Harris v. Geico Gen. Ins. Co.

• Decision Date: 07 August 2013
• Docket Number: Case No. 11–80552–CIV.
• Citation: 961 F.Supp.2d 1223
• Parties: Sheron HARRIS, Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Florida

961 F.Supp.2d 1223

Sheron HARRIS, Plaintiff,

v.GEICO GENERAL INSURANCE COMPANY, Defendant.

Case No. 11–80552–CIV.

United States District Court, S.D. Florida.

Aug. 7, 2013.

Andrew A. Harris, Bard Daniel Rockenbach, Burlington & Rockenbach PA, David John Glatthorn, West Palm Beach, FL, for Plaintiff.

James Kendall Clark, Clark Robb Mason Coulombe & Buschman, Miami, FL, for Defendant.

ORDER DENYING MOTION TO DISQUALIFY AND GRANTING MOTION FOR JUDGMENT AS A MATTER OF LAW

KENNETH L. RYSKAMP, District Judge.

THIS CAUSE comes before the Court pursuant to Defendant Geico General Insurance Company's motion for judgment as a matter of law, filed March 4, 2013 [DE 135]. Plaintiff Sharon Harris (“Harris”) responded on March 14, 2013 [DE 139]. Geico replied on April 4, 2013 [DE 148]. Harris filed a supplemental response on May 13, 2013 [DE 155]. Geico replied to the supplement on May 23, 2013 [DE 160]. Geico also filed a memorandum of law with regard to Harris's damages on March 4, 2013 [DE 136]. Harris responded to that memorandum on March 14, 2013 [DE 140]. Geico filed its reply in relation to the memorandum on April 4, 2013 [DE 147]. This matter is also before the Court pursuant to Harris's amended motion to disqualify, filed May 13, 2013 [DE 156]. Geico responded thereto on June 19, 2013 [DE 164]. Harris replied thereto on July 8, 2013 [DE 167]. These motions are ripe for adjudication.

I. BACKGROUND

Harris owned a Geico uninsured/underinsured motorist policy that contained protection in the amount of $100,000.00. On or about June 23, 2009, Harris was injured in an automobile accident in which an uninsured/underinsured motorist was at fault. An ambulance conveyed Harris from the accident scene to the hospital, where she presented with complaints of chest pain and headache. She was kept overnight. Geico was notified of the accident the next day.

On July 6, 2009, Harris saw Dr. Naidoo and initiated a conservative course of treatment for back and neck pain, which treatment consisted of painkillers, anti-inflammatories and physical therapy. Plaintiff also had an MRI, which revealed a bulging lower disc. Within a week, Dr. Naidoo readmitted Harris to the hospital on account of her extreme back pain.

Also on July 6, 2009, Plaintiff's counsel provided to Geico Harris's pay stubs from the past 12 weeks, showing just under $2,000.00 in pay every two weeks. Harris's counsel noted that Harris had been on “no work” status since the accident and requested reimbursement for those lost wages.

On August 13, 2009, Harris made a formal demand for policy limits, enclosing medical bills totaling $34,111.76. The demand letter stated that Harris “now lives in constant significant pain and discomfort and can no longer perform and/or complete her activities of daily living” and that Harris “will require future treatment and care for the injuries she sustained in this vehicular crash for the remainder of her life.” On August 25, 2009, Geico offered $17,156.47 to settle the matter.

On September 1, 2009, Harris served a Civil Remedies Notice (“CRN”) pursuant to Fl. Stat. § 624.155. Fl. Stat. § 624.155 provides that “[a]ny person may bring a civil action against an insurer when such person is damaged ... [b]y the commission of any of the following acts by the insurer: ... Not attempting in good faith to settle claims when, under the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for his or her interests.” Fl. Stat. § 624.155(1)(a), (b)(1). The statute provides a 60–day safe harbor for the insurance company: “No action shall lie if, within 60 days after filing notice, the damages are paid or the circumstances giving rise to the violation are corrected.” Fl. Stat. § 624.155(3)(d). The CRN form stated that Harris's medical bills exceeded $34,000.00 and that she incurred car property damage of just under $4,000.00. The CRN also stated that Harris's injuries were permanent.

Harris also saw Dr. Naidoo on September 1, 2009, and an office note indicated that Harris was a candidate for a procedure called a percutaneous discectomy. Percutaneous discectomies are brief, outpatient procedures that are performed in approximately 15 minutes. When the procedure is complete, the patient is sent home with a band-aid over the entry site. Geico responded to the CRN on September 9, 2009, again offering $17,156.47 to settle the matter.

On September 14, 2009, Harris again demanded policy limits. Harris provided an August 27, 2009 MRI, which revealed bulging discs and disc herniations. Harris had also provided, four days prior, a notice to Geico that Harris was scheduled for surgery the next week. Harris underwent a percutaneous discectomy on September 15, 2009.

On October 1, 2009, Geico raised its offer to $25,000, stating its belief that Harris had undergone a “questionable medical procedure.” The record indicates that insurance claims based on percutaneous discectomies usually settle for between $4,000.00 and $6,000.00. On October 6, 2009, Harris requested additional medical expenses in the amount of $54,000, for a request of total medical expenses in the amount of $75,305. On October 8, 2009, Geico offered $30,000.00 to settle the claim.

On November 6, 2009, Harris filed suit in state court on the underlying liability action. On February, 23, 2010, during the pendency of the state court action, Harris underwent spinal fusion surgery that more than quadrupled her medical costs. On April 20, 2010, Geico tendered policy limits. Harris rejected the tender a month later. The state court action proceeded to trial in November of 2010 and concluded in a verdict of $336,351.00.

Harris brought this § 624.155 bad faith action on March 31, 2011, alleging that Geico should have settled her claim during the statute's “safe harbor” period based upon the medical information that was available to Geico at that time. Geico removed this matter to this Court on May 12, 2011.

The Court tried the bad faith action before a jury on February 11–13, 2013. The jury returned a verdict for Harris, concluding that Harris proved to a preponderance of the evidence that Geico acted in bad faith in failing to settle her claim during the 60–day safe harbor period. Geico moved for judgment as a matter of law during trial and renewed its motion subsequent to the jury verdict. Harris has filed a motion requesting that the undersigned either voluntarily disqualify himself from this matter or that Chief Judge Federico A. Moreno review the motion to disqualify and assign a different district judge to preside over this matter.

II. MOTION TO DISQUALIFY

After Harris prevailed in the case for bad faith, Geico filed a post-verdict motion asking this Court to enter judgment in its favor as a matter of law. On April 23, 2013, this Court held a hearing on those motions. Following the above referenced hearing, Harris filed the subject motion seeking to disqualify the undersigned from this case, requesting that the undersigned disqualify himself pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455(a) and (b)(1). Harris also requests that the motion to disqualify be referred to Chief Judge Moreno.

A. 28 U.S.C. § 144

“The threshold requirement under § 144 disqualification procedure is that a party file an affidavit demonstrating personal bias or prejudice on the part of the district judge against that party or in favor of an adverse party.” Parrish v. Bd. of Comm'rs, 524 F.2d 98, 100 (5th Cir.1975).¹ The statute provides in pertinent part:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and reasons for the belief that bias or prejudice exists.... A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

28 U.S.C. § 144. The mere filing of a § 144 affidavit does not automatically disqualify the judge, however. United States v. Townsend, 478 F.2d 1072, 1073 (3d Cir.1973). Once the affidavit is filed, the judge must determine whether the affidavit was timely, whether it was accompanied by the necessary certificate of counsel, and whether the affidavit satisfies the terms of the statute. Parrish, 524 F.2d at 100.

B. 28 U.S.C. § 455

28 U.S.C. section 455 provides, in relevant part:

(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding....

Although the general effect of § 455 was to broaden the range of circumstances warranting disqualification, a judge nonetheless has an obligation “not to recuse when there is no occasion for him to do so.... ‘[A] judge, having been assigned to a case, should not recuse himself on unsupported, irrational, or highly tenuous speculation.’ ”

Carter v. West Publishing Co., No. 99–11959–EE, 1999 WL 994997, at *2, 1999 U.S.App. LEXIS 38480, at *7 (11th Cir. Nov. 1, 1999) (quoting United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir.1986)). A judge's impartiality must “reasonably be questioned” for the judge to recuse because “there is the need to prevent parties from ... manipulating the system for strategic reasons, perhaps to obtain a judge more to their liking.” Id. at *2, 1999 U.S.App. LEXIS 38480 at *7–8 (citing FDIC v. Sweeney, 136 F.3d 216, 220 (1st Cir.1998) (internal quotation marks omitted)). See also Thomas v. Trustees for Columbia Univ., 30 F.Supp.2d 430, 431 ...