State Farm Mut. Auto. Ins. Co. v. Lenard

• Decision Date: 27 July 1988
• Docket Number: No. 88-1626,88-1626
• Citation: 13 Fla. L. Weekly 1789,531 So.2d 180
• Parties: 13 Fla. L. Weekly 1789 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Gerry LENARD and Peggy Lenard, husband and wife, Respondents.
• Court: Florida District Court of Appeals

Page 180

531 So.2d 180

13 Fla. L. Weekly 1789

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Gerry LENARD and Peggy Lenard, husband and wife, Respondents.

No. 88-1626.

District Court of Appeal of Florida,

Second District.

July 27, 1988.

Rehearing Denied Sept. 22, 1988.

Robert C. Swain of Haas, Boehm, Brown, Rigdon, Seacrest & Fischer, P.A., Tampa, for petitioner.

Daniel P. Rock, New Port Richey, for respondents.

PER CURIAM.

State Farm petitions this court for a writ of certiorari quashing an order of the circuit court which allowed respondents to amend their complaint against State Farm to include a count for bad faith refusal to settle a claim under their uninsured motorist coverage. § 624.155, Fla.Stat. (1987). Because we believe no irremediable injury has accrued to State Farm at this time, we deny the petition.

Peggy Lenard, an insured of State Farm, was injured in an October 1986 automobile accident. Her original complaint alleged that the operator of the other vehicle was negligent and that State Farm was obligated to provide uninsured/underinsured motorist coverage. Lenard thereafter settled with the tortfeasor and dropped him from the suit. No final judgment has yet been obtained against State Farm nor has the total amount of Lenard's damages been determined. Apparently dissatisfied with the progress of the negotiations, Lenard successfully sought to add her claim under section 624.155.

Lenard contends that she is required to maintain her bad faith action at this time or lose the right to do so. Schimmel v. Aetna Casualty & Surety Co., 506 So.2d 1162 (Fla. 3d DCA 1987). We express some reservations whether Schimmel compels this result in the present case. The Schimmels filed their bad faith claim after they had previously prevailed on a suit against the insurer for breach of contract. The trial court dismissed the claim "upon a ruling that the doctrine against impermissibly splitting causes of action bar[red] this action as a matter of law," a policy which "avoids vexatious and multiple lawsuits arising out of a single incident." 506 So.2d at 1164 (emphasis supplied). On appeal that ruling was affirmed.

The question thus arises: What is a "single incident" for calculating when to file an action under section 624.155? In Fortson v. St. Paul Fire & Marine Insurance Co., 751 F.2d 1157 (11th Cir.1985), a case the Schimmel panel considered distinguishable, the court noted that the legislature, in enacting the statute, had provided no guidance on this point, though the panel concluded that "[a]t the very least" no bad faith action should precede the underlying tort action. 751 F.2d at 1160. Subsequently, another federal court, addressing a claim of retroactive application of the statute, noted that "a cause of action for bad faith refusal to pay first party claims arises when the alleged bad faith actions occur, not when the policy was issued or the accident occurred." Rowland v. Safeco Insurance Co. of America, 634 F.Supp. 613, 614 (M.D.Fla.1986).

We have no quarrel with the conclusion in Schimmel that the liability of Aetna for bad faith arose contemporaneously with Aetna's breach of the Schimmels' insurance contract. However, the situation in Opperman v. Nationwide Mutual Fire Insurance Co., 515 So.2d 263 (Fla. 5th DCA 1987), petition for review denied, 523 So.2d 578 (Fla.1988), is more akin to the present case in that the insurer and insured failed to reach agreement on the amount of damages suffered. In Opperman the matter was referred to arbitration, at which a substantial sum was awarded, and the insured sued to confirm the arbitration award and for bad faith refusal to settle....