26 Fla. L. Weekly Fed. D20bTop of Form
Insurance
— Uninsured motorist — Bad faith — Claim for first party bad faith is not
ripe for adjudication where no appealable judgment has been entered and insurer
has not had an opportunity to appeal underlying verdict — Case to be abated
rather than dismissed, pending entry of judgment and appeal taken by insurer
— Uninsured motorist — Bad faith — Claim for first party bad faith is not
ripe for adjudication where no appealable judgment has been entered and insurer
has not had an opportunity to appeal underlying verdict — Case to be abated
rather than dismissed, pending entry of judgment and appeal taken by insurer
TERRY ANN JOHNSON, Plaintiff, v. STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY, Defendant. U.S. District Court, Middle District
of Florida, Orlando Division. Case No. 6:15-cv-1942-Orl-31TBS. March 21, 2016.
Gregory A. Presnell, Judge.
AUTOMOBILE INSURANCE COMPANY, Defendant. U.S. District Court, Middle District
of Florida, Orlando Division. Case No. 6:15-cv-1942-Orl-31TBS. March 21, 2016.
Gregory A. Presnell, Judge.
ORDER
This matter is before the Court on Defendant’s Motion to
Dismiss Plaintiff’s Claim for Bad Faith (Doc. 10) and Plaintiff’s Response in
Opposition thereto (Doc. 14).
Dismiss Plaintiff’s Claim for Bad Faith (Doc. 10) and Plaintiff’s Response in
Opposition thereto (Doc. 14).
On June 6, 2010, Terry Ann Johnson (“Johnson”) was injured
in an automobile accident. At that time, Johnson was insured by State Farm
Mutual Automobile Insurance Company (“State Farm”), under a policy with an
uninsured motorist benefit of $50,000.00. After a policy limits demand was
rejected, Johnson filed suit against State Farm, and the case proceeded to
trial. On October 6, 2014, the jury returned a verdict in favor of Johnson in
the amount of $1,537,000.00.
in an automobile accident. At that time, Johnson was insured by State Farm
Mutual Automobile Insurance Company (“State Farm”), under a policy with an
uninsured motorist benefit of $50,000.00. After a policy limits demand was
rejected, Johnson filed suit against State Farm, and the case proceeded to
trial. On October 6, 2014, the jury returned a verdict in favor of Johnson in
the amount of $1,537,000.00.
Instead of entering judgment for the $50,000.00 policy
limit, the state court judge entered an order permitting Plaintiff to amend her
complaint by adding, as Count II, a claim for first party bad faith (Doc. 1-1,
p. 81). In that order, the court also stayed entry of final judgment pending
resolution of the bad faith claim.1
limit, the state court judge entered an order permitting Plaintiff to amend her
complaint by adding, as Count II, a claim for first party bad faith (Doc. 1-1,
p. 81). In that order, the court also stayed entry of final judgment pending
resolution of the bad faith claim.1
It is well established in Florida that a statutory claim for
bad faith does not exist until the underlying uninsured motorist claim has been
concluded. Blanchard v. State Farm Mut. Auto Ins. Co., 575 So. 2d 1289
(Fla. 1991). And, the underlying case is not concluded until the defendant has
had an opportunity to appeal. Michigan Millers Mut. Auto Ins. Co. v. Bourke,
581 So. 2d 1368 (Fla. 2d DCA 1991).
bad faith does not exist until the underlying uninsured motorist claim has been
concluded. Blanchard v. State Farm Mut. Auto Ins. Co., 575 So. 2d 1289
(Fla. 1991). And, the underlying case is not concluded until the defendant has
had an opportunity to appeal. Michigan Millers Mut. Auto Ins. Co. v. Bourke,
581 So. 2d 1368 (Fla. 2d DCA 1991).
Defendant contends that Count II of the Complaint (the bad
faith claim) should be dismissed, because it is not ripe for adjudication until
judgment is entered on Count I (the uninsured motorist claim). In opposition,
Plaintiff cites GEICO General Ins. Co. v. Paton, 150 So. 3d 804 (Fla.
4th DCA 2014) [39 Fla. L. Weekly D1988a], as allowing the bad faith claim to
proceed in conjunction with the non-final uninsured motorist claim.
faith claim) should be dismissed, because it is not ripe for adjudication until
judgment is entered on Count I (the uninsured motorist claim). In opposition,
Plaintiff cites GEICO General Ins. Co. v. Paton, 150 So. 3d 804 (Fla.
4th DCA 2014) [39 Fla. L. Weekly D1988a], as allowing the bad faith claim to
proceed in conjunction with the non-final uninsured motorist claim.
In Paton, the court held that the amount of the
excess verdict is binding on the insurer in a subsequent bad faith trial. But,
in Paton, the trial court had entered judgment for the policy limit,
which GEICO could have appealed. Here, however, no judgment has been entered
and State Farm has not had an opportunity to appeal the underlying verdict.
excess verdict is binding on the insurer in a subsequent bad faith trial. But,
in Paton, the trial court had entered judgment for the policy limit,
which GEICO could have appealed. Here, however, no judgment has been entered
and State Farm has not had an opportunity to appeal the underlying verdict.
In Fridman v. Safeco Ins. Co. of Illinois, No.
SC13-1607, 2016 WL 743258 (Fla. Feb. 25, 2016) [41 Fla. L. Weekly S62a], the Florida
Supreme Court clarified the proper procedure to be followed in a situation like
this. Although the uninsured motorist trial may determine the total amount of
damages, and while the excess verdict may be binding in a subsequent bad faith
case, the bad faith claim cannot proceed until the insurer has had an
opportunity to appeal the underlying verdict. This opportunity arises after
entry of a partial final judgment for the contract amount, or a judgment which
includes the total amount of the verdict, but limits execution to the policy
limit.
SC13-1607, 2016 WL 743258 (Fla. Feb. 25, 2016) [41 Fla. L. Weekly S62a], the Florida
Supreme Court clarified the proper procedure to be followed in a situation like
this. Although the uninsured motorist trial may determine the total amount of
damages, and while the excess verdict may be binding in a subsequent bad faith
case, the bad faith claim cannot proceed until the insurer has had an
opportunity to appeal the underlying verdict. This opportunity arises after
entry of a partial final judgment for the contract amount, or a judgment which
includes the total amount of the verdict, but limits execution to the policy
limit.
Here, however, because no appealable judgment has been
entered, State Farm has not had an opportunity to appeal and the bad faith
claim is not ripe. Accordingly, it is,
entered, State Farm has not had an opportunity to appeal and the bad faith
claim is not ripe. Accordingly, it is,
ORDERED that Plaintiff’s Motion (Doc. 10) is GRANTED;
provided, however, the case will be abated rather than dismissed, pending entry
of judgment and any appeal taken by State Farm.2
provided, however, the case will be abated rather than dismissed, pending entry
of judgment and any appeal taken by State Farm.2
__________________
1The case was removed to this Court
on November 16, 2015. The Court denied Plaintiff’s Motion to Remand (Doc. 19).
on November 16, 2015. The Court denied Plaintiff’s Motion to Remand (Doc. 19).
2In Fridman, the Florida
Supreme Court suggested that abatement rather than dismissal is the preferred
procedure.
Supreme Court suggested that abatement rather than dismissal is the preferred
procedure.
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