GEICO Cas. Co. v. Barber

• Decision Date: 15 August 2014
• Docket Number: No. 5D14–427.,5D14–427.
• Citation: 147 So.3d 109
• Parties: GEICO CASUALTY COMPANY, Petitioner, v. Antonio BARBER, Respondent.
• Court: Florida District Court of Appeals

147 So.3d 109

GEICO CASUALTY COMPANY, Petitioner

v.Antonio BARBER, Respondent.

No. 5D14–427.

District Court of Appeal of Florida, Fifth District.

Aug. 15, 2014.

Rehearing Denied Sept. 19, 2014.

Mitchell N. Silver and Melissa E. Morgan, of The Silver Law Firm, P.A., Longwood, for Petitioner.

Christian A. Lindbaek and Eric S. Gillin, of Gillin Gillin & Lindbaek P.A., Melbourne, for Respondent.

Opinion

PER CURIAM.

GEICO Casualty Company seeks certiorari review of the trial court's “Order on Plaintiff's Motion to Amend Pleadings and Defendant's Motion for Entry of Final Judgment.” We grant the writ and quash the order.

In February 2009, Antonio Barber filed a complaint against GEICO for uninsured/underinsured motorist (“UM”) benefits following an automobile accident. He also filed a Civil Remedy Notice (“CRN”) as authorized by section 624.155, Florida Statutes (2008), alleging that he sustained serious and permanent injuries exceeding his UM policy limits. GEICO answered the complaint and responded to the CRN, stating that based on its investigation, which included a review of Barber's medical records, it would not offer policy limits.

After learning Barber had undergone surgery several years later, GEICO served a policy limits proposal for settlement pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (2008). Barber did not accept the proposal. GEICO then filed a “Notice of Confession of Judgment and Motion for Entry of Confessed Judgment” stating:

Defendant GEICO CASUALTY COMPANY hereby confesses judgment to the Plaintiff for its policy limits of Ten Thousand Dollars ($10,000.00) in lieu of the pending jury trial as all issues as framed by the pleadings are rendered moot. See Safeco Insurance Company of Illinois v. Adrian Fridman , 117 So.3d 16 (Fla. 5th DCA 2013).

Before the trial court ruled on GEICO's motion to enter judgment, Barber filed a motion to amend his complaint to assert separate claims for uninsured motorist benefits, violations of section 624.155, Florida Statutes (2008), and a declaratory judgment to determine liability and the total amount of damages he sustained in the accident. Following several hearings, the trial court entered an order, granting GEICO's motion to enter final judgment on the UM claim based on its confession of judgment. The court also granted Barber's motion to amend pleadings to add a count for declaratory relief, but found Barber's request to add a bad faith claim was not ripe. As a result, Barber filed a second amended complaint, seeking only a declaratory judgment to determine the “apportionment of liability, if any and ... the total amount of damages suffered by [Barber].” The trial court allowed Barber to file his second amended complaint and GEICO now petitions this Court for review.

Relying on this Court's decision in Safeco Insurance Co. v. Fridman, 117 So.3d 16 (Fla. 5th DCA 2013), review granted, No. SC13–1607, 2014 WL 1659750 (Fla. Apr. 14, 2014), GEICO argues that the trial court's order departs from the essential requirements of the law and should be quashed. GEICO contends that after it confessed to judgment, the trial court lacked jurisdiction to take any action other than to enter judgment in the amount of the UM policy limits in favor of Barber. We agree.

As we explained in Fridman,

An action to recover UM benefits is based on a contract but it has its underpinnings in tort liability. Mercury Ins. Co. of Fla. v. Moreta, 957 So.2d 1242, 1251 (Fla. 2d DCA 2007). Where no dispute exists as to the policy limits or available coverage and such limits are made known to the insured, the amount of the judgment against the insurer may not exceed the policy limits. Nationwide Mut. Fire Ins. Co. v. Voigt, 971 So.2d 239, 242 (Fla. 2d DCA 2008).

A first party bad faith action is a separate and distinct cause of action. Allstate Ins. Co. v. Jenkins, 32 So.3d 163, 165 (Fla. 5th DCA 2010). In contrast to a claim for UM benefits, an insured who prevails on a bad faith claim may recover damages in excess of the policy limits.

In the instant case, the only cause of action before the trial court was Fridman's UM claim. Fridman had appropriately not included a bad faith count in his complaint. See Jenkins, 32 So.3d at 165 (“[B]ad faith action is more appropriately brought as a separate cause of action.”); see also Gov't Emps. Ins. Co. v. King, 68 So.3d 267, 270 n. 3 (Fla. 2d DCA 2011) (en banc) (expressly agreeing with Jenkins that bad faith claim should be brought as separate cause of action). Accordingly, when Safeco agreed to the entry of a judgment against it in the amount of the policy limits, the issues between the parties, as framed by the pleadings, became moot because the trial court could not provide any further substantive relief to Fridman. Godwin v. State, 593 So.2d 211, 212 (Fla.1992) (“An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect.”). Safeco was, in fact, agreeing to the precise relief sought by Fridman in his complaint. Thus, it was error for the trial court to require the parties to proceed to trial. See, e.g., Wollard v. Lloyd's & Cos. of Lloyd's, 439 So.2d 217 (Fla.1983) (where statute provided for recovery of attorney's fees upon entry of judgment in favor of insured against insurer, insured was not required to continue litigation where insurer had paid claim; payment of claim was functional equivalent of confession of judgment). Instead, the trial court should have merely entered the confessed judgment in favor of Fridman, reserving jurisdiction to award costs, prejudgment interest, and, if authorized by law, reasonable attorney's fees. See Westgate Miami Beach, LTD. v. Newport Operating Corp., 55 So.3d 567, 575 (Fla.2010).

117 So.3d at 19–20.

Although the court only had jurisdiction to enter the confessed judgment, Barber is not precluded from litigating the damages issue on his bad-faith claim, as the judgment entered in this case based on GEICO's contractual obligations under the policy is separate and distinct from Barber's claim for bad faith. See Harris v. Geico Gen. Ins. Co., 961 F.Supp.2d 1223, 1233 (S.D.Fla.2013) ; see also GEICO Gen. Ins. Co. v. Harvey, 109 So.3d 236, 240 (Fla. 4th DCA 2013) (“The Florida Supreme Court has repeatedly recognized that a claim arising from bad faith is grounded upon the legal duty to act in good faith, and is thus separate and independent of the claim arising from the contractual obligation to perform.” (Citation and internal quotation marks omitted)).

For these reasons, we quash the order on review.

PETITION GRANTED; WRIT ISSUED; ORDER QUASHED.

PALMER and ORFINGER, JJ., concur.

SAWAYA, J., dissents with opinion.

SAWAYA, J., dissenting.

The decision in Safeco Insurance Co. v. Fridman, 117 So.3d 16 (Fla. 5th DCA 2013), review granted, No. SC13–1607, 2014 WL 1659750 (Fla. Apr. 14, 2014), which I continue to believe is wrongly decided, is distinguishable from the instant case. I, therefore, believe the majority's reliance on it is misplaced. I also believe that the majority has lost sight of the proper standard of certiorari review to be applied in this case.

Fridman is distinguishable because in that case, there was never any attempt to amend the plaintiff's complaint to allege a cause of action for bad faith after Safeco tendered its policy limits. But in the instant case, after GEICO tendered the full amount of its policy limits (some four years into the litigation) the Respondent, Antonio Barber (who was the plaintiff in the trial proceedings), filed a motion to amend his complaint to add a count for bad faith and a count for declaratory judgment. This motion was made before the trial court heard GEICO's motion for judgment wherein GEICO cited to Fridman and alleged that it had confessed judgment and requested entry of a judgment in favor of Barber in the amount of the tendered policy limits. In fact, both motions were heard simultaneously. The trial court denied Barber's motion to amend the complaint to add a bad-faith count, but granted the motion to add the declaratory judgment count.

In a case strikingly similar to the instant case, the court in Safeco Insurance Co. of Illinois v. Rader, 132 So.3d 941 (Fla. 1st DCA 2014), held that when an insurer tenders the policy limits in an uninsured motorist case and the insured moves to amend the complaint to insert a count for bad faith, such an amendment is permissible because the trial court maintains jurisdiction to do so. The court in Rader distinguished Fridman by recognizing that no such motion to amend was made by the insured in Fridman. The holding in Rader directly conflicts with the majority opinion in the instant case, which interprets Fridman to mean that once the insurer tenders the policy limits, the trial court loses jurisdiction to do anything other than enter judgment for that amount. The majority opinion and Fridman both conflict with well-established rules of procedure that liberally allow amendments to pleadings. See Fla. R. Civ. P. 1. 190; see also Spectrum Interiors, Inc. v. Exterior Walls, Inc., 65 So.3d 543, 546 (Fla. 5th DCA 2011) (observing the general rule is to freely grant leave to amend); Crown v. Chase Home Fin., 41 So.3d 978, 979 (Fla. 5th DCA 2010) (same).

Thus, pursuant to Rader, the trial court should have granted Barber's motion to amend to include a count for bad faith. Instead, the trial court denied that motion and granted the motion to amend to include a count for declaratory relief. If this was error, the error can certainly be corrected on appeal. The courts have clearly and consistently held that an appellate court can only grant a petition for certiorari when it is established that there is “ ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’ ” Rodriguez v. Miami–Dade Cnty., 117 So.3d 400, 406 (Fla.2013) (quoting ...