By John J. Pappas and L. Andrew Watson
This is one of a series of articles under the by line “Butler Pappas on Bad Faith” originally published in Mealey's Litigation Report: Insurance Bad Faith, Vol. 20, #6, p. 23 (July 18, 2006).
[Editor's Note: John J. Pappas is a partner with the law firm of Butler Pappas Weihmuller Katz Craig LLP with offices in Miami, Mobile, Tallahassee, and Tampa. He is an experienced trial and appellate lawyer in the firm's Coverage and Extra-contractual Departments. L. Andrew Watson is an associate with the law firm of Butler Pappas Weihmuller Katz Craig LLP, also in the firm's Coverage and Extra-Contractual Department. This commentary, other than the quoted material, are the authors' opinion; not their law firm's, and not Mealey's Publications'. Copyright © 2006 by the authors. Responses are welcome.]
In the case of Plante v. USF&G Specialty Insurance Company[FN1] a Federal District Court erroneously interpreted Florida law allowing a first-party “bad-faith” claim to proceed against an insurer before determination that the insurer was obligated to pay more to its insured.
The salient facts of Plante, as pleaded by the insured, are fairly simple. The insured, a condominium unit owner, was paid certain amounts by US&G Specialty for a vandalism claim. She believed she was entitled to more insurance dollars, but the insurer disagreed. She filed a Civil Remedy Notice of Insurer Violation as the pre-requisite to a statutory “bad-faith” claim that alleged various statutory violations but did not identify the additional amount the insurer should have paid her to “cure” the alleged violations (a tactic in and of itself, for another column). The insurer, believing it had accurately paid the claim, paid no more. The insured then sued her insurer in Federal District Court, bypassing an action for breach of the insurance contract, and instead suing immediately for statutory “bad-faith.” This trial court found that any partial payment to the insured under the insurance policy constitutes a “concession of liability” enabling an insured to proceed with a “bad-faith” action. Interpreting Florida Statutes § 624.155(1)(b),[FN2], this Federal trial court recognized the controlling Supreme Court of Florida case Blanchard v. State Farm Mut. Auto Ins.,[FN3] quoting from it:
Absent a determination of the existence of liability . . . and the extent of the plaintiff's damages, a cause of action cannot exist for a “bad-faith” failure to settle.
Although this Federal District Court correctly acknowledged that “the basis for this rule is that an insurer cannot be held liable for failure to settle claims in good faith when the insurer is not liable on those claims,” it misinterpreted the word “liability” in the context of standing to pursue a “bad-faith” claim. The Plante decision erroneously holds that anytime a first-party insurer makes any payment on a first-party claim, including but not limited to something as simple as a $1,000 advance for additional living expenses for an insured to relocate to a local motel due to hurricane damage making that insured's house uninhabitable, that insurer has now admitted “liability” and thus the insured has legal standing to sue that insurer for “bad-faith” under 624.155(1)(b)1. Paradoxically, if an insurer chooses not to pay its insured anything at anytime, that insurer cannot be sued for “bad-faith” until there has been some adjudication that it is legally liable to the insured for insurance proceeds under that insurance contract. Clearly this is not, nor should it be, the law in the State of Florida. Unfortunately, however, the plaintiffs' bar is attempting to push the application of this Plante decision onto other federal courts as well as Florida state courts.[FN4] Plante should not be followed for many reasons.
The Plante court erroneously interpreted a Florida Supreme Court decision called Imhof v. Nationwide Mut. Ins. Co.[FN5] for the proposition that “as long as a carrier concedes liability on a claim, even when the carrier disputes the amount for which it is liable, the carrier may be sued for 'bad-faith.'” Such a statement neither appears in the Imhof decision nor is there any support for such a statement to be found therein. The Florida Supreme Court in Imhof held that the lower court was correct in finding that the insured's failure to allege that there had been a determination of damages barred an action for “bad-faith” damages under Florida Statutes § 624.155(1)(b)1 while noting that the insured need not allege the specific amount of damages. The Florida Supreme Court also stated that an insurer's failure to respond to the Civil Remedy Notice within the statutory prescribed period of sixty days will create a presumption of “bad-faith” sufficient to shift the burden of proof upon the insurer. These were the only actual holdings of the Florida Supreme Court decision in Imhof. The remainder of the opinion is dicta. Moreover, nowhere in the Imhof decision does it state that in the absence of voluntary or involuntary payment of additional insurance proceeds to its insured after a Civil Remedy Notice's sixty day “cure” or “remedy” period has lapsed does an insured have standing to pursue a first-party “bad-faith” claim against its insurer under 624.155(b)(1). Imhof did not “[hold] that an insured's breach of contract claim has been resolved sufficiently to bring a bad faith claim as long as the insurance carrier concedes liability on the claim, even when the carrier disputes the amount for which it is liable” as Plante erroneously states. This language, let alone holding, cannot be found in the Imhof decision. Unfortunately, the Federal District Court in Plante believed it did.
The Supreme Court of Florida in Imhof also noted that the “record before [them] was necessarily sparse,” but referenced that “the amount of the arbitration award shows that Imhof had a valid claim.” In Imhof, Chief Justice Grimes in a concurring decision noted that:
Nationwide originally moved to dismiss the Complaint because there was no allegation that Imhof had obtained an arbitration award in excess of the policy limit . . . It is clear from the appellate briefs that the question of whether there had been an arbitration award in excess of the policy limits continued to be the primary issue before the District Court of Appeal. . . Despite having disposed of the case on a basis other than that which was argued, the court denied Imhof's motion to be permitted to amend his complaint to allege a favorable award. There has never been any doubt that Imhof obtained a favorable arbitration award. Both parties referred to it in their District Court of Appeal briefs. The absence of an allegation that Imhof had obtained an arbitration award which did not exceed the policy limits was never an issue in either the trial court or the District Court of Appeal. Under these circumstances, it is only fair to permit Imhof to amend his complaint.
Obviously Imhof obtained an arbitration award in excess of the amount of money that the insurer paid before the sixty day cure period of the Civil Remedy Notice had expired. Under such facts Imhof is correctly decided, but is not legal support for the Plante decision. In Plante there never was any voluntary or involuntary payment of additional insurance proceeds after the sixty day cure period of the Civil Remedy Notice had expired.
The Plante court also erroneously relied upon the case of Brookins v. Goodson,[FN6] “holding that payment of the policy limits by the insurer constitutes admission of liability.” In Brookins the insured served a Civil Remedy Notice pursuant to Florida Statutes § 624.155 alleging the insurer's “bad-faith” failure to settle for policy limits. After the sixty day “cure” period of the statute had run, and after litigation for breach of contract had commenced, the insurer tendered its policy limits. The Florida Fourth District Court of Appeal correctly stated:
. . . neither in Blanchard or more recently in Imhof does the Supreme Court suggests that the required resolution of the insured's underlying claim must be by trial or arbitration. The “bad-faith” statute imposes no requirement of a prior judgment as a condition precedent to a bad faith claim. Securing judgment or an excess judgment is not directly related to the basis of insurer's liability for first party “bad-faith.” However, as noted in Blanchard, a resolution of some kind in favor of the insured is a prerequisite. There was a favorable resolution here . . .
[Emphasis supplied.] Brookins clearly does not support the Plante decision. In fact, it contradicts it. In Brookins there was a resolution, that is payment of additional proceeds to the insured after the sixty day cure period of the Civil Remedy Notice had lapsed. In Plante no such fact existed nor was even attempted to be pleaded. In Plante there was no voluntary or involuntary payment of additional insurance proceeds to the insured after the sixty day cure period of the Civil Remedy Notice had lapsed. This is the material fact required that eluded the Plante court.
Plante also erroneously relied upon the case of Marraccini v. Clarendon Nat. Ins. Co.[FN7] As in Brookins, in Marraccini the insurer tendered its policy limits “well beyond the expiration of the sixty day period.” The Marraccini court correctly held that subsequent to such a payment, an insured had the legal standing to bring a first-party claim for “bad-faith” under § 624.155 against its insurance company. Of course, such a holding and fact pattern does not support the decision in Plante. The Plante court's belief that Brookins and Marraccini support its decision that without voluntarily or involuntarily payment of additional insurance proceeds after the sixty day cure period has expired an insured has legal standing to bring a first-party “bad-faith” claim is the erroneous perception resulting in the flawed decision.
Plante stated that the Florida Supeme Court's most recent case on this subject, Vest v. Travelers Ins. Co.,[FN8] suggests that payment of an insurance claim constitutes “a final determination of liability” under § 624.155(1)(b):
. . .in Vest, the Supreme Court of Florida quoted extensively from earlier opinions in Blanchard and Imhof and from the Fourth District Court's decision in Brookins in its determination of a related issue – whether an insured's damages under § 624.155(1)(b) are recoverable from the date that the conditions for payment of benefits under the policy had been fulfilled or from the date that the insured's liability has been determine. While the ultimate holding in Vest is not relevant for purposes of the instant motion, the fact that the Court reaffirmed the Fourth District's decision in Brookins suggests that payment of an insurance claim satisfies the prerequisite for a bad faith suit.
Because Brookins does not support Plante, Vest's affirmation of Brookins does not support Plante. Vest is actually in contradiction with Plante. The Florida Supreme Court stated in Vest:
Our decision in that case [Blanchard] had to do with the timing of the bringing of causes of action and not as to what claims could be pursued when a claim for bad faith ripened.
Second, we expressly state that Blanchard is properly read to mean that the 'determination of the existence of liability on the part of the uninsured tortfeasor and the extent of the [insured's] damages' are elements of a cause of action for bad faith. Once those elements exist, there is no impediment as a matter of law to recovery of damages for violation of § 624.155(1)(b)1 dating from the date of a proven violation.
Therefore, in this case, the trial court erred in ruling as a matter of law that there was no claim for bad faith for acts which occurred prior to the approval of the settlement on January 12, 1996. An action prior to that settlement was premature and was subject to dismissal without prejudice. However, upon that settlement, the claim for bad faith damages accrued from the date the violation of § 624.155(1)(b)1 ripened because at that time the final element of the cause of action occurred.
* * *
We continue to hold in accord with Blanchard that bringing a cause of action in court for violation of § 624.155(1)(b)1 is premature until there is a determination on liability and extent of damages owed on the first party insurance contract. . . . A claim brought prematurely is not subject to summary judgment. Such a claim should be dismissed as premature. . . .
[Emphasis supplied]. The law in Florida is clear. Before an insurer can be sued for first-party “bad-faith” that insurer must be liable for insurance proceeds beyond that which it paid before the sixty-day cure period expires. Plante simply ignores the significance of the timing of such payments. Plante fails to recognize that there must be payment of insurance proceeds after the sixty-day cure period has expired.
The Plante court erroneously dismissed as inapplicable the case of Lane v. Provident Life & Accident Ins. Co.,[FN9] where the plaintiff stipulated that his claim was not ripe because he had not yet proven that the insurer had breached the insurance contract; Fishkin v. Guardian Life Ins. Co. of America,[FN10] where the plaintiff, whose Complaint actually contained a claim for breach of the insurance contract, was precluded from adding a claim for “bad-faith” to his underlying claim for recovery on the policy since the underlying breach claim was outstanding; and Hartford Ins. Co. v. Mainstream Constr. Group, Inc.,[FN11] another instance where the “bad-faith” suit was deemed premature due to pending coverage litigation. Plante found that Hartford v. Mainstream did not support the insurance company's position “since there is no indication that the insurance company in that case made payment on the plaintiff's claims,” and noting that the plaintiff in that instance “raised claims for breach of the insurance contract, suggesting that the plaintiff agreed that a final determination had not been reached.” Thus, Plante seems to stand for the proposition that when an insured sues for breach of contract seeking additional insurance proceeds, that insured does not have legal standing to pursue a “bad-faith” claim. Paradoxically, only when an insured is not seeking additional insurance proceeds does that insured have legal standing to sue its insurer for “bad-faith” refusal to pay additional insurance proceeds. Obviously, Plante is non-sensical. Florida law, however, is not. If an insurer is not obligated to pay its insured more than it paid before the sixty-day cure period expires, it cannot be held liable for first-party “bad-faith.”[FN12] As stated in Lane v. Westfield Ins. Co.:[FN13]
The purpose of the Civil Remedy Notice of sixty days before bringing a “bad-faith” action against insurer is to give the insurer one last chance to settle the claim with its insured and avoid unnecessary “bad-faith” litigation – not to give the insured a right of action to proceed against the insurer even if after the insured's claim has been paid or resolved.
Unfortunately, Plante refused to certify the question for immediate appellate review by stating that such an interlocutory order for appeal requires that the order must involve a controlling question of law. Plante found that a question of law is “controlling” if reversal of the district court's order would terminate the action. Ironically, the court noted that the result of reversal of its order would be dismissal without prejudice with leave to amend and that the insured could still potentially bring a breach of contract claim against USF&G's conduct. This is interesting since the court acknowledged that had Plante brought a count for breach of contract, she could not have also brought a first-party “bad-faith” claim against its insurer. Moreover, Plante refused to certify the question for appeal, because it found that the question raised by USF&G's motion is not one upon which courts have disagreed. Given the Plante court's misinterpretation and misapplication of Imhof, Brookins, Marraccini, Blanchard, and Vest, it comes as no surprise that this Federal District Court actually believed that its decision in Plante was in agreement with these cases. Of course, this is the problem – the Plante decision is not. Plante is contradicted by Florida law as espoused by Imhof, Brookins, Marraccini, Blanchard, and Vest.
Notwithstanding the Federal court's confusion, the law in Florida as espoused by the Florida Supreme Court and the Florida District Courts of Appeal is clear within the statutory scheme of Florida Statutes § 624.155. First, there is no common law first-party “bad-faith” in the State of Florida. Second, § 624.155(1)(b)1 does provide a statutory cause of action for first-party “bad-faith,” but, because it is in derogation of the common law, it is to be strictly construed. Third, a prerequisite to bringing a first-party “bad-faith” cause of action under this statutory scheme, an insured must provide a Civil Remedy Notice to the insurer. If the insurer cures or remedies the underlying claim, for all practical purposes pays all that it actually owes the insured under the first-party insurance contract within the sixty day cure period, then the insured will not have legal standing to bring a first-party “bad-faith” cause of action against its insurer. If an insurer makes no payment, or only partial payment, to its insured before the sixty days has expired, but does not voluntarily or involuntarily pay or become obligated to pay additional insurance proceeds to its insured under that insurance contract thereafter, then the insured does not have legal standing to bring a first-party “bad-faith” lawsuit against that insurer under the statutory scheme of § 624.155. If, however, after the sixty day cure period has expired on a Civil Remedy Notice, a first-party insurer voluntarily or involuntarily pays additional insurance proceeds under the insurance contract to its insured, or is found legally obligated to pay additional insurance proceeds to its insured, then a necessary element of the insured's cause of action for first-party “bad-faith” under Florida Statutes § 624.155 has been met, can be pleaded, and the insured can bring such a first-party “bad-faith” cause of action and survive a motion to dismiss. Notwithstanding Plante's misinterpretation of the law in the context of this statutory scheme, in particularly in the context of the timing of payments in relation to a Civil Remedy Notice, the law of the State of Florida as espoused by Imhof, Brookins, Marraccini, Blanchard, and Vest clearly, consistently, and unequivocally supports this legal statutory scheme. And, of course, besides it being the law of the State of Florida, it makes legal, equitable, and public policy sense.
Under the actual law of the State of Florida, insurers would be encouraged to pay its insureds as quickly as possible, even before it has made a full and final investigation of the subject insurance claim. Especially in catastrophic claims, such as hurricanes, such a legal scheme would encourage, or at least not discourage, insurers from paying its insureds emergency advances during such traumatic events, even before the insured has fully determined whether there is complete coverage for the entire claim or whether the insured has breached the insurance contract or even attempted to commit insurance fraud. Under Plante, any insurer acting under such emergency conditions paying such an advance, although such advances are not actually required under the terms of any property policy, would then be subject to the burden, expense, stress, and exposures of a “bad-faith” lawsuit, while an insurer who refuses to pay its insured any monies whatsoever, regardless of the catastrophic and traumatic events occurring to its insureds, would not be subject to such first-party “bad-faith” claim, at least, not until that insured has prevailed on a breach of insurance contract lawsuit.
Moreover, to the extent courts interpret Plante to allow a first-party “bad-faith” action to be litigated simultaneously with a breach of insurance contract action, there are numerous legal, equitable, and practical reasons for not allowing such to occur. Much of the discovery in a “bad-faith” action is not reasonably calculated to lead to admissible evidence and thus not allowable discovery in a breach of insurance contract action. For example, an insured may be allowed to obtain the work-product of an insurer and its counsel in a “bad-faith” case, but denied such discovery in a breach of insurance contract action. In order to defend itself against a “bad-faith” action, an insurer may choose to rely upon the “advice of counsel” defense or otherwise waive its attorney-client privilege to establish that its conduct, although possibly negligent, did not constitute malicious or grossly negligent malfeasance against its insured. Of course, to provide the insured and its counsel with such attorney-client privileged communication during the course of the actual breach of insurance contract case would be highly prejudicial against the insurer. Obviously, the bringing of a first-party “bad-faith” claim simultaneously with a breach of insurance contract claim creates contradictions and complexities that are avoidable by not allowing such to occur.[FN14]
Additionally, under Plante it would seem that an insured cannot sue its first-party insurer for breach of contract for additional insurance proceeds and at the same time bring a first-party “bad-faith” count. However, if that insured brings only a count for “bad-faith,” without a count for a breach of the insurance contract for additional insurance proceeds, that “bad-faith” count can survive a motion to dismiss. Of course this is absurd. If there has been no additional payment of insurance proceeds after the sixty day cure period has lapsed, and the insured has not brought a suit against its insurer for additional insurance proceeds, then what is the “bad-faith?” By definition the insurer has paid its insured all that it owes under the first-party contract of insurance. Florida Statutes § 624.155(3)(d) states:
No action shall lie if, within 60 days after filing notice, the damages are paid or the circumstances giving rise to the violation are corrected.
Yet, under Plante, an insured can bring a first-party “bad-faith” action against its insurer even if an insured fails to claim additional insurance proceeds are owed. The Plante, decision is wrong legally, equitably and practically, and is in contradiction with the actual public policy objectives of the State of Florida. It should not be followed by any State or Federal Court but rather should be expressly acknowledged as wrongly decided.
Florida law is, and should be, that for a “bad faith” claim to be ripe, there must be a voluntary or involuntary payment of additional insurance proceeds after the sixty days to cure the Civil Remedy Notice lapses. This payment can arise from breach of contract action resulting in a judgment. It can also occur due to payment of an appraisal award. It can occur if an insured accepts a proposal for settlement. It can occur if the insurer decides it does indeed owe more money to its insured and pays such additional insurance proceeds on the 61st day (or later) after the Civil Remedy Notice has been served. Payment of, or the legal obligation to pay, additional insurance proceeds after the sixty day cure period has run on the Civil Remedy Notice is a required legal element of a claim or cause of action for “bad-faith” against a first-party insurer pursuant to Florida Statutes § 624.155. Unfortunately, Plante fails to grasp this concept.
At the urging of the insured's counsel, the Federal District Court got confused with language and context – such as what is meant by “coverage,” “liability,” “extent of damage,” and “final resolution.” The fact that an insurer pays its insured an advance or payment for covered damages does not mean that the insurer has “coverage” or “liability” for any unpaid additional portion of the insured's insurance claim. It is not uncommon for a first- party carrier to pay its insured an advance or to pay its insured payment for some covered damages but refuse to pay its insured additional damages, denying coverage for such a claim, or under some circumstances, stating that the insured herself has breached the insurance contract and thus is no longer entitled to any additional insurance proceeds. When the Florida Supreme Court and the Florida District Courts of Appeal interpreted the application of Florida statutory scheme for first-party “bad-faith” and specifically the requirement of the Civil Remedy Notice, they use the terms “coverage,” “liability,” “extent of damages,” “final resolution,” and “final determination,” in the context of what happens after the sixty day cure period for a Civil Remedy Notice has expired. Plante erroneously ignores the relationship between the timing of payment and the expiration of the sixty-day cure period. This is the fatal flaw of the Plante doctrine.
In Shulman v. Liberty Mut. Fire Ins. Co.,[FN15] the same attorneys who argued in favor of the Plante, doctrine ironically found themselves defeated by Plante. The Federal Court of Appeal in Shulman found that because the plaintiff “neglected to raise the 'bad-faith' claim prior to settlement and dismissal of its initial lawsuit where Liberty Mutual did not dispute coverage, Shulman's subsequent 'bad-faith' lawsuit relating to that claim is barred under the doctrine of res judicata."” The Federal Appellate Court found that the trial court “did not err by granting the insurer's motion to dismiss on Shulman's bad faith claim.” The Eleventh Circuit Court of Appeal seemed to acknowledge that Shulman (presumably his attorneys) argued that Blanchard stood for the proposition that one could not bring a statutory “bad-faith” claim at the same time as one brings a claim for disputing insurance coverage. Apparently, there was a post-Plante epiphany. The Federal Appellate Court, however, found that Shulman's lawsuit expressly stated that “by paying a portion of Shulman's claim, the insurer has conceded coverage under the policy for both claims, and a 'bad- faith' action is accordingly ripe.” Therefore, the Federal Appellate Court found that such a “bad-faith” action was ripe at the time Shulman received partial payment and should have been brought as a separate count along with the Shulman's breach of contract count:
. . . because facts underlying the “bad-faith” claim were known to Shulman at the time he filed the state contract claim lawsuit and certainly before he had accepted Liberty Mutual's settlement offer and the state court case was dismissed with prejudice, it was impermissible for him to split his causes of action under the doctrine of res judicata . . .
So now, under the Federal Plante-Shulman doctrine, not only can an insured bring a first-party “bad-faith” claim against its insurer prior to there being any voluntary or involuntary payment or determination of legal liability to pay additional insurance proceeds after the cure period has lapsed on the Civil Remedy Notice, but the failure to bring such a cause of action simultaneously with the breach of contract action results in a waiver of such a claim and, no doubt, possible legal malpractice for failure to join such a “bad-faith” claim in the lawsuit for breach of contract as well. Hence, a warning, beware of Federal Florida.
Endnotes
FN1. Plante v. USF&G Speciality Ins. Co., 2004 WL 741382 (S.D. Fla. Mar. 2004); motion for reconsideration denied, 2004 WL 1429932 (S.D. Fla., June 2, 2004) (the insurance carrier paid its insured $9,900 for a water claim under a condominium unit owner policy that had property limits of $10,000. After receipt of a Civil Remedy Notice of Insurer Violation, the insurer never paid the insured any additional sums. The insured brought suit in Federal Court for fraud in the inducement and “bad-faith” pursuant to Florida Statute § 624.155. Notably, the insured neither sought appraisal nor brought suit for breach of contract).
FN2. See, John J. Pappas, “Florida's First-Party Bad-Faith Law,” Mealey's Litigation Report: Insurance Bad Faith, Vol. 18 #12 (October 19, 2004) (as a condition precedent to bringing an action under this section, the Department and the authorized insurer must have been given 60 days written notice of the violation. . . No action shall lie if, within 60 days after filing notice, the damages are paid or the circumstances giving rise to the violation are corrected).
FN3. 575 So. 2d 1289, 1291 (Fla. 1991).
FN4. See, e.g., Makes and Models Magazine, Inc. v. Assurance of America, 2005 WL 2045780 (M.D. Fla. 2005) (“The general rule in Florida is that an action for insurance bad-faith may not be brought until a final determination of liability has been made. In Blanchard, the Eleventh Circuit restated the Florida Supreme Court's position that an insured's bad faith claim could not accrue prior to the conclusion of the underlying litigation for the contractual insurance claim. The Florida Supreme Court later refined the rule by holding that there must be a determination of damages before bringing an insurer bad faith claim. Imhof v. Nationwide Mut. Ins. Co., 643 So.2d 617, 617 (Fla. 1994). The purpose of the rule is to ensure that the insured has a valid claim. Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1273-74 (Fla. 2000). However, there is an exception to the rule. An insurer's payments up to the policy limits constitute a determination of liability for purposes of satisfying the prerequisite for an insurer bad faith claim. Plante v. USF & G Specialty Ins. Co., WL 741382. . . see also Ludwig v. Liberty Mut. Fire Ins. Co., WL 3323791 (M.D. Fla. Nov. 19, 2004); Brookins v. Goodson, 640 So.2d 110, 112 (Fla. 4th DCA 1994). The court in Plante read the Florida Supreme Court's rulings in Blanchard, Imhof, and Vest as suggesting that payment of the policy limits of an insurance claim amounted to the final determination of liability required for an insurer bad faith claim. The court then interpreted Florida law to extend the exception to include insurance payments in amounts less than the policy limit. Id. Thus, an insurer that makes payments on an insured's claims admits liability under the insurance policy, regardless of the amount of the payments. Id. at 5. Because Defendant has made payments on Plaintiff's claims under Plaintiff's insurance policy, Defendant has admitted liability with respect to the insurer bad faith claim. Accordingly, [the “bad faith” count] is ripe, and Defendant's Motion to Dismiss [it] is denied.”); and Bankers Security Ins. Co. v. Walsh, Case No. 3D04-1901 (Fla. 3d DCA February 2, 2005) (denying, on the merits, a petition for writ of certiorari by insurer after trial court lifted abatement of an insured's statutory “bad-faith” claim while the breach of contract action was still pending, in the face of the Plante decision).
FN5. 643 So. 2d 617 (Fla. 1994) (answering certified question that in order to pleaded first-party bad faith in Florida, insured must plead a “determination of damages” pursuant to Blanchard, although the amount need not be pled).
FN6. 640 So. 2d 110, 113 (Fla. 4th DCA 1994).
FN7. 2003 WL 22668842 (S.D. Fla. Oct. 1, 2003).
FN8. 753 So. 2d 1270 (Fla. 2000).
FN9. 71 F. Supp. 2d 1255 (S.D. Fla. 1999).
FN10. 22 F.Supp. 2d 1365 (S.D. Fla. 1998).
FN11. 864 So. 2d 1270 (Fla. 5th DCA Feb. 6, 2004).
FN12. Plante simply ignores the case of Liberty Mut. Ins. Co. v. The Farm, Inc., 754 So. 2d 865 (Fla. 3d DCA 2000) where the Florida Supreme Court clarified that “bringing a cause of action in court for violation of § 624.155(1)(b)1 [statutory bad faith] is premature until there is a determination of liability and extent of damages owed on the first-party insurance contract [citing Vest]. Since damages have yet to be determined in the first-party action, the insured's claim for statutory bad faith is not ripe and must be dismissed without prejudice as being premature.”
FN13. 862 So. 2d 774, 779 (Fla. 5th DCA 2004).
FN14. See, John J. Pappas, “Bifurcating Bad-Faith,” Mealey's Litigation Report: Insurance Bad Faith, Vol. 19 #2 (May 17, 2005) (“not only do we have the tort of 'bad-faith' swallowing up the law of contract, but now you have the trial of 'bad-faith' cannibalizing the trial of contract. Are not our Appellate Courts busy enough without creating a trial record that is an evidentiary nightmare destined for Appellate review?”).
FN15. 2006 WL 952327 (11th Cir. 2006).