Vest v. Travelers Ins. Co., 96-4651

• Decision Date: 21 January 1998
• Docket Number: No. 96-4651,96-4651
• Citation: 710 So.2d 982
• Parties: 23 Fla. L. Weekly D305 Jana P. VEST, as Personal Representative of the Estate of Thomas C. Vest, deceased, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 982

710 So.2d 982

23 Fla. L. Weekly D305

Jana P. VEST, as Personal Representative of the Estate of Thomas C. Vest, deceased, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee.

No. 96-4651.

District Court of Appeal of Florida First District.

Jan. 21, 1998.

Rehearing Denied June 4, 1998.

James F. McKenzie of McKenzie & Soloway, P.A., Pensacola, for Appellant.

Cecil L. Davis, Jr. of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Tallahassee, for Appellee.

JOANOS, Judge.

In 1995, Thomas Vest was killed in an auto accident involving an underinsured motorist. The decedent was insured by Travelers Insurance Company (Travelers), with uninsured/underinsured (UM) motorist coverage in the amount of $200,000.

On March 28, 1995, appellant's counsel notified Travelers that State Farm, the tortfeasor's insurer, had tendered its policy limits of $1.1 million in settlement of the Vest wrongful death claim against the tortfeasors. Appellant's counsel requested authorization to accept those limits, and enclosed Dr. Vest's 1992 and 1993 tax returns. The letter further states:

As you can see, this claim is worth in excess of Three Million Dollars ($3,000,000.00). We, therefore, hereby demand that Travelers pay its $200,000.00 in underinsured motorist limits.

On May 30, 1995, appellant filed a Civil Remedy Notice of Insurer Violation with the Department of Insurance, with copies to Travelers in Hartford, Connecticut, and Travelers in Tampa. Service was by certified mail, return receipt requested.

On August 9, 1995, appellant filed suit against Travelers. Count I of the complaint alleged that plaintiff had made demand upon Travelers to settle the underinsured motorist claims under decedent's policy with Travelers, but the parties had not agreed to a settlement. Count II alleged that Travelers had acted in bad faith in failing to pay the policy limits of plaintiff's policy, that plaintiff had filed the 60-day written notice pursuant to section 624.155(1)(b)(1), and the 60 days had elapsed without settlement.

Travelers filed an answer and affirmative defenses, alleging decedent's comparative negligence with respect to operation and maintenance of his vehicle, and his failure to wear an available and operational seat belt. On November 2, 1995, Travelers filed a motion for summary judgment, on grounds that the complaint failed to allege there had been a determination as to the extent of appellant's damages; and appellant had not settled her claim with the UM tortfeasor and had filed an action against the third-party tortfeasor. Alleging no UM claim had been perfected, Travelers asserted entitlement to summary final judgment as a matter of law.

At some point, Travelers gave written approval to settle the liability claim against the tortfeasors in accordance with section 627.727(6)(a), Florida Statutes. An order approving the settlement was entered by the circuit court on January 12, 1996. On February 22, 1996, Travelers offered appellant its policy limits of $200,000.00. On March 12, 1996, Travelers sent appellant a check for $200,000.00, the UM policy limits in this case.

Travelers again filed motion for summary judgment. Travelers argued:

there was no duty on the part of Travelers to tender its UM policy limits until the plaintiff had reached its settlement with the underlying tortfeasor and the tortfeasor's liability insurance carrier had tendered its liability policy limits to the plaintiff. The plaintiff's complaint for bad faith focuses entirely on acts of Travelers before the plaintiff ever settled with the tortfeasors and before Travelers ever had a duty to pay the UM benefits.

The trial court entered summary final judgment in favor of Travelers....