Safeco Ins. Co. of Ill. v. Beare, No. 4D13-3104, 2014 WL 4626851 (Fla. Dist. Ct. App. Sept. 17, 2014).

The Fourth District Court of Appeal of the State of Florida denies an insurer’s petition seeking review of the trial court’s abatement of an insured’s bad faith claim because the insurer did not demonstrate that the trial court departed from the essential requirements of law.

            In 2011, Christine Beare (“Beare”) sued third party tortfeasors following an automobile accident.  After the parties agreed to a settlement in October 2012, Beare was granted leave to amend her complaint to add her insurance carrier, Safeco Insurance Company of Illinois (“Safeco”).  Beare’s amended complaint against Safeco included an uninsured/underinsured motorist (“UM”) claim and a bad faith count.  Beare asserted that Safeco acted in bad faith by refusing to settle her claim.  Safeco answered the UM claim and moved to dismiss the bad faith claim as premature.  Safeco argued that Florida law requires dismissal of a first party bad faith claim filed prior to a determination of liability and damages under the insurance agreement between the insurer and insured.  At Beare’s request, the trial court abated the bad faith claim instead of dismissing it.

            Safeco filed a petition with the Fourth District Court of Appeal challenging the trial court’s decision to abate the bad faith claim instead of granting the motion to dismiss.  The Court rejected Safeco’s argument and held that Safeco had not met its burden to show that the trial court departed from the essential requirements of law.  Safeco argued that Florida law required the trial court to dismiss the bad faith claim as premature.  The Court disagreed, reasoning that precedent dictated that a trial court could either dismiss or abate a bad faith action while the underlying coverage issues were pending.   

Safeco also argued that because the bad faith claim was an amendment to the original negligence suit, which suit  was filed more than one year prior to Safeco’s joinder, it was prevented from removing the claim to federal court.  Safeco argued that it was irreparably harmed because it had lost its right to remove the case to federal court and would be forced to litigate the bad faith claim in state court.   The Court recognized that the loss of the right to remove a case to federal court could indeed constitute a material irreparable injury under established Florida law; however, Florida Supreme Court cases suggested that either dismissal or abatement is proper where coverage and bad faith actions are filed together.  Accordingly, the trial court did not err by deciding to abate the bad faith count.  Safeco’s petition was denied.