Florida Court Of Appeals: Insured Who Settled Claim For UM Benefits Still Allowed To Add Bad Faith Claim Against Insurer In The Same Proceeding

Saul Ewing Arnstein & Lehr LLP

Safeco Ins. Co. of Illinois v. Rader, No. 1D13-2659, 2014 WL 660204 (Fla. Dist. Ct. App. Feb. 21, 2014).

After entry of partial summary judgment on UM claim, insured successfully moved to amend his complaint to add a claim for bad faith.  On review, the appellate court held that the trial court’s actions did not depart from the essential elements of the law in resolving UM claim and retaining jurisdiction over newly-added bad faith claim.

Earle Rader Jr. was in an automobile accident for which another driver was at fault.  Rader had underinsured motorist (“UM”) coverage from Safeco Insurance Company of Illinois (“Safeco”) with a policy limit of $100,000.  With Safeco’s consent and waiver of subrogation rights, Rader settled his bodily injury claim against the other driver for that driver’s policy limits of $25,000.  On February 13, 2012, Rader filed a complaint against Safeco seeking UM benefits under his Safeco policy.  He asserted that Safeco had tendered a settlement offer lower than the UM policy’s limits even though the value of his claim exceeded the limits of the tortfeasor’s coverage and his UM coverage combined.

Safeco failed to respond timely to Rader’s complaint and defaulted.  It finally responded on July 2, 2012,  and the default was set aside.  When Safeco responded, it indicated that it had tendered the $100,000 available under the UM policy to Rader.  It claimed that this tender “operates as a confession of judgment as a matter of law” and that, under Florida law, the court was bound to enter judgment for Rader in the amount of $100,000.  Further, Safeco asserted that the tender caused the court to no longer have jurisdiction over the case, because there were no further issues to decide.

On July 12, Rader filed a motion to amend his complaint to, among other things, add a bad faith claim.  He contended that Safeco’s assertion that it had already confessed judgment was a mere ploy to prevent the court from considering his bad faith claim and force him unnecessarily to file a separate action.  Safeco opposed Rader’s motion to amend and asked the court to enter a final judgment for Rader awarding him the $100,000 UM policy limit, asserting that: 1) a bad faith action is separate from the underlying UM action; and 2) absent a final judgment on the UM claim, the bad faith claim was not yet ripe.

The trial court noted that although Safeco was correct in its contentions,  it was the frequent practice of the courts to allow an insured to amend its complaint to add a bad faith claim and then abate that claim until the underlying claim was resolved.  The court therefore allowed the amendment.  Moreover, because Rader had already settled with the underinsured tortfeasor and Safeco had already tendered the UM policy limits, the court held that partial judgment on the pleadings could be entered on the UM count for $100,000, the limit of the UM policy, once Safeco filed its answer to the amended complaint.  Then, discovery on the bad faith claim could commence and the claim could proceed to trial.  Importantly, the trial court decided that it would not enter an appealable final judgment until the bad faith claim was resolved. 

Safeco attempted to remove the action to federal court, but the U.S. District Court for the Northern District of Florida held that the removal was untimely, rejecting Safeco’s argument that the added claim for bad faith reinstated the 30-day removal period.  Back in the state court, Safeco filed a notice of appeal of the trial court’s order denying Safeco’s motion to enter a final judgment.

The District Court of Appeal for the First District of Florida treated Safeco’s appeal as a petition for writ of certiorari because the trial court’s order was not appealable.  To obtain  a writ, the petitioner must demonstrate, among other things, that the lower court’s ruling represented “a departure from the essential requirements of the law.”  

The District Court of Appeal held that the trial court had not departed from the essential requirements of the law by allowing Rader to amend his complaint to add a bad faith claim even though Safeco had already confessed judgment and tendered the UM policy limit.  The court found that Rader’s settlement with the tortfeasor and Safeco’s tender of the policy limit had the combined effect of causing Rader’s bad faith claim to ripen, because at that point the necessary determinations of coverage and the insurer’s liability had been made.  Furthermore, Rader moved to add his bad faith claim before Safeco moved for a final judgment.  Therefore, the trial court properly resolved the underlying UM claim while retaining jurisdiction over the remaining bad faith claim, and at no point was Safeco required to simultaneously defend both claims.  For this and other reasons, the court denied Safeco’s petition for a writ.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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