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April 01, 2016 | Blog Post| Southern District Applies Fridman v. Safeco to Preclude Bifurcation

Following issuance of the Supreme Court’s decision in Fridman v. Safeco, the Southern District of Florida had occasion to consider a unique set of circumstances in a bad faith case.  In Levesque v. GEICO, the Southern District denied GEICO’s motion to bifurcate the issue of extra-contractual liability from the determination of the insured’s actual damages.

In the prior uninsured motorist (“UIM”) case, GEICO confessed judgment in the amount of the policy limits prior to trial.  GEICO then moved to dismiss the case since the court could not grant any further relief than what GEICO had already confessed.  That precise procedure was the subject of the Supreme Court’s decision in Fridman, a procedure which the Court condemned.  Fridman held that the insured is still entitled to have the jury determine the full amount of its damages, notwithstanding the fact that the insurer has confessed judgment in the amount of the policy limits.  Therefore, the unique posture in which GEICO found itself in Levesque will not recur.

However, the Levesque case points out the down-side of GEICO’s strategy to preclude the jury in the UIM case from determining the insured’s full damages.  If the insured is precluded from proving its damages in the UIM case, it must necessarily be entitled to prove them in the subsequent bad faith case.  GEICO argued that allowing the jury to consider evidence of bad faith, as well as the insured’s full damages, was likely to prejudice the jury and cause it to award higher damages than it otherwise would have.  The Southern District (correctly, in my opinion) refused to bifurcate, holding, “If evidence of the insured's damages, including those in excess of the policy limits, is not unduly prejudicial in a case where liability for causing the car accident is simultaneously determined, it is difficult to see how it would be unduly prejudicial in this case, where the potential liability is for mishandling an insurance claim rather than for causing the car accident.”  That logic is unassailable.

We will continue to keep you informed of the ever-changing legal landscape in Florida.

Julius "Rick" Parker, III

Julius F. “Rick” Parker, III is a Partner at Butler who joined the firm in 2004. Rick’s practice areas include appeals, casualty defense litigation, Chinese drywall, premises liability defense, construction, coverage defense, and extra-contractual matters. He has significant appellate and trial experience in both state and federal courts.

February 26, 2019 Blog PostTHE MARKOVITS DECISION: CONSIDERATIONS AND IMPLICATIONS

Recently, Florida’s First District Court of Appeal held that for purposes of determining the timeliness of a proposal for settlement, the complaint is considered served on the insurer when process is served upon the statutory agent, Florida’s Chief Financial Officer, and not when process is forwarded by the Chief Financial Officer to the insurer.  Markovits v. State Farm Mutual Automobile Ins. Co., 235 So. 3d 1018 (Fla. 1st DCA 2018) rehr’g denied (Feb. 5, 2018).

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February 21, 2019 Blog PostNot Off the Hook...Trouble in Paradise for Puerto Rico Insurers

Recent legislative and judicial developments in Puerto Rico may very well have revived thousands of claims that insurers believed to be time-barred, per the terms of the Suit Against Us provisions of their Policies. Until the February 14, 2019, ruling issued by a San Juan court, residential property damage claims that had not escalated to suit within a year of the date of loss, had been considered time-barred. It would seem that it may not be the case anymore, and insurers should be prepared for a potential flurry of new litigation, even involving prior Hurricane Irma and Maria claims.

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January 14, 2019 Blog PostChecking the Vitals of Hospital Liens

Claims adjusters, plaintiffs’ attorneys and defense attorneys all deal with the headaches of hospital liens.  And recent case law and inconsistent recording of liens by clerks in different counties makes matters worse.

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August 16, 2018 Blog PostNot so Fast! The Confession of Judgment Doctrine in Dispute-Over-Amount Cases

Florida law allows an insured to recover attorney’s fees if the insured prevails in a lawsuit against the insurer for insurance benefits.  See § 627.428, Florida Statutes.  The plain text of the statute requires a “judgment” against the insurer.  In Wollard v. Lloyd's & Companies of Lloyd's, 439 So. 2d 217 (Fla. 1983), however, the Florida Supreme Court held that an insurer’s post-suit payment of a claim may be the “functional equivalent of a confession of judgment or a verdict in favor of the insured”, thus, triggering the fee-shifting statute.

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January 22, 2018 Blog PostButler Wins Dismissal of a First-Party Bad Faith Claim Involving a Civil Remedy Notice That Listed a Different Household Policy

In Florida, an insured cannot bring a first-party bad faith claim based on a claim for UM coverage unless the insured first files a Civil Remedy Notice (CRN) with the Florida Department of Financial Services. In Mathurin v. State Farm, Butler recently vindicated the importance of this step by winning a dismissal of a first-party bad faith action where the CRN did not match up with the Complaint.  

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March 07, 2017 Blog PostFederal Diversity Jurisdiction: Proving Citizenship of Limited Liability Companies

Jurisdiction gives a federal court the power to hear a case. Jurisdiction matters at the outset of a lawsuit. It matters during discovery. It even matters after summary judgment. Jurisdiction matters because federal courts are courts of limited jurisdiction.

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March 31, 2016 Blog PostInsured is Entitled to a Determination of Liability and Damages in a UIM Case Despite the Insurer's Confession of Judgment

Ultimately, the Supreme Court held that the trial court was correct (disagreeing with the intermediate court’s decision to the contrary).

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June 02, 2015 Blog PostThe Florida Supreme Court Endorses Citizens' Immunity

The high court declared that Citizens is shielded from statutory bad-faith suits, and that bad faith is not a “willful tort,” which is a statutory exception to the immunity granted by the Florida Legislature.  The vindication was a long time coming for Citizens.  The Legislature created Citizens with a broad immunity that seemed clearly intended to shield it from bad-faith actions...

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February 10, 2015 Blog PostDoes Florida's statutory duty to disclose insurance information apply to claims arising under out-of-state policies?

One of the most common questions I get from out-of-state insurers is whether they are required to honor a claimant’s request for disclosure of insurance information under Florida Statute 627.4137. If the applicable policy was not delivered in Florida or issued for delivery in Florida, the short answer is “No.” Nonetheless, sometimes an insurer can best protect both its insured and itself by voluntarily providing at least some of the information outlined in the statute.

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January 20, 2015 Blog PostThe Season of Giving: Pennsylvania Supreme Court Finds Bad Faith Claims to be Assignable

Rejecting the holdings of two recent decisions by the Eastern District of Pennsylvania, the Supreme Court of Pennsylvania held in a 5-to-1 ruling that claims under Pennsylvania’s Bad Faith Statute (42 Pa.C.S. § 8371) are assignable to injured third parties. The decision, Allstate Prop. & Cas. Ins. Co. v. Wolfe, 2014 Pa. LEXIS 3309 (Pa. Dec. 15, 2014), considered the case of Jared Wolfe, who was injured in a car accident after being struck by Karl Zierle’s vehicle. 

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August 26, 2014 Blog PostBad Faith: Turns Out, Abnormal in Alabama Really Is Normal

A few years ago, I published an article that questioned whether Alabama’s tort of bad faith was becoming more prevalent on a theory referred to by Alabama courts as an “abnormal bad faith” action. See, “Is Abnormal Becoming the New Normal in Alabama?” Mealey’s Litigation Report: Insurance Bad Faith, Vol. 22, #20 (February 26, 2009).

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Key Points
Author Practice Area CASE TYPE
  • Extracontractual Claims