Insurance — Automobile — Bad faith — Claim for damages based on statutory
first-party bad faith in settlement of claims to be abated rather than dismissed
pending resolution of underlying claim — Claim for declaratory judgment of
liability for collision and total amount of plaintiff’s damages must be
dismissed where there is no actual controversy prior to determination of amount
suffered in underlying contract claim — Additionally, plaintiff requests
declaration of his rights under legal system to particular amount of damages in
his unripe bad faith claim, as opposed to any declaration of his rights with
respect to defendant — Declaratory Judgment Act does not permit a present
attempt to quantify an amount of damages for future bad faith claim because such
declaration does not resolve entire controversy of whether bad faith
occurred

JAMES SMITH, Plaintiff, v. 21ST CENTURY CENTENNIAL INSURANCE COMPANY,
Defendant. U.S. District Court, Middle District of Florida, Tampa Division. Case
No. 8:14-v-2531-T-26TBM. October 29, 2014. Richard A. Lazzara, Judge.

Before the Court is Defendant’s Motion to Dismiss and Notice of Supplemental
Authority (Dkts. 4 & 7), and Plaintiff’s Response with attachments. (Dkt.
10). After careful consideration of the allegations of the Complaint (Dkt. 2),
the argument of the parties, and the applicable law, the Court concludes that
the motion should be granted in part and denied in part.

This is a removed action arising from an automobile accident involving two
automobiles, one in which Plaintiff was a passenger, and the car covered by an
insurance policy issued by Defendant, and the other driven by an underinsured
motorist. In a three-count complaint, Plaintiff seeks damages of $100,000 in
underinsured-motorist coverage for his permanent injuries caused by the
underinsured driver (Count I), damages based on statutory first-party bad faith
in the settlement of the claim (Count II), and a declaratory judgment of
liability for the collision and the total amount of Plaintiff’s damages (Count
III). Defendant requests that Counts II and III be dismissed.

With respect to Count II, both parties seem to agree that the underlying
claim must be resolved in the insured’s favor before a bad faith action may be
brought against the insurer. The issue is whether an unripe bad faith claim
should be abated or dismissed with prejudice. See Gianassi v. State Farm Mut.
Auto. Ins. Co., No. 6:14-cv-1078-Orl-31TBS, 2014 WL 4999443 (M.D. Fla. Oct.
7, 2014) (abating bad faith claim after concluding that Florida trial courts
have option of either abating or dismissing); Leuty v. State Farm Mut. Auto.
Ins. Co., 8:13-cv-3038-T-35MAP (unpublished order) (abating bad faith claim
pending resolution of underlying claim). In keeping with other district judges
in the Middle District and in keeping with its own practice, this Court will
abate Count II rather than dismiss the action. See Park Place Condo. Ass’n of
Tampa, Inc. v. State Farm Fire & Cas. Co., No. 8:11-cv-884-T-26TGW, 2011
WL 2470105 (M.D. Fla. May 13, 2011); The Oaks Unit III Condo. Ass’n, Inc. v.
Allstate Ins. Co., 8:10-cv-309-T-26TBM, 2010 WL 4542899 (M.D. Fla. Nov. 10,
2010); Demott v. Liberty Mut. Fire Ins. Co., No. 8:08-cv-857-T-26EAJ,
2008 WL 2359923 (M.D. Fla. Jun. 5, 2008).

Count III for declaratory relief must be dismissed because there is no actual
controversy prior to the determination of the damages suffered in the underlying
contract claim and, additionally, Plaintiff requests a declaration of his rights
under the legal system to a particular amount of damages in his unripe bad faith
claim, as opposed to any declaration of his rights with respect to Defendant.
The Declaratory Judgment Act does not permit a present attempt to quantify an
amount of damages for a future bad faith claim because such a declaration does
not resolve the entire controversy of whether bad faith occurred. In so ruling,
this Court aligns itself with the reasoning set forth in Gianassi.

It is therefore ORDERED AND ADJUDGED as follows:

(1) Defendant’ Motion to Dismiss (Dkt. 4) is GRANTED IN PART and DENIED IN
PART. The motion is granted in part as to Count II and granted as to Count III.
The motion is denied in all other respects.

(2) Count II is abated pending resolution of Count I of Plaintiff’s
Complaint.

(3) Count III is hereby dismissed with prejudice.

(4) Defendant shall have fourteen (14) days from the date of this order to
file its answer and defenses to Count I.