Otero v. Midland Life Insurance Company, CROSS-APPELLEES
| Decision Date | 15 December 1999 |
| Docket Number | CROSS-APPELLEES,CROSS-APPELLANT |
| Parties | (Fla.App. 3 Dist. 1999) ENRIQUE OTERO AND HILDA OTERO, APPELLANTS/, v. THE MIDLAND LIFE INSURANCE COMPANY F/D/B/A THE MIDLAND MUTUAL LIFE INSURANCE COMPANY, APPELLEE/ NOS. 99-876, 98-3421 |
| Court | Florida District Court of Appeals |
An appeal from the Circuit Court of Dade County, Judith Kreeger, Judge.
Adorno & Zeder and Raoul G. Cantero, III, Coconut Grove, and Jonathan D. Colan, Miami, for appellee/cross-appellees.
Robles & Gonzalez and Deborah J. Gander, for appellants/cross-appellees.
Before Gersten, Goderich, and Fletcher, JJ.
In this action brought under sections 624.155(1)(a)(1) and 626.9541(1)(x)(1), Florida Statutes (1997), for bad faith refusal to insure, Enrique Otero and Hilda Otero [Oteros] appeal the trial court's amended final judgment which vacated the jury's award and ordered a new trial on the issue of damages for mental distress. Midland Life Insurance Company [Midland] cross-appeals the denial of its motions for directed verdict. We affirm the ordering of a new trial on the issue of damages, but solely as set forth herein.
Under section 624.155, Florida Statutes (1997), a civil remedy is available against an insurer who, in violation of section 626.9541(1)(x)(1), Florida Statutes (1997),1 refuses to insure a person, "when [if] such person is damaged." We conclude (1) that the trial court properly submitted to the jury the issue of whether the Oteros were denied life insurance solely because of their national origin, and (2) that there was sufficient evidence upon which the jury could reasonably find for them on this issue. Therefore, the question for our consideration is what recoverable damages were suffered by the Oteros as a result of Midland's bad faith refusal to insure.
The jury's original verdict in this case awarded the Oteros $100,000.002 each for economic damages and $400,000.00 each for mental anguish and emotional distress, for a total of $1,000,000.00 in damages. This amount was subsequently reduced to $989,676.00 after the trial court determined that Midland was entitled to a set off in the amount of premiums each plaintiff would have paid over the four year period had they been issued the insurance. The trial court subsequently vacated the non-economic damages award and ordered a new trial, relying on Time Ins. Co. v. Burger, 712 So.2d 389 (Fla. 1998). In Burger the court set out a specific method of recovery for non-economic damages (for mental distress) in actions against health care insurers, carving out a limited exception to the impact rule for such insurers - but not for life insurers. Id. at 393.
Under section 624.155(4), punitive damages are recoverable only where "the acts giving rise to the violation occur with such frequency as to indicate a general business practice." The jury found no such general business practice in this case and, therefore, the Oteros are not entitled to punitive damages.
As damages for mental distress...
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Recovery of mental distress damages in bad faith claims in Florida.
...purpose of this article is to explain why the Third District's decision in Otero v. The Midland Life Insurance Company, 753 So. 2d 579 (Fla. 3dDCA 2000), should be reversed to permit the recovery of mental distress damages in bad faith claims against life insurers. This article is intended ......