27
Fla. L. Weekly Fed. D67a
Fla. L. Weekly Fed. D67a
Insurance
— Uninsured motorist — Bad faith — Civil remedy notice — Estate of motorist
who was killed when a dump truck owned by an underinsured company struck the
taxi he was driving filed action against motorist’s automobile insurer, seeking
underinsured motorist benefits and asserting claim for statutory bad faith —
Insurer is entitled to summary judgment as matter of law on statutory bad faith
claim filed by motorist’s girlfriend, as personal representative of motorist’s
estate — Under Florida law, civil remedy notice submitted by plaintiff, which
lists automobile insurance policy on vehicle owned by plaintiff, did not
support statutory bad faith claim based on insurer’s failure to pay
underinsured motorist benefits on separate automobile policy covering vehicle
owned by motorist — Two policies had different underinsured policy limits and
provided non-stacking underinsured coverage — Under Florida law, a policy
number is required for an acceptable civil remedy notice submitted as
prerequisite to statutory bad faith claim, even though it is not explicitly
required by statute — Premature motion — Summary judgment motion granted
without parties having conducted discovery was not premature — Plaintiff’s failure
to file an affidavit or declaration giving specific reason she cannot present
facts essential to her opposition to defendant’s motion for summary judgment
failed to meet requirements of Rule 56(d), which permits a court to delay
consideration of the summary judgment motion, deny the motion, or allow
additional time for discovery — No federal rule requires that a party wait
until discovery has taken place before moving for summary judgment — Summary
judgment may be appropriate when no discovery has been held — Insurer did not
waive its objection to plaintiff filing a CRN under one policy and bringing a
bad faith action under a totally different policy by failing to raise it in its
response and by paying the policy limit after plaintiff filed a declaratory
judgment action — While an insurer can detect a “lack of specificity” from the
face of CRN when an insurer receives the CRN, it cannot detect an incorrect
policy number from the face of CRN when plaintiff provides a valid insurance
policy number on CRN, but subsequently decides to file a bad faith action under
a totally different policy
— Uninsured motorist — Bad faith — Civil remedy notice — Estate of motorist
who was killed when a dump truck owned by an underinsured company struck the
taxi he was driving filed action against motorist’s automobile insurer, seeking
underinsured motorist benefits and asserting claim for statutory bad faith —
Insurer is entitled to summary judgment as matter of law on statutory bad faith
claim filed by motorist’s girlfriend, as personal representative of motorist’s
estate — Under Florida law, civil remedy notice submitted by plaintiff, which
lists automobile insurance policy on vehicle owned by plaintiff, did not
support statutory bad faith claim based on insurer’s failure to pay
underinsured motorist benefits on separate automobile policy covering vehicle
owned by motorist — Two policies had different underinsured policy limits and
provided non-stacking underinsured coverage — Under Florida law, a policy
number is required for an acceptable civil remedy notice submitted as
prerequisite to statutory bad faith claim, even though it is not explicitly
required by statute — Premature motion — Summary judgment motion granted
without parties having conducted discovery was not premature — Plaintiff’s failure
to file an affidavit or declaration giving specific reason she cannot present
facts essential to her opposition to defendant’s motion for summary judgment
failed to meet requirements of Rule 56(d), which permits a court to delay
consideration of the summary judgment motion, deny the motion, or allow
additional time for discovery — No federal rule requires that a party wait
until discovery has taken place before moving for summary judgment — Summary
judgment may be appropriate when no discovery has been held — Insurer did not
waive its objection to plaintiff filing a CRN under one policy and bringing a
bad faith action under a totally different policy by failing to raise it in its
response and by paying the policy limit after plaintiff filed a declaratory
judgment action — While an insurer can detect a “lack of specificity” from the
face of CRN when an insurer receives the CRN, it cannot detect an incorrect
policy number from the face of CRN when plaintiff provides a valid insurance
policy number on CRN, but subsequently decides to file a bad faith action under
a totally different policy
JUNA MATHURIN, as Personal
Representative of the Estate of FLEURINAT ESTEPHENE, deceased, Plaintiff, v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. U.S. District Court,
Middle District of Florida, Orlando Division. Case No. 6:17-cv-1765-Orl-22KRS.
January 4, 2018. Anne C. Conway, Judge.
Representative of the Estate of FLEURINAT ESTEPHENE, deceased, Plaintiff, v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. U.S. District Court,
Middle District of Florida, Orlando Division. Case No. 6:17-cv-1765-Orl-22KRS.
January 4, 2018. Anne C. Conway, Judge.
ORDER
This cause comes before the Court on
Defendant State Farm Mutual Automobile Insurance Company’s (“State Farm”) Motion
for Summary Judgment on Count Two of Plaintiff Juna Mathurin’s Complaint for
bad faith. (Doc. 7.) Plaintiff responded in opposition (Doc. 16); State Farm
replied. (Doc. 26.) The motion is now ripe for review. For the foregoing
reasons, the Court will GRANT State Farm’s motion.
Defendant State Farm Mutual Automobile Insurance Company’s (“State Farm”) Motion
for Summary Judgment on Count Two of Plaintiff Juna Mathurin’s Complaint for
bad faith. (Doc. 7.) Plaintiff responded in opposition (Doc. 16); State Farm
replied. (Doc. 26.) The motion is now ripe for review. For the foregoing
reasons, the Court will GRANT State Farm’s motion.
I.
BACKGROUND1
BACKGROUND1
A. FACTUAL BACKGROUND
Plaintiff Juna Mathurin, the
personal representative of the estate of Decedent Fluerinat Estephene, brings
her two-count complaint for underinsured motorist benefits and statutory bad
faith pursuant to Florida Statute § 624.155 arising out of a fatal motor
vehicle accident.2 (Doc. 2.) Although State Farm paid
Plaintiff the policy limit of $10,000 under the policy at issue (Kwavnick Aff.,
Doc. 7-6 ¶ 4), Plaintiff is pursuing an underinsured motorist claim to obtain a
determination on the full amount of damages to serve as the recovery amount on
the bad faith count. (Doc. 2 at 8.) Plaintiff seeks damages, pre- and
post-judgment interest, attorneys’ fees, and costs. (Id. at 12.) State
Farm seeks summary judgment on Plaintiff’s bad faith count. (Doc. 7.)
personal representative of the estate of Decedent Fluerinat Estephene, brings
her two-count complaint for underinsured motorist benefits and statutory bad
faith pursuant to Florida Statute § 624.155 arising out of a fatal motor
vehicle accident.2 (Doc. 2.) Although State Farm paid
Plaintiff the policy limit of $10,000 under the policy at issue (Kwavnick Aff.,
Doc. 7-6 ¶ 4), Plaintiff is pursuing an underinsured motorist claim to obtain a
determination on the full amount of damages to serve as the recovery amount on
the bad faith count. (Doc. 2 at 8.) Plaintiff seeks damages, pre- and
post-judgment interest, attorneys’ fees, and costs. (Id. at 12.) State
Farm seeks summary judgment on Plaintiff’s bad faith count. (Doc. 7.)
On June 6, 2011, while working as a
taxicab driver, Fleurinat Estephene (“Decedent”) was killed when a dump truck
owned by an underinsured company struck Decedent’s taxi.3 (Doc. 2 at 2; Doc. 16-1 at 13-14;
Mathurin Dep., Doc. 7 at 53, 58.)4 At the time of Decedent’s accident,
he resided with the Plaintiff, his girlfriend. (Doc. 7-1 at 62-63.) Decedent
owned a 1994 Honda Civic and Plaintiff owned a 2000 Nissan Quest. (Id. at
26-27.) State Farm issued two separate policies for these vehicles. (Owen
Affs., Doc. 3-1 & 3-2.) State Farm assigned the policy number
406-8935-C21-59B to the policy on Plaintiff’s vehicle (“Nissan Quest Policy”).
The policy provided nonstacking underinsured/uninsured motorist (“UM”) coverage
with policy limits of $50,000 per person and $100,000 per accident. (Doc. 3-2
at 2.) For the policy covering Decedent’s Honda Civic (“Honda Civic Policy”),
State Farm assigned the policy number 698-7601-F19-59. (Doc. 3-1 at 2.) The
Honda Civic Policy provided nonstacking UM policy limits of $10,000 per person
and $20,000 per accident. (Id.) On both policies, Plaintiff was the
first named insured and Decedent was the second named insured. (Doc. 16-1 at 1,
3.) In a state action, the court determined that Decedent should have been the
first named insured on the Honda Civic Policy since he was the owner and
principal operator of the Honda Civic. (Doc. 7-8 at 51-52.)5
taxicab driver, Fleurinat Estephene (“Decedent”) was killed when a dump truck
owned by an underinsured company struck Decedent’s taxi.3 (Doc. 2 at 2; Doc. 16-1 at 13-14;
Mathurin Dep., Doc. 7 at 53, 58.)4 At the time of Decedent’s accident,
he resided with the Plaintiff, his girlfriend. (Doc. 7-1 at 62-63.) Decedent
owned a 1994 Honda Civic and Plaintiff owned a 2000 Nissan Quest. (Id. at
26-27.) State Farm issued two separate policies for these vehicles. (Owen
Affs., Doc. 3-1 & 3-2.) State Farm assigned the policy number
406-8935-C21-59B to the policy on Plaintiff’s vehicle (“Nissan Quest Policy”).
The policy provided nonstacking underinsured/uninsured motorist (“UM”) coverage
with policy limits of $50,000 per person and $100,000 per accident. (Doc. 3-2
at 2.) For the policy covering Decedent’s Honda Civic (“Honda Civic Policy”),
State Farm assigned the policy number 698-7601-F19-59. (Doc. 3-1 at 2.) The
Honda Civic Policy provided nonstacking UM policy limits of $10,000 per person
and $20,000 per accident. (Id.) On both policies, Plaintiff was the
first named insured and Decedent was the second named insured. (Doc. 16-1 at 1,
3.) In a state action, the court determined that Decedent should have been the
first named insured on the Honda Civic Policy since he was the owner and
principal operator of the Honda Civic. (Doc. 7-8 at 51-52.)5
After the June 6, 2011 accident,
Plaintiff sought UM benefits as Decedent’s personal representative from State
Farm. On June 24, 2011, State Farm sent a letter to Plaintiff6 as a follow up on a telephone call
between Plaintiff and State Farm. (Doc. 16-1 at 5.) In the letter, State Farm
assigned the claim number “59-A820-386” to Plaintiff’s claim and listed the
policy number of the Nissan Quest Policy with the higher limits. (Id.)
On June 27, 2011, Plaintiff sent a letter to State Farm, notifying State Farm
that Plaintiff would proceed with an uninsured motorist claim and requesting
proof of UM coverage that was provided to Plaintiff and the UM rejection sheet
if coverage was denied.7 (Doc. 16-1 at 7.) In response, on
July 18, 2011, State Farm sent two letters to Plaintiff, one containing policy
information for the Nissan Quest Policy and another for the Honda Civic Policy.
(Id. at 8-12.)
Plaintiff sought UM benefits as Decedent’s personal representative from State
Farm. On June 24, 2011, State Farm sent a letter to Plaintiff6 as a follow up on a telephone call
between Plaintiff and State Farm. (Doc. 16-1 at 5.) In the letter, State Farm
assigned the claim number “59-A820-386” to Plaintiff’s claim and listed the
policy number of the Nissan Quest Policy with the higher limits. (Id.)
On June 27, 2011, Plaintiff sent a letter to State Farm, notifying State Farm
that Plaintiff would proceed with an uninsured motorist claim and requesting
proof of UM coverage that was provided to Plaintiff and the UM rejection sheet
if coverage was denied.7 (Doc. 16-1 at 7.) In response, on
July 18, 2011, State Farm sent two letters to Plaintiff, one containing policy
information for the Nissan Quest Policy and another for the Honda Civic Policy.
(Id. at 8-12.)
On August 18, 2011, Plaintiff sent a
demand letter to State Farm offering to settle the claim for the UM policy
limits; while Plaintiff included the claim number, she did not specify under
which policy she was claiming coverage. (Id. at 13.) On September 9,
2011, State Farm sent a letter to Plaintiff denying coverage for the accident
without specifying the policy. (Id. at 15.) State Farm stated that the
vehicle Decedent was driving at the time of the accident did not qualify for
coverage under the liability portion of the policy and “[Decedent] [did] not
meet the definition of an insured under the uninsured motorist coverage.” (Id.)
demand letter to State Farm offering to settle the claim for the UM policy
limits; while Plaintiff included the claim number, she did not specify under
which policy she was claiming coverage. (Id. at 13.) On September 9,
2011, State Farm sent a letter to Plaintiff denying coverage for the accident
without specifying the policy. (Id. at 15.) State Farm stated that the
vehicle Decedent was driving at the time of the accident did not qualify for
coverage under the liability portion of the policy and “[Decedent] [did] not
meet the definition of an insured under the uninsured motorist coverage.” (Id.)
On January 27, 2012, pursuant to
Florida Statute § 624.155, Plaintiff filed a civil remedy notice (“CRN”) under
the Nissan Quest Policy with the Florida Department of Financial Services based
on State Farm’s alleged failure to settle Plaintiff’s claim in good faith (Doc.
2-2), and provided State Farm with a copy of the CRN. (Id.) In the CRN,
Plaintiff listed State Farm’s assigned claim number but not the Honda Civic
Policy number. (Id. at 16.) It is undisputed that Plaintiff never
provided State Farm with a CRN under the Honda Civic Policy for this claim.
(Wallace Aff., Doc. 7-7 ¶ 6.) On March 6, 2012, State Farm responded to the CRN
by denying the allegations in the CRN and asserting that Decedent was not
entitled to UM coverage under the Nissan Quest Policy. (Doc. 16-1 at 20-21.)
“On April 1, 2013, State Farm (through its counsel) paid Plaintiff the $10,000
each-person policy limit under the Honda [Civic] Policy.” (Doc. 7 ¶ 6; Doc. 7-6
¶ 6.)
Florida Statute § 624.155, Plaintiff filed a civil remedy notice (“CRN”) under
the Nissan Quest Policy with the Florida Department of Financial Services based
on State Farm’s alleged failure to settle Plaintiff’s claim in good faith (Doc.
2-2), and provided State Farm with a copy of the CRN. (Id.) In the CRN,
Plaintiff listed State Farm’s assigned claim number but not the Honda Civic
Policy number. (Id. at 16.) It is undisputed that Plaintiff never
provided State Farm with a CRN under the Honda Civic Policy for this claim.
(Wallace Aff., Doc. 7-7 ¶ 6.) On March 6, 2012, State Farm responded to the CRN
by denying the allegations in the CRN and asserting that Decedent was not
entitled to UM coverage under the Nissan Quest Policy. (Doc. 16-1 at 20-21.)
“On April 1, 2013, State Farm (through its counsel) paid Plaintiff the $10,000
each-person policy limit under the Honda [Civic] Policy.” (Doc. 7 ¶ 6; Doc. 7-6
¶ 6.)
B. PROCEDURAL HISTORY
1.
2012 State Case8
2012 State Case8
Plaintiff has brought multiple
lawsuits against State Farm stemming from the accident and State Farm’s denial
of coverage. On November 15, 2012, Plaintiff filed suit against State Farm in
the Palm Beach County Circuit Court, seeking a declaratory judgment that the
Honda Civic Policy provided UM coverage for the accident. (Doc. 7-8 at 2-5.) On
December 14, 2012, Plaintiff amended her complaint and sought a declaratory
judgment for coverage under both the Honda Civic Policy and Nissan Quest
Policy. (Id. at 17.) On January 30, 2013, in State Farm’s Answer and
Affirmative Defenses, it agreed that the Honda Civic Policy provided UM
coverage for the accident, but it denied that the Nissan Quest Policy provided
coverage. (Id. at 25-29.) On April 30, 2013, pursuant to an agreed order
by the parties, the case was transferred to the Orange County Circuit Court. (Id.
at 30-31.) Nearly three years later, on January 1, 2016, Plaintiff amended
her complaint and sought a declaratory judgment for UM coverage only under the
Honda Civic Policy. (Id. at 32-36.) On April 11, 2017, the state court
issued a Final Declaratory Judgment, declaring that the Estate of Estephene was
deemed an insured under the Honda Civic Policy’s UM coverage because Decedent
should have been listed as the first named insured on the policy since he was
the owner and principal operator of the Honda Civic (Id. at 51-52.)
lawsuits against State Farm stemming from the accident and State Farm’s denial
of coverage. On November 15, 2012, Plaintiff filed suit against State Farm in
the Palm Beach County Circuit Court, seeking a declaratory judgment that the
Honda Civic Policy provided UM coverage for the accident. (Doc. 7-8 at 2-5.) On
December 14, 2012, Plaintiff amended her complaint and sought a declaratory
judgment for coverage under both the Honda Civic Policy and Nissan Quest
Policy. (Id. at 17.) On January 30, 2013, in State Farm’s Answer and
Affirmative Defenses, it agreed that the Honda Civic Policy provided UM
coverage for the accident, but it denied that the Nissan Quest Policy provided
coverage. (Id. at 25-29.) On April 30, 2013, pursuant to an agreed order
by the parties, the case was transferred to the Orange County Circuit Court. (Id.
at 30-31.) Nearly three years later, on January 1, 2016, Plaintiff amended
her complaint and sought a declaratory judgment for UM coverage only under the
Honda Civic Policy. (Id. at 32-36.) On April 11, 2017, the state court
issued a Final Declaratory Judgment, declaring that the Estate of Estephene was
deemed an insured under the Honda Civic Policy’s UM coverage because Decedent
should have been listed as the first named insured on the policy since he was
the owner and principal operator of the Honda Civic (Id. at 51-52.)
2.
2013 Federal Case
2013 Federal Case
On July 16, 2013, Plaintiff filed a
separate action seeking UM coverage benefits and bad faith under the Nissan
Quest Policy in state court. See Mathurin v. State Farm Mut. Auto. Ins. Co.,
Case No. 6:13-cv-01263-CEH-GJK (M.D. Fla. July 16, 2013) (M.D. Fla. July 16,
2013) (Doc. 3). On August 19, 2013, State Farm removed Plaintiff’s case to this
Court. (See id. at Doc. 1.) On September 25, 2013, the Court granted the
parties’ Joint Motion for Dismissal of Action and dismissed the case without
prejudice. (Id. at Doc. 20.)
separate action seeking UM coverage benefits and bad faith under the Nissan
Quest Policy in state court. See Mathurin v. State Farm Mut. Auto. Ins. Co.,
Case No. 6:13-cv-01263-CEH-GJK (M.D. Fla. July 16, 2013) (M.D. Fla. July 16,
2013) (Doc. 3). On August 19, 2013, State Farm removed Plaintiff’s case to this
Court. (See id. at Doc. 1.) On September 25, 2013, the Court granted the
parties’ Joint Motion for Dismissal of Action and dismissed the case without
prejudice. (Id. at Doc. 20.)
3.
The Present Case
The Present Case
Four years later, on September 6,
2017, Plaintiff filed her second action in state court seeking UM coverage
benefits and bad faith but this time under the Honda Civic Policy. (Doc.
2.) For the UM benefits claim, Plaintiff alleges that “[State Farm] has
unjustifiably refused to honor its contractual obligations by denying coverage
under the Policy and failing to pay the uninsured motorist benefits owed to
[Plaintiff].” (Id. ¶ 19.) However, it is undisputed that on April 1,
2013, State Farm paid Plaintiff the $10,000 UM policy limit under the Honda
Civic Policy. (Doc. 7-6 at 4; Doc. 7 ¶ 6; Doc. 16 ¶ 6.) Plaintiff alleges
statutory bad faith under Florida Statutes § 624.55 for State Farm’s alleged
acts during the handling of Plaintiff’s claim, such as State Farm failing to
attempt in good faith to settle Plaintiff’s claim and placing its own financial
interests before Plaintiff’s. (Doc. 2 at 9.) In support of her Complaint,
Plaintiff attached her previously filed CRN under the Nissan Quest Policy.
(Doc. 2-2 at 15-17.) On October 12, 2017, State Farm removed the present case
to this Court based on diversity jurisdiction. (Doc. 1.) On October 20, 2017,
State Farm moved for summary judgment on Plaintiff’s bad faith count. (Doc. 7.)
On November 17, 2017, Plaintiff responded to State Farm’s Motion for Summary
Judgment. (Doc. 16.) On December 5, 2017, State Farm replied to Plaintiff’s Response.
(Doc. 26.)
2017, Plaintiff filed her second action in state court seeking UM coverage
benefits and bad faith but this time under the Honda Civic Policy. (Doc.
2.) For the UM benefits claim, Plaintiff alleges that “[State Farm] has
unjustifiably refused to honor its contractual obligations by denying coverage
under the Policy and failing to pay the uninsured motorist benefits owed to
[Plaintiff].” (Id. ¶ 19.) However, it is undisputed that on April 1,
2013, State Farm paid Plaintiff the $10,000 UM policy limit under the Honda
Civic Policy. (Doc. 7-6 at 4; Doc. 7 ¶ 6; Doc. 16 ¶ 6.) Plaintiff alleges
statutory bad faith under Florida Statutes § 624.55 for State Farm’s alleged
acts during the handling of Plaintiff’s claim, such as State Farm failing to
attempt in good faith to settle Plaintiff’s claim and placing its own financial
interests before Plaintiff’s. (Doc. 2 at 9.) In support of her Complaint,
Plaintiff attached her previously filed CRN under the Nissan Quest Policy.
(Doc. 2-2 at 15-17.) On October 12, 2017, State Farm removed the present case
to this Court based on diversity jurisdiction. (Doc. 1.) On October 20, 2017,
State Farm moved for summary judgment on Plaintiff’s bad faith count. (Doc. 7.)
On November 17, 2017, Plaintiff responded to State Farm’s Motion for Summary
Judgment. (Doc. 16.) On December 5, 2017, State Farm replied to Plaintiff’s Response.
(Doc. 26.)
II.
LEGAL STANDARD
LEGAL STANDARD
A court should grant a motion for
summary judgment “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). It is the movant who bears the initial burden of
“identifying for the district court those portions of the record ‘which it
believes demonstrates the absence of a genuine issue of material fact.’ ” Cohen
v. United Am. Bank of Cent. Fla., 83 F.3d 1347, 1349 (11th Cir. 1996)
(quoting Cox v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386, 1396, modified
on other grounds, 30 F.3d 1347 (11th Cir. 1994)). In a case in which the
non-movant bears the burden of proof at trial, the movant may carry its initial
burden by either negating an essential element of the non-movant’s case or by
demonstrating the absence of evidence to prove a fact necessary to the
non-movant’s case. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-16
(11th Cir. 1993) (citation omitted). Once the movant carries its initial
burden, the non-movant may avoid summary judgment by demonstrating an issue of
material fact. Id. at 1116. If the movant demonstrates the absence of
evidence on a material fact for which the non-movant bears the burden of proof,
then the non-movant must either show that the record contains evidence that the
movant “overlooked or ignored” or “come forward with additional evidence
sufficient to withstand a directed verdict motion at trial based on the alleged
evidentiary deficiency.” Id. at 1116-17 (citation omitted). The
non-movant must provide more than a “mere scintilla of evidence” supporting its
position, and “there must be enough of a showing that the jury could reasonably
find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.
1990) (citation omitted).
summary judgment “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). It is the movant who bears the initial burden of
“identifying for the district court those portions of the record ‘which it
believes demonstrates the absence of a genuine issue of material fact.’ ” Cohen
v. United Am. Bank of Cent. Fla., 83 F.3d 1347, 1349 (11th Cir. 1996)
(quoting Cox v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386, 1396, modified
on other grounds, 30 F.3d 1347 (11th Cir. 1994)). In a case in which the
non-movant bears the burden of proof at trial, the movant may carry its initial
burden by either negating an essential element of the non-movant’s case or by
demonstrating the absence of evidence to prove a fact necessary to the
non-movant’s case. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-16
(11th Cir. 1993) (citation omitted). Once the movant carries its initial
burden, the non-movant may avoid summary judgment by demonstrating an issue of
material fact. Id. at 1116. If the movant demonstrates the absence of
evidence on a material fact for which the non-movant bears the burden of proof,
then the non-movant must either show that the record contains evidence that the
movant “overlooked or ignored” or “come forward with additional evidence
sufficient to withstand a directed verdict motion at trial based on the alleged
evidentiary deficiency.” Id. at 1116-17 (citation omitted). The
non-movant must provide more than a “mere scintilla of evidence” supporting its
position, and “there must be enough of a showing that the jury could reasonably
find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.
1990) (citation omitted).
Federal courts cannot weigh
credibility at the summary judgment stage. See Feliciano v. City of Miami
Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) [23 Fla. L. Weekly Fed. C1851a]
(“Even if a district court believes that the evidence presented by one side is
of doubtful veracity, it is not proper to grant summary judgment on the basis
of credibility choices.” (citation omitted). Therefore, the Court will “make no
credibility determinations or choose between conflicting testimony, but instead
[will] accept [the non-moving party’s] version of the facts drawing all
justifiable inferences in [the non-movant’s] favor.” Burnette v. Taylor,
533 F.3d 1325, 1330 (11th Cir. 2008) [21 Fla. L. Weekly Fed. C908a].
Notwithstanding this inference, “[t]here is [still] no genuine issue for trial
unless the non-moving party establishes, through the record presented to the
court, that it is able to prove evidence sufficient for a jury to return a
verdict in its favor.” Cohen, 83 F.3d at 1349.
credibility at the summary judgment stage. See Feliciano v. City of Miami
Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) [23 Fla. L. Weekly Fed. C1851a]
(“Even if a district court believes that the evidence presented by one side is
of doubtful veracity, it is not proper to grant summary judgment on the basis
of credibility choices.” (citation omitted). Therefore, the Court will “make no
credibility determinations or choose between conflicting testimony, but instead
[will] accept [the non-moving party’s] version of the facts drawing all
justifiable inferences in [the non-movant’s] favor.” Burnette v. Taylor,
533 F.3d 1325, 1330 (11th Cir. 2008) [21 Fla. L. Weekly Fed. C908a].
Notwithstanding this inference, “[t]here is [still] no genuine issue for trial
unless the non-moving party establishes, through the record presented to the
court, that it is able to prove evidence sufficient for a jury to return a
verdict in its favor.” Cohen, 83 F.3d at 1349.
III.
ANALYSIS
ANALYSIS
Florida Statute § 624.155 allows any
person to bring a cause of action against an insurer who among other things,
“do[es] [n]ot attempt[ ] in good faith to settle claims when, under all the
circumstances, it could and should have done so.” Fla. Stat. §
624.155(1)(a)(1). However,“[a]s a condition precedent to bringing an
action under this section, the [Department of Financial Services] and the
authorized insurer must have been given 60 days’ written notice of the
violation.” Fla. Stat. § 624.155(3)(a) (emphasis added); Erskin Bell v.
GEICO Gen. Ins. Co., No. 6:09-CV-876-ORL-35KRS, 2011 WL 13174849, at *2-3
(M.D. Fla. Dec. 14, 2011), aff’d, 489 F. App’x 428 (11th Cir. 2012).
This notice is commonly referred to as a “CRN,” civil remedy notice. See,
e.g., Lopez v. Geico Cas. Co., 968 F. Supp. 2d 1202, 1204 (S.D. Fla.
2013); Heritage Corp. of S. Florida v. Nat’l Union Fire Ins. Co. of
Pittsburgh, PA, 580 F. Supp. 2d 1294, 1300 (S.D. Fla. 2008) [21 Fla. L.
Weekly Fed. D367a], aff’d, 361 F. App’x 986 (11th Cir. 2010). “The CRN
is crucial to the procedural integrity of a statutory bad faith claim” because
it starts the sixty day window for insurers to preclude a statutory bad faith claim
by paying the amount due under the insurance policy to the insured. Sandalwood
Estates Homeowner’s Ass’n, Inc. v. Empire Indem. Ins. Co., 665 F. Supp. 2d
1355, 1358 (S.D. Fla. 2009) (citation and internal quotation marks omitted); Talat
Enterprises, Inc. v. Aetna Cas. And Sur. Co., 753 So. 2d at 1283 [25 Fla.
L. Weekly S172a]. (“Section 624.155(3)(d) provides the insurer an opportunity
to cure any alleged violation of its duty of good faith through the payment of
the contractual amount due the insured.”). Under § 624.155(3)(d), “[n]o 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.”
person to bring a cause of action against an insurer who among other things,
“do[es] [n]ot attempt[ ] in good faith to settle claims when, under all the
circumstances, it could and should have done so.” Fla. Stat. §
624.155(1)(a)(1). However,“[a]s a condition precedent to bringing an
action under this section, the [Department of Financial Services] and the
authorized insurer must have been given 60 days’ written notice of the
violation.” Fla. Stat. § 624.155(3)(a) (emphasis added); Erskin Bell v.
GEICO Gen. Ins. Co., No. 6:09-CV-876-ORL-35KRS, 2011 WL 13174849, at *2-3
(M.D. Fla. Dec. 14, 2011), aff’d, 489 F. App’x 428 (11th Cir. 2012).
This notice is commonly referred to as a “CRN,” civil remedy notice. See,
e.g., Lopez v. Geico Cas. Co., 968 F. Supp. 2d 1202, 1204 (S.D. Fla.
2013); Heritage Corp. of S. Florida v. Nat’l Union Fire Ins. Co. of
Pittsburgh, PA, 580 F. Supp. 2d 1294, 1300 (S.D. Fla. 2008) [21 Fla. L.
Weekly Fed. D367a], aff’d, 361 F. App’x 986 (11th Cir. 2010). “The CRN
is crucial to the procedural integrity of a statutory bad faith claim” because
it starts the sixty day window for insurers to preclude a statutory bad faith claim
by paying the amount due under the insurance policy to the insured. Sandalwood
Estates Homeowner’s Ass’n, Inc. v. Empire Indem. Ins. Co., 665 F. Supp. 2d
1355, 1358 (S.D. Fla. 2009) (citation and internal quotation marks omitted); Talat
Enterprises, Inc. v. Aetna Cas. And Sur. Co., 753 So. 2d at 1283 [25 Fla.
L. Weekly S172a]. (“Section 624.155(3)(d) provides the insurer an opportunity
to cure any alleged violation of its duty of good faith through the payment of
the contractual amount due the insured.”). Under § 624.155(3)(d), “[n]o 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.”
Florida Statute § 624.155(3)(b)
lists the requirements for an acceptable CRN as follows
lists the requirements for an acceptable CRN as follows
(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. . . .
Reference to specific policy language that is relevant to the violation, if
any. . . .
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).
Plaintiff’s chief contention is that
her CRN which listed the Nissan Quest Policy can perfect a statutory bad faith
claim under the Honda Civic Policy, which is a separate policy with different
UM limits and covers a vehicle that was owned by the Decedent but not by
Plaintiff. The Court finds that the CRN citing the Nissan Quest Policy does not
support a bad faith claim on the Honda Civic Policy, and State Farm is entitled
to summary judgment as a matter of law on Plaintiff’s bad faith count.
her CRN which listed the Nissan Quest Policy can perfect a statutory bad faith
claim under the Honda Civic Policy, which is a separate policy with different
UM limits and covers a vehicle that was owned by the Decedent but not by
Plaintiff. The Court finds that the CRN citing the Nissan Quest Policy does not
support a bad faith claim on the Honda Civic Policy, and State Farm is entitled
to summary judgment as a matter of law on Plaintiff’s bad faith count.
State Farm argues that Plaintiff
cannot pursue a bad faith claim under the Honda Civic Policy because she never
filed a CRN under the Honda Civic Policy. (Doc. 7 at 7.) State Farm relies on Nowak
v. Lexington Insurance Co., 464 F. Supp. 2d 1248 (S.D. Fla. 2006), for the
proposition that there is no “close enough” under § 624.155 (Doc. 7 at 8.)
State Farm highlights the disparity in the policy limits — the Nissan Quest
Policy’s limit was $50,000 and the Honda Civic Policy’s limit was $10,000. (Id.
at 9.) State Farm emphasizes that it would have cost State Farm $50,000 to cure
Plaintiff’s CRN under the Nissan Quest Policy to avoid Plaintiff’s bad faith
claim under the Honda Civic Policy with a limit of $10,000. (Id.) State
Farm argues that it was not afforded the opportunity to cure a CRN by paying
only the Honda Civic Policy’s $10,000 limit, which is now the basis of the
Plaintiff’s lawsuit. (Id.) State Farm argues that Plaintiff cannot cure
the defects of its bad faith count because State Farm has already paid
Plaintiff $10,000 under the Honda Civic Policy’s UM limits and the matter is
resolved. (Doc. 7 at 10.) State Farm, relying on Talat, asserts that if
Plaintiff were to now file a CRN under the Honda Civic Policy, the CRN could
not perfect her current bad faith claim because it would automatically be cured
by State Farm’s previous payment of UM benefits under the Honda Civic Policy on
April 1, 2013. (Id.)
cannot pursue a bad faith claim under the Honda Civic Policy because she never
filed a CRN under the Honda Civic Policy. (Doc. 7 at 7.) State Farm relies on Nowak
v. Lexington Insurance Co., 464 F. Supp. 2d 1248 (S.D. Fla. 2006), for the
proposition that there is no “close enough” under § 624.155 (Doc. 7 at 8.)
State Farm highlights the disparity in the policy limits — the Nissan Quest
Policy’s limit was $50,000 and the Honda Civic Policy’s limit was $10,000. (Id.
at 9.) State Farm emphasizes that it would have cost State Farm $50,000 to cure
Plaintiff’s CRN under the Nissan Quest Policy to avoid Plaintiff’s bad faith
claim under the Honda Civic Policy with a limit of $10,000. (Id.) State
Farm argues that it was not afforded the opportunity to cure a CRN by paying
only the Honda Civic Policy’s $10,000 limit, which is now the basis of the
Plaintiff’s lawsuit. (Id.) State Farm argues that Plaintiff cannot cure
the defects of its bad faith count because State Farm has already paid
Plaintiff $10,000 under the Honda Civic Policy’s UM limits and the matter is
resolved. (Doc. 7 at 10.) State Farm, relying on Talat, asserts that if
Plaintiff were to now file a CRN under the Honda Civic Policy, the CRN could
not perfect her current bad faith claim because it would automatically be cured
by State Farm’s previous payment of UM benefits under the Honda Civic Policy on
April 1, 2013. (Id.)
In response, Plaintiff asserts that
Florida Statute § 624.155 does not require the policy number be on the CRN and
that its CRN complied with the notice requirements. (Doc. 16 at 8-9.) Plaintiff
further contends that her identification of the incorrect policy number
is immaterial and points to communication between State Farm and Plaintiff in
which the Nissan Quest and Honda Civic Policy were associated with the same claim
number. (Id. at 11-12.) Plaintiff argues that State Farm cannot now
argue that State Farm was unaware of the claim under the Honda Civic Policy. (Id.
at 12.) Plaintiff further argues that State Farm waived the issue of what
she characterizes as the “incorrect” policy number on the CRN by failing to
raise it in State Farm’s response to Plaintiff’s CRN. (Id. at 13.)
Florida Statute § 624.155 does not require the policy number be on the CRN and
that its CRN complied with the notice requirements. (Doc. 16 at 8-9.) Plaintiff
further contends that her identification of the incorrect policy number
is immaterial and points to communication between State Farm and Plaintiff in
which the Nissan Quest and Honda Civic Policy were associated with the same claim
number. (Id. at 11-12.) Plaintiff argues that State Farm cannot now
argue that State Farm was unaware of the claim under the Honda Civic Policy. (Id.
at 12.) Plaintiff further argues that State Farm waived the issue of what
she characterizes as the “incorrect” policy number on the CRN by failing to
raise it in State Farm’s response to Plaintiff’s CRN. (Id. at 13.)
In reply, State Farm argues that §
624.155 requires an insured’s representative to state a policy number on the
CRN. (Doc. 26 at 2.) Alternatively, State Farm argues that even if the policy
number were optional, Plaintiff’s CRN under the Nissan Quest Policy would
satisfy the condition precedent for bringing a bad faith claim under the Nissan
Quest Policy; however, it would not satisfy the condition precedent for a bad
faith claim “under a different policy insuring a different vehicle belonging to
a different person.” (Id. at 3.) State Farm emphasizes that the CRN’s
purpose is to put the insurer on notice that it potentially improperly denied a
claim and to give the insurer sixty days to preclude a bad faith action by
paying the policy limits. (Id.) State Farm contends that, when an
insurer receives a CRN with a specific policy number on it, the insurer is
expected to examine its coverage decision on the policy specifically identified
in the CRN. (Id. at 4.)
624.155 requires an insured’s representative to state a policy number on the
CRN. (Doc. 26 at 2.) Alternatively, State Farm argues that even if the policy
number were optional, Plaintiff’s CRN under the Nissan Quest Policy would
satisfy the condition precedent for bringing a bad faith claim under the Nissan
Quest Policy; however, it would not satisfy the condition precedent for a bad
faith claim “under a different policy insuring a different vehicle belonging to
a different person.” (Id. at 3.) State Farm emphasizes that the CRN’s
purpose is to put the insurer on notice that it potentially improperly denied a
claim and to give the insurer sixty days to preclude a bad faith action by
paying the policy limits. (Id.) State Farm contends that, when an
insurer receives a CRN with a specific policy number on it, the insurer is
expected to examine its coverage decision on the policy specifically identified
in the CRN. (Id. at 4.)
Plaintiff argues that the plain
language of § 624.155(3)(b) does not state that a policy number is required and
Defendant has provided no evidence to show what information the Department
requires. (Doc. 16 at 11.) Plaintiff is correct that the plain language of the
statute does not state that a policy number is required. However, the Court
finds that a policy number is required for an acceptable CRN under §
624.155(3)(b). State Farm points to the language of § 624.155(3)(b), which states:
“The notice shall be on a form provided by the [Department of Financial
Services] and shall state with specificity the following information, and such
other information as the department may require:” (Doc. 26 at 2)
(emphasis in original). In this case, Plaintiff’s CRN, submitted on the form
created by the Department of Financial Services, contains a field that asks for
the “Policy #” and provides a blank space for claimants to enter a policy
number (Doc. 2-2 at 16.) As State Farm correctly highlights, the statute
contains a provision that allows the Department of Financial Services to create
the CRN form and require additional information. Plaintiff’s CRN clearly shows
a place for claimants to enter a policy number. (Id.) In this case,
Plaintiff’s CRN is sufficient for State Farm to meet its burden on summary
judgment because Plaintiff’s CRN shows the information that the Department of
Financial Services requires from claimants. See O’Leary v. First Liberty
Ins. Corp., No. 8:10-CV-1625-T-23TBM, 2010 WL 3610446, at *3 (M.D. Fla.
Sept. 14, 2010) (finding that the insureds’ CRN satisfied the statute and
provided sufficient notice because it included the policy number along with
other information).
language of § 624.155(3)(b) does not state that a policy number is required and
Defendant has provided no evidence to show what information the Department
requires. (Doc. 16 at 11.) Plaintiff is correct that the plain language of the
statute does not state that a policy number is required. However, the Court
finds that a policy number is required for an acceptable CRN under §
624.155(3)(b). State Farm points to the language of § 624.155(3)(b), which states:
“The notice shall be on a form provided by the [Department of Financial
Services] and shall state with specificity the following information, and such
other information as the department may require:” (Doc. 26 at 2)
(emphasis in original). In this case, Plaintiff’s CRN, submitted on the form
created by the Department of Financial Services, contains a field that asks for
the “Policy #” and provides a blank space for claimants to enter a policy
number (Doc. 2-2 at 16.) As State Farm correctly highlights, the statute
contains a provision that allows the Department of Financial Services to create
the CRN form and require additional information. Plaintiff’s CRN clearly shows
a place for claimants to enter a policy number. (Id.) In this case,
Plaintiff’s CRN is sufficient for State Farm to meet its burden on summary
judgment because Plaintiff’s CRN shows the information that the Department of
Financial Services requires from claimants. See O’Leary v. First Liberty
Ins. Corp., No. 8:10-CV-1625-T-23TBM, 2010 WL 3610446, at *3 (M.D. Fla.
Sept. 14, 2010) (finding that the insureds’ CRN satisfied the statute and
provided sufficient notice because it included the policy number along with
other information).
State Farm also argues that even if
a policy number is optional, a CRN under one policy cannot perfect a statutory
bad faith claim under another policy. (Doc. 26 at 3.) The Court agrees. While
Plaintiff filed a CRN under the Nissan Quest Policy, it now brings a bad faith
claim premised on the Honda Civic Policy. Neither the parties nor the Court
found a case involving this particular issue. However, under Florida law, since
§ 624.155 is in derogation of the common law, courts have strictly construed
the statute and required strict compliance with the statute’s notice
requirements.9 See, e.g., Estate of Jorge
Luis Arroyo, Jr. v. Infinity Indem. Ins. Co., No. 15-20548-CIV, 2016 WL
4401051, at *3 (S.D. Fla. Aug. 18, 2016) (citation omitted); Nowak v.
Lexington Ins. Co., 464 F. Supp. 2d 1248, 1252 (S.D. Fla. 2006) (citations
omitted); Talat, 753 So. 2d at 1284.
a policy number is optional, a CRN under one policy cannot perfect a statutory
bad faith claim under another policy. (Doc. 26 at 3.) The Court agrees. While
Plaintiff filed a CRN under the Nissan Quest Policy, it now brings a bad faith
claim premised on the Honda Civic Policy. Neither the parties nor the Court
found a case involving this particular issue. However, under Florida law, since
§ 624.155 is in derogation of the common law, courts have strictly construed
the statute and required strict compliance with the statute’s notice
requirements.9 See, e.g., Estate of Jorge
Luis Arroyo, Jr. v. Infinity Indem. Ins. Co., No. 15-20548-CIV, 2016 WL
4401051, at *3 (S.D. Fla. Aug. 18, 2016) (citation omitted); Nowak v.
Lexington Ins. Co., 464 F. Supp. 2d 1248, 1252 (S.D. Fla. 2006) (citations
omitted); Talat, 753 So. 2d at 1284.
State Farm relies on Nowak v.
Lexington Insurance Co., 464 F. Supp. 2d 1248 (S.D. Fla. 2006), to support
its argument that “close enough” is not sufficient under § 624.155. (Doc. 7 at
8.) In Nowak, the plaintiff filed a CRN against his insurer, alleging
that the insurer had violated Florida Statute § 624.155(1)(b). Nowak,
464 F. Supp. 2d at 1250. However, in his complaint, the plaintiff alleged that
the insurer also violated Florida Statute § 624.9451(1)(i). Id. The
insurer moved for partial summary judgment on the § 624.9451(1)(i) claim
because plaintiff had failed to give proper notice under § 624.155(3) by only
alleging violations of § 624.155(1)(b) in the CRN. Id. at 1251. Relying
on the principle that § 624.155 must be strictly construed, the court agreed
and granted the insurer’s partial summary judgment on the claim for violation
of the uncited statute. Id. at 1252-53. The court noted that the plain
language of § 624.155 required the insured to specify in the CRN the statutory
provision that the insurer allegedly violated. Id. at 1251.
Lexington Insurance Co., 464 F. Supp. 2d 1248 (S.D. Fla. 2006), to support
its argument that “close enough” is not sufficient under § 624.155. (Doc. 7 at
8.) In Nowak, the plaintiff filed a CRN against his insurer, alleging
that the insurer had violated Florida Statute § 624.155(1)(b). Nowak,
464 F. Supp. 2d at 1250. However, in his complaint, the plaintiff alleged that
the insurer also violated Florida Statute § 624.9451(1)(i). Id. The
insurer moved for partial summary judgment on the § 624.9451(1)(i) claim
because plaintiff had failed to give proper notice under § 624.155(3) by only
alleging violations of § 624.155(1)(b) in the CRN. Id. at 1251. Relying
on the principle that § 624.155 must be strictly construed, the court agreed
and granted the insurer’s partial summary judgment on the claim for violation
of the uncited statute. Id. at 1252-53. The court noted that the plain
language of § 624.155 required the insured to specify in the CRN the statutory
provision that the insurer allegedly violated. Id. at 1251.
Plaintiff attempts to distinguish
her case from Nowak arguing that she listed the statute that State Farm
violated and § 624.155 expressly requires the insured to specify the statutory
provisions that the insured allegedly violated.10 (Doc. 16 at 10.) Therefore,
Plaintiff argues, Nowak is irrelevant and moot. (Id.) However, as
discussed supra, a policy number is required in a CRN on the
Department-approved form, even though it is not explicitly required by the
statute. It is well-settled that § 624.155 must be strictly construed and Nowak
is merely an illustration of this principle. Thus, although Nowak is
somewhat different from the present case, its holding is instructive.
her case from Nowak arguing that she listed the statute that State Farm
violated and § 624.155 expressly requires the insured to specify the statutory
provisions that the insured allegedly violated.10 (Doc. 16 at 10.) Therefore,
Plaintiff argues, Nowak is irrelevant and moot. (Id.) However, as
discussed supra, a policy number is required in a CRN on the
Department-approved form, even though it is not explicitly required by the
statute. It is well-settled that § 624.155 must be strictly construed and Nowak
is merely an illustration of this principle. Thus, although Nowak is
somewhat different from the present case, its holding is instructive.
Moreover, the Court found similar
cases of courts strictly construing the notice requirements under § 624.155 to
preclude bad faith claims. For example in Ardrey v. USAA Casualty Insurance
Co., No. 8:12-CV-08-T-24MAP, 2012 WL 831620 (M.D. Fla. Mar. 12, 2012), the
plaintiff filed three deficient CRNs. Id. at *2-*4. In the first two,
the plaintiff alleged that the insurer had violated Florida Statute §
626.9541(1)(i) by engaging in unfair settlement practices, but the plaintiff
failed to specifically provide the subsections of § 626.9541(1)(i) the insurer
allegedly violated or provide facts to indicate which subsections were
violated, even though the plaintiff stated the specific subsections that the
insured allegedly violated in the amended complaint. Id. at *2-*3. The
court held that these deficient CRNs did not meet the notice requirements under
§ 624.155(3)(b) because the CRNs did not provide the specific subsections or
facts describing the violation at issue. Id. at *3. The court also found
Plaintiff’s third CRN to be defective because it did not state that § 626.9541
had been violated. Id. at *4. Thus, the court dismissed the plaintiff’s
bad faith claim for unfair settlement practices. Id. See, e.g., Borrego
v. State Farm Mut. Auto. Ins. Co., No. 14-20365-CIV, 2014 WL 2615192, at *4
(S.D. Fla. Apr. 30, 2014) [24 Fla. L. Weekly Fed. D350a] (dismissing a bad
faith claim for loss of consortium brought by spouse who was not referenced in
CRN); Heritage Corp. of S. Florida v. Nat’l Union Fire Ins. Co. of
Pittsburgh, PA, 580 F. Supp. 2d 1294, 1299 (S.D. Fla. 2008) (granting
summary judgment in insurer’s favor on the plaintiff’s bad faith claim because
plaintiff’s CRN was insufficient for numerous reasons, such as not specifying
which of the two defendants the CRN’s information applied to and what sort of
action it wanted one of the defendants to take in response), aff’d, 361
F. App’x 986 (11th Cir. 2010); Sandalwood Estates Homeowner’s Ass’n, Inc. v.
Empire Indem. Ins. Co., 665 F. Supp. 2d 1355, 1360-61(S.D. Fla. 2009)
(dismissing plaintiff’s statutory bad faith claim against insurer’s parent
company because the plaintiff only named the insurer as an offending party and
not the parent company in the CRN); Lopez v. Geico Cas. Co., 968 F.
Supp. 2d 1202, 1208-09 (S.D. Fla. 2013) (“Courts have interpreted the civil
remedy notice requirement so strictly that they have dismissed bad faith
actions against insurers where no CRN has been filed against them even though a
CRN has been filed against a related entity.”)
cases of courts strictly construing the notice requirements under § 624.155 to
preclude bad faith claims. For example in Ardrey v. USAA Casualty Insurance
Co., No. 8:12-CV-08-T-24MAP, 2012 WL 831620 (M.D. Fla. Mar. 12, 2012), the
plaintiff filed three deficient CRNs. Id. at *2-*4. In the first two,
the plaintiff alleged that the insurer had violated Florida Statute §
626.9541(1)(i) by engaging in unfair settlement practices, but the plaintiff
failed to specifically provide the subsections of § 626.9541(1)(i) the insurer
allegedly violated or provide facts to indicate which subsections were
violated, even though the plaintiff stated the specific subsections that the
insured allegedly violated in the amended complaint. Id. at *2-*3. The
court held that these deficient CRNs did not meet the notice requirements under
§ 624.155(3)(b) because the CRNs did not provide the specific subsections or
facts describing the violation at issue. Id. at *3. The court also found
Plaintiff’s third CRN to be defective because it did not state that § 626.9541
had been violated. Id. at *4. Thus, the court dismissed the plaintiff’s
bad faith claim for unfair settlement practices. Id. See, e.g., Borrego
v. State Farm Mut. Auto. Ins. Co., No. 14-20365-CIV, 2014 WL 2615192, at *4
(S.D. Fla. Apr. 30, 2014) [24 Fla. L. Weekly Fed. D350a] (dismissing a bad
faith claim for loss of consortium brought by spouse who was not referenced in
CRN); Heritage Corp. of S. Florida v. Nat’l Union Fire Ins. Co. of
Pittsburgh, PA, 580 F. Supp. 2d 1294, 1299 (S.D. Fla. 2008) (granting
summary judgment in insurer’s favor on the plaintiff’s bad faith claim because
plaintiff’s CRN was insufficient for numerous reasons, such as not specifying
which of the two defendants the CRN’s information applied to and what sort of
action it wanted one of the defendants to take in response), aff’d, 361
F. App’x 986 (11th Cir. 2010); Sandalwood Estates Homeowner’s Ass’n, Inc. v.
Empire Indem. Ins. Co., 665 F. Supp. 2d 1355, 1360-61(S.D. Fla. 2009)
(dismissing plaintiff’s statutory bad faith claim against insurer’s parent
company because the plaintiff only named the insurer as an offending party and
not the parent company in the CRN); Lopez v. Geico Cas. Co., 968 F.
Supp. 2d 1202, 1208-09 (S.D. Fla. 2013) (“Courts have interpreted the civil
remedy notice requirement so strictly that they have dismissed bad faith
actions against insurers where no CRN has been filed against them even though a
CRN has been filed against a related entity.”)
Courts have strictly interpreted the
notice requirements because “the CRN is designed to prevent insurers from
playing a guessing game as to what, and how, to cure within the sixty-day
window.” King v. Gov’t Employees Ins. Co., No. 8:10-CV-977-T-30AEP, 2012
WL 4052271, at *7 (M.D. Fla. Sept. 13, 2012) (citation and internal quotation
marks omitted). As in the present case, it is not uncommon for members of a
household to have their own individual vehicles with separate insurance
policies. If an insured places a particular policy number on a CRN, then it is
reasonable for an insurer to expect a potential bad faith action based on that
particular policy. However, if an insured were allowed to bring a bad faith
claim based on a different policy number from the one stated in the CRN simply
because policyholders share the same address, then insurers would have to play
the guessing game as to what policy to cure within the sixty day window to
avoid a bad faith claim.
notice requirements because “the CRN is designed to prevent insurers from
playing a guessing game as to what, and how, to cure within the sixty-day
window.” King v. Gov’t Employees Ins. Co., No. 8:10-CV-977-T-30AEP, 2012
WL 4052271, at *7 (M.D. Fla. Sept. 13, 2012) (citation and internal quotation
marks omitted). As in the present case, it is not uncommon for members of a
household to have their own individual vehicles with separate insurance
policies. If an insured places a particular policy number on a CRN, then it is
reasonable for an insurer to expect a potential bad faith action based on that
particular policy. However, if an insured were allowed to bring a bad faith
claim based on a different policy number from the one stated in the CRN simply
because policyholders share the same address, then insurers would have to play
the guessing game as to what policy to cure within the sixty day window to
avoid a bad faith claim.
This problem is heightened in the
situation present here — with two vastly disparate policy limits. The Nissan
Quest Policy covers Plaintiff’s vehicle and provides UM coverage with policy
limits of $50,000 per person and $100,000 per accident. (Doc. 3-2 at 2.) The
Honda Civic Policy covered Decedent’s vehicle and provided UM policy limits of
$10,000 per person and $20,000 per accident. (Doc. 3-1 at 2.) The policies at
issue offered nonstacking UM benefits. (Docs. 3-1 at 2; 3-2 at 2.) As State
Farm points out, since the policies are nonstacking only one of the policies
could cover the accident. (Doc. 16-1 at 12.) Plaintiff filed a CRN only under
the Nissan Quest Policy, essentially asserting that the Nissan Quest Policy
covered the accident and not the Honda Civic Policy. However, Plaintiff now belatedly
seeks to use that CRN for the Nissan Quest Policy to support a bad faith action
under the theory that the Honda Civic Policy covers the accident.11 Plaintiff could have filed a CRN
under the Honda Civic Policy at any time because neither the plain language of
§ 624.15512 nor the case law limit plaintiffs to
only filing one CRN per incident. See e.g., Estate of Jorge Luis
Arroyo, Jr., 2016 WL 4401051, at *2 (the plaintiff filed two CRNs); Ardrey,
2012 WL 831620, at *3 (the plaintiff filed three CRNs). For example,
Plaintiff could have filed a CRN under the Honda Civic Policy when she first
sued State Farm under the Honda Civic Policy on November 15, 2012.
situation present here — with two vastly disparate policy limits. The Nissan
Quest Policy covers Plaintiff’s vehicle and provides UM coverage with policy
limits of $50,000 per person and $100,000 per accident. (Doc. 3-2 at 2.) The
Honda Civic Policy covered Decedent’s vehicle and provided UM policy limits of
$10,000 per person and $20,000 per accident. (Doc. 3-1 at 2.) The policies at
issue offered nonstacking UM benefits. (Docs. 3-1 at 2; 3-2 at 2.) As State
Farm points out, since the policies are nonstacking only one of the policies
could cover the accident. (Doc. 16-1 at 12.) Plaintiff filed a CRN only under
the Nissan Quest Policy, essentially asserting that the Nissan Quest Policy
covered the accident and not the Honda Civic Policy. However, Plaintiff now belatedly
seeks to use that CRN for the Nissan Quest Policy to support a bad faith action
under the theory that the Honda Civic Policy covers the accident.11 Plaintiff could have filed a CRN
under the Honda Civic Policy at any time because neither the plain language of
§ 624.15512 nor the case law limit plaintiffs to
only filing one CRN per incident. See e.g., Estate of Jorge Luis
Arroyo, Jr., 2016 WL 4401051, at *2 (the plaintiff filed two CRNs); Ardrey,
2012 WL 831620, at *3 (the plaintiff filed three CRNs). For example,
Plaintiff could have filed a CRN under the Honda Civic Policy when she first
sued State Farm under the Honda Civic Policy on November 15, 2012.
However,
from Plaintiff’s initial action against State Farm on November 15, 2012 to the
present — an over five year period — Plaintiff has failed to file a CRN under
the Honda Civic Policy and now relies on her CRN under the Nissan Quest Policy
to perfect a bad faith claim based on the Honda Civic Policy.13 Given how strictly courts have
interpreted the notice requirements, Plaintiff’s CRN under the Nissan Quest
Policy cannot perfect its bad faith claim under the Honda Civic Policy.
Moreover, for this reason the Court also rejects Plaintiff’s argument that its
CRN complies with the notice requirements. (Doc. 16 at 8-9.)
from Plaintiff’s initial action against State Farm on November 15, 2012 to the
present — an over five year period — Plaintiff has failed to file a CRN under
the Honda Civic Policy and now relies on her CRN under the Nissan Quest Policy
to perfect a bad faith claim based on the Honda Civic Policy.13 Given how strictly courts have
interpreted the notice requirements, Plaintiff’s CRN under the Nissan Quest
Policy cannot perfect its bad faith claim under the Honda Civic Policy.
Moreover, for this reason the Court also rejects Plaintiff’s argument that its
CRN complies with the notice requirements. (Doc. 16 at 8-9.)
Notably, Plaintiff previously
pursued a bad faith claim in August 2013 under the Nissan Quest Policy based on
her CRN for the Nissan Quest Policy, but agreed to dismiss the case about a
month later. Mathurin v. State Farm Mut. Auto. Ins. Co., Case No.
6:13-cv-01263-CEH-GJK (M.D. Fla. Sept. 24, 2013) (Docs. 19, 20).
pursued a bad faith claim in August 2013 under the Nissan Quest Policy based on
her CRN for the Nissan Quest Policy, but agreed to dismiss the case about a
month later. Mathurin v. State Farm Mut. Auto. Ins. Co., Case No.
6:13-cv-01263-CEH-GJK (M.D. Fla. Sept. 24, 2013) (Docs. 19, 20).
State Farm cites to Erhard v.
Hartford Accident and Indemnity Co., No. 07-60532-CIV, 2008 WL 203583, at
*4 (S.D. Fla. Jan. 23, 2008), which further supports the Court’s decision.
(Doc. 26 at 4-5.) In Erhard, the plaintiff listed himself as an assignee
in his CRN against his insurance company but brought his bad faith claim in his
individual capacity. Erhard, 2008 WL 203583, at *5. The insurer moved to
dismiss the plaintiff’s bad faith claim based on this discrepancy. Id. The
plaintiff opposed the motion and argued that neither the statute nor case law
require that the plaintiff indicate on the CRN whether he was suing as both an
assignee and as an individual. Id. (citations omitted.) While the court
noted that there was no Florida case law on point, it held that previous cases
had established that strict compliance with the statute is required and refused
“to expand the ability of a plaintiff to sue for claims not specifically
noticed in the statutory [n]otice required as a precondition to suit.” Id.
As a result, the plaintiff’s bad faith claim was dismissed. Id.
Similarly, there is not a case directly on point here, and the statute does not
specifically require a policy number. However, State Farm has a stronger case
than the insurer in Erhard because as discussed supra, the
Department of Financial Services specifically requires a policy number on an
acceptable CRN.
Hartford Accident and Indemnity Co., No. 07-60532-CIV, 2008 WL 203583, at
*4 (S.D. Fla. Jan. 23, 2008), which further supports the Court’s decision.
(Doc. 26 at 4-5.) In Erhard, the plaintiff listed himself as an assignee
in his CRN against his insurance company but brought his bad faith claim in his
individual capacity. Erhard, 2008 WL 203583, at *5. The insurer moved to
dismiss the plaintiff’s bad faith claim based on this discrepancy. Id. The
plaintiff opposed the motion and argued that neither the statute nor case law
require that the plaintiff indicate on the CRN whether he was suing as both an
assignee and as an individual. Id. (citations omitted.) While the court
noted that there was no Florida case law on point, it held that previous cases
had established that strict compliance with the statute is required and refused
“to expand the ability of a plaintiff to sue for claims not specifically
noticed in the statutory [n]otice required as a precondition to suit.” Id.
As a result, the plaintiff’s bad faith claim was dismissed. Id.
Similarly, there is not a case directly on point here, and the statute does not
specifically require a policy number. However, State Farm has a stronger case
than the insurer in Erhard because as discussed supra, the
Department of Financial Services specifically requires a policy number on an
acceptable CRN.
State Farm argues that it was never
given the opportunity to cure a CRN by paying the $10,000 limit under the Honda
Civic Policy on which Plaintiff now bases its bad faith claim. (Doc. 7 at 9.)
State Farm argues that, since the Nissan Quest Policy’s limit was $50,000 — as
opposed to the $10,000 Honda Civic Policy — State Farm would have had to pay
$50,000 to cure Plaintiff’s CRN “to avoid a claim under a policy whose limit
was only $10,000.” (Doc. 7 at 9.) In response, relying on Hunt v. State Farm
Florida Insurance Company, 112 So. 3d 547 (Fla. 2d DCA 2013) [38 Fla. L.
Weekly D774a], Plaintiff argues that the court should reject State Farm’s “cure
amount” argument because a CRN is not required to state a specific cure amount.
(Doc. 16 at 13.) While Plaintiff relies on Hunt for the proposition that
an acceptable CRN does not have to state a specific cure amount, State Farm
does not argue that Plaintiff was required to state a specific cure amount in
her CRN. Instead, State Farm argues that it was denied the opportunity to cure
a CRN for the Honda Civic Policy and thus, avoid this bad faith action by
paying the Honda Civic Policy’s $10,000 UM limit within the sixty day window
from the time the CRN was filed. This clearly contradicts the intent of the
statute and illustrates why Plaintiff should not be allowed to use its CRN
under the Nissan Quest Policy to perfect a bad faith claim under the Honda
Civic Policy. It is irrational that State Farm could have precluded this bad
faith claim based on the Honda Civic Policy with a $10,000 UM policy limit by
paying $50,000 to cure the CRN under the Nissan Quest Policy. Plaintiff had
years to file a CRN under the Honda Civic Policy but chose to only file a CRN
for the Nissan Quest Policy with the considerably higher UM policy limits.
Additionally, State Farm argues, Hunt is distinguishable from the
present case. In Hunt, the same insurance policy was the basis of the
plaintiff’s CRN and complaint. (Doc. 26 at 9.) However, here, Plaintiff’s
Complaint and CRN “list two insurance policies on two different vehicles with
two different policy limits.” (Doc. 26 at 10.)
given the opportunity to cure a CRN by paying the $10,000 limit under the Honda
Civic Policy on which Plaintiff now bases its bad faith claim. (Doc. 7 at 9.)
State Farm argues that, since the Nissan Quest Policy’s limit was $50,000 — as
opposed to the $10,000 Honda Civic Policy — State Farm would have had to pay
$50,000 to cure Plaintiff’s CRN “to avoid a claim under a policy whose limit
was only $10,000.” (Doc. 7 at 9.) In response, relying on Hunt v. State Farm
Florida Insurance Company, 112 So. 3d 547 (Fla. 2d DCA 2013) [38 Fla. L.
Weekly D774a], Plaintiff argues that the court should reject State Farm’s “cure
amount” argument because a CRN is not required to state a specific cure amount.
(Doc. 16 at 13.) While Plaintiff relies on Hunt for the proposition that
an acceptable CRN does not have to state a specific cure amount, State Farm
does not argue that Plaintiff was required to state a specific cure amount in
her CRN. Instead, State Farm argues that it was denied the opportunity to cure
a CRN for the Honda Civic Policy and thus, avoid this bad faith action by
paying the Honda Civic Policy’s $10,000 UM limit within the sixty day window
from the time the CRN was filed. This clearly contradicts the intent of the
statute and illustrates why Plaintiff should not be allowed to use its CRN
under the Nissan Quest Policy to perfect a bad faith claim under the Honda
Civic Policy. It is irrational that State Farm could have precluded this bad
faith claim based on the Honda Civic Policy with a $10,000 UM policy limit by
paying $50,000 to cure the CRN under the Nissan Quest Policy. Plaintiff had
years to file a CRN under the Honda Civic Policy but chose to only file a CRN
for the Nissan Quest Policy with the considerably higher UM policy limits.
Additionally, State Farm argues, Hunt is distinguishable from the
present case. In Hunt, the same insurance policy was the basis of the
plaintiff’s CRN and complaint. (Doc. 26 at 9.) However, here, Plaintiff’s
Complaint and CRN “list two insurance policies on two different vehicles with
two different policy limits.” (Doc. 26 at 10.)
Moreover, as State Farm emphasizes,
the policies provide non-stacking UM benefits, which means only one could cover
the accident. Because Plaintiff, through her former counsel, chose to list the
Nissan Quest Policy in her CRN, with its higher limits, Plaintiff is bound by
that decision. (Doc. 26 at 10.) State Farm argues that the difference between
UM policy limits under the Nissan Quest Policy, which has a limit of $50,000,
and the Honda Civic Policy, which has a limit of $10,000, shows the flaw in
allowing a plaintiff to file a CRN based on one policy and then subsequently
file a bad faith claim under a different policy. (Doc. 26 at 11-12.)
the policies provide non-stacking UM benefits, which means only one could cover
the accident. Because Plaintiff, through her former counsel, chose to list the
Nissan Quest Policy in her CRN, with its higher limits, Plaintiff is bound by
that decision. (Doc. 26 at 10.) State Farm argues that the difference between
UM policy limits under the Nissan Quest Policy, which has a limit of $50,000,
and the Honda Civic Policy, which has a limit of $10,000, shows the flaw in
allowing a plaintiff to file a CRN based on one policy and then subsequently
file a bad faith claim under a different policy. (Doc. 26 at 11-12.)
One of State Farm’s well-reasoned
arguments provides a possible answer as to why Plaintiff never filed a CRN for
the Honda Civic Policy. State Farm, relying on Talat Enterprises, Inc. v.
Aetna Casualty & Surety Co., 753 So. 2d 1278 (Fla. 2000) [25 Fla. L.
Weekly S172a], argues that “when an insurer pays the policy limit before a CRN
is filed, the CRN is deemed automatically cured upon filing, and the cause of
action never comes into existence.” (Doc. 7 at 10.) Therefore, State Farm
argues if Plaintiff were to file a CRN under the Honda Civic Policy now,
Plaintiff would still not be able to pursue a bad faith action under the Honda
Civic Policy and her subsequent pleading would not cure the defects in
Plaintiff’s bad faith count because State Farm’s previous payment of $10,000 on
April 1, 2013 under the Honda Civic Policy’s UM limit would retroactively cure
the CRN. (Doc. 7 at 10.) The Court agrees. Logically, if an insurer pays the policy
limits before the CRN is filed then its payment is clearly before the
expiration of the sixty day period, thus precluding a bad faith action.
arguments provides a possible answer as to why Plaintiff never filed a CRN for
the Honda Civic Policy. State Farm, relying on Talat Enterprises, Inc. v.
Aetna Casualty & Surety Co., 753 So. 2d 1278 (Fla. 2000) [25 Fla. L.
Weekly S172a], argues that “when an insurer pays the policy limit before a CRN
is filed, the CRN is deemed automatically cured upon filing, and the cause of
action never comes into existence.” (Doc. 7 at 10.) Therefore, State Farm
argues if Plaintiff were to file a CRN under the Honda Civic Policy now,
Plaintiff would still not be able to pursue a bad faith action under the Honda
Civic Policy and her subsequent pleading would not cure the defects in
Plaintiff’s bad faith count because State Farm’s previous payment of $10,000 on
April 1, 2013 under the Honda Civic Policy’s UM limit would retroactively cure
the CRN. (Doc. 7 at 10.) The Court agrees. Logically, if an insurer pays the policy
limits before the CRN is filed then its payment is clearly before the
expiration of the sixty day period, thus precluding a bad faith action.
Plaintiff next argues that the claim
number in the CRN put State Farm on notice that she was making a claim
under the correct policy number for the Honda Civic Policy and its
$10,000 UM limit. (Doc. 16 at 12-13.) Plaintiff emphasizes letters from State
Farm to Plaintiff on July 18, 2011, which show the two different policies for
the Honda Civic and Nissan Quest were associated with the same claim number.
(Doc. 16 at 12.) In reply, State Farm argues that the Plaintiff’s CRN only
stated one policy (for the Nissan Quest) and not the policy for the
Honda Civic; because the policies offer nonstacking UM coverage, they are
mutually exclusive. (Doc. 26 at 6.) The Court agrees. Although these policies
may have been associated with the same claim number, Plaintiff only
filed a CRN under the Nissan Quest Policy. Since these policies offer
nonstacking UM coverage, Plaintiff implicitly stated that the Honda Civic
Policy did not cover the accident by filing its CRN under the Nissan Quest
Policy. Moreover, while Plaintiff points to letters as proof that State Farm
was on notice of the “correct” policy number, neither the statute nor case law
support the argument that outside communication can provide “notice.” The
statute focuses on the filing of the CRN and the requirements for an acceptable
CRN, not the contents of other communication between parties. Further, in Nowak
discussed supra, based on the principle of strict construction of
the statute, the court rejected the plaintiff’s argument that the insurer had
actual notice based on correspondence between the parties that plaintiff
planned to allege violations not mentioned in plaintiff’s CRN. Nowak,
464 F. Supp. 2d 1248. The Nowak court focused on the violations the
plaintiff alleged in the CRN. Id. at 1251-53. Here, in looking to
Plaintiff’s CRN, Plaintiff chose to include the Nissan Quest Policy’s number,
not the Honda Civic Policy’s number. Also, similar to the plaintiff in Nowak,
Plaintiff fails to cite to any legal authority to support its position.
Additionally, correspondence between Plaintiff and State Farm undercuts
Plaintiff’s argument. In response to Plaintiff’s demand for policy information,
State Farm sent Plaintiff information on both policies. (Doc. 16-1 at
8-13.) Plaintiff then chose to file a CRN only on the Nissan Quest Policy with
the higher policy limit. (Doc. 2-2 at 16-17.)
number in the CRN put State Farm on notice that she was making a claim
under the correct policy number for the Honda Civic Policy and its
$10,000 UM limit. (Doc. 16 at 12-13.) Plaintiff emphasizes letters from State
Farm to Plaintiff on July 18, 2011, which show the two different policies for
the Honda Civic and Nissan Quest were associated with the same claim number.
(Doc. 16 at 12.) In reply, State Farm argues that the Plaintiff’s CRN only
stated one policy (for the Nissan Quest) and not the policy for the
Honda Civic; because the policies offer nonstacking UM coverage, they are
mutually exclusive. (Doc. 26 at 6.) The Court agrees. Although these policies
may have been associated with the same claim number, Plaintiff only
filed a CRN under the Nissan Quest Policy. Since these policies offer
nonstacking UM coverage, Plaintiff implicitly stated that the Honda Civic
Policy did not cover the accident by filing its CRN under the Nissan Quest
Policy. Moreover, while Plaintiff points to letters as proof that State Farm
was on notice of the “correct” policy number, neither the statute nor case law
support the argument that outside communication can provide “notice.” The
statute focuses on the filing of the CRN and the requirements for an acceptable
CRN, not the contents of other communication between parties. Further, in Nowak
discussed supra, based on the principle of strict construction of
the statute, the court rejected the plaintiff’s argument that the insurer had
actual notice based on correspondence between the parties that plaintiff
planned to allege violations not mentioned in plaintiff’s CRN. Nowak,
464 F. Supp. 2d 1248. The Nowak court focused on the violations the
plaintiff alleged in the CRN. Id. at 1251-53. Here, in looking to
Plaintiff’s CRN, Plaintiff chose to include the Nissan Quest Policy’s number,
not the Honda Civic Policy’s number. Also, similar to the plaintiff in Nowak,
Plaintiff fails to cite to any legal authority to support its position.
Additionally, correspondence between Plaintiff and State Farm undercuts
Plaintiff’s argument. In response to Plaintiff’s demand for policy information,
State Farm sent Plaintiff information on both policies. (Doc. 16-1 at
8-13.) Plaintiff then chose to file a CRN only on the Nissan Quest Policy with
the higher policy limit. (Doc. 2-2 at 16-17.)
In the alternative, Plaintiff argues
that State Farm’s Motion for Summary Judgment is premature and should be denied
because no discovery has yet been conducted in this case. (Doc. 16 at 6.)
Plaintiff emphasizes that State Farm moved for summary judgment only eight days
after this case had been removed from state court to this Court, the parties
had not submitted a case management report at the time of the motion, and
Plaintiff had no opportunity to conduct discovery. (Doc. 16 at 6.) In reply,
State Farm counters that there is no second CRN at issue. (Doc. 26 at 8.) State
Farm asserts that all the Court needs to decide this case is the Complaint,
policies, and the CRN. (Doc. 26 at 8.) State Farm also argues that Plaintiff failed
to comply with Federal Rule of Civil Procedure 56(d) by failing to file an
affidavit or declaration specifying any particular fact that could not be
presented to the Court in opposition to State Farm’s Motion for Summary
Judgment. (Doc. 26 at 8-9.) State Farm further argues that the only evidence
that could change the Court’s analysis is a second CRN under the Honda Civic
Policy and Plaintiff does not need to conduct discovery to determine whether
Plaintiff filed a second CRN because Plaintiff knows that one does not exist.
(Doc. 26 at 9.)
that State Farm’s Motion for Summary Judgment is premature and should be denied
because no discovery has yet been conducted in this case. (Doc. 16 at 6.)
Plaintiff emphasizes that State Farm moved for summary judgment only eight days
after this case had been removed from state court to this Court, the parties
had not submitted a case management report at the time of the motion, and
Plaintiff had no opportunity to conduct discovery. (Doc. 16 at 6.) In reply,
State Farm counters that there is no second CRN at issue. (Doc. 26 at 8.) State
Farm asserts that all the Court needs to decide this case is the Complaint,
policies, and the CRN. (Doc. 26 at 8.) State Farm also argues that Plaintiff failed
to comply with Federal Rule of Civil Procedure 56(d) by failing to file an
affidavit or declaration specifying any particular fact that could not be
presented to the Court in opposition to State Farm’s Motion for Summary
Judgment. (Doc. 26 at 8-9.) State Farm further argues that the only evidence
that could change the Court’s analysis is a second CRN under the Honda Civic
Policy and Plaintiff does not need to conduct discovery to determine whether
Plaintiff filed a second CRN because Plaintiff knows that one does not exist.
(Doc. 26 at 9.)
Plaintiff cites a number of cases
finding a summary judgment motion is premature when made before discovery and
should be denied. (Doc. 16 at 6.) “Although courts generally refrain from
granting summary judgment ‘until the party opposing the motion has had an
adequate opportunity to conduct discovery,’ the Eleventh Circuit Court of
Appeals has rejected adopting a ‘blanket prohibition on the granting of summary
judgment motions before discovery’ has occurred or concluded.” Rinderknecht
v. Quicken Loans, Inc., No. 2:15-CV-19-FTM-29MRM, 2016 WL 1271474, at *2
(M.D. Fla. Apr. 1, 2016), appeal dismissed (Sept. 26, 2016) (citing Reflectone,
Inc. v. Farrand Optical Co., 862 F.2d 841, 843 (11th Cir. 1989)) (analyzing
Rule 56(d)’s predecessor, Rule 56(f)). Moreover, “no federal rule requires that
a party wait until discovery has taken place before moving for summary
judgment.” Rinderknecht, 2016 WL 1271474 at *2 (citation and internal
quotation marks omitted.) “Additionally, summary judgment may be appropriate
when no discovery has been held.” Smedley v. Deutsche Bank Tr. Co. Americas,
676 F. App’x 860, 862 (11th Cir. 2017) (citing Reflectone, Inc, 862 F.2d
at 843).14 “[R]ule 56[(d)] shows that a court
may grant summary judgment without the parties having conducted discovery if
the opponent has not sought discovery by making a motion under rule 56[(d)]. .
. .” Reflectone, Inc., 862 F.2d at 844.
finding a summary judgment motion is premature when made before discovery and
should be denied. (Doc. 16 at 6.) “Although courts generally refrain from
granting summary judgment ‘until the party opposing the motion has had an
adequate opportunity to conduct discovery,’ the Eleventh Circuit Court of
Appeals has rejected adopting a ‘blanket prohibition on the granting of summary
judgment motions before discovery’ has occurred or concluded.” Rinderknecht
v. Quicken Loans, Inc., No. 2:15-CV-19-FTM-29MRM, 2016 WL 1271474, at *2
(M.D. Fla. Apr. 1, 2016), appeal dismissed (Sept. 26, 2016) (citing Reflectone,
Inc. v. Farrand Optical Co., 862 F.2d 841, 843 (11th Cir. 1989)) (analyzing
Rule 56(d)’s predecessor, Rule 56(f)). Moreover, “no federal rule requires that
a party wait until discovery has taken place before moving for summary
judgment.” Rinderknecht, 2016 WL 1271474 at *2 (citation and internal
quotation marks omitted.) “Additionally, summary judgment may be appropriate
when no discovery has been held.” Smedley v. Deutsche Bank Tr. Co. Americas,
676 F. App’x 860, 862 (11th Cir. 2017) (citing Reflectone, Inc, 862 F.2d
at 843).14 “[R]ule 56[(d)] shows that a court
may grant summary judgment without the parties having conducted discovery if
the opponent has not sought discovery by making a motion under rule 56[(d)]. .
. .” Reflectone, Inc., 862 F.2d at 844.
Rule 56(d) allows nonmovants an
avenue to combat allegedly premature motions for summary judgment. See
Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) (discussing Rule 56(d)’s
predecessor, Rule 56(f)). “Under Rule 56(d), where the non-moving party to a
motion for summary judgment shows ‘by affidavit or declaration’ that, for
specified reasons, it ‘cannot present facts essential to justify its
opposition,’ the district court may delay consideration of the motion, deny the
motion, allow additional time for discovery, or issue another appropriate
order.” Smedley, 676 F. App’x at 861 (quoting Fed. R. Civ. Pro. 56(d)).
Plaintiff’s failure to file an affidavit or declaration giving the specific
reasons she cannot present facts essential to her opposition to State Farm’s
Motion for Summary Judgment — other than her mere assertion that summary
judgment is premature because discovery has not been conducted — fails to meet
the requirements of Rule 56(d). “Courts cannot read minds, so the nonmoving
party must give more than vague assertions that additional discovery will
produce needed, but unspecified, facts.” Urquilla-Diaz v. Kaplan Univ.,
780 F.3d 1039, 1063 (11th Cir. 2015) [25 Fla. L. Weekly Fed. C981a] (citation and
internal quotation marks omitted.) Moreover, Plaintiff failed to make a Rule
56(d) motion. See id. at 1063-64 (rejecting appellant’s argument that
district court prematurely granted summary judgment because appellant failed to
provide the district court with “Rule 56(d) notice, affidavit, or anything of
the kind”); Reflectone, Inc, 862 F.2d at 843 (affirming district court’s
grant of summary judgment against appellant before discovery had been conducted
when appellant failed to make a motion under Rule 56(d)’s predecessor, Rule
56(f)).
avenue to combat allegedly premature motions for summary judgment. See
Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) (discussing Rule 56(d)’s
predecessor, Rule 56(f)). “Under Rule 56(d), where the non-moving party to a
motion for summary judgment shows ‘by affidavit or declaration’ that, for
specified reasons, it ‘cannot present facts essential to justify its
opposition,’ the district court may delay consideration of the motion, deny the
motion, allow additional time for discovery, or issue another appropriate
order.” Smedley, 676 F. App’x at 861 (quoting Fed. R. Civ. Pro. 56(d)).
Plaintiff’s failure to file an affidavit or declaration giving the specific
reasons she cannot present facts essential to her opposition to State Farm’s
Motion for Summary Judgment — other than her mere assertion that summary
judgment is premature because discovery has not been conducted — fails to meet
the requirements of Rule 56(d). “Courts cannot read minds, so the nonmoving
party must give more than vague assertions that additional discovery will
produce needed, but unspecified, facts.” Urquilla-Diaz v. Kaplan Univ.,
780 F.3d 1039, 1063 (11th Cir. 2015) [25 Fla. L. Weekly Fed. C981a] (citation and
internal quotation marks omitted.) Moreover, Plaintiff failed to make a Rule
56(d) motion. See id. at 1063-64 (rejecting appellant’s argument that
district court prematurely granted summary judgment because appellant failed to
provide the district court with “Rule 56(d) notice, affidavit, or anything of
the kind”); Reflectone, Inc, 862 F.2d at 843 (affirming district court’s
grant of summary judgment against appellant before discovery had been conducted
when appellant failed to make a motion under Rule 56(d)’s predecessor, Rule
56(f)).
It is a bit misleading for Plaintiff
to argue that she has had no opportunity to conduct discovery in this case.
While this present case is only a few months old, the parties have been
litigating the underlying facts since November 15, 2012 (Doc. 7-8 at 2-5) in
various proceedings in state and federal court, and they have conducted
discovery, such as State Farm’s deposition of Plaintiff on January 18, 2017.
(Doc. 7-1.)
to argue that she has had no opportunity to conduct discovery in this case.
While this present case is only a few months old, the parties have been
litigating the underlying facts since November 15, 2012 (Doc. 7-8 at 2-5) in
various proceedings in state and federal court, and they have conducted
discovery, such as State Farm’s deposition of Plaintiff on January 18, 2017.
(Doc. 7-1.)
Most importantly, at this point,
there are no genuine issues of material fact to preclude summary judgment. It
is undisputed that Plaintiff only provided State Farm with a CRN under the
Nissan Quest Policy, which is attached to the Complaint. (Doc. 7-7 ¶ 6; Doc. 7
¶ 5; Doc. 16 ¶ 5). Plaintiff is now solely relying on this CRN to perfect its
bad faith claim under the Honda Civic Policy. As State Farm correctly argues,
all the Court needs to rule on State Farm’s Motion for Summary Judgment is the
Complaint, Plaintiff’s CRN, and the policies. Allowing time for further
discovery would be futile and incur unnecessary expense. Desimoni v. TBC
Corp., No. 2:15-CV-366-FTM-99CM, 2016 WL 1572391, at *1 (M.D. Fla. Apr. 19,
2016) (“While the Court need not wait until the end of discovery, summary
judgment is appropriate only when an adequate factual record exists and when
further discovery would be pointless.”) (citations and internal quotation marks
omitted.) Therefore, the Court will not delay granting State Farm’s Motion for
Summary Judgment based on the lack of any reasoned argument from Plaintiff to
do so.
there are no genuine issues of material fact to preclude summary judgment. It
is undisputed that Plaintiff only provided State Farm with a CRN under the
Nissan Quest Policy, which is attached to the Complaint. (Doc. 7-7 ¶ 6; Doc. 7
¶ 5; Doc. 16 ¶ 5). Plaintiff is now solely relying on this CRN to perfect its
bad faith claim under the Honda Civic Policy. As State Farm correctly argues,
all the Court needs to rule on State Farm’s Motion for Summary Judgment is the
Complaint, Plaintiff’s CRN, and the policies. Allowing time for further
discovery would be futile and incur unnecessary expense. Desimoni v. TBC
Corp., No. 2:15-CV-366-FTM-99CM, 2016 WL 1572391, at *1 (M.D. Fla. Apr. 19,
2016) (“While the Court need not wait until the end of discovery, summary
judgment is appropriate only when an adequate factual record exists and when
further discovery would be pointless.”) (citations and internal quotation marks
omitted.) Therefore, the Court will not delay granting State Farm’s Motion for
Summary Judgment based on the lack of any reasoned argument from Plaintiff to
do so.
Plaintiff argues that in State
Farm’s response to Plaintiff’s CRN, State Farm failed to object to the
identification of what she characterizes as the “incorrect” policy number,
although State Farm had notice that the Honda Civic Policy was associated with
the same claim number. (Doc. 16 at 13.) Plaintiff asserts that State Farm
waived the issue of Plaintiff’s filing the CRN under the Nissan Quest Policy by
failing to raise it in its response and by paying the $10,000 policy limit on
April 1, 2013 after Plaintiff filed a declaratory judgment action on November
15, 2012. (Doc. 16 at 13) (citing State Farm Ins. Co. v. Ulrich,
120 So. 3d 217 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D1834a]). In reply, State
Farm argues that it did not waive the CRN requirement and the policy number on
Plaintiff’s CRN did not become “incorrect” until more than five years later
when Plaintiff filed this bad faith action under a different policy.
(Doc. 26 at 7.) State Farm also argues that the holding in State Farm
Insurance Co. v. Ulrich, 120 So. 3d 217 (Fla. 4th DCA 2013) [38 Fla. L.
Weekly D1834a] does not support Plaintiff’s waiver argument because the court
dismissed the insurer’s petition without addressing the merits and that case
involved the distinguishable issue of a CRN not being specific enough. (Doc. 26
at 7-8.) As State Farm emphasizes, in this case, the CRN under the Nissan Quest
Policy cannot be used to perfect a bad faith action “under a different policy
covering a different vehicle belonging to a different person.” (Doc. 26 at 8.)
The Court agrees with State Farm’s arguments against waiver.
Farm’s response to Plaintiff’s CRN, State Farm failed to object to the
identification of what she characterizes as the “incorrect” policy number,
although State Farm had notice that the Honda Civic Policy was associated with
the same claim number. (Doc. 16 at 13.) Plaintiff asserts that State Farm
waived the issue of Plaintiff’s filing the CRN under the Nissan Quest Policy by
failing to raise it in its response and by paying the $10,000 policy limit on
April 1, 2013 after Plaintiff filed a declaratory judgment action on November
15, 2012. (Doc. 16 at 13) (citing State Farm Ins. Co. v. Ulrich,
120 So. 3d 217 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D1834a]). In reply, State
Farm argues that it did not waive the CRN requirement and the policy number on
Plaintiff’s CRN did not become “incorrect” until more than five years later
when Plaintiff filed this bad faith action under a different policy.
(Doc. 26 at 7.) State Farm also argues that the holding in State Farm
Insurance Co. v. Ulrich, 120 So. 3d 217 (Fla. 4th DCA 2013) [38 Fla. L.
Weekly D1834a] does not support Plaintiff’s waiver argument because the court
dismissed the insurer’s petition without addressing the merits and that case
involved the distinguishable issue of a CRN not being specific enough. (Doc. 26
at 7-8.) As State Farm emphasizes, in this case, the CRN under the Nissan Quest
Policy cannot be used to perfect a bad faith action “under a different policy
covering a different vehicle belonging to a different person.” (Doc. 26 at 8.)
The Court agrees with State Farm’s arguments against waiver.
State Farm did not waive its
objection to Plaintiff filing a CRN under the Nissan Quest Policy and bringing
this bad faith action under the Honda Civic Policy. An insurer can detect a
“lack of specificity” from the face of the CRN when an insurer receives the
CRN. However, as in this case, an insurer cannot detect an incorrect policy
number from the face of the CRN when the plaintiff provides a valid insurance
policy number on the CRN, but the plaintiff subsequently decides to file a bad
faith action under a totally different policy. It would be inequitable to find
an insurer’s objection against a plaintiff’s policy switching is waived when a
plaintiff made the conscious choice to switch the policy under which the
plaintiff alleges bad faith.
objection to Plaintiff filing a CRN under the Nissan Quest Policy and bringing
this bad faith action under the Honda Civic Policy. An insurer can detect a
“lack of specificity” from the face of the CRN when an insurer receives the
CRN. However, as in this case, an insurer cannot detect an incorrect policy
number from the face of the CRN when the plaintiff provides a valid insurance
policy number on the CRN, but the plaintiff subsequently decides to file a bad
faith action under a totally different policy. It would be inequitable to find
an insurer’s objection against a plaintiff’s policy switching is waived when a
plaintiff made the conscious choice to switch the policy under which the
plaintiff alleges bad faith.
The Court also need not address the
parties’ arguments that the Court abate the bad faith count until the
resolution of Count I on UM coverage, because the Court is granting State
Farm’s Motion for Summary Judgment. (Doc. 7 at 11; Doc. 16 at 13-14.) Since the
Court is granting State Farm’s Motion for Summary Judgment, the parties’ other
arguments are moot.15
parties’ arguments that the Court abate the bad faith count until the
resolution of Count I on UM coverage, because the Court is granting State
Farm’s Motion for Summary Judgment. (Doc. 7 at 11; Doc. 16 at 13-14.) Since the
Court is granting State Farm’s Motion for Summary Judgment, the parties’ other
arguments are moot.15
IV.
CONCLUSION
CONCLUSION
Based on the foregoing, it is
ordered as follows:
ordered as follows:
1. Defendant State Farm Mutual
Automobile Insurance Company’s Motion for Summary Judgment on Count Two (Doc.
7) filed October 20, 2017, is GRANTED.
Automobile Insurance Company’s Motion for Summary Judgment on Count Two (Doc.
7) filed October 20, 2017, is GRANTED.
2. Plaintiff Juna Mathurin’s Count
Two of her Complaint (Doc. 2) filed on September 6, 2017, is DISMISSED.
Two of her Complaint (Doc. 2) filed on September 6, 2017, is DISMISSED.
3. Defendant State Farm Mutual
Automobile Insurance Company’s Motion to Dismiss Count Two (Doc. 3), filed
October 19, 2017, is DENIED as moot.
Automobile Insurance Company’s Motion to Dismiss Count Two (Doc. 3), filed
October 19, 2017, is DENIED as moot.
__________________
1At the summary judgment stage, facts
are read in the light most favorable to the non-moving party; here the
non-moving party is Plaintiff. White v. Beltram Edge Tool Supply, Inc.,
789 F.3d 1188 (11th Cir. 2007) [25 Fla. L. Weekly Fed. C1251a] (citation
omitted).
are read in the light most favorable to the non-moving party; here the
non-moving party is Plaintiff. White v. Beltram Edge Tool Supply, Inc.,
789 F.3d 1188 (11th Cir. 2007) [25 Fla. L. Weekly Fed. C1251a] (citation
omitted).
2The Court recognizes that generally
these two claims cannot be pursued together because “[u]nder Florida law, a
final determination as to coverage and damages for the underlying insurance
claim must be made before a statutory bad faith claim can proceed.” Gianassi
v. State Farm Mut. Auto. Ins. Co., 60 F. Supp. 3d 1267, 1269 (M.D. Fla.
2014) [26 Fla. L. Weekly Fed. D39a]. However, this requirement can be satisfied
by an insurer’s payment of the full policy limit. Indian Harbor Ins. Co. v.
Int’l Studio Apartments, Inc., No. 09-60671-CIV, 2009 WL 10668603, at *4
(S.D. Fla. Sept. 22, 2009) (“Florida courts have recognized multiple methods
for determining the insurer’s liability and the insured’s damages for purposes
of a bad faith claim, including litigation, arbitration, and payment by an
insurer of the full policy limit.”) (emphasis added) (citations omitted).
As will be discussed infra, State Farm paid the policy limit of $10,000
to Plaintiff under the Honda Civic Policy on April 1, 2013. (Kwavnick Aff.,
Doc. 7-6 ¶ 4.) Therefore, the Court is allowing Plaintiff to proceed with both
of its counts.
these two claims cannot be pursued together because “[u]nder Florida law, a
final determination as to coverage and damages for the underlying insurance
claim must be made before a statutory bad faith claim can proceed.” Gianassi
v. State Farm Mut. Auto. Ins. Co., 60 F. Supp. 3d 1267, 1269 (M.D. Fla.
2014) [26 Fla. L. Weekly Fed. D39a]. However, this requirement can be satisfied
by an insurer’s payment of the full policy limit. Indian Harbor Ins. Co. v.
Int’l Studio Apartments, Inc., No. 09-60671-CIV, 2009 WL 10668603, at *4
(S.D. Fla. Sept. 22, 2009) (“Florida courts have recognized multiple methods
for determining the insurer’s liability and the insured’s damages for purposes
of a bad faith claim, including litigation, arbitration, and payment by an
insurer of the full policy limit.”) (emphasis added) (citations omitted).
As will be discussed infra, State Farm paid the policy limit of $10,000
to Plaintiff under the Honda Civic Policy on April 1, 2013. (Kwavnick Aff.,
Doc. 7-6 ¶ 4.) Therefore, the Court is allowing Plaintiff to proceed with both
of its counts.
3Plaintiff settled with the dump
truck company for $500,000. (Doc. 16-1 at 13; Mathurin’s Dep., Doc. 7-1 at
84-86.)
truck company for $500,000. (Doc. 16-1 at 13; Mathurin’s Dep., Doc. 7-1 at
84-86.)
4Although this deposition was taken
in the parties’ previous state court coverage case, it may be considered at the
summary judgment stage in the current case because the deposition testimony is
being used against Plaintiff and she was present and represented at the
deposition. Nippon Credit Bank, Ltd. v. Matthews, 291 F.3d 738, 750-51
(11th Cir. 2002) [15 Fla. L. Weekly Fed. C593a], abrogated on other grounds
by Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249
(11th Cir. 2010) [22 Fla. L. Weekly Fed. C455a]. See Hooks v. GEICO Gen.
Ins. Co., No. 3:13-CV-891-J-34JBT, 2015 WL 134144, at *2 (M.D. Fla. Jan. 9,
2015) (relying on Nippon Credit Bank to allow deposition testimony taken
in a previous case to be considered at the summary judgment of another case).
in the parties’ previous state court coverage case, it may be considered at the
summary judgment stage in the current case because the deposition testimony is
being used against Plaintiff and she was present and represented at the
deposition. Nippon Credit Bank, Ltd. v. Matthews, 291 F.3d 738, 750-51
(11th Cir. 2002) [15 Fla. L. Weekly Fed. C593a], abrogated on other grounds
by Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249
(11th Cir. 2010) [22 Fla. L. Weekly Fed. C455a]. See Hooks v. GEICO Gen.
Ins. Co., No. 3:13-CV-891-J-34JBT, 2015 WL 134144, at *2 (M.D. Fla. Jan. 9,
2015) (relying on Nippon Credit Bank to allow deposition testimony taken
in a previous case to be considered at the summary judgment of another case).
5State Farm
had argued in the state court litigation that Plaintiff and Decedent
“represented that they were married when applying for the Policy,” which
Plaintiff denied; however, the judge found “[t]he issue concerning the parties’
marital status [was] not a legally sufficient basis to deny uninsured motorist
coverage.” Doc. 7-8 at 51-52.
had argued in the state court litigation that Plaintiff and Decedent
“represented that they were married when applying for the Policy,” which
Plaintiff denied; however, the judge found “[t]he issue concerning the parties’
marital status [was] not a legally sufficient basis to deny uninsured motorist
coverage.” Doc. 7-8 at 51-52.
6State Farm
sent the letter to Plaintiff’s then-attorney and he handled the subsequent
communications between State Farm and Plaintiff mentioned in this paragraph and
the subsequent paragraph.
sent the letter to Plaintiff’s then-attorney and he handled the subsequent
communications between State Farm and Plaintiff mentioned in this paragraph and
the subsequent paragraph.
7In
Plaintiff’s Response to State Farm’s Motion for Summary Judgment, Plaintiff
claims that the letter lists State Farm’s assigned claim number of “59A820386”
as the claim number. (Doc. 16 ¶ 5(b).) However, the letter lists the Nissan
Quest Policy’s number as the claim number. (Doc. 16-1 at 7.)
Plaintiff’s Response to State Farm’s Motion for Summary Judgment, Plaintiff
claims that the letter lists State Farm’s assigned claim number of “59A820386”
as the claim number. (Doc. 16 ¶ 5(b).) However, the letter lists the Nissan
Quest Policy’s number as the claim number. (Doc. 16-1 at 7.)
8Per State
Farm’s request, the Court takes judicial notice of the records in the
underlying state court case and the previous federal case to be discussed infra.
See, e.g., United States v. Jones, 29 F.3d 1549, 1553 (11th Cir.
1994) (internal quotations and citations omitted) (“It is recognized that a
court may take judicial notice of a document filed in another court not for the
truth of the matters asserted in the other litigation, but rather to establish
the fact of such litigation and related filings.”).
Farm’s request, the Court takes judicial notice of the records in the
underlying state court case and the previous federal case to be discussed infra.
See, e.g., United States v. Jones, 29 F.3d 1549, 1553 (11th Cir.
1994) (internal quotations and citations omitted) (“It is recognized that a
court may take judicial notice of a document filed in another court not for the
truth of the matters asserted in the other litigation, but rather to establish
the fact of such litigation and related filings.”).
9Under
Florida common law, “the civil remedy provided by § 624.155 did not exist for
first-party insureds prior to the adoption of the civil remedy statute.” Nowak
v. Lexington Ins. Co., 464 F. Supp. 2d 1248, 1251-52 (S.D. Fla. 2006)
(citing Talat,753 So. 2d at 1283).
Florida common law, “the civil remedy provided by § 624.155 did not exist for
first-party insureds prior to the adoption of the civil remedy statute.” Nowak
v. Lexington Ins. Co., 464 F. Supp. 2d 1248, 1251-52 (S.D. Fla. 2006)
(citing Talat,753 So. 2d at 1283).
10Plaintiff
also attempts to distinguish her case from Allstate Insurance Co. v.
Clohessy, 32 F. Supp. 2d 1328 (M.D. Fla. 1998). (Doc. 16 at 9.) In Clohessy,
the defendants’ bad faith counterclaim was dismissed because the defendants
failed to notify the court in their complaint how they complied with the CRN
requirements. Clohessy, 32 F. Supp. at 1333. Plaintiff highlights how
she filed and served her CRN on State Farm and how her Complaint alleges
details of her complying with the notice requirements. (Doc. 16 at 9.) The
Court does not find this analysis persuasive because Defendant only utilizes Clohessy
to state the general proposition that “the filing of a [CRN] is crucial to
the procedural integrity of an action under chapter 624.155” (Doc. 7 at 7.)
(emphasis in original) (citation omitted). Moreover, this analysis sheds little
light on the ultimate issue in this case of whether Plaintiff can use a CRN
filed under one policy to perfect a bad faith claim based on another policy.
also attempts to distinguish her case from Allstate Insurance Co. v.
Clohessy, 32 F. Supp. 2d 1328 (M.D. Fla. 1998). (Doc. 16 at 9.) In Clohessy,
the defendants’ bad faith counterclaim was dismissed because the defendants
failed to notify the court in their complaint how they complied with the CRN
requirements. Clohessy, 32 F. Supp. at 1333. Plaintiff highlights how
she filed and served her CRN on State Farm and how her Complaint alleges
details of her complying with the notice requirements. (Doc. 16 at 9.) The
Court does not find this analysis persuasive because Defendant only utilizes Clohessy
to state the general proposition that “the filing of a [CRN] is crucial to
the procedural integrity of an action under chapter 624.155” (Doc. 7 at 7.)
(emphasis in original) (citation omitted). Moreover, this analysis sheds little
light on the ultimate issue in this case of whether Plaintiff can use a CRN
filed under one policy to perfect a bad faith claim based on another policy.
11Additionally,
this is not a case involving a mere typographical error; instead, Plaintiff
purposely chose to only file a CRN under the Nissan Quest Policy with the
higher UM limits.
this is not a case involving a mere typographical error; instead, Plaintiff
purposely chose to only file a CRN under the Nissan Quest Policy with the
higher UM limits.
12Section
624.155(3)(a) implicitly authorizes the filing of multiple CRNs by stating, “If
the department returns a [CRN] for lack of specificity, the 60-day time period
shall not begin until a proper notice is filed.”
624.155(3)(a) implicitly authorizes the filing of multiple CRNs by stating, “If
the department returns a [CRN] for lack of specificity, the 60-day time period
shall not begin until a proper notice is filed.”
13The Court
acknowledges that the state court did not decide that Decedent should have been
listed as the first named insured on the Honda Civic Policy and was covered by
the Honda Civic Policy until April 11, 2017. However, Plaintiff filed her
current action for bad faith under the Honda Civic Policy on September 6, 2017.
(Doc. 2.) She had approximately five months between the state court’s decision
and filing the Complaint in the present action to submit a CRN under the Honda
Civic Policy. Furthermore, Plaintiff chose to accept State Farm’s April 1, 2013
$10,000 payment of UM limits under the Honda Civic Policy.
acknowledges that the state court did not decide that Decedent should have been
listed as the first named insured on the Honda Civic Policy and was covered by
the Honda Civic Policy until April 11, 2017. However, Plaintiff filed her
current action for bad faith under the Honda Civic Policy on September 6, 2017.
(Doc. 2.) She had approximately five months between the state court’s decision
and filing the Complaint in the present action to submit a CRN under the Honda
Civic Policy. Furthermore, Plaintiff chose to accept State Farm’s April 1, 2013
$10,000 payment of UM limits under the Honda Civic Policy.
14Unpublished
opinions of the Eleventh Circuit constitute persuasive, not binding, authority.
See 11th Cir. R. 36-2 and I.O.P. 6.
opinions of the Eleventh Circuit constitute persuasive, not binding, authority.
See 11th Cir. R. 36-2 and I.O.P. 6.
15State Farm
also argues that Plaintiff cannot bring a bad faith claim under the Nissan
Quest Policy because the statute of limitations has expired. (Doc. 7 at 10 n.8)
Given the Court’s decision to grant summary judgment, the Court need not
address this argument and will restrict this Order to only the determination of
whether Plaintiff can bring its current bad faith claim under the Honda Civic
Policy.
also argues that Plaintiff cannot bring a bad faith claim under the Nissan
Quest Policy because the statute of limitations has expired. (Doc. 7 at 10 n.8)
Given the Court’s decision to grant summary judgment, the Court need not
address this argument and will restrict this Order to only the determination of
whether Plaintiff can bring its current bad faith claim under the Honda Civic
Policy.
* * *