ERNESTO SIVILLA, M.D., P.A., APPELLANT,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLEE
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Dr. Ernesto Sivilla appealed a summary judgment dismissing his bad faith insurance claim against State Farm after the insurer refused his collision claim. The court reversed, holding that damages not actually tried in the preceding breach of contract claim could still be pursued in the bad faith action.
The court reversed the summary judgment, holding that a plaintiff may proceed on a bad faith claim for damages that were not actually tried and determined in the breach of contract claim, even if those damages were pled in the contract count. The key distinction is between pleading damages and abandoning them at trial versus having them adjudicated by the jury.
[1] A bad faith claim under Section 624.155, Florida Statutes, may proceed for damages not previously litigated and determined in a bifurcated breach of contract claim.
[2] A plaintiff may pursue damages in a bad faith claim even if those damages were pled in a breach of contract claim, if the plaintiff effectively abandoned those damages du…
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Join FLexlaw to unlock all legal intelligence“many of the items of damage sought by the plaintiff in the bad faith claim were not sought by plaintiff at the trial of the breach of contract claim and were therefore not passed upon by the jury at that trial”
Establishes the court's key distinction between damages that were pled versus those actually tried and adjudicated by the jury
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Join FLexlaw to unlock all legal intelligenceSivilla held an auto insurance policy with State Farm. His vehicle was involved in a motor vehicle accident and he submitted a collision insurance cla…
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PER CURIAM.
This is an appeal by the plaintiff Ernesto Sivilla from an adverse final summary judgment entered below in a first party bad faith action against the defendant State Farm Insurance Mutual Automobile Insurance Company under Section 624.155, Florida Statutes (1989), arising from the defendant’s failure to settle the plaintiffs insurance claim. We reverse.
The plaintiff had an insurance policy on his automobile with the defendant; the automobile was involved in a motor vehicle accident and the plaintiff submitted a collision insurance claim. The defendant refused the claim, and, accordingly, the plaintiff filed a two-count complaint against the defendant for (1) breach of the underlying insurance contract, and (2) a bad faith claim. The court, upon a stipulated order, bifurcated the two claims and tried the contract claim first as required by Blanchard v. State Farm Automobile Insurance Co., 575 So. 2d 1289 (Fla.1991).
This latter claim was tried by a jury, resulting in a $41,000 judgment based on two items of damages submitted to the jury: the cost of repair/replacement cost of the automobile plus loss of use damages. Thereafter, the trial court entered a summary judgment for the defendant on the bad faith claim on the ground that “all damages sought by the plaintiff were previously pled and sought in the trial of the other count against this [djefendant in this lawsuit. Because the record fails to reveal any new elements of damage arising solely from the [defendant's purported bad faith, summary judgment is warranted” (R.300-01).
We disagree and reverse because, simply stated, many of the items of damage sought by the plaintiff in the bad faith claim were not sought by plaintiff at the trial of the breach of contract claim and were therefore not passed upon by the jury at that trial. It is true that plaintiff pled such damages in his breach of contract claim, but, in effect, he abandoned such damages when the case was tried. This being so, there can be no bar to the plaintiff proceeding on his bad faith claim for those items of damage which were not, in fact, tried and determined on the breach of contract claim. We have not overlooked the defendant’s contrary arguments and other points, but are not persuaded thereby. See McLeod v. Continental Ins. Co., 591 So. 2d 621 (Fla.1992); Day v. Weadock, 104 Fla. 251, 140 So. 668 (1932); Barnacle Bill’s Seafood Galley, Inc. v. Ford, 453 So. 2d 165, 167 (Fla. 1st DCA 1984).
The final summary judgment under review is reversed and the cause is remanded to the trial court for further proceedings.
Reversed and remanded.
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Safeco Ins. Co. OF Ill. v. Fridman, 117 So. 3d 16 (Fla. 5th DCA 2013)…ith. See Liberty Mut. Ins. Co. v. Cook, 696 So. 2d 497 (Fla. 3d DCA 1997) (homeowner’s insurance claim); Utah Home Fire Ins. Co. v. Navarro, 642 So. 2d 1200 (Fla. 3d DCA 1994) (homeowner’s insurance claim); Sivilla v. State Farm Mut. Auto. Ins. Co., 614 So. 2d 553 (Fla. 3d DCA 1993) (automobile collision insurance claim); State Farm Mut. Auto. Ins. Co. v. Oteiza, 595 So. 2d 1094 (Fla. 3d DCA 1992). Id. Similarly, in Trafalgar at Greenacres, Ltd. v. Zurich American Insurance Co., 100 So. 3d 1155 (Fla. 4th DCA…
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Doan v. John Hancock Mut. Life Ins. Co., 727 So. 2d 400 (Fla. 3d DCA 1999)…ewith. See Liberty Mut. Ins. Co. v. Cook, 696 So. 2d 497 (Fla. 3d DCA 1997)(homeowner’s insurance claim); Utah Home Fire Ins. Co. v. Navarro, 642 So. 2d 1200 (Fla. 3d DCA 1994)(homeowner’s insurance claim); Sivilla v. State Farm Mut. Auto. Ins. Co., 614 So. 2d 553 (Fla. 3d DCA 1993)(automobile collision insurance claim); State Farm Mut. Auto. Ins. Co. v. Oteiza, 595 So. 2d 1094 (Fla. 3d DCA 1992). In Rubio, the plaintiffs’ home was burglarized and personal property was stolen. The allegation was made that th…
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Allstate Ins. Co. v. Baughman, 741 So. 2d 624 (Fla. 2d DCA 1999)…nsured motorist cases. Significantly, Doan is not the only Third District decision to apply Blanchard beyond the context of an uninsured motorist case. The Third District did so before Rubio in Sivilla v. State Farm Mutual Automobile Insurance Co., 614 So. 2d 553 (Fla. 3d DCA 1993). In Sivilla, the Third District held that, as required by Blanchard, the trial court properly bifurcated the insured’s claim against his own insurer for breach of contract, based on the insurer’s refusal to pay the insured’s colli…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So. 2d 1289 (Fla. 1991)
- McLEOD v. Cont'l Ins. Co., 591 So. 2d 621 (Fla. 1992)
- Day v. Weadock, 104 Fla. 251 (Fla. 1932)
- Barnacle Bill's Seafood Galley, Inc. v. Ford, 453 So. 2d 165 (Fla. 1st DCA 1984)
- State v. Williams, 104 Fla. 304 (Fla. 1932)