6 Fla. L. Weekly Supp. 427a
Insurance — Automobile — Offer of settlement — Covered and noncovered claims — Action against insurer which rejected offer of settlement of personal injury and property damage claims and which then, without informing deceased insured’s representative, reached an agreement to settle only property damage claims — Where insurer which received offer of settlement for property damage and bodily injury claims, a part of which was covered under policy and a part of which was not, insurer owed various duties to its insured pursuant to common law of Florida, including duty to advise insured of settlement opportunity; to advise as to probable outcome of litigation; to warn of possibility of excess judgment; to notify insured that portions of claim were not covered under policy and the reason for insurer’s rejection of claim; and to advise insured that insured may want to seek advice of independent counsel for portion of claim not covered by policy — Insurer failed to fulfill its duty to provide deceased insured’s representative, within a reasonable time, an explanation in writing of the basis in the policy for denial of claim or for the offer of a compromise settlement
TRUDIE HILLERY, As Personal Representative of the Estate of RAYFIELD HILLERY, Plaintiff, vs. CONNECTICUT INDEMNITY COMPANY and EVERGLADES CLAIMS MANAGEMENT, INC., Defendants. 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 98-01505, Division “H”. March 31, 1999. James S. Moody, Jr., Judge.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE having come on to be heard on March 15, 1999, on Plaintiff’s Motion for Partial Summary Judgment and the Court having reviewed the entire contents of the file, heard arguments of counsel and being otherwise fully advised of the premises, finds that there are no genuine issues as to any of the following material facts:
1. On or about December 1, 1996, a collision involving Joseph Scime and Rayfield Hillery occurred in Hillsborough County, Florida.
2. At the time of that motor vehicle accident Plaintiff’s Decedent was insured for property damage liability under a policy of automobile insurance issued by CONNECTICUT, covering the Plaintiff’s Decedent’s motor vehicle involved in that accident.
3. As a result of that accident the Plaintiff’s Decedent was potentially liable to the adverse driver, Joseph Scime and his wife, Elaine Scime, (who are henceforth collectively referred to as “the Scimes”) for damages, only some of which were insured under CONNECTICUT’S insurance policy. Specifically as a result of this accident, the Plaintiff was potentially liable for both the property damage incurred by the Scimes, which was insured, and for the personal injury damages, which were not insured.
4. On or after January 9, 1997, the Defendants received a settlement offer which presented to CONNECTICUT a consolidated claim for all their damages, and in fact offered to settle all claims against the Plaintiff’s Decedent for $4,750.00. This was an amount within CONNECTICUT’S $10,000 policy limit for property damage liability coverage. See letter of Ken Ward dated January 9, 1997, attached and identified as Exhibit “A”.
5. Defendants did not communicate this offer of settlement made on January 9, 1997, but subsequently reached an agreement with Mr. Ward to settle only the Scimes’ claim for property damages. Later the Scimes brought a lawsuit against Plaintiff’s Decedent for bodily injury claims.
IT IS HEREBY ORDERED AND ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment filed on March 2, 1999 and Supplemental Motion for Partial Summary Judgment filed on March 15, 1999 are hereby GRANTED, as follows:
1. At the time the pre-suit offer to settle the entire claim was received, which included claims for property damage and bodily injury, a part of which was covered and a part of which was not covered by Plaintiff’s Decedent’s insurance policy, the Defendant, CONNECTICUT, owed the following duties to the insured pursuant to the common law of the State of Florida:
(a) to advise the insured of the settlement opportunity;
(b) to advise as to the probable outcome of the litigation;
(c) to warn of the possibility of an excess judgment, which this Court interprets to mean a judgment in excess of the coverage available under the policy, regardless of whether the judgment included claims for the type of coverage which was insured; and to advise the insured of any steps he might take to avoid the same;
(d) to notify the insured that portions of the claim are not covered under the policy of insurance and the reason for the rejection of the claim by the insurer; and
e) to advise the insured that he may want to seek the advice of independent counsel for that portion of the claim that is not covered by the policy, so that the insured can take steps to try to protect himself or herself.
This Court recognizes a disagreement with the opinion expressed in Rodriguez v. American Ambassador, 4 F.Supp.2d 1153 (M.D. Fla. 1998), wherein the federal court adopted the proposition that an insurance carrier owes no duties whatsoever, under any circumstances, to its insured where no coverage exists under the policy for that particular type of claim, even in a situation involving mixed claims, some of which are covered and some of which are not covered by the insurance policy.
2. Defendant, CONNECTICUT, owed a duty pursuant to F.S. §626.9541(i)(3)(f) to provide Plaintiff’s Decedent, within a reasonable time, an explanation in writing of the basis in the insurance policy for the denial of a claim or for the offer of a compromise settlement.
3. The Court reserves ruling on Plaintiff’s prayer for partial summary judgment as to Count III of the Amended Complaint, until such time as this Court has heard argument of counsel on that portion of the Defendants’ Motion for Partial Summary Judgment based upon Fidelity and Casualty Co. of New York v. Cope, 462 So.2d 459 (Fla. 1985) and related cases.
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