21 Fla. L. Weekly Supp. 419a
Online Reference: FLWSUPP 2105MEZA
Motion to amend complaint to add count for bad faith handling of UM claim and
action for declaratory judgment seeking to establish plaintiff’s total damages
arising from accident is granted, but bad faith claim is stayed until underlying
UM claim has been resolved
INSURANCE COMPANY, Defendants. Circuit Court, 13th Judicial Circuit in and for
Hillsborough County. Case No. 13-CA-005009. December 3, 2013. William P. Levens,
Judge. Counsel: Dale M. Swope, Swope, Rodante P.A., Tampa; and Robert T. Joyce,
Joyce and Reyes Law Firm, PA, Tampa, for Plaintiff. Julian E. Wood, Jr., J.
Emory Wood, P.A., St. Petersburg, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO
AMEND COMPLAINT AND STAY OF PROCEEDINGS
RELATED TO CLAIMS HANDLING
Complaint on the 22nd day of November, 2013 at 10.00 AM.
to the handling of the uninsured motorist insurance claim that is the subject of
Count One, and also an action for Declaratory Judgment seeking to establish the
Plaintiff’s total damages arising from the motor vehicle accident described in
ripe until either the underlying claim for policy benefits is concluded by
payment or a judicial determination of liability and damages from the collision.
Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So. 2d 1289, 1291 (Fla.
1991). However, the Motion argues, because of the operation of section
627.727(10), Florida Statutes, the measure of damages in the statutory bad faith
case will require proof of the same contested facts as will be required in the
contract claim expressed in Count I, namely, who bears responsibility for what
percentage of fault in the automobile collision described in the complaint and
the measure of damages caused in that collusion.
party bad faith to be stayed, rather than dismissed, if the interest of justice
would be served by doing so, as long as discovery or other proceedings that
relate only to the bad faith claim are not permitted to go forward. See
Allstate Indem. Co. v. Ruiz, 899 So. 2d 1121, 1130 (Fla. 2005) [30 Fla. L.
Weekly S219c]; State Farm Mut. Ins. Co. v. O’Hearn, 975 So. 2d 633,
635-36 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D708a]; State Farm Mut. Ins. Co.
v. Tranchese, 49 So. 3d 809, 810 (Fla. 4th DCA 2010) [35 Fla. L. Weekly
D2590a]; Vanguard Fire & Cas. Co. v. Golmon, 955 So. 2d 591, 595
(Fla. 1st DCA 2006) [31 Fla. L. Weekly D2835a].
Appeal in Geico Gen. Ins. Co. v. Bottini, 93 So.3d 476 (Fla. 2d DCA 2012)
[37 Fla. L. Weekly D1731a], and particularly the concurring opinion, suggests
that a determination of damages by the jury that exceeded the policy limits
might not be determinative of that issue if a subsequent bad faith case were
brought separately. If that suggestion is followed, so that the result would
require a second court to retry the issues of damages and causation arising from
the same accident between the same parties, with the same witnesses, it is
argued that this would cause a severe waste of limited judicial resources and
jury time, an unconscionable inconvenience to the witnesses, and an unnecessary
expense to the parties. All this can be avoided through the simple expedient of
permitting the bad faith claim to be plead with the underlying complaint, with
appropriate measures for the protection of the Defendant’s privileges, to ensure
that the jury’s determination at the trial of this case will be a determination
of the total damages that will binding on both parties if and when the stay of
the bad faith claims handling issues becomes ripe.
accomplish the same purpose, which is to permit in the current lawsuit a
determination of the liability and total damages caused by the accident, so that
any verdict rendered in this case will establish that contested issue for all
purposes between these parties, including any claim for statutory bad faith.
amended complaint shall stand as filed as of the date of this Order. It is
than those related to Count I and the total damages caused by the accident
described in the Complaint are hereby STAYED until either the settlement of the
underlying contract benefits claim has been resolved by payment or until the
liability and damages trial has been conducted and any post-verdict Motions have
been ruled upon. Until this Stay is lifted, no discovery of any materials from
the Defendant shall be permitted except as would be permitted had this Motion
not been Granted. It is further
the Amended Complaint within ten days, except that no pleading responding to
claims handling allegations in Count II shall be required until the Stay imposed
by the preceding paragraph has been concluded.
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