State Farm Mut. Auto. Ins. Co. v. O'Hearn

• Decision Date: 07 March 2008
• Docket Number: No. 2D07-4184.,2D07-4184.
• Citation: 975 So.2d 633
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Glenda F. O'HEARN, Respondent.
• Court: Florida District Court of Appeals

975 So.2d 633

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Glenda F. O'HEARN, Respondent.

No. 2D07-4184.

District Court of Appeal of Florida, Second District.

March 7, 2008.

Lewis F. Collins, Jr., and Anthony J. Russo of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Petitioner.

Jason Mulholland of Mulholland Law, P.A., Tampa, Respondent.

VILLANTI, Judge.

In this certiorari proceeding, State Farm seeks relief regarding two trial court orders entered in a statutory bad faith action: (1) the order denying its motion to dismiss O'Hearn's complaint as premature and (2) the order compelling it to produce certain allegedly privileged documents. While the trial court departed from the essential requirements of the law in denying State Farm's motion to dismiss, State Farm cannot show irreparable harm arising from the order denying dismissal. Therefore, we dismiss the petition to the extent it is directed to that order. However, because the trial court departed from the essential requirements of the law when it overruled State Farm's objections to O'Hearn's discovery request and because production of the requested documents will result in irreparable harm, we grant the petition to the extent it is directed to this discovery order and quash the trial court's order requiring production of these documents at this time.

According to the limited record before this court, O'Hearn was involved in a hit-and-run auto accident on August 13, 2002, which allegedly resulted in her suffering injuries. O'Hearn subsequently filed a claim for uninsured motorist ("UM") benefits under her auto policy with State Farm. At some point, State Farm offered O'Hearn $5000 to settle her UM claim. Apparently, O'Hearn rejected this settlement offer.

O'Hearn then filed a one-count complaint against State Farm asserting a claim for statutory bad faith under section 624.155, Florida Statutes (2002). In the complaint, O'Hearn alleged that State Farm had determined that the value of her claim was $5000; however, O'Hearn also alleged that had State Farm properly investigated her claim, "it would have determined that its value far exceeded $5,000.00." In conjunction with the complaint, O'Hearn served a request for production of documents, requesting that State Farm produce numerous documents, including the contents of its claim and underwriting files.

State Farm moved to dismiss O'Hearn's complaint, arguing that her bad faith claim was premature because the issues of liability and damages had not yet been determined. At a hearing on State Farm's motion, State Farm cited long-standing Florida authority holding that a first-party bad faith action against an insurer is premature until the issues of liability and damages have been finally determined. See, e.g., Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289, 1291 (Fla. 1991). In response, O'Hearn contended that her claim was not premature because State Farm had admitted liability by making a presuit settlement offer and had determined the issue of damages by offering her $5000. O'Hearn cited no Florida case law for the proposition that the amount of an insurer's presuit settlement offer constitutes a final determination of damages. Despite this, the trial court denied State Farm's motion to dismiss. State Farm filed a timely petition for writ of certiorari directed to this order.

After its motion to dismiss was denied, State Farm filed objections to O'Hearn's request for production of documents, arguing that the documents she requested were not discoverable until the issues of liability and damages had been finally determined. After a hearing, the trial court sustained State Farm's objections to certain of the requests, but it overruled State Farm's objections to producing its claim file and underwriting file, and it ordered State Farm to produce these documents. State Farm then filed an amended petition for writ of certiorari that sought review of this discovery order as well as the dismissal order.

The contours of this court's review of a petition for writ of certiorari are well defined. To obtain a common-law writ of certiorari, the petitioner must establish that (1) the trial court departed from the essential requirements of the law, (2) the departure resulted in a material injury that will affect the remainder of the proceedings below, and (3) the injury cannot be corrected through any other means. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995); Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). The first element is directed to the merits of the petition, while the second and third elements constitute a jurisdictional test. Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995). Thus, if the petitioner does not establish that the alleged injury cannot be corrected through a later appeal and thus is irreparable, certiorari jurisdiction will not lie and the petition must be dismissed. Id.

As to the order denying State Farm's motion to dismiss, we agree with State Farm that the trial court departed from the essential requirements of the law. There is an abundance of case law that holds that a first-party bad faith claim does not accrue until there has been a final determination of both liability and damages in an underlying coverage claim. See, e.g., Vest v. Travelers Ins. Co., 753 So.2d 1270, 1276 (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, 575 So.2d at 1291. An allegation that an insurer has paid a portion, but not all, of the damages that it allegedly owes does not constitute a legally sufficient allegation that the amount of damages has been finally determined. GEICO Gen. Ins. Co. v. Hoy, 927 So.2d 122, 126 (Fla. 2d DCA 2006); Vanguard Fire & Cas. Co. v. Golmon, 955 So.2d 591, 594 (Fla. 1st DCA 2006). When a plaintiff does not and cannot allege that there has been a final determination of both the insurer's liability and the amount of damages owed by the insurer, the plaintiff's bad faith claim is premature and should be either dismissed without prejudice or abated. Vest, 753 So.2d at 1276; Golmon, 955 So.2d at 595.

In this case, O'Hearn's complaint alleges that State Farm offered to settle her UM claim for $5000. The complaint also alleges that O'Hearn's damages far exceed this amount. Thus, on its face, O'Hearn's complaint fails to allege that there has been a final determination of damages and instead affirmatively alleges that damages are still in dispute. O'Hearn's contention that State Farm's presuit settlement offer constitutes a legally sufficient determination of damages is contradicted by the reasoning underlying this court's decision in Hoy. If, as Hoy explains, partial payment of the damages sought by the plaintiff does not constitute a final determination of damages, certainly the unaccepted presuit settlement offer made by State Farm to O'Hearn cannot constitute such a determination. Accordingly, because O'Hearn's complaint establishes on its face that her bad faith claim has not yet accrued, the trial court departed from the essential requirements of the law when it denied State Farm's motion to dismiss.

That said, however, an appellate court does not generally have certiorari jurisdiction to review an order denying a motion to dismiss even when the cause of action is one for first-party bad faith. See Federated Nat'l Ins. Co. v. Copeland, 932 So.2d 310, 311 (Fla. 2d DCA 2006); Progressive Consumers Ins. Co. v. Day, 869 So.2d 621, 622 (Fla. 1st DCA 2004); Nationwide Mut. Fire Ins. Co. v. Hess, 814 So.2d 1240, 1243 (Fla. 5th DCA 2002); Hartford Accident & Indem. Co. v. U.S.C.P. Co., 515 So.2d 998, 1002 (Fla. 4th DCA 1987) (en banc). These bad faith cases follow the general rule that orders denying motions to dismiss are not properly reviewable by certiorari because the alleged injury can be remedied on direct appeal. See, e.g., Martin-Johnson, Inc., 509 So.2d at 1099-1100; Avis Rent-A-Car Sys., Inc. v. Blythe, 578 So.2d 489 (Fla. 5th DCA 1991). While we recognize that some courts have held that such orders are reviewable by way of certiorari in first-party bad faith actions, see, e.g., Golmon, 955 So.2d at 594-95; Progressive Select Ins. Co. v. Shockley, 951...