Dodge’n Expert Bias Discovery Issues Raised in Worley
October 22, 2021
The Florida Supreme Court ended 2020 with a bang! The Supreme Court amended Florida Rule of Civil Procedure 1.510 to adopt the federal summary judgment standard. This change will affect different types of civil litigation in varying ways. Here, we discuss how the change will affect bad faith litigation.
Background of the amendment
In 2019, Florida’s Fifth District Court of Appeal decided Lopez v. Wilsonart, LLC.1 In that case, the Estate of Jon Lopez appealed a summary judgment in favor of the defendants in a motor vehicle accident case. The trial court granted summary judgment on the strength of a dash cam video. The trial court concluded that the video evidence “blatantly contradicts the eye witness testimony and the opinion of plaintiff’s expert.” The trial court relied, in part, on the United States Supreme Court’s opinion in Scott v. Harris,2 which applied the federal summary judgment standard.
The Fifth District Court of Appeal reversed. It agreed that the video evidence was “both compelling that Appellees were not negligent and directly contradictory to the Estate’s evidence in opposition to the summary judgment motion.” However, under the Fifth District’s interpretation of Florida’s summary judgment standard, it felt compelled to reverse. The Fifth District certified the following question to the Florida Supreme Court as one of great public importance:
Should there be an exception to the present summary judgment standards that are applied by state courts in Florida that would allow for the entry of final summary judgment in favor of the moving party when the movant’s video evidence completely negates or refutes any conflicting evidence presented by the non-moving party in opposition to the summary judgment motion and there is no evidence or suggestion that the videotape evidence has been altered or doctored?
The Florida Supreme Court accepted jurisdiction. It ordered the parties to address the following question in their briefs.
Should Florida adopt the summary judgment standard articulated by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)? If so, must Florida Rule of Civil Procedure 1.510 be amended to reflect any change in the summary judgment standard?
On December 31, 2020, the Florida Supreme Court answered the question certified by the Fifth District in the negative. Rather than engraft a special interpretive rule for cases involving video evidence, the Supreme Court was persuaded that Florida should adopt the federal summary judgment standard.3 Separately, the Supreme Court amended Rule 1.510.4 The Supreme Court concluded that the federal summary judgment standard “is more rational, more fair, and more consistent with the structure and purpose of our rules of civil procedure.” The amendment added the following language to the existing rule:
The summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard articulated in Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
The amendment is effective May 1, 2021 to allow the opportunity for public comment on the amendment.
The effect of the amendment on bad faith lawsuits
Much has been written about “bad faith set-ups” in Florida.5 Suffice it to say, bad faith lawsuits in Florida often are not about actual wrongdoing by an insurer. Instead, bad faith has become a game of tricks and traps to create a pretext for the plaintiff attorney’s eventual refusal to settle for the policy limits.
Federal courts often see through this cynical exploitation of Florida bad faith law. Federal courts grant summary judgment where no reasonable jury could conclude the insurer acted in bad faith.6
In GEICO Gen. Ins. Co. v. Harvey,7 Florida’s Fourth District Court of Appeal reversed the denial of Geico’s motion for directed verdict. The Fourth District concluded that Geico had not acted in bad faith, as a matter of law. The Fourth District cited some federal cases in support.
The Florida Supreme Court took jurisdiction over the case and quashed the Fourth District’s opinion. The Supreme Court noted:
Regarding the Fourth District’s reliance on federal case law, it has been observed that “[t]o the extent that the federal cases permit summary judgment based on Federal Rule of Civil Procedure 56 … they are of limited precedential value in Florida summary judgment cases” because Florida places a higher burden on a party moving for summary judgment in state court.8
Federal courts have likewise emphasized the distinction between the federal and state summary judgment standards. For instance, in Martin v. Allstate Prop. & Cas. Ins. Co.,9 the court quoted the language from Harvey set out above, and noted “to the extent Plaintiff relies on state court cases denying summary judgment, those cases are not necessarily on point.”
To be clear, state courts can and do grant summary judgment in bad faith cases, but not as frequently as they should, at least in my view. The arguments against summary judgment in state court are predictable: bad faith is based on the totality of the circumstances; a jury should decide that issue; federal cases are not applicable because of the differences in the applicable summary judgment standards.
Effective May 1, 2021, Florida will apply the federal summary judgment standard. Under the federal standard, the “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’”10 Under the federal standard, summary judgment is appropriate unless there is a dispute about a material fact that is genuine, “that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”11 “If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted.”12 “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”13
Under this standard, state courts should grant summary judgment in bad faith cases where no reasonable jury could find that the insurer acted in bad faith. This is the standard applied by federal courts. This should help dispose of some non-meritorious bad faith lawsuits in state court.
The Florida Defense Lawyers Association (“FLDA”) made this point in its Amicus Brief in Wilsonart.14 FDLA noted in its brief the criticism of federal court opinions by the Florida Supreme Court in the Harvey decision. FDLA wrote:
Adopting the Celotex Trilogy will help bring Florida and federal cases in conformity with one another in bad faith jurisprudence. Insurance companies will not be left guessing applicable case law and precedent. Insurance companies which cannot remove to federal court will not be subject to different standards and precedent.
Adoption of the Celotex Trilogy will assist insurance companies to fulfill their good faith claims handling obligations and training its employees. It will further help to maintain a competitive and stable insurance industry in Florida, prevent lengthy litigation of meritless lawsuits and fraud, and reduce lawyer-driven bad faith setups to increase the value of claims and create limitless insurance policies—all of which will reduce insurance rates for Floridians and permit litigants to proceed with confidence in the judicial system in bad faith cases, no matter whether the case is filed in state or federal court.
The amendment to Rule 1.510 is not a panacea for the problems with Florida’s bad faith jurisprudence. That said, it is a welcome development. Time will tell how Florida state courts apply the new standard, but the amendment should allow insurers to more frequently obtain summary judgment in bad faith lawsuits where no reasonable jury could find that the insurer acted in bad faith.
1 275 So. 3d 831 (Fla. 5th DCA 2019).
2 550 U.S. 372 (2007).
3 Wilsonart, LLC v. Lopez, SC19-1336, 2020 WL 7778226 (Fla. Dec. 31, 2020).
4 In re: Amendments To Florida Rule of Civil Procedure 1.510, SC20-1490, 2020 WL 7778179 (Fla. Dec. 31, 2020).
5 Gwynne A. Young, Johanna W. Clark, The Good Faith, Bad Faith, and Ugly Set-Up of Insurance Claims Settlement, Fla. B.J., February 2011, at 9.
6 Montanez v. Liberty Mut. Fire Ins. Co., 824 Fed. Appx. 905, 910 (11th Cir. 2020); Daniels v. GEICO Gen. Ins. Co., 740 Fed. Appx. 665, 670 (11th Cir. 2018); Kincaid v. Allstate Ins. Co., 573 Fed. Appx. 858, 863 (11th Cir. 2014).
7 208 So. 3d 810 (Fla. 4th DCA 2017).
8 Harvey v. GEICO Gen. Ins. Co., 259 So. 3d 1, 10 n.2 (Fla. 2018).
9 8:17-CV-3056-02CPT, 2019 WL 1003166, at *7 n.4 (M.D. Fla. Mar. 1, 2019).
10 Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
11 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
12 Id. at 249-50.