Maldonado v. First Liberty Ins. Corp.

• Decision Date: 22 April 2008
• Docket Number: Case No. 07-20710-CIV.
• Citation: 546 F.Supp.2d 1347
• Parties: Gabina MALDONADO, as Personal Representative of the Estate of Alvin Maldonado, Plaintiff v. The FIRST LIBERTY INSURANCE CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of Florida

Page 1347

546 F.Supp.2d 1347

Gabina MALDONADO, as Personal Representative of the Estate of Alvin Maldonado, Plaintiff v. The FIRST LIBERTY INSURANCE CORPORATION, Defendant.

Case No. 07-20710-CIV.

United States District Court, S.D. Florida, Miami Division.

April 22, 2008.

Ed Rubinoff and Andrew Moss, Kutner, Rubinoff & Moss, Miami, FL, for Plaintiff.

Gary J. Guzzi and Mark S. Shapiro, Akerman Senterfitt, Miami, FL, for Defendant.

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

ADALBERTO JORDAN, District Judge.

For the reasons which follow, First Liberty's motion [D.E. 36] for summary judgment is GRANTED, and Gabina Maldonado's motion [D.E. 33] for summary judgment is denied.

I. FACTS

This bad faith case arises from an automobile accident on or about January 5, 2004,¹ between Alvin Maldonado and Julia Clinche, as a result of which Mr. Maldonado died. Compl. at ¶ 7. Ms. Clinche was driving an automobile owned by her husband, Carlos Clinche, and insured by First Liberty with liability limits of $25,000 per person. See id. at ¶ 8. Mr. Clinche reported the accident to First Liberty on January 6, 2004, the day after the accident occurred. See First Lib. Mot. for Summ. Jdgmt. at ¶ 4. That same day, First Liberty sent a letter to the Clinches stating that "the nature and extent of the damages and injuries being claimed suggests there is a potential exposure in excess of your policy limits...." See First Lib. Mot. for Summ. Jdgmt., Exhibit C. On January 8, 2004, First Liberty spoke with the Miami-Dade police department to obtain additional information about the accident, and also sent a letter to the Clinches asking for their cooperation. See id. at ¶ 5.

On January 23, 2004, First Liberty received a letter from Barry Snyder, Esq., indicating he had been retained by the estate of Mr. Maldonado and requesting photos of the accident scene and policy disclosures. See id. at ¶ 6 & Exhibit E. On January 28, 2004, Mr. Snyder demanded tender of the Clinches' policy limit of $25,000 along with an affidavit setting forth the Clinches' assets. See Maldonado Mot. for Summ. Jdgmt. at ¶ 4. Mr. Snyder, however, did not submit a proposed affidavit listing the specific information requested.

On January 29, 2004, First Liberty sent a letter to Mr. Snyder offering the full $25,000 policy limit, enclosing a release, and requesting that Mr. Snyder advise First Liberty as to when the estate had been set up and when he would like the settlement check to be forwarded. See First Lib. Mot. for Summ. Jdgmt, Exhibit G. That same day. First Liberty sent the Clinches a letter advising them that it had offered the full policy limit to settle the claim, with a proposed release in favor of the Clinches, but noting that the estate would not release the Clinches unless they completed an asset affidavit. See First Lib. Mot. for Summ. Jdgmt., Exhibit H.

First Liberty's letter further advised the Clinches that are lease would "terminate any personal exposure you may have to the plaintiff for damages arising from his or her claim against you. Therefore, it is to your advantage to obtain a release." See id. In addition, First Liberty advised the Clinches that the settlement condition requiring the affidavit was outside First Liberty's control, that First Liberty would not be able to comply with the settlement demand without obtaining the affidavit from the Clinches, and that the Clinches could retain an attorney at their own expense. See id. As noted earlier, Mr. Snyder had not sent First Liberty a sample affidavit of what he wanted. See id. at ¶ 9. With its letter to the Clinches, therefore, First Liberty forwarded a draft affidavit, which the Clinches subsequently completed. See id. at ¶ 5. That affidavit did not state what individual assets the Clinches possessed, but rather stated that the Clinches had "no assets that would be available to satisfy any claims." See id., Exhibit I. First Liberty forwarded this affidavit, completed by Mr. and Mrs. Clinche, to Mr. Snyder on February 11, 2004. See id., Exhibit K.

Mr. Snyder found this affidavit unacceptable because, in his view, it merely stated a legal conclusion and did not list any specific assets. See Maldonado Mot. for Summ. Jdgmt. at ¶ 4. On May 14, 2004, Mr. Snyder sent First Liberty a more detailed sample affidavit for the Clinches to complete. See First Lib. Mot. for Summ. Jdgmt. at ¶ 12 & Exhibit M. This sample affidavit requested, among other things, the Clinches' social security numbers and bank account numbers. See id. On May 17, 2004, First Liberty sent this more detailed affidavit to the Clinches with a letter which informed the Clinches that Mr. Snyder had found the previous affidavit "insufficient." See id., Exhibit N. In this letter, First Liberty further advised the Clinches that "if you do not provide the requested information to us in sufficient time for us to forward it to plaintiff's counsel, plaintiff will, in all likelihood, not provide a release to you, even if we tender' your policy limits." See id. The letter again advised the Clinches that they could retain an attorney at their own expense to assist them in these matters. See id.

The Clinches informed First Liberty that they would not complete the sample affidavit provided by Mr. Snyder because it requested personal information, such as social security and bank account numbers. See id. at ¶ 14; Maldonado Mot. for Summ. Jdgmt. at ¶ 6. On May 26, 2004, Brigitte Klein of First Liberty sent the Clinches a letter confirming a phone conversation during which Mr. Clinche refused to return the affidavit because it requested personal information and during which Ms. Klein "explained that this [refusal to complete the affidavit] may result in the estate not accepting the $25,000 which has been offered as your policy limits and you will advise us immediately of any suit papers if they are received." See First Lib. Mot. for Summ. Jdgmt., Exhibit O. Also on May 26, 2004, Ms. Klein sent Mr. Snyder a letter informing him that the Clinches "find these affidavits very invasive in their request of extremely personal information, which has nothing to do with any assets." See id., Exhibit Q. She further stated: "If you are willing to amend the affidavit in any way to address only the issues of personal assets, we will be happy to forward this on to our insured. Our insured will not complete the affidavits with personal information requested at this time." See id. (emphasis added).

Mr. Snyder did not send a revised sample affidavit for the Clinches to complete, nor did he inquire as to what specifically the Clinches objected. Rather, on June 16, 2004, Mr. Snyder sent First Liberty a letter in response, stating:

You did not specify which part(s) of the affidavits you believe to be improper and your clients did not even answer the items they did not object to. Upon further review of the affidavits, we find every request reasonable under the circumstances.... Yes, the information requested in the affidavits is of a personal nature, but it is reasonable under the circumstances — your insureds left Mrs. Maldonado without a husband and three minor children without a father. You do not want to know how Mrs. Maldonado feels about your clients' objections to the inconvenience of providing personal information after what your clients have done.

See id., Exhibit R (emphasis added).

On June 22, 2004, First Liberty forwarded this letter from Mr. Snyder to the Clinches along with a letter informing them that First Liberty had sent a check for $25,000 to the estate but would need the sample affidavit completed in order to secure a release of the Clinches. See id., Exhibit T. This letter reminded the Clinches of its earlier warnings regarding the risks of not completing the affidavit. See id. That same day, First Liberty also sent a letter to Mr. Snyder, attaching a release to be completed and informing him that it had sent a check for the $25,000 policy limit to the personal representative of the estate. See id., Exhibit S. First Liberty also informed Mr. Snyder that it had forwarded his June 16, 2004, letter to the Clinches, requested that they fill out the sample affidavit, and informed them of the risks of not doing so. See id.

On July 13, 2004, Mr. Snyder sent First Liberty a letter withdrawing the Estate's offer to settle the case for the policy limits because the Clinches refused to fill out the revised affidavit, returning First Liberty's check for the $25,000 policy limits voided, and changing the Estate's demand to $1 million to be paid within seven days or a lawsuit would be filed. See id., Exhibit U. The letter further advised First Liberty that in order to avoid a bad faith claim against it, First Liberty should tender the $25,000 policy limit with no conditions other than a set off on behalf of First Liberty against a verdict. See id.

First Liberty sent this letter to the Clinches on July 16, 2004, along with a letter from Ms. Klein advising the Clinches that the estate had refused to settle for the policy limits because the Clinches refused to complete the sample affidavit and informing them of the new demand of $1 million. See id., Exhibit V. Ms. Klein's letter on behalf of First Liberty also laid out the following explicit warning to the Clinches:

We are sending you, for your review and reconsideration, the affidavit the claimant Estate has requested. We are not sure if the claimant Estate will even accept the affidavit along with the policy limit offer at this time, but I request you again seriously consider completing and submitting the affidavit so we can try one more time to settle this potential lawsuit on your behalf.

I will continue to offer the Liberty Mutual limits of your insurance coverage in exchange for a full release, but I feel that, without the requested affidavit, the Estate of Mr. Maldonado will not possibly consider accepting our offer.....

Due to the seriousness of this claim and the exposure in excess of...