39 Fla. L. Weekly D1727a
insurer confessed judgment for its policy limits, trial court lacked
jurisdiction to take any action other than to enter judgment in amount of UM
policy limits in favor of insured — Trial court departed from essential
requirements of law by allowing insured to amend complaint to add count for
declaratory judgment to determine apportionment of liability and total amount of
damages suffered by insured — Insured not precluded from litigating damages
issue on bad-faith claim, which is separate and distinct from the judgment
entered in this case based on insurer’s contractual obligations under policy
District. Case No. 5D14-427. Opinion filed August 15, 2014. Petition for
Certiorari Review of Order from the Circuit Court for Brevard County, John Dean
Moxley, Jr., Judge. Counsel: Mitchell N. Silver and Melissa E. Morgan, of The
Silver Law Firm, P.A., Longwood, for Petitioner. Christian A. Lindbaek and Eric
S. Gillin, of Gillin Gillin & Lindbaek P.A., Melbourne, for Respondent.
court’s “Order on Plaintiff’s Motion to Amend Pleadings and Defendant’s Motion
for Entry of Final Judgment.” We grant the writ and quash the order.
uninsured/underinsured motorist (“UM”) benefits following an automobile
accident. He also filed a Civil Remedy Notice (“CRN”) as authorized by section
624.155, Florida Statutes (2008), alleging that he sustained serious and
permanent injuries exceeding his UM policy limits. GEICO answered the complaint
and responded to the CRN, stating that based on its investigation, which
included a review of Barber’s medical records, it would not offer policy limits.
a policy limits proposal for settlement pursuant to Florida Rule of Civil
Procedure 1.442 and section 768.79, Florida Statutes (2008). Barber did not
accept the proposal. GEICO then filed a “Notice of Confession of Judgment and
Motion for Entry of Confessed Judgment” stating:
Defendant GEICO CASUALTY COMPANY hereby confesses judgment to the
Plaintiff for its policy limits of Ten Thousand Dollars ($10,000.00) in lieu of
the pending jury trial as all issues as framed by the pleadings are rendered
moot. See Safeco Insurance Company of Illinois v. Adrian Fridman
(Fla. 5th DCA), WL 2256351 Case No. 5D12-428 (Case decided May 24,
2013).
filed a motion to amend his complaint to assert separate claims for uninsured
motorist benefits, violations of section 624.155, Florida Statutes (2008), and a
declaratory judgment to determine liability and the total amount of damages he
sustained in the accident. Following several hearings, the trial court entered
an order, granting GEICO’s motion to enter final judgment on the UM claim based
on its confession of judgment. The court also granted Barber’s motion to amend
pleadings to add a count for declaratory relief, but found Barber’s request to
add a bad faith claim was not ripe. As a result, Barber filed a second amended
complaint, seeking only a declaratory judgment to determine the “apportionment
of liability, if any and . . . the total amount of damages suffered by
[Barber].” The trial court allowed Barber to file his second amended complaint
and GEICO now petitions this Court for review.
117 So. 3d 16 (Fla. 5th DCA 2013), review granted, No. SC13-1607 (Fla.
Apr. 14, 2014), GEICO argues that the trial court’s order departs from the
essential requirements of the law and should be quashed. GEICO contends that
after it confessed to judgment, the trial court lacked jurisdiction to take any
action other than to enter judgment in the amount of the UM policy limits in
favor of Barber. We agree.
An action to recover UM benefits is based on a contract but it has
its underpinnings in tort liability. Mercury Ins. Co. of Fla. v. Moreta,
957 So. 2d 1242, 1251 (Fla. 2d DCA 2007). Where no dispute exists as to the
policy limits or available coverage and such limits are made known to the
insured, the amount of the judgment against the insurer may not exceed the
policy limits. Nationwide Mut. Fire Ins. Co. v. Voigt, 971 So. 2d 239,
242 (Fla. 2d DCA 2008).
A first party bad faith action is a separate and distinct cause of
action. Allstate Ins. Co. v. Jenkins, 32 So. 3d 163, 165 (Fla. 5th DCA
2010). In contrast to a claim for UM benefits, an insured who prevails on a bad
faith claim may recover damages in excess of the policy limits.
In the instant case, the only cause of action before the trial court
was Fridman’s UM claim. Fridman had appropriately not included a bad faith count
in his complaint. See Jenkins, 32 So. 3d at 165 (“[B]ad faith
action is more appropriately brought as a separate cause of action.”); see
also Gov’t Emps. Ins. Co. v. King, 68 So. 3d 267, 270 n. 3 (Fla. 2d
DCA 2011) (en banc) (expressly agreeing with Jenkins that bad faith claim
should be brought as separate cause of action). Accordingly, when Safeco agreed
to the entry of a judgment against it in the amount of the policy limits, the
issues between the parties, as framed by the pleadings, became moot because the
trial court could not provide any further substantive relief to Fridman.
Godwin v. State, 593 So. 2d 211, 212 (Fla. 1992) (“An issue is moot when
the controversy has been so fully resolved that a judicial determination can
have no actual effect.”). Safeco was, in fact, agreeing to the precise relief
sought by Fridman in his complaint. Thus, it was error for the trial court to
require the parties to proceed to trial. See, e.g., Wollard v. Lloyd’s
& Cos. of Lloyd’s, 439 So. 2d 217 (Fla. 1983) (where statute provided
for recovery of attorney’s fees upon entry of judgment in favor of insured
against insurer, insured was not required to continue litigation where insurer
had paid claim; payment of claim was functional equivalent of confession of
judgment). Instead, the trial court should have merely entered the confessed
judgment in favor of Fridman, reserving jurisdiction to award costs, prejudgment
interest, and, if authorized by law, reasonable attorney’s fees. See
Westgate Miami Beach, LTD. v. Newport Operating Corp., 55 So. 3d 567, 575
(Fla. 2010).
Barber is not precluded from litigating the damages issue on his bad-faith
claim, as the judgment entered in this case based on GEICO’s contractual
obligations under the policy is separate and distinct from Barber’s claim for
bad faith. See Harris v. Geico Gen. Ins. Co., 961 F. Supp. 2d
1223, 1233 (S.D. Fla. 2013); see also GEICO Gen. Ins. Co. v.
Harvey, 109 So. 3d 236, 240 (Fla. 4th DCA 2013) (“The Florida Supreme Court
has repeatedly recognized that a claim arising from bad faith is grounded upon
the legal duty to act in good faith, and is thus separate and independent of the
claim arising from the contractual obligation to perform.” (Citation and
internal quotation marks omitted)).
concur. SAWAYA, J., dissents with opinion.)
Fridman, 117 So. 3d 16 (Fla. 5th DCA 2013), review granted, No.
SC13-1607 (Fla. Apr. 14, 2014), which I continue to believe is wrongly decided,
is distinguishable from the instant case. I, therefore, believe the majority’s
reliance on it is misplaced. I also believe that the majority has lost sight of
the proper standard of certiorari review to be applied in this case.
attempt to amend the plaintiff’s complaint to allege a cause of action for bad
faith after Safeco tendered its policy limits. But in the instant case, after
GEICO tendered the full amount of its policy limits (some four years into the
litigation) the Respondent, Antonio Barber (who was the plaintiff in the trial
proceedings), filed a motion to amend his complaint to add a count for bad faith
and a count for declaratory judgment. This motion was made before the trial
court heard GEICO’s motion for judgment wherein GEICO cited to Fridman
and alleged that it had confessed judgment and requested entry of a judgment in
favor of Barber in the amount of the tendered policy limits. In fact, both
motions were heard simultaneously. The trial court denied Barber’s motion to
amend the complaint to add a bad-faith count, but granted the motion to add the
declaratory judgment count.
Insurance Co. of Illinois v. Rader, 132 So. 3d 941 (Fla. 1st DCA 2014), held
that when an insurer tenders the policy limits in an uninsured motorist case and
the insured moves to amend the complaint to insert a count for bad faith, such
an amendment is permissible because the trial court maintains jurisdiction to do
so. The court in Rader distinguished Fridman by recognizing that
no such motion to amend was made by the insured in Fridman. The holding
in Rader directly conflicts with the majority opinion in the instant
case, which interprets Fridman to mean that once the insurer tenders the
policy limits, the trial court loses jurisdiction to do anything other than
enter judgment for that amount. The majority opinion and Fridman both
conflict with well-established rules of procedure that liberally allow
amendments to pleadings. See Fla. R. Civ. P. 1.190; see also
Spectrum Interiors, Inc. v. Exterior Walls, Inc., 65 So. 3d 543, 546
(Fla. 5th DCA 2011) (observing the general rule is to freely grant leave to
amend); Crown v. Chase Home Fin., 41 So. 3d 978, 979 (Fla. 5th DCA 2010)
(same).
motion to amend to include a count for bad faith. Instead, the trial court
denied that motion and granted the motion to amend to include a count for
declaratory relief. If this was error, the error can certainly be corrected on
appeal. The courts have clearly and consistently held that an appellate court
can only grant a petition for certiorari when it is established that there is “
‘(1) a departure from the essential requirements of the law, (2) resulting in
material injury for the remainder of the case (3) that cannot be corrected on
postjudgment appeal.’ ” Rodriguez v. Miami-Dade Cnty., 117 So. 3d 400,
406 (Fla. 2013) (quoting Williams v. Oken, 62 So. 3d 1129, 1132 (Fla.
2011)). The court in Rodriguez held that the latter two elements, which
are referred to as irreparable harm, are jurisdictional, id., and
explained:
The threshold question that must be reached first [when determining
whether to grant certiorari] is whether there is a material injury that cannot
be corrected on appeal, otherwise termed as irreparable harm. Only after
irreparable harm has been established can an appellate court then review whether
the petitioner has also shown a departure from the essential requirements of
law.
3d at 944-45. Therefore, GEICO’s petition for writ of certiorari should be
denied because any error in granting the motion to amend can be corrected on
appeal.1
the policy limits are tendered (Fridman refers to such a tender as a
confession of judgment), the trial court lost all jurisdiction, except to enter
the confessed judgment. This is simply wrong. The majority then holds that
“Barber is not precluded from litigating the damages issue on his bad-faith
claim . . . .” But that is exactly what Barber was appropriately doing in the UM
case. The holdings of the majority in the instant case and Fridman do not
comport with how the Florida Supreme Court and the Legislature say bad-faith
actions should be conducted. Section 627.727(10), Florida Statutes (2008),
specifically provides that the damages recoverable in an action against the UM
carrier “include the total amount of the claimant’s damages, including the
amount in excess of the policy limits,” and that those damages are recoverable
“whether caused by an insurer or by a third-party tortfeasor.” The determination
of the amount in excess of the policy limits is established by the jury verdict
in the original UM case, and the Florida Supreme Court has made that clear.
See State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55 (Fla.
1995).
carried UM coverage in the amount of $200,000 through a policy issued by State
Farm. The insured filed a UM case against State Farm, which offered $40,000 to
settle the claim. That offer was refused by the insured. The case proceeded to
trial, resulting in a jury verdict in the insured’s favor for damages in the
amount of $400,000. With the verdict in hand, the insured filed a bad-faith
action against State Farm. At the time this suit was filed, section 627.727(10)
had not been enacted. Therefore, the jury returned a verdict that did not
include the excess amount as damages. On the same day the verdict was returned,
section 627.727(10) became effective, so the insured filed a motion for additur
to include the excess amount of the damages determined in the underlying UM
case. That motion was granted. State Farm appealed, claiming that the statute
should not be retroactively applied.
applied retroactively to causes of action that accrued prior to its enactment.
Through that analysis, the court twice determined that the amount in excess of
the policy limits is established in the original UM case. The court stated:
Section 627.727(10) provides that the damages recoverable from an
uninsured motorist insurance carrier in a bad faith action brought under section
624.155 and the 1990 amendment thereto shall include the total amount of a
claimant’s damages, including any amount in excess of the claimant’s policy
limits awarded by a judge or jury in the underlying claim.
determination that the excess amount is to be determined in the underlying UM
case, noting that on July 7, 1992,
section 627.727(10) became law. That statute provides that the
damages recoverable from an uninsured motorist carrier in a bad faith action
filed under section 624.155, such as the one at issue here, are to include the
total amount of the claimant’s damages, including any amount awarded in the
underlying claim in excess of the claimant’s policy limits.
retroactivity was determinative because “under the retroactive application of
the new statute, State Farm was liable for the entire excess judgment awarded to
the Laforets in their original case against State Farm.” Id.
(emphasis added). Thus, the court in Laforet made it clear that
application of section 627.727(10) requires that, in a bad-faith action, the
court shall award the excess amount determined in the underlying UM case.
“the amount in excess of the policy limit” means the excess amount determined in
the original UM case. Id. at 60. Similarly, in McLeod v. Continental
Insurance Co., 591 So. 2d 621 (Fla. 1992), superceded by statute as
stated in Time Ins. Co., Inc. v. Burger, 712 So. 2d 389, 392 (Fla.
1998) (“That legislation [section 627.727(10)] merely overturned the holding of
McLeod by authorizing the recovery of the ‘excess judgment’ in
first-party bad-faith actions against uninsured motorist insurance carriers.”),
the court explained excess judgments as follows:
McLeod appealed, arguing that the trial court erred in not granting
his motion for directed verdict or, in the alternative, by refusing to instruct
the jury that McLeod’s damages were fixed at the $200,000 shortfall between all
available insurance coverage and the amount of the verdict in the wrongful
death action. This amount is commonly referred to as the “excess judgment”
and is an available remedy in third-party bad faith actions.
Florida Statutes (2008), as a condition precedent to bringing a bad-faith
action, GEICO had sixty days to pay the damages owed and cure the alleged
violation. § 624.155(3)(d), Fla. Stat. (2008). In Talat Enterprises, Inc. v.
Aetna Casualty & Surety Co., 753 So. 2d 1278 (Fla. 2000), the Florida
Supreme Court explained, “[I]n creating this statutory remedy for bad-faith
actions, the Legislature provided this sixty-day window as a last opportunity
for insurers to comply with their claim-handling obligations when a good-faith
decision by the insurer would indicate that contractual benefits are owed.”
Id. at 1284; see also Lane v. Westfield Ins. Co., 862 So.
2d 774, 779 (Fla. 5th DCA 2003) (quoting Talat and concluding that “[t]he
purpose of the civil remedy notice is to give the insurer one last chance to
settle a claim with its insured and avoid unnecessary bad faith litigation . .
.”). Barber served GEICO with two notices under the statute. The first elicited
a response from GEICO that no benefits under the policy were owed. The second,
which was also served pre-suit, elicited an offer from GEICO to pay the paltry
sum of $700. Barber rejected that offer and filed his UM suit. Several years
into the litigation, GEICO decided to pay the policy limits. This was too little
too late, and that action on the part of GEICO several years past expiration of
the sixty-day cure provision did not extinguish the trial court’s jurisdiction
and Barber’s right to proceed with his UM case and have the jury decide the full
extent of his damages.
underlying UM case. But that is because the issues in the bad-faith action are
different from the issues in the underlying UM case. The issues in the UM case
are whether the tortfeasor breached a duty of care that caused damages and the
extent of those damages. Florida Standard Jury Instruction (Civil) 404.7 sets
forth the pertinent issues in bad-faith claims against insurers as follows: “The
issue you must decide on (claimant’s) claim against (defendant) is whether
(defendant) acted in bad faith in failing to settle the claim [of] [against]
(insured) [and, if so, whether that bad faith was a legal cause of [loss]
[damage] [or] [harm] to (claimant)].” The Note on Use for this instruction
recognizes that in a bad-faith action, the damages in excess of the policy
limits are assessed by the jury in the uninsured/underinsured motorist action:
“For cases in which the court will determine damages, or the only damages are
those already determined in the underlying action, omit the bracketed phase
[sic] on causation. If the issue of damages is being submitted to the jury for
determination, then the entire instruction should be given.” Fla. Stat. Jury
Instr. (Civ.) 404.7 (Note on Use) (emphasis added). The issues in the bad-faith
action should not include the issue of damages suffered as a result of the
tortfeasor’s negligence because the evidence is different. There is too great a
danger that the evidence of the insurer’s claim file and evidence of its bad
faith in failing to fairly settle the claim and pay the insured the benefits
owed to him or her under the policy would unduly prejudice the jury in its
determination of the amount of the damages inflicted on the insured by the
tortfeasor, and this is why the damage issues should not be tried in the
bad-faith action.
case misapply the confession of judgment doctrine. The only case cited in
Fridman relating to the confession of judgment issue is Wollard v.
Lloyd’s & Cos. of Lloyd’s, 439 So. 2d 217, 218 (Fla. 1983), wherein the
court held that the agreement of an insurer to settle a claim is the functional
equivalent of a judgment for purposes of awarding attorneys fees under section
627.428, Florida Statutes, which provides that the insured shall be entitled to
fees “[u]pon the rendition of a judgment . . . against an insurer . . . .” In
other words, the court indulged the legal fiction of a judgment based on the
settlement offer in order to award fees under the statute. Since Wollard,
the courts have consistently held that is the proper application of the
doctrine. See, e.g., Tampa Chiropractic Ctr., Inc. v. State Farm Mut.
Auto. Ins. Co., 39 Fla. L. Weekly D1441 (Fla. 5th DCA July 11, 2014);
Lopez v. State Farm Mut. Auto., 139 So. 3d 402 (Fla. 3d DCA 2014);
State Farm Fla. Ins. Co. v. Lorenzo, 969 So. 2d 393 (Fla. 5th DCA 2007).
In Tampa Chiropractic, this court explained the doctrine as follows:
Section 627.428 provides for the award of attorney’s fees to an
insured upon the rendition of a judgment against an insurer in an action between
the insurer and its insured. § 627.428, Fla. Stat. “By using the legal fiction
of a ‘confession of judgment,’ our supreme court extended the statute’s
application” to cases in which the insurer settles or pays a disputed claim
before rendition of judgment. Basik Exports & Imports, Inc. v. Preferred
Nat’l Ins. Co., 911 So. 2d 291, 293 (Fla. 4th DCA 2005) (citing Wollard
v. Lloyd’s & Cos. of Lloyd’s, 439 So. 2d 217 (Fla. 1983)). When the
insurer has agreed to settle a disputed case, “it has, in effect, declined to
defend its position in the pending suit,” and its “payment of the claim is . . .
the functional equivalent of a confession of judgment or a verdict in favor of
the insured.” Wollard, 439 So. 2d at 218. For the confession of judgment
doctrine to apply, the insurer must have unreasonably withheld payment under the
policy, id. at 219 n.2, or engaged in some other wrongful behavior that
forced the insured to sue, Gov’t Emps. Ins. Co. v. Battaglia, 503 So. 2d
358, 360 (Fla. 5th DCA 1987); see also Jerkins v. USF & G
Specialty Ins. Co., 982 So. 2d 15, 17 (Fla. 5th DCA 2008). This Court has
described the rationale for the confession of judgment doctrine as
follows:
[T]he statutory obligation for attorney’s fees cannot be avoided [by
the insurer] simply by paying the policy proceeds after suit is filed but before
a judgment is actually entered because to so construe [section 627.428, Florida
Statutes,] would do violence to its purpose, which is to discourage litigation
and encourage prompt disposition of valid insurance claims without
litigation.
Gibson v. Walker, 380 So. 2d 531, 533 (Fla. 5th DCA 1980);
accord First Floridian Auto & Home Ins. Co. v. Myrick, 969 So.
2d 1121, 1124 (Fla. 2d DCA 2007) (noting that confession of judgment doctrine
operates “to penalize an insurance company for wrongfully causing its insured to
resort to litigation in order to resolve a conflict with its insurer when it was
within the company’s power to resolve it”); Cincinnati Ins. Co. v.
Palmer, 297 So. 2d 96, 99 (Fla. 4th DCA 1974) (“[I]t is neither reasonable
nor just that an insurer can avoid liability for statutory attorney’s fees by
the simple expedient of paying the insurance proceeds to the insured or the
beneficiary at some point after suit is filed but before final judgment is
entered, thereby making unnecessary the entry of a judgment.”).
Lorenzo, 969 So. 2d at 397 (“The confession of judgment doctrine turns on
the policy underlying section 627.428: discouraging insurers from contesting
valid claims and reimbursing insureds for attorney’s fees when they must sue to
receive the benefits owed to them. Pepper’s Steel & Alloys, Inc. v.
United States, 850 So. 2d 462, 465 (Fla. 2003). This doctrine applies where
the insurer has denied benefits the insured was entitled to, forcing the insured
to file suit, resulting in the insurer’s change of heart and payment before
judgment.”).
for causing its insured to resort to litigation when it should have previously
paid the benefits due under the policy. And when the insurer subsequently
attempts to pay the benefits, a legal fiction is indulged that transforms the
tender of benefits or settlement offer into a judgment that forms the basis for
an award of fees under section 627.428. Despite the purpose of the doctrine,
this court in Fridman has utilized this legal fiction to penalize
insureds by taking away their right to have a jury decide the full measure of
their damages in the UM case and further penalizing them by requiring them to
file a new lawsuit to litigate the same damage issues all over again. I believe
this is an improper use of the confession of judgment doctrine.
insurers to treat their insureds in the manner that the insureds in
Fridman and the instant case have been treated. The injured insureds in
both cases spent several years litigating the damage issues in the UM cases each
filed, only to have the insurers tender the policy limits and eliminate their
right to continue on with the litigation so the jury could determine the full
extent of their damages. And the end result is to require both insureds to do it
all over again in another action involving the same parties and the same damage
issues they were litigating in the UM case. I believe that allowing insurers to
conduct litigation in this manner defies all logic and common sense, contravenes
the fundamental principles underlying the UM and bad faith statutes, and
improperly ignores the last chance provisions of section 624.155(3)(a), thus
rendering that statute virtually meaningless. “ ‘The UM statute is intended to
protect injured people and is not intended to benefit insurance companies or
motorists who cause damage to other people.’ ” Sommerville v. Allstate Ins.
Co., 65 So. 3d 558, 561-62 (Fla. 2d DCA 2011) (quoting Varro v. Federated
Mut. Ins. Co., 854 So. 2d 726, 729 (Fla. 2d DCA 2003) (citations omitted));
see also Flores v. Allstate Ins. Co., 819 So. 2d 740, 745 (Fla.
2002) (“ ‘The statute is designed for the protection of injured persons, not for
the benefit of insurance companies or motorists who cause damage to others.’ ”
(quoting Young v. Progressive Se. Ins. Co., 753 So. 2d 80, 83 (Fla.
2000))). The bad-faith statute is intended to protect insureds from insurers who
act in bad faith in handling claims made under the pertinent insurance policy.
As part of that protection, an injured insured has the right to have a jury
determine the full extent of his or her damages in the UM case so the insured
may pursue a bad-faith action against its insurer for failing to timely pay in
good faith the policy benefits within the sixty-day window period provided under
section 624.155(3)(a). These statutes are not intended to be utilized as a
charade whereby insurers are allowed, through the expedient of a fictional
confession of judgment made years into the litigation, to push and pull their
insureds from one lawsuit to another only to require the insureds to try the
same damage issues all over again.
alleged error in granting the motion to amend may be corrected on appeal, so in
order to avoid that jurisdictional hurdle, GEICO alleges it will suffer
irreparable harm because the trial court order allowing the amendment deprives
GEICO of its right to remove the state court action to federal court. I believe
that this argument has little merit. This court has held that certiorari would
not lie to protect a litigant’s right to remove a state court action to federal
court. Cont’l Baking Co. v. Vincent, 634 So. 2d 242, 244 (Fla. 5th DCA
1994); see also Rader, 132 So. 3d at 945-46. Moreover, GEICO
cannot show that it has suffered irreparable harm under the federal removal
statute, which is found in 28 U.S.C. § 1446. The courts have explained that
under that statute,
a defendant may only remove within thirty days of receiving the
initial pleading or service of summons. In a case not originally removable, a
defendant may only remove within thirty days of receiving “an amended pleading,
motion, order or other paper from which it may first be ascertained that the
case is one which . . . has become removable.” 28 U.S.C. § 1446(b)(3). However,
a case removed based on diversity jurisdiction that was not initially removable
may not be removed more than one year after the commencement of the
action.
1345 (M.D. Fla. 2013).
(11th Cir. 2013), the court held that the thirty-day time limit under § 1446
begins to run when the state court grants a motion for leave to amend the
complaint to add a bad-faith claim. But here, the trial court denied Barber’s
motion to amend to add a bad-faith action. Therefore, any claim of irreparable
injury is premature until a bad-faith action is filed. Although the court in
Bollinger did not specifically address the “one year after commencement
of the action” time limit provided in the statute, it did implicitly hold that
the one-year period begins to run when the complaint is amended to include a
count for bad faith. But even if “commencement of the action” is interpreted to
mean the filing of the original complaint (in the instant case that date would
be February 2009 when the UM case was filed), GEICO lost the right to remove the
action in February 2010, long before Barber moved to amend his complaint and
long before GEICO confessed its judgment. Therefore, any harm suffered by GEICO
under the latter interpretation was of its own making, not Barber’s.
* * *