9 Fla. L. Weekly Supp. 483a
Insurance — Bad faith — Notice — Cure — Conditions precedent to insured’s maintenance of bad faith action against insurer related to lightning claim were not met where insurer provided allegedly withheld adjuster’s estimate within 60 days of civil remedy notice, and claim that insurer “responded with accusations” is too vague to give insurer notice of what wrong it could cure — Conditions precedent to insured’s maintenance of bad faith action against insurer related to windstorm claim were not met where insurer’s alleged bad faith filing of federal lawsuit was cured within 60 days of civil remedy notice when insurer chose not to appeal adverse judgment in federal suit, there was no wrongful act with respect to insurer’s defense against insured’s federal counterclaim that could be cured or remedied because notice did not allege that insurer engaged in wrongful conduct in defending against counterclaim, and notice did not allege that insurer had wrongfully failed to pay on judgment
GARY B. LANE d/b/a MORRIS USA and OVERSEAS CORP., Plaintiff, vs. WESTFIELD INSURANCE COMPANY, Defendant. Circuit Court, 18th Judicial Circuit in and for Brevard County. Case No. 05-1998-CA-10124-XXXX, Consolidated with 05-1998-CA-10129-XXXX. Kerry I. Evander, Judge. Counsel: David Pettinato, Tampa. J. Pablo C cares, Butler Burnette Pappas, LLP, Tampa.
AFFIRMED. 28 Fla. L. Weekly D2547c
ORDER GRANTING DEFENDANT’S AMENDED MOTION FOR SUMMARY JUDGMENT (LIGHTNING DAMAGE)
THIS CAUSE came on to be heard on January 25, 2002, on Defendant, WESTFIELD INSURANCE COMPANY’s, Amended Motion for Summary Judgment. After hearing argument of counsel, having reviewed the record, and being otherwise fully advised in the premises, the Court hereby finds as follows:
A. On August 2, 1996, Defendant filed a federal declaratory judgment action alleging that the Plaintiff had fraudulently sought damages under his insurance policy with Defendant for certain damages resulting from a lightning strike.
B. Plaintiff filed a counterclaim in the federal court action seeking to recover for loss of business income resulting from its equipment being damaged by the lightning strike. In his counterclaim, Plaintiff sought a damage award of over $107,000.00.
C. On July 14, 1997, the jury returned a verdict for Plaintiff on Defendant’s declaratory judgment action. On Plaintiff’s counterclaim, the jury returned a verdict of $11,706.00.
D. A final judgment, consistent with the jury verdict, was entered by the federal court on July 15, 1997.
E. On July 16, 1997, Plaintiff filed a civil notice remedy of insurer violation alleging:
“Westfield has established a general business practice of response to claim amount disagreements by filing groundless lawsuits against its own insured, (U.S. District Court Case No. 96-839-CIV-ORL-19 and-97-802-CIV-ORL-19) and failing to provide requested information necessary for the insured to determine the correct amount of loss (estimate).”
F. No appeal was taken by Defendant from the aforesaid federal court judgment.
G. Defendant satisfied the judgment, by payment, in October, 1997.1
H. Plaintiff has now filed the instant bad faith action against Defendant alleging that instead of attempting further negotiations, or any of the non-suit related acceptable avenues of resolving Plaintiff’s lightning claim, Defendant filed a federal lawsuit accusing Plaintiff of fraud or misrepresentation. (Paragraph 10 of Plaintiff’s Amended Complaint).
I. A first party bad faith action did not exist in common law, but rather was legislatively created. Section 624.155, FIa. Stat.(1995) provides that a person may bring a civil action against that person’s insurer for certain alleged wrongful acts. However, the statute also provides:
“2(a). As a condition precedent, to bringing an action under this section, the department and the insurer must have been given 60 days’ written notice of the violation.”
J. The statutorily-required written notice is to be on a form provided by the Department of Insurance. Among other things, the notice is required to state with specificity “the facts and circumstances giving rise to the violation.” Section 624.155(2)(b), emphasis added.
K. Section 624.155(2)(d) further provides that “no action shall lie if, within 60 days after filing notice, the damages are paid or the circumstances giving rise to the violation are corrected.”
J. Plaintiff’s June 11, 1997, civil remedy notice purports to allege that Defendant committed two wrongful acts. First, that Defendant “responded with accusations” and second, that Defendant failed to provide its adjuster’s estimate. It is undisputed that Defendant provided the requested estimate within sixty days of the notice and this Court has previously granted partial summary judgment on such issue. The allegation that Defendant “responded with accusations” is simply too vague to give Defendants notice of what it did wrong so that it could cure same
within sixty days. Furthermore, the allegation that Defendant “responded with accusations” fails to comply with the statute’s requirement that the civil remedy notice “state with specificity … the facts and circumstances giving rise to the violation.”
K. Plaintiff’s July 16, 1997, civil remedy notice alleges that Defendant also committed the wrongful act of filing groundless lawsuits in federal court against its insured. However, it is undisputed that such circumstance was “cured” approximately five weeks later when the federal court dismissed such action. Furthermore, no appeal was taken by Defendant from such dismissal.
L. The undisputed facts establish, as a matter of law, that the conditions precedent to Plaintiff’s maintaining of this first party bad faith action against Defendant were not met.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
Defendant’s Amended Motion for Summary Judgment is hereby granted as to Count I of Plaintiff’s Second Amended Complaint (Windstorm Damage).
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1The federal court also awarded Plaintiff his attorney’s fees. Such attorney’s fees were paid by the Defendant. Neither side contended that the award of attorney’s fees and the satisfaction thereof were material in reaching a decision on the subject motion.
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ORDER GRANTING DEFENDANT’S AMENDEDMOTION FOR SUMMARY JUDGMENT AS TOCOUNT I OF PLAINTIFF’S SECOND AMENDEDCOMPLAINT(WINDSTORM DAMAGE)
THIS CAUSE came on to be heard on January 25, 2002, on Defendant, WESTFIELD INSURANCE COMPANY’s, Amended Motion for Summary Judgment. After hearing argument of counsel, having reviewed the record, and being otherwise fully advised in the premises, the Court hereby finds as follows:
A. On June 11, 1997, Plaintiff filed a civil remedy notice of insurer violation against Defendant, alleging:
“Morris wrote Westfield on 9/19/95 advising that Westfield’s adjuster’s estimate had not been received (as promised by the adjuster). Morris submitted a Proof of Loss based on actual replacement costs of a dissimilar roof which may have cost more or less. Westfield responded with accusations and has failed to provide its adjuster’s estimate to date despite repeated requests on 3/31/97.”
B. On June 27, 1997, Defendant filed a federal declaratory judgment action alleging that the Plaintiff had fraudulently sought damages under his insurance policy with Defendant for certain windstorm damage.
C. On July 18, 1997, Plaintiff filed a civil remedy notice of insurer violation against Defendant, alleging:
“Westfield has established a general business practice of response to claim amount disagreements by filing groundless lawsuits against its own insured, (U.S. District Court Case No. 96-839-CIV-ORL-19 and 97-802-CIV-ORL-19) and failing to provide requested information necessary for the insured to determine the correct amount of loss (estimate).”
D. The federal action was dismissed by the federal court on August 22, 1997. No further litigation occurred between the parties regarding the windstorm damage claim. In paragraph 4 of the second amended complaint, Plaintiff alleges that he “has fully resolved his underlying contract dispute with (Defendant) in a manner favorable to (Plaintiff).”
E. Plaintiff has now filed the instant bad faith action against Defendant alleging that instead of attempting further negotiations, or any of the non-suit related acceptable avenues of resolving Plaintiff’s windstorm claim, Defendant filed a federal lawsuit accusing Plaintiff of fraud or misrepresentation. (Paragraph 14 of Plaintiff’s Second Amended Complaint).
F. A first party bad faith action did not exist in common law, but rather was legislatively created. Section 624.155, Fla.Stat. (1995) provides that a person may bring a civil action against that person’s insurer for certain alleged wrongful acts. However, the statute also provides:
“2(a). As a condition precedent, to bringing an action under this section, the department and the insurer must have been given 60 days’ written notice of the violation.”
G. The statutorily-required written notice is to be on a form provided by the Department of Insurance. Among other things, the notice is required to state with specificity “the facts and circumstances giving rise to the violation.” Section 624.155(2)(b), emphasis added.
H. Section 624.155(2)(d) further provides that “no action shall lie if, within 60 days after filing notice, the damages are paid or the circumstances giving rise to the violation are corrected.”
I. In Talat Enterprises, Inc. v. Aetna Casualty and Surety Co., 753 So. 2d 1278 (Fla. 2000), the Florida Supreme Court held that by providing this sixty-day window, the legislature was giving insurers a last opportunity to comply with their claim-handling obligations. No first party bad faith action would lie until and unless the alleged wrongful act had not been cured within the sixty day period.
L. In Talat Enterprises, Inc. v. Aetna Casualty and Surety Co., 753 So.2d 1278 (Fla. 2000), the Florida Supreme Court held that by providing this sixty-day window, the legislature was giving insurers a last opportunity to comply with their claim-handling obligations. No first party bad faith action would lie until and unless the alleged wrongful act had not been cured within the sixty day period.
M. Plaintiff’s July 16, 1997 civil remedy notice alleges that Defendant committed the wrongful act of filing groundless lawsuits against its insured. It is undisputed that the only lawsuit filed by Defendant, which related to Plaintiff’s lightning damage claim, was the federal declaratory judgment action referenced above. Assuming arguendo, such complaint was groundless and filed in bad faith, such wrongful act was “cured” within the aforesaid 60-day window when Defendant chose not to appeal the adverse judgment on its complaint against Plaintiff. If Defendant had chosen to appeal the jury’s verdict, then no “cure” would have occurred within the 60-day window. By not filing an appeal, the alleged wrongful act of “filing groundless lawsuits” was cured by late August, 1997.
N. During the arguments on Defendant’s Amended Motion for Summary Judgment, Plaintiff acknowledged that if the $11,706.00 judgment entered on his counterclaim had been paid by Defendant within 60 days of the civil remedy notice, summary judgment would admittedly have been appropriate. The Defendant contends that Plaintiff’s failure to satisfy the judgment within 60 days requires a different result. The Court rejects this argument. First, the civil notice remedy alleges that Defendant’s wrongful act was the filing of groundless lawsuits, not defending against a claim brought by Plaintiff. The alleged groundless claim (Defendant’s declaratory judgment complaint) was terminated when the federal court entered the final judgment and Defendant did not appeal same. The $11,706.00 award was entered on Plaintiff’s counterclaim. The civil remedy notice does not allege that it was wrongful for Defendant to defend against Plaintiff’s federal counterclaim. Indeed, Plaintiff sued for in excess of $107,000.00 and was awarded only $11,746.00 by the jury. Thus, it can hardly be argued that defense of the federal counterclaim was “groundless.” But, most importantly, the civil remedy notice did not allege Defendant engaged in wrongful conduct in defending the counterclaim. Therefore, there was no alleged wrongful act committed by the Defendant relating to the federal counterclaim which could be cured or remedied. Second, the civil remedy notice did not allege that Defendant had wrongfully failed to pay a claim or had wrongfully failed to pay on a judgment. The civil remedy notice only alleged that the Defendant wrongfully filed a groundless lawsuit against its insured. Section 624.155(2)(d) requires that the civil remedy notice state with specificity the facts and circumstances giving rise to the violation. The allegation that Defendant has “filed groundless litigation” cannot be fairly construed to also mean that Defendant failed to timely pay a judgment or that Defendant raised groundless defenses to the claim brought by Plaintiff.
O. The undisputed facts establish, as a matter of law, that the conditions precedent to Plaintiff’s maintaining of this first party bath faith action against Defendant were not met.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
Defendant’s Amended Motion for Summary Judgment is hereby granted as to Plaintiff’s Amended Complaint (Lightning Damage).
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