Torts
— Automobile accident — Insurance — Nonjoinder of insurer in action against
insured — Trial court departed from essential requirements of law by refusing
to dismiss count against tortfeasor’s insurer alleging breach of contract based
on insurer’s alleged presuit agreement with plaintiff to pay policy limits to
settle lawsuit — Plaintiff could not join insurer as party defendant until she
obtained either judgment against or settlement with insured

GEICO
GENERAL INSURANCE COMPANY, Petitioner, v. ANNIE LEPINE, as personal
representative of THE ESTATE OF WILLIAM LEPINE; and ANNIE LEPINE, individually,
Respondent. 2nd District. Case No. 2D14-5903. Opinion filed September 9, 2015.
Petition for Writ of Certiorari to the Circuit Court for Hillsborough County;
William P. Levens, Judge. Counsel: T.R. Unice, Jr. and Jeffrey D. Jensen of
Unice Salzman Jensen, P.A., Trinity, for Petitioner. James M. Ragano of A Bales
Professional Association, St. Petersburg, for Respondent.

(LaROSE,
Judge.) GEICO General Insurance Company (GEICO) petitions for certiorari review
of the trial court’s order denying its motion to dismiss count III of Annie
Lepine’s complaint, on behalf of her husband’s estate and herself, against
GEICO and Robert Taylor, the auto-accident tortfeasor whom GEICO insured. We
have jurisdiction. Fla. R. App. P. 9.030(b)(2)(A). Because the trial court
improperly refused to dismiss count III, we grant the petition.

Ms.
Lepine alleged that GEICO, as agent for its insured, Mr. Taylor, agreed to pay
policy limits of $100,000 to Ms. Lepine. She alleged that the agreement was
confirmed in a voicemail message and in a telephone conversation between a
GEICO representative and her counsel. Allegedly, GEICO later refused to pay up.
As a result, Ms. Lepine sued Mr. Taylor and GEICO. In count I, she alleged that
Mr. Taylor operated a motor vehicle negligently in a manner likely to cause
injury or death to her now-deceased husband, William. In count II, she stated a
cause of action for the wrongful death of her husband. Count III, against
GEICO, alleged a breach of contract claim for refusing to pay policy limits to
settle the lawsuit. Count IV asserted a similar breach-of-contract claim
against Mr. Taylor for GEICO’s refusal to pay policy limits.

GEICO
moved to dismiss claim III, contending that the nonjoinder statute barred Ms.
Lepine’s direct action against GEICO. The nonjoinder statute, section 627.4136,
Florida Statutes (2014), provides, in part, as follows:

Nonjoinder of
insurers. –  

(1) It shall be
a condition precedent to the accrual or maintenance of a cause of action
against a liability insurer by a person not an insured under the terms of the
liability insurance contract that such a person shall first obtain a settlement
or verdict against a person who is an insured under the terms of such policy
for a cause of action which is covered by such policy.

 

. . . .

(4) At the time
a judgment is entered or a settlement is reached during the pendency of
litigation, a liability insurer may be joined as a party defendant for the
purposes of entering final judgment or enforcing the settlement . . . .

(Emphasis
added.) More simply put,

[u]nder the
nonjoinder statute, an injured third party may not file a direct action against
a liability insurer for a cause of action covered by a liability insurance
policy without first satisfying either one of two conditions precedent: (1)
obtaining a settlement against the insured or (2) obtaining a verdict against
the insured.

Hazen
v. Allstate Ins. Co.,
952 So. 2d 531, 534 (Fla. 2d DCA 2007). The purpose of the nonjoinder statute
is straightforward: “to ensure that the availability of insurance has no
influence on the jury’s determination of . . . damages.” Gen. Star Indem.
Co. v. Boran Craig Barber Engel Constr. Co., 895 So. 2d 1136, 1138 (Fla. 2d
DCA 2005).

Denying
GEICO’s motion to dismiss, the trial court, citing Hazen, concluded that
count III was “tantamount to a motion to enforce a settlement,” a claim not
barred by the nonjoinder statute. Proper application of Hazen, however,
compels the opposite result and leads us to grant the petition.

The
facts in Hazen are similar to those presented by Ms. Lepine. Ms. Hazen
was in an automobile accident with a negligent driver insured by Allstate. Hazen,
952 So. 2d at 533. Allstate contacted Ms. Hazen and orally agreed to repair her
car. Unfortunately, the attempted repairs were inadequate and the car was not
drivable. Id. at 533-34. Allstate refused to pay for the diminished
value of the car. Ms. Hazen sued Allstate for breach of the oral contract. Id.
at 534. She had not obtained a verdict against or settlement with Allstate’s
insured. Id.

On
appeal, we addressed whether the nonjoinder statute barred Ms. Hazen’s action
against Allstate. Id. In doing so, we discussed Howton v. State Farm
Mutual Automobile Insurance Co., 507 So. 2d 448 (Ala. 1987), which also
involved similar facts. Howton observed that:

the rule
prohibiting direct actions against the insurer has no application where the
insurer undertakes a new and independent obligation directly with a nonparty to
the insurance contract in its efforts to negotiate a settlement of the third
party’s claim. Indeed, an insurance carrier is no less liable under the law for
the breach of its own contract obligations or for its own tortious conduct than
is any other party.

Howton, 507 So. 2d at
450-51 (emphasis added); Hazen, 952 So. 2d at 539 (quoting Howton).
Thus, the Alabama court allowed Mr. Howton’s third-party direct action against
Allstate under a “new and independent obligation” theory. Hazen, 952 So.
2d at 538-39. The court held that because the nonjoinder statute applies only
to a cause of action covered by the insurance contract, it does not bar a
third-party direct action against the insurer on an obligation that is
independent of the insurance contract. Howton, 507 So. 2d at 450-51.

In
Hazen, we rejected Howton‘s reasoning as “unsound.” Hazen,
952 So. 2d at 539. We upheld the trial court’s dismissal of Ms. Hazen’s claim
against the insurer. Id. at 540. We also held that “[a] presuit
undertaking or agreement between an injured third party and an insurer about
the adjustment of a claim does not satisfy the alternative condition precedent
of settlement described in . . . nonjoinder statute because it does not occur
within the course of pending litigation in which the insured is already a
party.” Id. at 538. We held that a presuit agreement was not a new and
independent obligation because the insurance contract was the only reason the
insurer had to deal with the third party; “there was no legal ground upon which
the insurer could be deemed to have acted ‘independently’ of its insured.” Id.
at 539. Also noteworthy, we pointed out that there could be no new and
independent obligation because “there was no consideration for the alleged
agreement by the insurer to assume an obligation to the plaintiffs.” Id.
The same is true here.

Section
627.4136(4) allows the insurer to be joined as a party defendant only “[a]t the
time a judgment is entered or a settlement is reached during the pendency of
litigation . . . for the purposes of entering final judgment or enforcing the
settlement.” To allow Ms. Lepine to join GEICO now, before a jury verdict
against or settlement with Mr. Taylor, invites the very situation that the
nonjoinder statute seeks to avoid: the jury’s knowledge that insurance proceeds
are available could taint the jury’s verdict. See Hazen, 952 So.
2d at 540. To remain faithful to the text and purpose of the nonjoinder
statute, we must insist that Ms. Lepine not join GEICO as a party defendant
until she obtains either a judgment against or a settlement with Mr. Taylor,
GEICO’s insured.

The
trial court’s refusal to dismiss count III departed from the essential
requirements of the law, resulting in material and irreparable harm to GEICO
for the remainder of the case. Therefore, we grant the petition for writ of
certiorari.

Petition
granted. (NORTHCUTT and MORRIS, JJ., Concur.)

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