www.rissman.com
201 EAST PINE STREET
15TH FLOOR
ORLANDO, FLORIDA 32801
TELEPHONE (407) 839-0120
TELECOPIER (407) 841-9726
ORLANDO@RISSMAN.COM
1 NORTH DALE MABRY HWY
11TH FLOOR
TAMPA, FLORIDA 33609
TELEPHONE (813) 221-3114
TELECOPIER (813) 221-3033
TAMPA@RISSMAN.COM

900 S.E. 3RD AVENUE
SUITE 210
FT. LAUDERDALE, FL 33316
TELEPHONE (954) 526-5480
TELECOPIER (407) 841-9726
FTLAUDERDALE@RISSMAN.COM

709 SEBASTIAN BOULEVARD
SUITE B
SEBASTIAN, FLORIDA 32958
TELEPHONE (772) 228-3228
TELECOPIER (772) 228-3229
SEBASTIAN@RISSMAN.COM

 

 

In First Liberty Ins. Corp. v. O'Neill, 41 Fla. L. Weekly D156a (Fla. 4th DCA Jan. 13, 2016), the 4th DCA denied the insurer's petition for writ of certiorari, holding that the trial court's order allowing the insured to amend her uninsured motorist (UM) complaint to add a bad faith count following the insurer's confession of judgment in the amount of the UM policy limits did not depart from the essential requirements of law.

During the course of litigation on an uninsured motorist claim, the insurer confessed judgment and moved for entry of a final judgment against it in the amount of the UM policy limits. The trial court entered partial final judgment for the insured on the UM claim and simultaneously entered an order granting the insured's motion to amend the complaint to add a first-party bad faith claim.

The insurer appealed the trial court's rulings to the 4th DCA arguing that the trial court had erred by not requiring the insured to file a new action on the bad faith claim as opposed to allowing the insured to bring the bad faith claim by way of an amendment to the existing UM action. The 4th DCA treated the appeal as a petition for writ of certiorari and denied the petition finding that the trial court's order did not depart from the essential requirements of law.

The 4th DCA recognized that at the time of the trial court's decision, there was no controlling case in the 4th DCA and a split of authority in other district courts on the issue. Specifically, in Safeco Ins. Co. of Ill. v. Rader, 132 So. 3d 941 (Fla. 1st DCA 2014), the 1st DCA held that the insurer had not established that the trial court's order allowing the insured to amend his complaint to add a bad faith claim following the insurer's confession of judgment rose to the level of a departure from the essential requirements of law.

Conversely, in Safeco Ins. Co. of Ill. v. Fridman, 117 So. 3d 16 (Fla. 5th DCA 2013), rev. granted, 145 So. 2d 823 (Fla. 2014), the 5th DCA held that the trial court had erred in denying the insurer's motion to enter final judgment in accordance with the insurer's confession of judgment in the amount of the UM limits and also in reserving jurisdiction on the insured's motion to amend his complaint to add a bad faith claim. The 5th DCA explained that once the insurer had confessed judgment, the trial court was without jurisdiction to take any action other than to enter the confessed judgment. If the insured wished to pursue a bad faith claim, the insured would have to bring the claim in a separate lawsuit.

Because of the lack of controlling authority in the 4th DCA and the split of authority in other district courts, the 4th DCA determined that the trial court's decision to follow the 1st DCA's authority was not a departure from the essential requirements of law.


 

This summary was prepared by John Daly of our firm.


John Daly

 

 

41 Fla. L. Weekly D156a

 

Insurance -- Uninsured motorist -- Bad faith -- Circuit court did not, at time of its actions, depart from essential requirements of law when, after entering partial final judgment for insured on UM claim after insurer tendered its policy limits, it simultaneously granted insured's motion to amend complaint to add first-party bad faith claim -- At time of orders at issue, there was no binding authority from district court on underlying issue of whether, under these circumstances, insured was required to file new bad-faith action, and there was split of authority between sister district courts on this issue -- Petition for writ of certiorari denied

THE FIRST LIBERTY INSURANCE CORPORATION, a foreign corporation, Petitioner, v. JOHANNA O'NEILL and WILLIE J. ANDERSON, Respondents. 4th District. Case No. 4D14-2895. January 13, 2016. Petition for writ of certiorari to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Donald W. Hafele, Judge; L.T. Case No. 502013CA004444MB. Counsel: Mark S. Shapiro and Antonio D. Morin of Akerman LLP, Miami, for petitioner. Brett C. Powell of The Powell Law Firm, P.A., Palmetto Bay, for respondent Johanna O'Neill.

(GERBER, Judge.) The insurer appeals from: (1) the circuit court's partial final judgment for the insured on her uninsured motorist claim after the insurer tendered its policy limits; and (2) the court's simultaneous order granting the insured's motion to amend the complaint to add a first-party bad faith claim. We treat the appeal as a petition for a writ of certiorari and deny the petition.
We deny the petition because the circuit court's decisions -- at the time of its decisions -- did not constitute a departure from the essential requirements of the law. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010) ("The departure from the essential requirements of the law necessary for granting a writ of certiorari is something more than a simple legal error.").

At the time of the circuit court's decisions, we had not addressed the issue of whether an insured, after obtaining a favorable result on its benefits claim, may amend the complaint to add a first-party bad faith claim instead of filing a new action on the bad faith claim.

Instead, the circuit court was faced with a split of authority from our sister courts on that issue. Compare Safeco Ins. Co. of Ill. v. Rader, 132 So. 3d 941, 947-48 (Fla. 1st DCA 2014) (denying insurer's petition for writ of certiorari as to the circuit court's order denying the insurer's motion to enter a final judgment in accordance with the insurer's confession of judgment on the insured's underinsured motorist claim, and also granting the insured's motion to add a bad faith claim), with Safeco Ins. Co. of Ill. v. Fridman, 117 So. 3d 16, 17-18 (Fla. 5th DCA 2013) (trial court erred in denying insurer's motion to enter a final judgment in accordance with the insurer's confession of judgment, and also reserving jurisdiction on the insured's motion to amend his complaint to add a bad faith claim; instead, the trial court should have entered the confessed judgment in the insured's favor, and the insured should have pursued a subsequent bad faith action against the insurer), rev. granted, 145 So. 2d 823 (Fla. 2014).

Given the lack of binding authority from this court on the underlying issue, and given the split of authority between our sister courts on the underlying issue, we cannot say that the circuit court's apparent decision to follow the First District's authority was a departure from the essential requirements of the law at the time of its decision. Thus, because of that procedural posture, we are compelled to deny the petition for writ of certiorari and not decide the underlying issue until a final appealable judgment is entered.

Petition denied. (GROSS and KLINGENSMITH, JJ., concur.)







 



* * *