21 Fla. L. Weekly Supp. 419a
Online Reference: FLWSUPP 2105MEZAInsurance — Uninsured motorist — Complaint — Amendment — 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
GEOVANY A. MOLINAREZ MEZA, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE 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 TOAMEND COMPLAINT AND STAY OF PROCEEDINGSRELATED TO CLAIMS HANDLING
THIS CAUSE came before the Court upon Plaintiff’s Motion to Amend the Complaint on the 22nd day of November, 2013 at 10.00 AM.
The Plaintiff’s Motion seeks to add a count for statutory bad faith related 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 the Complaint.
The Motion acknowledges that a claim for statutory bad faith is not fully 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.
This Court has been given discretion to permit an unripe claim for first 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].
The Motion points out that the decision of the Second District Court of 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.
The Count for Declaratory Action is, according to the Motion, intended to 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.
It is therefore
ORDERED AND ADJUDGED that Plaintiff’s Motion is GRANTED, and the proposed amended complaint shall stand as filed as of the date of this Order. It is further
ORDERED AND ADJUDGED that all issues expressed in the Amended Complaint other 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
ORDERED AND ADJUDGED that the Defendant shall Answer or otherwise plead to 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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