Colonial Penn Ins. Co. v. Mayor

• Decision Date: 07 February 1989
• Docket Number: No. 88-2731,88-2731
• Citation: 538 So.2d 100,14 Fla. L. Weekly 411
• Parties: 14 Fla. L. Weekly 411 COLONIAL PENN INSURANCE COMPANY, Petitioner, v. Roslyn MAYOR, Respondent.
• Court: Florida District Court of Appeals

Page 100

538 So.2d 100

14 Fla. L. Weekly 411

COLONIAL PENN INSURANCE COMPANY, Petitioner, v. Roslyn MAYOR, Respondent.

No. 88-2731.

District Court of Appeal of Florida Third District.

Feb. 7, 1989.

Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane and John C. Hamilton, Cooper, Wolfe & Bolotin and Marc Cooper, Miami, for petitioner.

Ress, Gomez, Rosenberg, Howland and Mintz and Keith A. Truppman, North Miami, for respondent.

Before SCHWARTZ, C.J., BARKDULL and COPE, JJ.

SCHWARTZ, Chief Judge.

The respondent Mayor, who was injured in an automobile accident allegedly caused by a phantom vehicle, brought an action against her carrier, the petitioner Colonial Penn, which, as required by Schimmel v. Aetna Casualty & Surety Co., 506 So.2d 1162 (Fla. 3d DCA 1987), joined both a count for UM benefits ¹ under the policy and one for the "bad faith" settlement and defense of that claim under section 624.155, Florida Statutes (1987). In this proceeding, Colonial Penn seeks certiorari review of an order which denied its motion to abate the "bad faith" count until the determination of the still pending UM claim and which ordered the immediate production of its claim file and the deposition of its counsel. We grant the petition.

It is apparent, almost as a matter of pure logic, that the right to proceed in a so-called "bad faith" settlement claim against an insurer cannot mature until the primary action--which it is accused of improperly defending--is terminated favorably to the insured. Fortson v. St. Paul Fire & Marine Ins. Co., 751 F.2d 1157 (11th Cir.1985). It therefore follows, as we recently and squarely held in Allstate Insurance Co. v. Lovell, 530 So.2d 1106 (Fla. 3d DCA 1988), that the "bad faith" case itself, together with the concomitant rights to discovery as to the manner in which the initial action was defended, must be postponed ² pending the completion of that action. Wrenching the word from its context, the respondent points to the statement in Lovell that the "bad faith" case must be abated and discovery postponed while an issue of "coverage" of the initial claim is pending; she then correctly states that the involvement of a phantom vehicle in a UM case is not one of "coverage." E.g., Florida Ins. Guar. Ass'n, Inc. v. Eberhart, 354 So.2d 1265 (Fla. 3d DCA 1978). But Lovell clearly does not confine or limit the issues which precede determination of the initial claim to those of insurance coverage (which was the question actually involved in that case). Instead, the very basis of the Lovell decision refers to the broader concept of an unresolved claim "for uninsured motorist benefits." Lovell, 530 So.2d at 1106. Put another way, the "true rule," which reflects the self-evident proposition that the basic insurance claim must itself be first resolved as a condition of the bad faith case, is succinctly stated in Allstate Insurance Co. v. Shupack, 335 So.2d 620, 621 (Fla. 3d DCA 1976) to the effect that:

until the merits of respondent's claim to benefits have been determined, it is a departure from the essential requirements of law to require petitioner to produce its entire file and all correspondence with its attorneys relative to the claim. ³ [e.s.]

Accord Fidelity & Casualty Ins. Co. v. Taylor, 525 So.2d 908, 910 n. 6 (Fla. 3d DCA 1987), citing Shupack and Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455 (Tex.1982).

This conclusion is in entire accord also with the very foundation of the insured's "right" to the claim file and the other discovery she seeks in the first place--our decision in Fidelity Casualty v. Taylor, 525 So.2d at 908. ⁴ It would be baseless and impermissible to require the production of material which concededly involves the work product and the attorney-client privileges while the initial claim--as to which the privilege remains inviolate--still exists and before the reason for the dissipation of the privileges, that is, some showing...