Fridman v. Safeco Ins. Co. of Ill.

• Decision Date: 25 February 2016
• Docket Number: No. SC13–1607.,SC13–1607.
• Citation: 185 So.3d 1214
• Parties: Adrian FRIDMAN, Petitioner, v. SAFECO INSURANCE COMPANY OF ILLINOIS, Respondent.
• Court: Florida Supreme Court

185 So.3d 1214

Adrian FRIDMAN, Petitioner,
v.
SAFECO INSURANCE COMPANY OF ILLINOIS, Respondent.

No. SC13–1607.

Supreme Court of Florida.

Feb. 25, 2016.

185 So.3d 1215

Michael Stanley Rywant, Andrew Frank Russo, Kerry Chadwick McGuinn, Jr., and Carla Maria Sabbagh of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, FL, for Petitioner.

Robert E. Vaughn, Jr. of the Law Office of Glenn G. Gomer, Tampa, FL; Anthony John Russo of Butler Weihmuller Katz Craig, LLP, Tampa, FL; and Mark Steven Shapiro of Akerman LLP, Miami, FL, for Respondent.

Jack Roy Reiter of Gray Robinson, P.A., Miami, FL, for Amici Curiae The American Insurance Association, The Property Casualty Insurers Association of America, The National Association of Mutual Insurance Companies, and The Florida Insurance Council.

PARIENTE, J.

The conflict issue in this case is whether an insured is entitled to a determination of liability and the full extent of his or her damages by first bringing an uninsured/underinsured motorist (UM) action before litigating a first-party bad faith cause of action under section 624.155, Florida Statutes (2007). The related issues we address are whether that determination of damages is then binding, as an element of damages, in a subsequent first-party bad faith cause of action against the same insurer, and whether the trial court in this case erred in retaining jurisdiction to allow the insured to file a bad faith cause of action.

In Safeco Insurance Co. of Illinois v. Fridman, 117 So.3d 16, 19–20 (Fla. 5th DCA 2013), the Fifth District Court of Appeal held that after the insurer tendered the UM policy limits of $50,000 and "confessed judgment" in that amount, the insured's UM action became moot. The Fifth District accordingly vacated the jury verdict that had been reached at the conclusion of the UM trial, setting the insured's damages at $1,000,000.

185 So.3d 1216

The Fifth District's decision conflicts with a long line of cases from this Court that hold that a determination of liability and the full extent of damages is a prerequisite to a bad faith cause of action. See, e.g., Vest v. Travelers Ins. Co., 753 So.2d 1270, 1275 (Fla.2000) ; Imhof v. Nationwide Mut. Ins. Co., 643 So.2d 617, 619 (Fla.1994), receded from on other grounds, State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 63 (Fla.1995) ; Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289, 1291 (Fla.1991). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.¹

For the reasons explained in this opinion, we hold that an insured is entitled to a determination of liability and the full extent of his or her damages in the UM action before filing a first-party bad faith action. That determination of damages is then binding, as an element of damages, in a subsequent first-party bad faith action against the same insurer so long as the parties have the right to appeal any properly preserved errors in the verdict. The history of first-and third-party bad faith actions, this Court's precedent, and the legislative intent to eliminate the distinction between first- and third-party bad faith claims all support our conclusion. We also conclude that the trial court in this case did not err in retaining jurisdiction to allow the filing of a bad faith cause of action. Accordingly, we quash the Fifth District's decision and remand for further proceedings consistent with this opinion.

FACTS AND BACKGROUND

In January 2007, Petitioner Adrian Fridman suffered injuries as a result of an automobile accident with an underinsured motorist. After the accident, Fridman filed a claim with Safeco Insurance Company of Illinois, his insurer, for the $50,000 limits of his UM policy. By October 2008, after Safeco refused to pay, Fridman filed a Civil Remedy Notice, as required by section 624.155(3)(a), Florida Statutes (2007). The notice, in which he alleged that Safeco failed to attempt in good faith to settle his UM claim in violation of section 624.155(1)(b) 1, set forth the following facts and circumstances:

Failure to pay UM policy limits of $50,000 in a clear liability crash with over $12,000.00 of property damage to insured's vehicle. Insured has sustained medical bills in excess of $16,800.00 [and] out of pocket medical expenses in excess of $8,000.00. Insured has sustained C3/4 and C5/6 disc herniations, as well as L5S1 disc herniation which displaces the S1 nerve root. NCV/EMG testing revealed C6/7 radiculopathy and right carpal tunnel syndrome. Insured is without any health insurance to cover future medical treatment which insured will require. Insurer has failed to offer the $50,000.00 uninsured motorist coverage policy limits in spite of the demand to do so, and has instead made a wholly inadequate offer of $5,000.00

In April 2009, after having received no response from Safeco within the statutory sixty-day civil remedy notice period or any time thereafter, Fridman filed a complaint against Safeco to determine liability under the UM policy and the full extent of the damages he suffered in the accident with the underinsured driver. In the complaint, he stated that he was "entitled to recover damages from the Defendant, Safeco Insurance Company of Illinois, in accordance with the provisions of § 627.727." That section provides that the

185 So.3d 1217

damages an insured can recover in a bad faith action "shall include the total amount of the claimant's damages, including the amount in excess of the policy limits, any interest on unpaid benefits, reasonable attorney's fees and costs, and any damages caused by a violation of a law of this state." § 627.727(10), Fla. Stat. (2007) (emphasis added).

In February 2010, Fridman filed a notice of a settlement proposal pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (2010), in the amount of $50,000. Safeco did not respond and, thus, the unanswered proposal for settlement was deemed rejected after thirty days. See § 768.79, Fla. Stat.; Fla. R. Civ. P. 1.442(f).

The month before the case was originally set for trial in March 2011—over four years after the automobile accident—Safeco tendered a check to Fridman for the $50,000 policy limits, stating on the check that it was the full and final settlement of any and all claims. Fridman rejected the check containing this language. Safeco moved for a continuance, which the trial court granted.

About six months later, prior to the rescheduled trial, Safeco tendered a new check for $50,000—not containing the settlement language—and filed both a "confession of judgment" and a separate motion for entry of confession of judgment. Fridman opposed the entry of a confessed judgment, arguing, among other things, that a jury verdict would determine the upper limits of Safeco's potential liability under a future bad faith claim.

At the hearing on the motion to confess judgment, Fridman's counsel indicated Fridman's intention to later file a bad faith action, which he explained he had not already filed because he was under the impression that precedent precluded an insured from bringing a bad faith action in the same complaint as the UM action. Fridman's counsel stated that "some lawyers used to file their UM and bad faith case concurrently, and then some case law has come out that says you're not allowed to do that because until you have some judgment in excess of the policy limits, it's premature and inappropriate to litigate a bad faith case concurrent with a UM case." The trial court ultimately denied Safeco's motion to "confess judgment," finding that to do otherwise "would ignore the plain legislative intent of section 627.727(10)," governing the damages recoverable in bad faith actions.

The case proceeded to trial, and the jury found that the underinsured driver involved in the accident was negligent and one hundred percent responsible for Fridman's damages, which the jury determined to be $1,000,000. During the course of the trial, Safeco moved for a mistrial, alleging that Fridman's counsel made improper comments. The trial court denied that motion.

After the trial, Safeco filed a motion for a new trial, alleging that the trial court committed several errors, including allowing Fridman's counsel to make "impermissible, irrelevant, misleading, and inflammatory arguments" and permitting an excessive verdict that was not supported by the evidence. Safeco also timely filed a motion for remittitur of the jury's award.

The trial court denied the post-trial motions and entered a final judgment, which included the following language:

1. That the Plaintiff, ADRIAN FRIDMAN, recovers from Defendant, SAFECO INSURANCE COMPANY OF ILLINOIS, the sum of $50,000.00, that shall bear interest, pursuant to Florida Statute § 55.03 for which let execution issue, notwithstanding the excess jury verdict rendered in this matter.

185 So.3d 1218

2. The Court reserves jurisdiction to determine the Plaintiff's right to Amend his Complaint to seek and litigate bad faith damages from the Defendant as a result of such jury verdict in excess of policy limits. If the Plaintiff should ultimately prevail in his action for bad faith damages against Defendant, then the Plaintiff will

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