasonable attorney’s fees and costs, and any
damages caused by a violation of a law of this state. The total amount of the
claimant’s damages is recoverable whether caused by an insurer or by a
third-party tortfeasor.
in an action brought under s. 624.155 shall include the total amount of the
claimant’s damages, including the amount in excess of the policy limits,
any interest on unpaid benefits, reasonable attorney’s fees and costs, and any
damages caused by a violation of a law of this state. The total amount of the
claimant’s damages is recoverable whether caused by an insurer or by a
third-party tortfeasor.
Fla. Stat. § 627.627(10) (emphasis
added). Florida courts thereafter acknowledged that § 627.727(10) “clearly and
unambiguously reflects the legislative intent that the damages in section
624.155 bad faith actions shall include any amount in excess of the
policy limits.” Fridman, 185 So. 3d at 1221 (emphasis in original).
added). Florida courts thereafter acknowledged that § 627.727(10) “clearly and
unambiguously reflects the legislative intent that the damages in section
624.155 bad faith actions shall include any amount in excess of the
policy limits.” Fridman, 185 So. 3d at 1221 (emphasis in original).
B.
Before a policyholder may file a bad-faith
lawsuit in which she alleges that her UM insurer failed to settle a meritorious
claim in good faith, she must first establish that her claim was, indeed,
meritorious. Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So. 2d
1289, 1291 (Fla. 1991). She does so by obtaining a determination that her
insurer is contractually liable under her UM insurance policy. Id; Fridman,
185 So. 3d at 1224. In addition to establishing contractual liability, the
policyholder must also obtain a full determination of damages arising out of
the event giving rise to the UM claim.8 As the Florida Supreme Court put it,
“the determination of the existence of liability on the part of the uninsured
tortfeasor and the extent of the [insured’s] damages are elements of a cause of
action for bad faith.” Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1275
(Fla. 2000) [25 Fla. L. Weekly S177a] (quoting Blanchard, 575 So. 2d at
1291) (quotation marks omitted) (alteration in original).
lawsuit in which she alleges that her UM insurer failed to settle a meritorious
claim in good faith, she must first establish that her claim was, indeed,
meritorious. Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So. 2d
1289, 1291 (Fla. 1991). She does so by obtaining a determination that her
insurer is contractually liable under her UM insurance policy. Id; Fridman,
185 So. 3d at 1224. In addition to establishing contractual liability, the
policyholder must also obtain a full determination of damages arising out of
the event giving rise to the UM claim.8 As the Florida Supreme Court put it,
“the determination of the existence of liability on the part of the uninsured
tortfeasor and the extent of the [insured’s] damages are elements of a cause of
action for bad faith.” Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1275
(Fla. 2000) [25 Fla. L. Weekly S177a] (quoting Blanchard, 575 So. 2d at
1291) (quotation marks omitted) (alteration in original).
But how is the damages element
established in a bad-faith action? Is the initial statutory damages
determination binding in the subsequent bad-faith action? Previous courts had
reached conflicting conclusions.9 The Florida Supreme Court recently
clarified in Fridman that the damages determination in the underlying UM
judgment does in fact bind the court in the subsequent bad-faith action:
established in a bad-faith action? Is the initial statutory damages
determination binding in the subsequent bad-faith action? Previous courts had
reached conflicting conclusions.9 The Florida Supreme Court recently
clarified in Fridman that the damages determination in the underlying UM
judgment does in fact bind the court in the subsequent bad-faith action:
[I]t is
obvious that the UM verdict to which the insured is entitled must be binding in
the bad faith action. Because a determination of the full extent of the
insured’s damages is one of the prerequisites to a bad faith cause of action,
to preclude a UM verdict in excess of the policy limits from being used in the
bad faith case would force the parties to relitigate the issue of damages a
second time prior to the bad faith trial. This would be an obvious waste of
judicial and litigant resources. It would also result in serious, unintended
consequences, such as “running the almost-certain risk of inconsistent
verdicts; potentially raising comity issues between state and federal courts;
creating a discrepancy . . . between first- and third-party bad faith claims;
placing an inexplicable burden on plaintiffs to prove their cases twice; and
causing a great deal of judicial inefficiency.”
obvious that the UM verdict to which the insured is entitled must be binding in
the bad faith action. Because a determination of the full extent of the
insured’s damages is one of the prerequisites to a bad faith cause of action,
to preclude a UM verdict in excess of the policy limits from being used in the
bad faith case would force the parties to relitigate the issue of damages a
second time prior to the bad faith trial. This would be an obvious waste of
judicial and litigant resources. It would also result in serious, unintended
consequences, such as “running the almost-certain risk of inconsistent
verdicts; potentially raising comity issues between state and federal courts;
creating a discrepancy . . . between first- and third-party bad faith claims;
placing an inexplicable burden on plaintiffs to prove their cases twice; and
causing a great deal of judicial inefficiency.”
185 So. 3d at 1224-25 (citation
omitted).
omitted).
Given the significance of the
initial statutory-damages determination, the Court held that parties have a
right to appeal it. The Court rejected the argument that appellate courts lack
jurisdiction to review damages in excess of the policy maximum and additionally
rejected the Second District’s reasoning in Bottini that errors in
calculating damages are subject to mere harmless-error review:
initial statutory-damages determination, the Court held that parties have a
right to appeal it. The Court rejected the argument that appellate courts lack
jurisdiction to review damages in excess of the policy maximum and additionally
rejected the Second District’s reasoning in Bottini that errors in
calculating damages are subject to mere harmless-error review:
[W]e do
not agree . . . that the appellate court is without jurisdiction to review the
UM verdict.
not agree . . . that the appellate court is without jurisdiction to review the
UM verdict.
District
courts of appeal have appellate jurisdiction under article V, section 4(b)(1),
of the Florida Constitution. While district courts do not have jurisdiction
over all non-final orders, in this case, the final judgment including the
determination of the full extent of damages was properly within the
jurisdiction of the [District Court of Appeal]. Further, once the trial court
denied Safeco’s motion for a new trial, rejecting a claim of an excessive
verdict, that order also became subject to appellate review — as Safeco
evidently understood when it filed its appeal in this case.
courts of appeal have appellate jurisdiction under article V, section 4(b)(1),
of the Florida Constitution. While district courts do not have jurisdiction
over all non-final orders, in this case, the final judgment including the
determination of the full extent of damages was properly within the
jurisdiction of the [District Court of Appeal]. Further, once the trial court
denied Safeco’s motion for a new trial, rejecting a claim of an excessive
verdict, that order also became subject to appellate review — as Safeco
evidently understood when it filed its appeal in this case.
We
therefore respectfully disagree with the view that a district court lacks
jurisdiction to review an excess verdict, if the amount of damages was not
included within the final judgment.
therefore respectfully disagree with the view that a district court lacks
jurisdiction to review an excess verdict, if the amount of damages was not
included within the final judgment.
. . .
We also
disagree with the view taken by the Second District Court of Appeal in Bottini,
in which it held that “even if Geico were correct that errors may have affected
the jury’s computation of damages,” any errors in the jury’s computation of
damages were “harmless” . . . . [T]he damages reflected in the UM verdict are
significant relative to the UM policy limits because the damages will
eventually become part of the subsequent bad faith case.
disagree with the view taken by the Second District Court of Appeal in Bottini,
in which it held that “even if Geico were correct that errors may have affected
the jury’s computation of damages,” any errors in the jury’s computation of
damages were “harmless” . . . . [T]he damages reflected in the UM verdict are
significant relative to the UM policy limits because the damages will
eventually become part of the subsequent bad faith case.
Id. at 1226-28. Denying the parties a right to appeal the
binding damages determination, the Court reasoned, could give rise to
procedural due process problems. Id. at 1226. To prevent such problems,
the Court concluded that damages determinations in this context are not binding
unless both parties are afforded an “opportunity . . . to obtain appellate
review of any timely raised claims of error in the determination of damages
obtained in the UM trial.” Id.
binding damages determination, the Court reasoned, could give rise to
procedural due process problems. Id. at 1226. To prevent such problems,
the Court concluded that damages determinations in this context are not binding
unless both parties are afforded an “opportunity . . . to obtain appellate
review of any timely raised claims of error in the determination of damages
obtained in the UM trial.” Id.
Fridman therefore provides the framework we must apply in
determining whether the UM verdict in the case underlying this appeal is
binding in the bad-faith action in the District Court.
determining whether the UM verdict in the case underlying this appeal is
binding in the bad-faith action in the District Court.
III.
To determine whether the UM verdict
now binds GEICO, we must resolve two questions. First, did GEICO actually
receive appellate review of the Circuit Court’s determination of statutory
damages? Second, if GEICO did not receive appellate review, did its failure to
pursue further review of the Second District’s decision waive any objection it
might have had to using that determination in the bad-faith suit? We address
each question in turn.
now binds GEICO, we must resolve two questions. First, did GEICO actually
receive appellate review of the Circuit Court’s determination of statutory
damages? Second, if GEICO did not receive appellate review, did its failure to
pursue further review of the Second District’s decision waive any objection it
might have had to using that determination in the bad-faith suit? We address
each question in turn.
A.
To determine whether GEICO received
appellate review of the Circuit Court jury’s damages calculation, we must
examine the Second District’s decision. As noted above, the decision offers
little to parse:
appellate review of the Circuit Court jury’s damages calculation, we must
examine the Second District’s decision. As noted above, the decision offers
little to parse:
Geico General Insurance Company raised five issues in this
appeal. We conclude that none of the issues warrants reversal. We note that
Geico’s arguments include claims of error that impacted the amount of damages
determined by the jury. The jury verdict found that the Estate’s damages were
$30,872,266. But the judgment amount entered by the trial court against Geico
is $50,000, based on the applicable insurance policy limits. Based on the
evidence presented, we are satisfied that even if Geico were correct that
errors may have affected the jury’s computation of damages, in the context of
this case and the amount of the judgment, any such errors were harmless. Thus,
we do not address further Geico’s claims of error.
appeal. We conclude that none of the issues warrants reversal. We note that
Geico’s arguments include claims of error that impacted the amount of damages
determined by the jury. The jury verdict found that the Estate’s damages were
$30,872,266. But the judgment amount entered by the trial court against Geico
is $50,000, based on the applicable insurance policy limits. Based on the
evidence presented, we are satisfied that even if Geico were correct that
errors may have affected the jury’s computation of damages, in the context of
this case and the amount of the judgment, any such errors were harmless. Thus,
we do not address further Geico’s claims of error.
Bottini, 93 So. 3d at 477. Though it is short, the opinion reveals
that the Second District did not review the errors GEICO alleged to the extent
such errors may have impacted damages beyond the $50,000 policy maximum. The
Court refused to do so because it believed that “any such errors were
harmless.” Id. Because the Second District chose not to address GEICO’s
alleged errors, we hold that it failed to provide the appellate review to which
GEICO was entitled under Florida law.
that the Second District did not review the errors GEICO alleged to the extent
such errors may have impacted damages beyond the $50,000 policy maximum. The
Court refused to do so because it believed that “any such errors were
harmless.” Id. Because the Second District chose not to address GEICO’s
alleged errors, we hold that it failed to provide the appellate review to which
GEICO was entitled under Florida law.
Our interpretation of the Second
District’s opinion is not shaken by the Court’s statement that “none of the
issues [raised by GEICO] warrants reversal.” Id. As explained above, the
Court reached this conclusion not because it found that errors had not tainted
the jury’s computation of damages, but because it mistakenly believed that the
alleged errors, “even if” they had occurred, would not warrant reversal.
Nowhere does the Court say that the jury did not commit errors, and to
nevertheless interpret its opinion in that way would render superfluous its
discussion of harmlessness.
District’s opinion is not shaken by the Court’s statement that “none of the
issues [raised by GEICO] warrants reversal.” Id. As explained above, the
Court reached this conclusion not because it found that errors had not tainted
the jury’s computation of damages, but because it mistakenly believed that the
alleged errors, “even if” they had occurred, would not warrant reversal.
Nowhere does the Court say that the jury did not commit errors, and to
nevertheless interpret its opinion in that way would render superfluous its
discussion of harmlessness.
We are not the only Court to
interpret the Second District’s opinion in this way. In Fridman, the
Florida Supreme Court repudiated the Second District’s harmless-error approach.
185 So. 3d at 1228. If the Second District had actually reviewed the errors
alleged by GEICO, then the Florida Supreme Court would have nothing to
repudiate. But the Florida Supreme Court did repudiate because it, like us,
read the Second District’s opinion as demonstrating the Second District’s
failure to review for errors due to a mistaken belief that such a review would
be inconsequential “in the context of [the] case.” Bottini, 93 So. 3d at
477.
interpret the Second District’s opinion in this way. In Fridman, the
Florida Supreme Court repudiated the Second District’s harmless-error approach.
185 So. 3d at 1228. If the Second District had actually reviewed the errors
alleged by GEICO, then the Florida Supreme Court would have nothing to
repudiate. But the Florida Supreme Court did repudiate because it, like us,
read the Second District’s opinion as demonstrating the Second District’s
failure to review for errors due to a mistaken belief that such a review would
be inconsequential “in the context of [the] case.” Bottini, 93 So. 3d at
477.
Because the Second District did not
review the errors alleged by GEICO, we conclude that GEICO has been denied its
“right to appellate review of properly preserved claims of error in the
determination of damages.” Fridman, 185 So. 3d at 1224. We now turn to
whether GEICO waived its right to appellate review by failing to take any
additional actions after the Second District issued its opinion.
review the errors alleged by GEICO, we conclude that GEICO has been denied its
“right to appellate review of properly preserved claims of error in the
determination of damages.” Fridman, 185 So. 3d at 1224. We now turn to
whether GEICO waived its right to appellate review by failing to take any
additional actions after the Second District issued its opinion.
B.
As Ms. Bottini observes, GEICO had
several options available to it to seek review of the Second District’s
decision. It could have sought review in the Second District by moving the
Court to clarify or rehear its decision under Fla. R. App. P. 9.330(a); it
could have moved the Second District to rehear the case en banc under Fla. R.
App. P. 9.331; it could have sought review in the Florida Supreme Court under
Fla. R. App. P. 9.330(a) or 9.120; and it could have taken Judge Altenbernd’s
suggestion to file a writ of mandamus in the Florida Supreme Court. Did its
failure to take any of these steps deprive it of the right to object to using
the damages verdict in the District Court?
several options available to it to seek review of the Second District’s
decision. It could have sought review in the Second District by moving the
Court to clarify or rehear its decision under Fla. R. App. P. 9.330(a); it
could have moved the Second District to rehear the case en banc under Fla. R.
App. P. 9.331; it could have sought review in the Florida Supreme Court under
Fla. R. App. P. 9.330(a) or 9.120; and it could have taken Judge Altenbernd’s
suggestion to file a writ of mandamus in the Florida Supreme Court. Did its
failure to take any of these steps deprive it of the right to object to using
the damages verdict in the District Court?
We think not. Had GEICO failed to
appeal the verdict to the Second District, the answer may be different.
However, the key difference between an appeal to a district court of appeal and
all of the alternative procedures listed above is that the alternative
procedures are all discretionary. None guarantees that GEICO would have had its
argument considered. By contrast, a litigant can appeal to a district court of
appeal as a matter of right. Fla. Const. art. V, § 4. When, in Fridman,
the Florida Supreme Court characterized appellate review as a right afforded
to the parties, we think it must have been referring to appellate review in a
district court of appeal, the only court in which the litigants have a right to
appellate review. Fridman, 185 So. 3d at 1224. This is why the Second
District erred for failing to review GEICO’s alleged errors — it did not
vindicate that right.
appeal the verdict to the Second District, the answer may be different.
However, the key difference between an appeal to a district court of appeal and
all of the alternative procedures listed above is that the alternative
procedures are all discretionary. None guarantees that GEICO would have had its
argument considered. By contrast, a litigant can appeal to a district court of
appeal as a matter of right. Fla. Const. art. V, § 4. When, in Fridman,
the Florida Supreme Court characterized appellate review as a right afforded
to the parties, we think it must have been referring to appellate review in a
district court of appeal, the only court in which the litigants have a right to
appellate review. Fridman, 185 So. 3d at 1224. This is why the Second
District erred for failing to review GEICO’s alleged errors — it did not
vindicate that right.
Moreover, it is not self-evident how
a waiver rule other than failing to appeal to a district court of appeal would
work in this case. Because GEICO had several options available to it, which
options would have satisfied a waiver rule? Would GEICO have to exhaust its
remedies and pursue all of them? Would it have to pursue only one, and, if so,
which one? Perhaps Ms. Bottini might argue that GEICO had to do something.
But GEICO did do something: it appealed to the Second District, the only court
in which it was guaranteed to have its argument heard. We do not read in to Fridman
a mandate to pursue additional discretionary review after a district court
of appeal issues its judgment.
a waiver rule other than failing to appeal to a district court of appeal would
work in this case. Because GEICO had several options available to it, which
options would have satisfied a waiver rule? Would GEICO have to exhaust its
remedies and pursue all of them? Would it have to pursue only one, and, if so,
which one? Perhaps Ms. Bottini might argue that GEICO had to do something.
But GEICO did do something: it appealed to the Second District, the only court
in which it was guaranteed to have its argument heard. We do not read in to Fridman
a mandate to pursue additional discretionary review after a district court
of appeal issues its judgment.
True, the Florida Supreme Court in Fridman
discussed the District Court’s order in this case in which the District
Court seems to acknowledge the existence of some form of waiver to appellate
review. In doing so the Court does not explicitly disapprove of the District
Court’s reasoning:
discussed the District Court’s order in this case in which the District
Court seems to acknowledge the existence of some form of waiver to appellate
review. In doing so the Court does not explicitly disapprove of the District
Court’s reasoning:
When the Bottini litigants proceeded with the bad
faith case, Judge Kovachevich came to the conclusion that the amount of damages
is necessarily determined in the underlying UM action and also determined that
the insurer failed to pursue further relief to review the Second District’s
decision. See Bottini v. Geico Gen. Ins. Co., No. 8:13-CV-365-T-17AEP,
2014 WL 4749054, at *12 (M.D.Fla. Sept. 23, 2014).
faith case, Judge Kovachevich came to the conclusion that the amount of damages
is necessarily determined in the underlying UM action and also determined that
the insurer failed to pursue further relief to review the Second District’s
decision. See Bottini v. Geico Gen. Ins. Co., No. 8:13-CV-365-T-17AEP,
2014 WL 4749054, at *12 (M.D.Fla. Sept. 23, 2014).
Fridman, 185 So. 3d at 1228. Nevertheless, even if we interpret the
Florida Supreme Court as implicitly endorsing some sort of waiver rule by
referring to the District Court’s statement that “the insurer failed to pursue
further relief to review the Second District’s decision,” such a waiver must
jibe with the rest of the opinion, which characterizes appellate review as a
“right.” Id. at 1224, 1227. We do not think the Florida Supreme Court
was referring to a right to file a piece of paper with a court that had no
obligation to consider the contents of the paper. Because GEICO did, in fact,
raise its objection in the Second District — the only Court required to
consider its argument — we do not add a gloss onto Fridman requiring a
litigant to pursue further, discretionary review after a district court of
appeal renders its decision.
Florida Supreme Court as implicitly endorsing some sort of waiver rule by
referring to the District Court’s statement that “the insurer failed to pursue
further relief to review the Second District’s decision,” such a waiver must
jibe with the rest of the opinion, which characterizes appellate review as a
“right.” Id. at 1224, 1227. We do not think the Florida Supreme Court
was referring to a right to file a piece of paper with a court that had no
obligation to consider the contents of the paper. Because GEICO did, in fact,
raise its objection in the Second District — the only Court required to
consider its argument — we do not add a gloss onto Fridman requiring a
litigant to pursue further, discretionary review after a district court of
appeal renders its decision.
IV.
We therefore conclude that the
measure of damages determined by the jury in Bottini’s underlying UM suit does
not bind the parties in the present bad-faith action in the District Court.
GEICO is entitled to a new damages determination. Accordingly, we REVERSE the
grant of partial summary judgment and REMAND for further proceedings consistent
with this opinion.
measure of damages determined by the jury in Bottini’s underlying UM suit does
not bind the parties in the present bad-faith action in the District Court.
GEICO is entitled to a new damages determination. Accordingly, we REVERSE the
grant of partial summary judgment and REMAND for further proceedings consistent
with this opinion.
SO ORDERED.
__________________
*Honorable John E. Steele, United
States District Judge for the Middle District of Florida, sitting by
designation.
States District Judge for the Middle District of Florida, sitting by
designation.
1UM
insurance protects policyholders against losses caused by UMs — drivers who
lack sufficient insurance to cover the damages they cause to others.
insurance protects policyholders against losses caused by UMs — drivers who
lack sufficient insurance to cover the damages they cause to others.
2Statutory
damages “include the total amount of the claimant’s damages, including the
amount in excess of the policy limits . . . and any damages caused by a
violation of a law of [Florida].” Fla. Stat. § 627.727(10). Pursuant to the
statute, after a claimant’s damages are determined, a court would also assess
“interest on unpaid benefits, reasonable attorney’s fees and costs.” Id.
“The total amount of the claimant’s damages is recoverable whether caused by an
insurer or by a third-party tortfeasor.” Id.
damages “include the total amount of the claimant’s damages, including the
amount in excess of the policy limits . . . and any damages caused by a
violation of a law of [Florida].” Fla. Stat. § 627.727(10). Pursuant to the
statute, after a claimant’s damages are determined, a court would also assess
“interest on unpaid benefits, reasonable attorney’s fees and costs.” Id.
“The total amount of the claimant’s damages is recoverable whether caused by an
insurer or by a third-party tortfeasor.” Id.
3The CRN
specified that GEICO was allegedly violating Fla. Stat. §§ 624.155(1)(a)(1) and
624.155(1)(b)(1). Section 624.155(1)(a)(1) provides, in relevant part, that
“[a]ny person may bring a civil action against an insurer when such person is
damaged [b]y a violation of . . . Section 626.9541(1)(i).” Section
626.9541(1)(i) prohibits
specified that GEICO was allegedly violating Fla. Stat. §§ 624.155(1)(a)(1) and
624.155(1)(b)(1). Section 624.155(1)(a)(1) provides, in relevant part, that
“[a]ny person may bring a civil action against an insurer when such person is
damaged [b]y a violation of . . . Section 626.9541(1)(i).” Section
626.9541(1)(i) prohibits
[c]ommitting
or performing with such frequency as to indicate a general business practice
any of the following:
or performing with such frequency as to indicate a general business practice
any of the following:
a. Failing
to adopt and implement standards for the proper investigation of claims;
to adopt and implement standards for the proper investigation of claims;
. . .
c. Failing
to acknowledge and act promptly upon communications with respect to claims;
to acknowledge and act promptly upon communications with respect to claims;
. . .
e. Failing
to affirm or deny full or partial coverage of claims . . . .
to affirm or deny full or partial coverage of claims . . . .
Section 624.155(1)(b)(1) provides a
civil action against an insurer who fails to “attempt[ ] 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.”
civil action against an insurer who fails to “attempt[ ] 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.”
4GEICO’s
tender of the $50,000 took place 76 days after the initial filing of the CRN,
which meant it could not avail itself of Fla. Stat. § 624.155(3)(d), which
provides, “No [bad-faith] action shall lie if, within 60 days after filing [the
CRN], the damages are paid or the circumstances giving rise to the violation
are corrected.”
tender of the $50,000 took place 76 days after the initial filing of the CRN,
which meant it could not avail itself of Fla. Stat. § 624.155(3)(d), which
provides, “No [bad-faith] action shall lie if, within 60 days after filing [the
CRN], the damages are paid or the circumstances giving rise to the violation
are corrected.”
5The
setoffs resulted from settlements the Bottinis received from two other
insurance policies. One was a $25,000 settlement tendered to the Plaintiff by
the insurer of the vehicle that caught fire, and the other was a $1,000,000
settlement from Transcontinental Insurance Company. Transcontinental also
insured the Bottini vehicle and provided UM benefits. Transcontinental tendered
its $1,000,000 policy limit after receiving the same CRN that GEICO received.
It, however, tendered its policy maximum within the sixty-day limit set forth
in Fla. Stat. § 624.155(3)(d) and therefore relieved itself of liability under
§624.155. See supra note 4.
setoffs resulted from settlements the Bottinis received from two other
insurance policies. One was a $25,000 settlement tendered to the Plaintiff by
the insurer of the vehicle that caught fire, and the other was a $1,000,000
settlement from Transcontinental Insurance Company. Transcontinental also
insured the Bottini vehicle and provided UM benefits. Transcontinental tendered
its $1,000,000 policy limit after receiving the same CRN that GEICO received.
It, however, tendered its policy maximum within the sixty-day limit set forth
in Fla. Stat. § 624.155(3)(d) and therefore relieved itself of liability under
§624.155. See supra note 4.
628 U.S.C.
§ 1292(b) provides, in full,
§ 1292(b) provides, in full,
When a
district judge, in making in a civil action an order not otherwise appealable
under this section, shall be of the opinion that such order involves a
controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation, he shall so
state in writing in such order. The Court of Appeals which would have
jurisdiction of an appeal of such action may thereupon, in its discretion,
permit an appeal to be taken from such order, if application is made to it
within ten days after the entry of the order: Provided, however, That
application for an appeal hereunder shall not stay proceedings in the district
court unless the district judge or the Court of Appeals or a judge thereof
shall so order.
district judge, in making in a civil action an order not otherwise appealable
under this section, shall be of the opinion that such order involves a
controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation, he shall so
state in writing in such order. The Court of Appeals which would have
jurisdiction of an appeal of such action may thereupon, in its discretion,
permit an appeal to be taken from such order, if application is made to it
within ten days after the entry of the order: Provided, however, That
application for an appeal hereunder shall not stay proceedings in the district
court unless the district judge or the Court of Appeals or a judge thereof
shall so order.
7Specifically,
the statute requires that:
the statute requires that:
(b) The
notice shall be on a form provided by the department and shall state with
specificity the following information, and such other information as the
department may require:
notice shall be on a form provided by the department and shall state with
specificity the following information, and such other information as the
department may require:
1. The
statutory provision, including the specific language of the statute, which the
authorized insurer allegedly violated.
statutory provision, including the specific language of the statute, which the
authorized insurer allegedly violated.
2. The
facts and circumstances giving rise to the violation.
facts and circumstances giving rise to the violation.
3. The
name of any individual involved in the violation.
name of any individual involved in the violation.
4.
Reference to specific policy language that is relevant to the violation, if
any. If the person bringing the civil action is a third party claimant, she or
he shall not be required to reference the specific policy language if the
authorized insurer has not provided a copy of the policy to the third party
claimant pursuant to written request.
Reference to specific policy language that is relevant to the violation, if
any. If the person bringing the civil action is a third party claimant, she or
he shall not be required to reference the specific policy language if the
authorized insurer has not provided a copy of the policy to the third party
claimant pursuant to written request.
5. A
statement that the notice is given in order to perfect the right to pursue the
civil remedy authorized by this section.
statement that the notice is given in order to perfect the right to pursue the
civil remedy authorized by this section.
Fla. Stat. § 624.155(3)(b)(1)-(5).
8As the
Florida Supreme Court noted in Fridman, however, contractual liability
and damages need not be determined by a jury — “an agreed settlement,
arbitration, or stipulation before initiating a bad faith cause of action”
would work as well. 185 So. 3d at 1224.
Florida Supreme Court noted in Fridman, however, contractual liability
and damages need not be determined by a jury — “an agreed settlement,
arbitration, or stipulation before initiating a bad faith cause of action”
would work as well. 185 So. 3d at 1224.
9Compare
King v. Gov’t Emps Ins. Co., No.
8:10-CV-977-T-30AEP, 2012 WL 4052271 (M.D. Fla. Sept. 13, 2012) (noting that
the jury verdict in the UM suit was not binding on the subsequent bad-faith
suit); Harris v. Geico Gen. Ins. Co., 961 F. Supp. 2d 1223 (S.D. Fla.
2013), aff’d, 619 F. App’x 896 (11th Cir. 2015) (same) with Wiggins
v. Allstate Prop. & Cas. Ins. Co., No. 13-23354-CIV, 2015 WL
1396583, at *4 (S.D. Fla. Mar. 6, 2015), report and recommendation adopted
sub nom. Wiggins v. Allstate Prop. & Cas. Ins. Co., No. 13-CV-23354,
2015 WL 1402970 (S.D. Fla. Mar. 18, 2015) (finding that the UM jury verdict was
binding as a measure of damages in the bad-faith suit); Cadle v. Geico Gen.
Ins. Co., No. 6:13-CV-1591-ORL-31GJK, 2014 WL 4983791, at *2 (M.D. Fla.
Oct. 6, 2014) (same).
King v. Gov’t Emps Ins. Co., No.
8:10-CV-977-T-30AEP, 2012 WL 4052271 (M.D. Fla. Sept. 13, 2012) (noting that
the jury verdict in the UM suit was not binding on the subsequent bad-faith
suit); Harris v. Geico Gen. Ins. Co., 961 F. Supp. 2d 1223 (S.D. Fla.
2013), aff’d, 619 F. App’x 896 (11th Cir. 2015) (same) with Wiggins
v. Allstate Prop. & Cas. Ins. Co., No. 13-23354-CIV, 2015 WL
1396583, at *4 (S.D. Fla. Mar. 6, 2015), report and recommendation adopted
sub nom. Wiggins v. Allstate Prop. & Cas. Ins. Co., No. 13-CV-23354,
2015 WL 1402970 (S.D. Fla. Mar. 18, 2015) (finding that the UM jury verdict was
binding as a measure of damages in the bad-faith suit); Cadle v. Geico Gen.
Ins. Co., No. 6:13-CV-1591-ORL-31GJK, 2014 WL 4983791, at *2 (M.D. Fla.
Oct. 6, 2014) (same).
* * *