Insurance
— Uninsured motorist — Bad faith — Insured is entitled to a determination of
liability and full extent of damages in UM action before filing a first-party
bad faith action — Determination of damages in UM action is binding, as an
element of damages, in a subsequent first-party bad faith action against the
same insurer so long as parties have the right to appeal any properly preserved
errors in the verdict — Trial court did not err in retaining jurisdiction to
allow filing of bad faith cause of action — District courts have jurisdiction
to review claims of error in the determination of damages obtained in the UM
action — Amount of damages in UM case does not become moot by virtue of
insurer’s confession of judgment and tendering of policy limits

ADRIAN FRIDMAN, Petitioner, v. SAFECO INSURANCE COMPANY OF
ILLINOIS, Respondent. Supreme Court of Florida. Case No. SC13-1607. February
25, 2016. Application for Review of the Decision of the District Court of
Appeal – Direct Conflict of Decisions. Fifth District – Case No. 5D12-428
(Orange County). Counsel: Michael Stanley Rywant, Andrew Frank Russo, Kerry Chadwick
McGuinn, Jr., and Carla Maria Sabbagh of Rywant, Alvarez, Jones, Russo &
Guyton, P.A., Tampa, for Petitioner. Robert E. Vaughn, Jr. of the Law Office of
Glenn G. Gomer, Tampa; Anthony John Russo of Butler Weihmuller Katz Craig, LLP,
Tampa; and Mark Steven Shapiro of Akerman LLP, Miami, for Respondent. Jack Roy
Reiter of Gray Robinson, P.A., Miami, for Amici Curiae The American Insurance
Association, The Property Casualty Insurers Association of America, The
National Association of Mutual Insurance Companies, and The Florida Insurance
Council.

(PARIENTE, J.) The conflict issue in this case is whether an
insured is entitled to a determination of liability and the full extent of his
or her damages by first bringing an uninsured/underinsured motorist (UM) action
before litigating a first-party bad faith cause of action under section
624.155, Florida Statutes (2007). The related issues we address are whether
that determination of damages is then binding, as an element of damages, in a
subsequent first-party bad faith cause of action against the same insurer, and
whether the trial court in this case erred in retaining jurisdiction to allow
the insured to file a bad faith cause of action.

In Safeco Insurance Co. of Illinois v. Fridman, 117
So. 3d 16, 19-20 (Fla. 5th DCA 2013), the Fifth District Court of Appeal held
that after the insurer tendered the UM policy limits of $50,000 and “confessed
judgment” in that amount, the insured’s UM action became moot. The Fifth
District accordingly vacated the jury verdict that had been reached at the
conclusion of the UM trial, setting the insured’s damages at $1,000,000.

The Fifth District’s decision conflicts with a long line of
cases from this Court that hold that a determination of liability and the full
extent of damages is a prerequisite to a bad faith cause of action. See,
e.g., Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1275 (Fla. 2000); Imhof
v. Nationwide Mut. Ins. Co., 643 So. 2d 617, 619 (Fla. 1994), receded
from on other grounds, State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.
2d 55, 63 (Fla. 1995); Blanchard v. State Farm Mut. Auto Ins. Co., 575
So. 2d 1289, 1291 (Fla. 1991). We have jurisdiction. See art. V, §
3(b)(3), Fla. Const.1

For the reasons explained in this opinion, we hold that an
insured is entitled to a determination of liability and the full extent of his
or her damages in the UM action before filing a first-party bad faith action.
That determination of damages is then binding, as an element of damages, in a
subsequent first-party bad faith action against the same insurer so long as the
parties have the right to appeal any properly preserved errors in the verdict. The
history of first- and third-party bad faith actions, this Court’s precedent,
and the legislative intent to eliminate the distinction between first- and
third-party bad faith claims all support our conclusion. We also conclude that
the trial court in this case did not err in retaining jurisdiction to allow the
filing of a bad faith cause of action. Accordingly, we quash the Fifth
District’s decision and remand for further proceedings consistent with this
opinion.

FACTS
AND BACKGROUND

In January 2007, Petitioner Adrian Fridman suffered injuries
as a result of an automobile accident with an underinsured motorist. After the
accident, Fridman filed a claim with Safeco Insurance Company of Illinois, his
insurer, for the $50,000 limits of his UM policy. By October 2008, after Safeco
refused to pay, Fridman filed a Civil Remedy Notice, as required by section
624.155(3)(a), Florida Statutes (2007). The notice, in which he alleged that
Safeco failed to attempt in good faith to settle his UM claim in violation of section
624.155(1)(b)1, set forth the following facts and circumstances:

Failure
to pay UM policy limits of $50,000 in a clear liability crash with over
$12,000.00 of property damage to insured’s vehicle. Insured has sustained
medical bills in excess of $16,800.00 [and] out of pocket medical expenses in
excess of $8,000.00. Insured has sustained C3/4 and C5/6 disc herniations, as
well as L5S1 disc herniation which displaces the S1 nerve root. NCV/EMG testing
revealed C6/7 radiculopathy and right carpel tunnel syndrome. Insured is
without any health insurance to cover future medical treatment which insured
will require. Insurer has failed to offer the $50,000.00 uninsured motorist
coverage policy limits in spite of the demand to do so, and has instead made a wholly
inadequate offer of $5,000.00

In April 2009, after having received no response from Safeco
within the statutory sixty-day civil remedy notice period or any time
thereafter, Fridman filed a complaint against Safeco to determine liability
under the UM policy and the full extent of the damages he suffered in the
accident with the underinsured driver. In the complaint, he stated that he was
“entitled to recover damages from the Defendant, Safeco Insurance Company of
Illinois, in accordance with the provisions of § 627.727.” That section
provides that the damages an insured can recover in a bad faith action “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.” § 627.727(10), Fla. Stat. (2007) (emphasis added).

In February 2010, Fridman filed a notice of a settlement
proposal pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79,
Florida Statutes (2010), in the amount of $50,000. Safeco did not respond and,
thus, the unanswered proposal for settlement was deemed rejected after thirty
days. See § 768.79, Fla. Stat.; Fla. R. Civ. P. 1.442(f).

The month before the case was originally set for trial in
March 2011 — over four years after the automobile accident — Safeco tendered
a check to Fridman for the $50,000 policy limits, stating on the check that it
was the full and final settlement of any and all claims. Fridman rejected the
check containing this language. Safeco moved for a continuance, which the trial
court granted.

About six months later, prior to the rescheduled trial,
Safeco tendered a new check for $50,000 — not containing the settlement
language — and filed both a “confession of judgment” and a separate motion for
entry of confession of judgment. Fridman opposed the entry of a confessed
judgment, arguing, among other things, that a jury verdict would determine the
upper limits of Safeco’s potential liability under a future bad faith claim.

At the hearing on the motion to confess judgment, Fridman’s
counsel indicated Fridman’s intention to later file a bad faith action, which
he explained he had not already filed because he was under the impression that
precedent precluded an insured from bringing a bad faith action in the same
complaint as the UM action. Fridman’s counsel stated that “some lawyers used to
file their UM and bad faith case concurrently, and then some case law has come
out that says you’re not allowed to do that because until you have some
judgment in excess of the policy limits, it’s premature and inappropriate to
litigate a bad faith case concurrent with a UM case.” The trial court
ultimately denied Safeco’s motion to “confess judgment,” finding that to do
otherwise “would ignore the plain legislative intent of section 627.727(10),”
governing the damages recoverable in bad faith actions.

The case proceeded to trial, and the jury found that the
underinsured driver involved in the accident was negligent and one hundred
percent responsible for Fridman’s damages, which the jury determined to be
$1,000,000. During the course of the trial, Safeco moved for a mistrial,
alleging that Fridman’s counsel made improper comments. The trial court denied
that motion.

After the trial, Safeco filed a motion for a new trial,
alleging that the trial court committed several errors, including allowing
Fridman’s counsel to make “impermissible, irrelevant, misleading, and
inflammatory arguments” and permitting an excessive verdict that was not
supported by the evidence. Safeco also timely filed a motion for remittitur of
the jury’s award.

The trial court denied the post-trial motions and entered a
final judgment, which included the following language:

1.
That the Plaintiff, ADRIAN FRIDMAN, recovers from Defendant, SAFECO INSURANCE
COMPANY OF ILLINOIS, the sum of $50,000.00, that shall bear interest, pursuant
to Florida Statute § 55.03 for which let execution issue, notwithstanding the
excess jury verdict rendered in this matter.

2.
The Court reserves jurisdiction to determine the Plaintiff’s right to Amend his
Complaint to seek and litigate bad faith damages from the Defendant as a result
of such jury verdict in excess of policy limits. If the Plaintiff should ultimately
prevail in his action for bad faith damages against Defendant, then the
Plaintiff will be entitled to a judgment, in accordance with the jury’s
verdict, for his damages in the amount of $980,072.91 plus interest, fees and
costs.

3.
The Court hereby also reserves jurisdiction to consider any applicable
attorney’s fees and costs incurred in the Plaintiff’s prosecution of this
action for the purpose of entering a supplemental judgment in favor of the
Plaintiff upon proper motion.

Safeco appealed the trial court’s final judgment to the
Fifth District, arguing that (1) the trial court should have granted its motion
for entry of confession of judgment; (2) the final judgment was void because
the trial court had no authority to reserve jurisdiction in the judgment to
allow an amendment to the pleadings or establish Fridman’s damages to be
awarded in a future bad faith action; (3) the trial court erred in denying
Safeco’s motion for remittitur; and (4) the trial court erred in denying
Safeco’s motions for mistrial and new trial.

The Fifth District considered only the first two of these
issues without reaching the other two trial-related issues. In its decision,
the Fifth District vacated the jury’s verdict and directed the trial court to
enter an amended final judgment deleting any reference to the jury verdict and
declining to reserve jurisdiction to consider a request to amend the complaint
to add a claim seeking relief for bad faith under section 624.155. Fridman,
117 So. 3d at 19-21.

The Fifth District reasoned that where no dispute exists as
to the policy limits or available coverage, the amount of the judgment in the
UM case may not exceed the policy limits. Id. at 19. The Fifth District
stated that “the only cause of action before the trial court was Fridman’s UM
claim” because “Fridman had appropriately not included a bad faith count in his
complaint.” Id. The Fifth District determined that when Safeco confessed
judgment in the amount of the policy limits, “the issues between the parties,
as framed by the pleadings, became moot.” Id. Instead of proceeding to
trial, the Fifth District explained, “the trial court should have merely
entered the confessed judgment in favor of Fridman, reserving jurisdiction to
award costs, prejudgment interest, and, if authorized by law, reasonable
attorney’s fees.” Id. at 20. The Fifth District reasoned that this
“would provide Fridman a sufficient basis to pursue a bad faith claim against
Safeco,” because “Fridman can seek the full measure of damages afforded by
[section 627.727(10)] in a subsequent bad faith action.” Id. at 20-21.

Judge Sawaya wrote a lengthy dissenting opinion, explaining
his disagreement with the majority’s reasoning and the effect of its decision:

This
court today has declared void a jury verdict rendered in an uninsured motorist
(UM) case brought against Safeco Insurance Company of Illinois because it
refused to timely pay the uninsured motorist benefits under the policy it
issued to the injured insured, Adrian Fridman. That verdict declares the full
measure of the damages suffered by Fridman to be $1,000,000. In reaching its
decision, the majority erroneously concluded that Fridman did not have a
pending bad faith claim and if he did, he should have pled it in the complaint
filed in the UM case. Because he did not, the majority holds that Safeco had
the right to confess judgment for the policy limits of $50,000 shortly before
trial and, based on the mootness doctrine, end Fridman’s right to have the jury
determine the full extent of his damages.

The
majority has misread the Notice of Civil Remedy filed by Fridman; the pleadings
filed in this case; and the provisions of sections 627.727 and 624.155, Florida
Statutes (2007). In addition, the majority has failed to apply the numerous
decisions rendered by the Florida Supreme Court that hold that the jury in a UM
case is to determine the full extent of the injured victim’s damages prior to
the filing of any bad faith action. The majority has also misapplied the
mootness doctrine. I strongly believe that Fridman had the right to have the
jury determine the full extent of his damages, and he properly exercised that
right. I do not believe it should be taken away by declaring the jury verdict
void.

117 So. 3d at 21 (Sawaya, J., dissenting). Judge Sawaya
described extensively how the majority’s reasoning was contrary to this Court’s
precedent, including all three of the conflict cases, id. at 24-26, and
concluded by discussing the ramifications of the Fifth District’s opinion:

As
troubled as I am about what the majority has done to the verdict in this case,
I am equally troubled by the precedent the majority has established. I believe
that the majority decision will open the door to mischief by insurers who, with
this court’s precedent in hand, may sit back while the injured insured spends
all of his time and effort preparing his case for trial and, after the injured
insured has hemorrhaged his resources, confess judgment for policy limits and
prevent the insured from proceeding to have the jury declare the full measure of
his damages as a predicate for the insured’s ensuing bad faith action. Then,
the insured will have the arduous task of doing it all again when his bad faith
action is filed, only to encounter the obstacles of dismissal or abatement of
the bad faith issues until the damage issue is first resolved so the jury will
not be prejudiced by the bad faith evidence when determining the measure of
damages inflicted on the insured by the tortfeasor.

The
trial judge understood this case and what Safeco was trying to do with its
motion to confess judgment. He properly denied that motion to allow the jury
trial to proceed so the jury could speak the truth about the extent of
Fridman’s injuries.

Id. at
29-30.

ANALYSIS

The conflict in this case involves two interrelated issues.
The first issue, implicating the heart of UM and first-party bad faith
litigation, is whether an insured is entitled to a determination of liability
and the full extent of his or her damages in the UM case, before litigating the
first-party bad faith claim. The second and critical interrelated issue is
whether that determination of damages is then binding, as an element of
damages, in a subsequent first-party bad faith cause of action, for which the
insured has provided notice pursuant to section 624.155, against the same
insurer. An ancillary issue pertaining to this case is whether a procedure such
as the one employed by the trial court — entering the amount of the jury
verdict in the final judgment and retaining jurisdiction to consider an amendment
of the pleadings to add the bad faith claim — was erroneous. These questions
are matters of law, which we review de novo. See Travelers Commercial Ins.
Co. v. Harrington, 154 So. 3d 1106, 1108 n.2 (Fla. 2014).

We begin our analysis with a discussion of the applicable
statutes and this Court’s relevant case law, focusing in particular on the
background of the statutory first-party bad faith claim and its relationship to
the common law third-party bad faith claim. We then consider the interrelated
issues at stake in this case by considering prior cases, including those that
addressed how an appellate court has jurisdiction to review properly preserved
claims of error in the UM verdict. Finally, with these considerations in mind,
we examine the trial court’s actions in this case and determine whether it was
proper to have entered a final judgment that included the amount of damages set
forth in the jury verdict and purported to retain jurisdiction to determine
Fridman’s right to amend his complaint to add a bad faith cause of action. We
conclude that the trial court did not err in employing this procedure.

I.
Statutory First-Party Bad Faith Claim

Until 1982, the only recognized bad faith cause of action
was the common law third-party bad faith action. See Laforet, 658 So. 2d
at 58 (citing Auto Mut. Indem. Co. v. Shaw, 184 So. 852, 859 (Fla.
1938)). The third-party bad faith cause of action permits the insured or the
injured third party to sue an insurer for failing to settle within the policy
limits.2 See Macola v. Gov’t Emps. Ins.
Co., 953 So. 2d 451, 455 (Fla. 2006). In a third-party bad faith action, if
the injured third party or the insured is successful in establishing that the
insurer breached the duty of good faith in handling the claim, the plaintiff is
entitled to recover the full extent of the damages to which the insured was
exposed, including an excess judgment. See, e.g., Berges v. Infinity Ins.
Co., 896 So. 2d 665, 681-82 (Fla. 2004); Boston Old Colony Ins. Co. v.
Gutierrez, 386 So. 2d 783, 784 (Fla. 1980).

In 1982, the Florida Legislature created a statutory
first-party bad faith cause of action through the enactment of section 624.155.
See § 624.155(1)(b)1, Fla. Stat. This provision extended the duty of an
insurer to act in good faith in handling claims brought by its own insured
under a UM policy and exposed the insurer to the consequences of failing to do
so. § 624.155, Fla. Stat.

As a condition precedent to filing a civil action under
section 624.155, “the [Florida Department of Financial Services] and the
authorized insurer must have been given 60 days’ written notice of the
violation.” § 624.155(3)(a), Fla. Stat. (2007); see also § 624.05(1),
Fla. Stat. (2007). This notice is commonly referred to as the “civil remedy
notice.” The statute further provides that “[n]o action shall lie if, within 60
days after filing notice, the damages are paid or the circumstances giving rise
to the violation are corrected.” § 624.155(3)(d), Fla. Stat. (2007). This
sixty-day window provides insurers with a final opportunity “to comply with
their claim-handling obligations when a good-faith decision by the insurer
would indicate that contractual benefits are owed.” See Talat Enters., Inc.
v. Aetna Cas. & Sur. Co., 753 So. 2d 1278, 1284 (Fla. 2000). However,
if an insurer fails to respond to a civil remedy notice within the sixty-day
window, there is “a presumption of bad faith sufficient to shift the burden to
the insurer to show why it did not respond.” Imhof, 643 So. 2d at 619.

In 1990, the statute was amended to add subsection
624.155(7), specifying the damages recoverable under that statute as follows:
“The damages recoverable pursuant to this section shall include those damages
which are a reasonably foreseeable result of a specified violation of this
section by the insurer and may include an award or judgment in an amount
that exceeds the policy limits.” Ch. 90-119, § 30, Laws of Fla. (emphasis
added).

In McLeod v. Continental Insurance Co., 591 So. 2d
621, 626 (Fla. 1992), this Court considered the 1990 amendment as having
clarified the legislative purpose with respect to damages. This Court concluded
— in spite of the emphasized portion of the statute above — that an insured
could not recover the amount of the excess judgment as an element of damages in
a first-party bad faith claim, and instead could recover only those damages
that were the “natural, proximate, probable, or direct consequence of the
insurer’s bad faith actions.” Id.

Just months after this Court issued its opinion in McLeod,
the Legislature enacted section 627.727(10), Florida Statutes (1992), to
provide:

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.

(Emphasis added.) The language of the amended section, which
remains the same today, 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. See § 627.727(10),
Fla. Stat. (2015).

As this Court has recognized, “previous actions of this
Court limiting the relief afforded under section 624.155 based upon
distinctions between first- and third-party claims have been rebuked by the
Legislature” by the 1992 enactment. Allstate Indem. Co. v. Ruiz, 899 So.
2d 1121, 1128 n.2 (Fla. 2005). Indeed, section 624.155 itself does not
distinguish between first- and third-party bad faith actions and contains the
same language that has been used in the third-party bad faith context. See
id. at 1126. Consequently, first-party bad faith claims under section
624.155 should be treated in the same manner as third-party bad faith claims.3 Importantly, in both first- and
third-party bad faith actions, an element of damages includes any amount in
excess of the policy limits. See § 627.727(10), Fla. Stat.

II.
Intertwined Nature of UM Verdict

&
First-Party Bad Faith Action

A.
Entitlement to a Determination of

Liability
& Full Extent of Damages

The Fifth District and Safeco both recognize that an element
of damages within the first-party bad faith case would be any damages in excess
of the policy limits for the injuries arising from the automobile accident.
However, the Fifth District decided, and Safeco argues, that the determination
of the full extent of damages can and should be adjudicated in the subsequent
bad faith case — rather than in the UM action — because Safeco’s decision to
tender the policy limits rendered the underlying UM action moot. While the
Fifth District held that Fridman did not need to obtain a jury verdict
in excess of the UM policy limits in the UM case in order to subsequently file
a first-party bad faith action, the pertinent question is whether the insured
is entitled to that determination. Four cases from this Court —
including the three cases with which the Fifth District’s decision conflicts —
make clear that the answer is that the insured is entitled to a jury
determination of the amount of damages in the UM action.

In the first case, Blanchard, 575 So. 2d at 1290-91,
this Court addressed a certified question from the Eleventh Circuit Court of
Appeals regarding whether the statutory claim for bad faith under section
624.155 had to be asserted in the original action against the insurer for UM
benefits. This Court answered the certified question in the negative, reasoning
that if an uninsured motorist is not liable for damages, then the insurer has
not acted in bad faith in refusing to settle the claim; therefore, the
insured’s underlying action for insurance benefits against the insurer must be
first resolved in favor of the insured before the cause of action for bad faith
can accrue. Id. at 1291. As this Court made clear in Blanchard,
“[a]bsent a determination of the existence of liability on the part of the
uninsured tortfeasor and the extent of the plaintiff’s damages, a cause
of action cannot exist for a bad faith failure to settle.” Id. (emphasis
added). Blanchard thus clearly supports the conclusion that the
determination of liability and full extent of the insured’s damages must be
determined before litigating the bad faith action.

In the second case, Imhof, 643 So. 2d at 617, this
Court addressed the issue of whether an action for bad faith damages pursuant
to section 624.155(1)(b)1 is barred by Blanchard, where the complaint in
the bad faith action fails to allege that there has been a determination of the
extent of the plaintiff’s damages as a result of the uninsured tortfeasor’s
negligence. This Court clarified that while bad faith is presumed when the
insurer fails to respond within the sixty-day window after the civil remedy
notice is filed, Blanchard requires a determination of damages in order
to state a bad faith claim. Imhof, 643 So. 2d at 619. This Court held
that a bad faith complaint that fails to allege that there has been a
determination of the full extent of the insured’s damages as a result of the
uninsured tortfeasor’s negligence should be dismissed. Id. Imhof further
supports our conclusion that the insured is entitled to a determination of
liability and the full extent of his or her damages before litigating the
first-party bad faith claim. Indeed, without a determination of damages, Imhof
requires the bad faith complaint to be dismissed.

This Court echoed this point again in the third case —
Vest, 753 So. 2d at 1275. During that bad faith litigation, the insurer
approved a settlement between the insured, Vest, and the tortfeasor, and the
insurer paid Vest the UM policy limits, after which the trial court entered
summary judgment on the bad faith claim in favor of the insurer. Id. at
1272. The First District affirmed the trial court’s grant of summary final
judgment in favor of the insurer. Vest v. Travelers Ins. Co., 710 So. 2d
982, 984 (Fla. 1st DCA 1998), quashed, 753 So. 2d 1270 (Fla. 2000).

When the case reached this Court, we quashed the First
District’s decision and clarified that Blanchard means that 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, 753 So. 2d at 1275 (quoting Blanchard,
575 So. 2d at 1291). Once those elements exist, there is no impediment as a
matter of law to the recovery of damages for bad faith starting from the time
of a proven violation. Id. Vest thus further supports our conclusion
that the insured is entitled to a determination of liability and the full
extent of damages before litigating the bad faith cause of action.

In the fourth case, this Court in Laforet, 658 So. 2d
55, considered the amount of damages to which an insurer would be exposed in a
bad faith action, in addressing whether section 627.727(10) was retroactive.
This Court held that the statute could not be applied retroactively because the
Legislature “has now determined that damages in first-party bad faith actions
are to include the total amount of a claimant’s damages, including any amount
in excess of the claimant’s policy limits without regard to whether the damages
were caused by the insurance company” — damages that are, in substance, a
penalty. Id. at 60. This Court noted that if section 627.727(10) had
been applicable in that case, “under the retroactive application of the new
statute, [the insurer] was liable for the entire excess judgment awarded to the
Laforets in their original [UM] case.” Id. at 57. Thus, Laforet
recognizes that the determination of the full extent of damages is properly
made in the UM case and not litigated in the bad faith action.

Nothing in our precedent suggests that the eventual
tendering of the policy limits renders the UM case moot. We have already
addressed this same scenario in the common law third-party bad faith context,
holding that “the tender of the policy limits to the insured when the underlying
tort action is still pending does not eliminate the underlying tort action or
the insured’s exposure to an excess verdict.” Macola, 953 So. 2d at 458;
see also Whritenour v. Thompson, 145 So. 3d 870, 873-74 (Fla. 2d DCA
2014) (“A plaintiff must be allowed to proceed to trial and liquidate her
damages before bad faith becomes an issue. If a plaintiff chooses to pursue a
trial, the trial court cannot compel her to accept the defendant’s policy
limits.”) (citation omitted). Analogously, in the statutory first-party bad
faith context, the tender of the policy limits to the insured does not
eliminate the UM action or the insurer’s exposure to an excess verdict.

Additionally, the UM trial involves more than just a
determination of whether the insurer owes the insured the UM policy limits.
Rather, the UM trial also includes a determination of whether the uninsured or
underinsured driver is liable and the full extent of the insured’s damages. As
Judge Sawaya cogently explained:

The
purpose of UM litigation is to determine the damages caused by a negligent
tortfeasor. It is, in essence, a personal injury action filed against the
insured’s insurer, who steps into the shoes of the tortfeasor, and the
litigation proceeds as if the suit was filed against the tortfeasor. See
Allstate Ins. Co. v. Boynton, 486 So. 2d 552 (Fla. 1986). The relevant
evidence relates to how the accident happened, who was at fault, how the
injuries occurred, the extent of those injuries, how those injuries were
treated and are to be treated in the future, the cost of the treatment, lost
wages, and all of the other damage issues generally present in personal injury
litigation. Thus, absent coverage issues, causation and damages to the injured
insured are the primary focus of the UM litigation.

Fridman, 117 So. 3d at 27 (Sawaya, J.,
dissenting).

Judge Sawaya further aptly described why the UM action is
not moot merely because the insurer has tendered the policy limits:

“An
issue is moot when the controversy has been so fully resolved that a judicial
determination can have no actual effect. A case is ‘moot’ when it presents no
actual controversy or when the issues have ceased to exist.” Godwin v.
State, 593 So. 2d 211, 212 (Fla. 1992) (citations omitted). The damage
issue is not moot because a verdict in excess of the policy limits is evidence
and a recoverable measure of damages in the subsequent bad faith action, and
Fridman had the right to seek such a verdict in the UM case.

Moreover,
an exception to the mootness doctrine provides that “an otherwise moot case
will not be dismissed if collateral legal consequences that affect the rights
of a party flow from the issue to be determined.” Id. As previously
indicated, the courts have repeatedly held that a determination of the extent
of the damages is a prerequisite to the bad faith action. See Vest[, 753
So. 2d at 1276]; Blanchard[, 575 So. 2d at 1291]; [Progressive Select
Ins. Co. v.] Shockley[, 951 So. 2d 20 (Fla. 4th DCA 2007)]. A
collateral legal consequence of the UM proceedings is that the confessed
judgment in the amount of the policy limits, which has been foisted upon
Fridman against his will by Safeco in an attempt to deprive Fridman of his
right to a jury trial, is not a determination of the extent of the insured’s
damages.

Id. at 28-29.

We agree with Judge Sawaya’s reasoning that the amount of
damages in the UM case does not become moot by virtue of an insurer’s
“confession of judgment” and tendering of the policy limits. Such a position as
that taken by the Fifth District majority would “countenance the actions of an
insurer that confesses judgment at the last hour in an effort to avoid a trial
that would reveal, through the jury’s verdict, the true extent of the insured’s
injuries and provide a basis to award damages in the inevitable bad faith
action the insurer foresaw on the horizon.” Id. at 29.

Certainly, the insured is not obligated to obtain the
determination of liability and the full extent of his or her damages through a
trial and may utilize other means of doing so, such as an agreed settlement,
arbitration, or stipulation before initiating a bad faith cause of action. See,
e.g., Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So.
2d 1216, 1234-35 (Fla. 2006). But the availability of other alternatives does
not change the insured’s entitlement to a determination of liability and the
full extent of damages in the first instance. Therefore, for all these reasons,
we conclude that an insured is entitled to a determination of liability and the
full extent of his or her damages in the UM case prior to filing a first-party
bad faith action.

B.
Binding Effect of UM Verdict

in
First-Party Bad Faith Trial

Having reached this conclusion, an interrelated question is
whether the determination of damages that is reflected in the UM verdict is
binding, as an element of damages, in the subsequent bad faith action. The key
to answering this question is whether the insurer has a right to appellate
review of properly preserved claims of error in the determination of damages
obtained in the UM action.

First, it 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.”
Batchelor v. Geico Cas. Co., No. 6:11-cv-1071-Orl-37GJK, 2014 WL
3906312, at *4 (M.D. Fla. June 9, 2014).

If the amount of the UM verdict is not binding as an element
of damages in the bad faith litigation, it would allow the insurer — or the
insured, if the verdict were less than anticipated — a second bite at the
proverbial apple. As the Fourth District Court of Appeal stated in GEICO
General Insurance Co. v. Paton, it would be “such bad policy” that there is
not “even a hint of its existence in any case the Supreme Court has decided in
this area.” 150 So. 3d 804, 807 (Fla. 4th DCA 2014). Where the insurer “participated
fully in the first trial with an opportunity to challenge the plaintiff’s
evidence and a powerful motive to suppress the amount of damages,” Florida’s
“policy is not to give multiple bites at the same apple absent some legal
infirmity in the first trial.” Id.

In GEICO Casualty Co. v. Barber, Judge Sawaya
explained that utilizing the UM and bad faith statutes “as a charade whereby
insurers are allowed, through the expedient of a fictional confession of
judgment made years into the litigation, to push and pull their insureds from
one lawsuit to another only to require the insureds to try the same damage
issues all over again” would “def[y] all logic and common sense, contravene[ ]
the fundamental principles underlying the UM and bad faith statutes, and
improperly ignore[ ] the last chance provisions of section 624.155(3)(a), thus
rendering that statute virtually meaningless.” 147 So. 3d 109, 117-18 (Fla. 5th
DCA 2014) (Sawaya, J., dissenting). Accordingly, the Fifth District’s decision
here — which authorizes this exact type of conduct — incentivizes insurers to
undergo tactics that are adverse to the legislative intent behind section
627.727(10). Because we have concluded that the insured is entitled to a
determination of the full extent of damages in the UM action, it follows that
such a determination is binding in the subsequent bad faith action against the
same insurer.

The same is true when the insured attempts to relitigate the
issue of damages in the bad faith case, as a federal court recently properly
found. See Wiggins v. Allstate Prop. & Cas. Ins. Co., No.
13-23354-CIV, 2015 WL 1396583, at *4 (S.D. Fla. Mar. 6, 2015), adopted by
No. 13-CV-23354, 2015 WL 1402970 (S.D. Fla. Mar. 18, 2015). In that case, it
was actually the insurer that contended that “recent Court rulings make clear
that in Florida, a verdict in an underlying UM action, determines the damages
available to a claimant in a subsequent bad faith action against the insurer.” Id.
at *2. Truly, this is an appropriate example of the classic adage “what is good
for the goose is good for the gander.”

Nevertheless, Safeco argues that the determination of
damages reflected in the UM verdict cannot fix the amount of damages in the
subsequent bad faith cause of action because this determination of damages in
excess of the policy limits is not and cannot be subject to appellate review of
trial court errors. This inability to review the UM verdict for trial court
error, Safeco argues, creates a procedural due process issue. But Safeco’s
position is somewhat inconsistent with its own actions in this case because
Safeco did, in fact, appeal the UM verdict for trial error to the Fifth
District.

Of course, if the parties were actually unable to appeal the
UM verdict that fixed damages in the bad faith case, a due process concern —
or at least a question of basic fairness — could arise. However, in this case,
the Fifth District nowhere indicated that it was without authority to review
the jury verdict for trial errors and Safeco had not made that argument below
as a reason to vacate the jury verdict. Instead, Safeco appealed the denial of
its motion for mistrial and post-trial motions. And in another UM case, the
Fifth District reviewed a substantial UM jury verdict for error. See
Nationwide Mut. Fire Ins. Co. v. Darragh, 95 So. 3d 897, 898-99 (Fla. 5th
DCA 2012) (reviewing a $3.99 million verdict in an appeal brought by Nationwide
for errors in the damage award, where the UM policy limit was $200,000;
reversing the portion of the verdict related to future economic damages; and
remanding for a new trial to determine future economic damages).

We agree with Safeco that there must be an opportunity for
both parties to obtain appellate review of any timely raised claims of error in
the determination of damages obtained in the UM trial, for the very reason that
it becomes binding as an element of damages in the subsequent bad faith case.
However, we do not agree — nor does Fridman suggest — 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 Fifth District. 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. See Geico Gen. Ins. Co.
v. Bottini, 93 So. 3d 476, 478 (Fla. 2d DCA 2012) (Altenbernd, J.
concurring). Just as Judge Gross has expressed, writing for the Fourth District
in Paton, we also do not “discern the constitutional conundrum” under
these circumstances. 150 So. 3d at 808. Specifically,

[b]ecause
the damages in the first trial fixed the amount of bad faith damages and an
order denying a motion for new trial could have addressed damages in excess of
$100,000, an appeal after the final judgment in the first trial directed at the
total amount of damages thus would have fallen within the constitutional
parameters of the jurisdiction of this Court as an appeal from a “final
judgment[ ] or order[ ]” of the trial court. Art. V, § 4(b)(1), Fla. Const.

Id. Further, as Judge Gross recognized,
“[t]his approach conserves judicial resources and best serves the procedure
contemplated by Blanchard.” Id.4

As Federal District Court Judge Dalton explained in Batchelor
v. Geico Casualty Co., Florida’s district courts have powers of plenary
review that allow review of a UM verdict for potential errors:

[O]rders
granting remittiturs are reviewed for abuse of discretion; on review, the
appellate courts must look at whether the verdict was so high as to be against
the manifest weight of the evidence. See, e.g., Normius v. Eckerd Corp.,
813 So. 2d 985, 988 (Fla. 2d DCA 2002). Similarly, orders granting judgment
notwithstanding the verdict are reviewed de novo; there, appellate courts must
look to whether any reasonable jury could have rendered the verdict. See,
e.g., Duclos v. Richardson, 113 So. 3d 1001, 1003-04 (Fla. 1st DCA 2013).
In both of these instances, even though there is a judgment that is different
than the verdict, the appellate courts can and must review the verdict and the
evidence supporting the verdict to determine whether the judgment was
appropriate.

2014 WL 3906312, at *2 (footnote omitted).5

Alternatively, other trial courts have entered a partial
final judgment for the amount of damages, recognizing the right to appellate
review of a partial final judgment. See, e.g., Safeco Ins. Co. of Ill. v.
Rader, 132 So. 3d 941, 948 (Fla. 1st DCA 2014). As set forth in Florida
Rule of Appellate Procedure 9.110(k), partial final judgments are reviewable either
on appeal from the partial final judgment or on appeal from the final judgment
in the entire case. Fla. R. App. P. 9.110(k). A partial final judgment, other
than one that disposes of an entire case as to any party, is one that disposes
of a separate and distinct cause of action that is “not interdependent with
other pleaded claims.” Jay A. Yagoda, Early Appellate Remedies: Partial
Final Judgments, 87 Fla. B.J. 30 (2013). Any of these views reflect that
the parties can and should be afforded appellate review of the UM verdict for
properly preserved trial court error.

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” in the “context of
[the] case and the amount of the judgment.” 93 So. 3d at 477. We reject the
suggestion that errors in the computation of the UM verdict are necessarily
harmless where the 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. In fact, that is precisely what occurred in the bad
faith litigation following Bottini. 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).

For all these reasons, we conclude that the determination of
damages obtained in the UM action becomes a binding element of damages in the
subsequent bad faith litigation against the same insurer and that the parties
have the opportunity to appeal timely-raised errors in the UM verdict. We now
turn to this case.

III.
This Case

Sixty days after Fridman filed his civil remedy notice
without action on Safeco’s part, a presumption of bad faith arose. Almost three
years later, on the eve of trial, Safeco finally tendered the policy limits and
moved for entry of a “confession of judgment.” Even if Fridman had chosen to
accept Safeco’s tendering of the policy limits after years of litigating,
Fridman would still, at some point, need to obtain a determination of the full
extent of his damages, including any amount in excess of the policy limits, if
he planned to pursue his first-party bad faith claim. He appropriately chose to
obtain this determination in the UM action that he had filed and which had been
proceeding years before the offer of the policy limits was made. Fridman was
entitled to do so.

Even before the complaint was filed, Safeco knew that
Fridman’s case against it was not limited to the issue of its liability under
the UM policy:

As
the court in Vest indicated, Fridman was proceeding in a claim for bad
faith and notified Safeco of his claim prior to filing the UM case. There is no
way that Safeco can argue, and indeed it does not argue, that it was not put on
notice prior to the UM suit being filed of Fridman’s bad faith claim. Moreover,
when Safeco did tender its policy limits and attempt to confess judgment years
into the litigation, and after it requested a continuance of the scheduled
trial date, Fridman argued that he had a right to seek a judgment in excess of
the policy limits in accordance with section 627.727(10) for the bad faith
action he planned to file.

Fridman, 117 So. 3d at 23 (Sawaya, J.,
dissenting).

Safeco’s conduct of confessing judgment on the eve of trial
would prevent Fridman from obtaining a jury award that Safeco knew would be
used in Fridman’s subsequent first-party bad faith action. See Barber,
147 So. 3d at 117-18 (Sawaya, J., dissenting). If Fridman had to then
relitigate the issue of his damages, it would be unduly and unnecessarily
burdensome to him, and it would reward Safeco for its conduct in delaying a
tender of the policy limits. For those reasons, the trial court did not err in
denying the motion to confess judgment and allowing the UM claim to be
litigated. Also, by including the amount of the jury verdict in the final
judgment, the trial court did precisely what Judge Gross described in Paton
as a “preferable approach,” in which execution issues only for the policy
limits but the total amount of the damages is included in the final judgment.
150 So. 3d at 808 n.1.6

Additionally, the trial court did not err by retaining
jurisdiction to determine Fridman’s right to amend the complaint to add a claim
for bad faith. The trial court’s approach is consistent with our precedent in Ruiz,
899 So. 2d at 1130, which allows a bad faith cause of action to be abated.

In Ruiz, this Court determined that there was no
basis to apply different rules as to the discoverability of material such as
the insurer’s claim file and other related materials to third-party bad faith
actions and first-party bad faith actions. This Court accordingly held that all
materials contained in the underlying UM claim and related litigation file
material created up to the date of resolution of the underlying matter should
be produced in a first-party bad faith action. Id. at 1129-30.

We explained that when the claims are brought
simultaneously, certain documentation relevant to the bad faith action is not
discoverable until the underlying claim for benefits has been resolved, after
which it would be discoverable just as in a third-party bad faith claim. Id.
at 1130. To resolve the issue of an insured having an unfair advantage in the
underlying negligence action, we advised that “the courts should employ
existing tools, such as the abatement of actions and in-camera inspection, to
ensure full and fair discovery in both causes of action.” Id.

The Fourth District held in State Farm Mutual Automobile
Insurance Co. v. Tranchese, 49 So. 3d 809, 810 (Fla. 4th DCA 2010), that
where a bad faith action is joined with a claim for UM benefits, “the
appropriate step is to abate the bad faith action until coverage and damages
have been determined.” Further, as the First District Court of Appeal has
observed, “the trial court has authority to abate the statutory claims, rather
than to dismiss them, if it appears to the court that abatement would be in the
interest of judicial economy.” Vanguard Fire & Cas. Co. v. Golmon,
955 So. 2d 591, 595 (Fla. 1st DCA 2006).

While this Court noted in Vest that a bad faith claim
is premature if it is brought before a determination of damages is obtained,
753 So. 2d at 1276, we agree with the Fourth District that the statement in Vest
was made in the context of determining whether summary judgment versus
dismissal was appropriate. See Safeco Ins. Co. of Ill. v. Beare, 152 So.
3d 614, 617 (Fla. 4th DCA 2014). We reaffirm that our decision in Ruiz
made clear that abatement is an appropriate procedural device.

If abatement is permitted when the bad faith action is
brought simultaneously with the UM claim, then it follows that a trial court
may also reserve jurisdiction to allow an insured to formally amend his or her
complaint to add the bad faith claim after the conclusion of the UM
proceedings. Indeed, this procedure has been used in other cases. In Rader,
in which the trial court entered a partial final judgment in the underlying UM
case, the First District likewise approved the procedure of allowing the
insured to subsequently amend the complaint to add the bad faith cause of
action. 132 So. 3d at 948. Thus, the procedure employed by the trial court here
— retaining jurisdiction to determine the insured’s right to amend the
pleadings to add a bad faith claim — is appropriate and consistent with our
precedent in first-party bad faith cases.

Finally, we make clear that the insurer has the full
opportunity to defend its actions related to its handling of the insured’s UM
insurance claim when litigating the bad faith action. In other words, just
because the amount of the UM verdict is a binding element of damages
under section 627.727(10) in the bad faith case, the insurer is not precluded
from explaining its actions in failing to pay the policy limits when demanded
and presenting its case for why it did not act in bad faith in the handling of
the UM claim.

CONCLUSION

We conclude that an insured is entitled to a jury
determination of liability and the full extent of his or her damages, which may
be in excess of the policy limits, in the underlying UM case, prior to
litigating a first-party bad faith cause of action. This determination is then
binding in the subsequent bad faith action, provided the parties have had the
opportunity for appellate review of any trial errors that were timely raised.
An approach such as the one taken by the trial court in this case — that is,
going forward with the trial, including the verdict amount in the final
judgment, and reserving jurisdiction to consider a motion to amend to add the bad
faith cause of action — appropriately addresses how the parties can review
that jury determination of the extent of the damages for error prior to it
being used in the subsequent bad faith litigation as an element of damages.
Accordingly, we quash the decision of the Fifth District and remand for the
Fifth District to consider the other appellate issues Safeco raised in the
appeal to the Fifth District.7

It is so ordered. (LABARGA, C.J., and LEWIS, QUINCE, and
PERRY, JJ., concur. CANADY, J., dissents with an opinion, in which POLSTON, J.,
concurs.)

__________________

1The American Insurance Association,
the Property Casualty Insurers Association of America, the National Association
of Mutual Insurance Companies, and the Florida Insurance Council filed a joint
amicus curiae brief in support of the Respondent, Safeco Insurance Company of
Illinois.

2The injured third party is the
ultimate beneficiary of the third-party bad faith claim — the real party in
interest, akin to a “judgment creditor.” See Thompson v. Commercial Union
Ins. Co., 250 So. 2d 259, 264 (Fla. 1971). The injured third party may
bring a cause of action pursuant to an assignment from the insured or in his or
her own right as a third-party beneficiary. See Fidelity & Cas. Co. of
N.Y. v. Cope, 462 So. 2d 459, 461 (Fla. 1985). If brought pursuant to an
assignment, the injured third party stands in the shoes of the insured. See
Roberts v. Carter, 350 So. 2d 78, 79 (Fla. 1977).

3Indeed, the Note for use on the
current standard jury instruction reflects the same. The pertinent instruction
and Note read as follows, in relevant part:

404.4
INSURER’S BAD FAITH (FAILURE TO SETTLE)

Bad
faith on the part of an insurance company is failing to settle a claim when,
under all the circumstances, it could and should have done so, had it acted
fairly and honestly toward [its policyholder] [its insured] [an excess carrier]
and with due regard for [his] [her] [its] [their] interests.

Notes
on Use for 404.4

1.
Instruction 404.4 does not distinguish statutory claims from common law claims
or first party claims from third party claims. See State Farm Mutual
Automobile Insurance Co. v. LaForet, 658 So. 2d 55 (Fla. 1995).

Fla. Std. Jury. Instr. (Civ.) 404.4.

4The insurer sought review of Paton
in this Court. Because Paton also involved the issue of whether the
parties may rely on the determination of damages made in the UM case in the
subsequent first-party bad faith action between the same insurer and insured,
we stayed review of Paton pending disposition of this case. Geico
Gen. Ins. Co. v. Paton, No. SC15-63 (Fla. Sup. Ct. order filed Apr. 9,
2015).

5This issue of the binding effect of
the underlying verdict for damages in excess of the policy limits and the
ability to appeal the verdict for errors appears to have created concerns for
Federal District Court judges in Florida. At least four Federal District Court
judges — Judges Kovachevich, Presnell, and Williams, in addition to Judge
Dalton in Batchelor — have concluded that the jury determination of the
full extent of the damages in the UM action becomes a binding element of the
damages recoverable in the subsequent first-party bad faith claim, with the
issue of the right to appeal the underlying verdict becoming central. See
Wiggins, 2015 WL 1396583, at *3 (finding that the initial action between
the insurer and the insured fixes the amount of damages in the first-party bad
faith action and rejecting the plaintiff’s argument that there was no right to
appeal from the underlying UM judgment); Cadle v. Geico Gen. Ins. Co.,
No. 6:13-cv-1591-Orl-31GJK, 2014 WL 4983791, at *2 (M.D. Fla. Oct. 6, 2014)
(expressing some concern about the scope of review in considering alleged
errors in the UM verdict that exceeds the policy limits but stating that “the
current state of law in Florida does not support [the insurer]’s position” that
the UM jury verdict is not binding as a measure of damages in the bad faith
action); Bottini v. Geico Gen. Ins. Co., No. 8:13-CV-365-T-17AEP, 2014
WL 4749054, at *12 (M.D. Fla. Sept. 23, 2014) (concluding that the amount of
damages is necessarily determined in the underlying UM action, and that there
was no failure of due process because the insurer had the opportunity to and
did raise the issue of excessive damages by post-trial motions and on appeal). Accord
Thorne v. State Farm Mut. Auto. Ins. Co., No. 8:14-CV-827-T-17AEP, 2015 WL
809530, at *6 (M.D. Fla. Feb. 25, 2015); Lawton-Davis v. State Farm Mut.
Auto. Ins. Co., No. 6:14-cv-1157-Orl-37GJK, 2014 WL 6674458, at *3 (M.D.
Fla. Nov. 24, 2014).

On the other hand, in King v. Government Employees
Insurance Co., No. 8:10-cv-977-T-30AEP, 2012 WL 4052271 (M.D. Fla. Sept.
13, 2012), aff’d by 579 Fed. Appx. 796, 802-803 (11th Cir. 2014), Judge
Moody determined that the underlying verdict in excess of the policy limits was
not binding because it had not been reviewed on appeal. And in Harris v.
Geico General Insurance Co., 961 F.Supp. 2d 1223 (S.D. Fla. 2013), aff’d
by 619 Fed. Appx. 896 (11th Cir. 2015), Judge Ryskamp concluded that the
jury verdict in the underlying UM case was not the proper measure of damages in
the first-party bad faith action. In both cases, on appeal, the Eleventh
Circuit Court of Appeals declined to address the issue of whether the excess
verdict in the underlying UM action was binding as to damages in the subsequent
first-party bad faith action because it affirmed the decision that the insurer
was found by the jury not to have acted in bad faith. King, 579 Fed.
Appx. 796 at 802-803; Harris, 619 Fed. Appx. at 898.

6However, we do not perceive a need
for a rule codifying this procedure, as suggested by Judge Gross in Paton.
See Paton, 150 So. 3d at 808 n.1 (“The Supreme Court might well clarify
that this is the preferable approach by adopting a rule requiring final
judgments in uninsured motorist suits between an insured and the insurer to
include specific findings on the total amount of damages, even though execution
would issue for only the policy limits.”).

7The two trial-related errors raised
by Safeco before the Fifth District and this Court, that neither we nor the
Fifth District have addressed, are: (1) whether the trial court erred in
denying Safeco’s motion for remittitur; and (2) whether the trial court erred
in denying Safeco’s motions for mistrial and a new trial for improper arguments
made by Fridman’s trial counsel.

__________________

(CANADY, J., dissenting.) Under Article V, section 3(b)(3)
of the Florida Constitution, “[t]his Court may only review a decision of a
district court of appeal that expressly and directly conflicts with a decision
of another district court of appeal or the Supreme Court on the same question
of law.” Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980). Here, the
majority finds conflict between cases in which the causes of action are not the
same and the courts address and resolve different legal issues. Because the
Fifth District Court’s decision does not conflict with Blanchard, Imhof,
or Vest, I dissent.

In the instant case, “the only cause of action before the
trial court was Fridman’s UM claim.” Fridman, 117 So. 3d at 19. Safeco
tendered the UM policy limits, and the court — over Safeco’s objection —
proceeded to trial, after which the jury found $1 million in damages to
Fridman. The trial court reserved jurisdiction to award bad faith damages
should Fridman pursue and prevail on such a claim. On review, the district
court reversed, holding that Fridman was correct not to include a bad faith
claim in the UM action against Safeco. Thus, the district court determined that
“while in ordinary circumstances an insured must obtain a judgment in excess of
policy limits before prosecuting a first party bad faith claim, it was the
establishment of the fact that such damages were incurred and not their precise
amount that formed the basis for a subsequent bad faith cause of
action.” Id. at 20 (emphasis added).

In contrast to the case before the Court, which addressed a
UM suit, the three alleged conflict cases — Blanchard, Imhof, and Vest
— addressed issues in first-party actions for bad faith against an insurer. Blanchard
held that “an insured’s underlying first-party action for insurance benefits
against the insurer necessarily must be resolved favorably to the insured
before the cause of action for bad faith in settlement negotiations can
accrue.” 575 So. 2d at 1291. The Court explained that “[a]bsent a determination
of the existence of liability on the part of the uninsured tortfeasor and the
extent of the plaintiff’s damages, a cause of action cannot exist for a bad
faith failure to settle.” Id. In Imhof, the plaintiff settled his
UM claim with the tortfeasor and then sued his insurer for bad faith for
failure to settle. 643 So. 2d at 618. Answering a certified question, this
Court held that “[n]either Blanchard nor section 624.155(2)(b) requires
the allegation of a specific amount of damages” in a bad faith claim. Id.
Finally, in Vest this Court again addressed an issue regarding damages
recoverable in a bad faith action against an insurer. 753 So. 2d at 1272. The
Court held that “a claim for bad faith pursuant to section 624.155(1)(b)1[.] is
founded upon the obligation of the insurer to pay when all conditions under the
policy would require an insurer exercising good faith and fair dealing towards
its insured to pay. This obligation on the part of an insurer requires the
insurer to timely evaluate and pay benefits owed on the insurance policy.” Id.
at 1275.

The three alleged conflict cases all address issues
regarding bad faith claims against insurers for failing to settle. In this
case, however, the petitioner did not bring or argue a bad faith cause of
action in the trial court. And the district court’s opinion acknowledges that
there is no bad faith claim in the case. Moreover, the district court’s
statement that a determination of the dollar amount of the damages is not
required to establish the extent of damages for a bad faith suit is congruent
with this Court’s decisions in the alleged conflict cases. Because the alleged
conflict cases are factually distinguishable and their holdings do not conflict
with the district court’s decision in this case on the same question of law,
this Court lacks jurisdiction. Accordingly, I would discharge the case on that
basis. (POLSTON, J., concurs.)

* *
*