Fourth District Court of Appeal Holds UM Verdict Establishes Amount of Damages in First Party Bad Faith Action
In Geico Gen. Ins. Co. v. Paton, No. 4D12-4606 (Fla. 4th DCA Sept. 17, 2014), the Fourth District Court of Appeal considered whether a UM plaintiff is required to prove damages in a first party bad faith trial, rather than being permitted to rely on the jury’s damage determination in the first trial.
In the underlying UM action, the jury awarded $369,247 in excess of the policy limits. After judgment was entered in the amount of the policy limit, Plaintiff amended her complaint to add a claim for bad faith. She then moved in limine to exclude all evidence of damages, arguing that the excess verdict returned in the UM trial established the damages she could recover in her bad faith claim. The trial court agreed with Plaintiff.
On appeal, the insurance carrier argued the trial court denied it due process by treating the excess verdict as conclusive evidence of Plaintiff’s damages. The carrier wanted to retry to the damages portion of the case relying on GEICO Gen. Inc. Co. v. Bottini, 93 So. 3d 476 (Fla. 2d DCA 2012).
The Court rejected the carrier’s argument and explained that the UM statute clearly provides that the damages in a first-party bad faith case include the total amount awarded in excess of the policy limits. The UM trial fixes the amount of damages in a first-party bad faith action.
Finally, the Court explained that if the insurance carrier wanted to object to the amount of the verdict it should have moved for a new trial in the UM action. The Florida Constitution’s requirement that an appeal be from a final judgment or order should be read expansively to include an appeal from an order denying a new trial in a first party suit for uninsured motorist benefits. As a result, the insurance carrier cannot belatedly object to the amount awarded and retry those damages in the later bad faith case.
Therefore, it is extremely important for an insurance carrier to file a motion for new trial in the UM action in order to challenge the amount of excess verdict.
Fourth District Court of Appeal Holds Abatement of Bad Faith Claim Did not Warrant Certiorari Relief
In Safeco Ins. Co. of Ill. v. Beare, No. 4D13-3104 (Fla. 4th DCA Sept. 17, 2014), the Plaintiff filed a complaint alleging both a claim for uninsured motorist benefits and first-party bad faith. The insurance carrier moved to dismiss the bad faith claim as premature. The trial court denied the carrier’s motion and abated the bad faith count.
The insurance carrier petitioned the Court for a writ of certiorari. It argued that it was irreparably harmed because the inclusion of the bad faith claim in the initial suit precludes it from later removing the case to federal court. It then argued that the trial court departed from the essential requirements of the law by not dismissing the claim for bad faith since it had not accrued and was wholly premature.
The Fourth District explained that the insurance carrier was indeed irreparably harmed because it could not later remove the bad faith case to federal court once it accrues. However, the Court held that the insurance carrier failed to establish the second prong for certiorari relief and the trial court did not depart from the essential requirements of the law by abating the claim. The trial court had the option of either abating or dismissing the bad faith claim.
Boyd & Jenerette Shareholder, Glen A. McClary has been invited by the Dean of the Law School to speak on September 08, 2014 to the current students about life after law school and what to expect in today’s legal markets. This is the second time Mr. McClary has been honored with an invitation to the College of Law to speak with students as part of the College’s programs to connect students with leaders in Florida’s legal field.
Boyd & Jenerette is committed to the development of future lawyers and the profession as a whole and supports programs that provide future lawyers with the skills necessary to succeed in the competitive legal markets of the day.
BOYD & JENERETTE congratulates 2 of its partners for being listed in The Best Lawyers in America© 2015
Congratulations to our Appellate and Worker’s Compensation groups on your latest win!
In Tetterton v. Co-Op Oil Co., Inc./Retail First Insurance Company, Case No. 1D14-0060, the First District Court of Appeal considered whether the Employer/Carrier was entitled to move the Claimant from an independent living facility to an assisted living facility over Claimant’s objection. The Employer/Carrier sought to move the Claimant because the new facility provided a more medically safe environment and would save the carrier over $70,000 a year. The JCC found that the Employer/Carrier was entitled to move the Claimant and that it was in the best interest of the Claimant.
After hearing oral argument, the First District Court of Appeal per curiam affirmed the JCC’s decision to allow the Employer/Carrier to move Claimant to an assisted living facility. The Court also denied the Claimant’s request for attorney’s fees.
Mark Eckels served as a panelist for the 69th Annual Workers' Compensation Educational Conference and 26th Annual Safety & Health Conference’s “Longshore and Harbor Workers Act, Jones Act, and Defense Base Act” breakout session presented to adjusters, employers and attorneys on Occupational Exposure Injuries and Asbestosis Claims, a Legal and Toxicological Perspective.
The panel discussed the legal standards and challenges of filing and defending claims arising from various industrial exposures such as asbestos, noxious vapors and other toxins.
Congratulations to Heather Byrer Carbone for becoming a BOARD CERTIFIED WORKERS’ COMPENSATION LAWYER!
Congratulations to Michael J. Childers for becoming a BOARD CERTIFIED CONSTRUCTION LAWYER!
The firm is very proud of the extra effort and hard work put into their certification!
The Super Lawyers list recognizes no more than 5% of attorneys and The Rising Stars list recognizes no more than 2.5% of attorneys in the State of Florida.
Our firm is honored to have two (2) of our attorneys included in this year’s Florida Super Lawyers and six (6) attorneys included in this year’s Florida Rising Stars.
|Kristen M. Van der Linde||Personal Injury Defense: General||2010-2014|
|Mark K. Eckels||Transportation/Maritime||
|Andrew Abramovich||Insurance Coverage||2013-2014|
|Heather M. Byrer Carbone||Workers' Comp||2010, 2013 & 2014|
|Linda W. Farrell||Workers' Comp||2010, 2013 & 2014|
|Kansas R. Gooden||Appellate||2011-2014|
|Elizabeth B. Howard||Construction Litigation||2009-2014|
|Billie Jo Taylor||Personal Injury Defense: General||2013-2014|
Boyd & Jenerette is pleased to welcome Attorney, Patrick D Hinchey, to the Construction Department. Patrick is licensed to practice in both the State of Georgia and Florida and therefore we are now expanding our Construction Law Services to Georgia.
Boyd & Jenerette provides Construction Law Services for all aspects of your Project, including Contract Drafting/Review, Bid Protests, Liens/Bonds, Breach of Contract, Construction Defect, Insurance Coverage, Licensure Issues, and Delay.
We are honored to work with clients from various backgrounds, including Architects/Engineers, Associations, General Contractors, Developers, Subcontractors, Material Suppliers, and Owners.
Limitations of the “Beneficial Ownership” Exception
Christensen v. Bowen, 39 Fla. L. Weekly S214 (Fla. Apr. 10, 2014).
The Florida Supreme Court was asked to address the issue of whether a title co-owner may be vicariously liable under the dangerous instrumentality doctrine for the negligent use of a vehicle if he or she never intended to be an owner and had relinquished all access and control of such vehicle to the other co-owner at the time of the accident. In this case, a husband and wife had purchased a vehicle and the title was issued to them jointly as co-owners. The couple then divorced, and the ex-wife began to use the vehicle exclusively... The Florida Supreme Court affirmed, and held that in the absence of evidence showing that a joint titleholder only continued to hold title because of a conditional sales contract or a faulty, incomplete transfer, such titleholder is a true and beneficial owner as a matter of law, and thus remains vicariously liable under the dangerous instrumentality doctrine, regardless of whether he or she had relinquished control of the vehicle to the other titleholder.
Continue reading... Coverage update 5.15.14