SANDRA BARTON AND GREGORY BARTON, APPELLANTS,
v.
CAPITOL PREFERRED INSURANCE COMPANY, INC., APPELLEE
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The Bartons appealed summary judgment dismissing their first-party bad-faith claim against Capitol Preferred Insurance. The court reversed, holding that a settlement agreement resolving the underlying breach of contract claim constitutes a favorable determination of liability and damages sufficient to proceed with a bad-faith action, even if the settlement amount is less than policy limits.
The settlement constitutes a favorable resolution and determination of liability and extent of damages. An insured need not obtain such determination through trial and may use settlement, arbitration, or stipulation. The statute does not condition the right to bring a bad-faith action on recovery of policy limits or an amount equal to the initial demand.
[1] A first-party bad-faith action against an insurer does not accrue until the insured's underlying action for insurance benefits is resolved favorably to the insured.
[2] A bad-faith action against an insurer is premature until there has been a determination of liability and the extent of damages owed on the first-party insurance contract.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Certainly, the insured is not obligated to obtain the determination of liability and the full extent of his or her damages through a trial and may utilize other means of doing so, such as an agreed settlement, arbitration, or stipulation before initiating a bad faith cause of action.”
Establishes that settlement can satisfy the requirement for determining liability and damages in bad-faith claims
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCapitol provided sinkhole coverage to the Bartons through April 28, 2011. After obtaining new insurance with Universal, the Bartons discovered sinkhol…
The full statement of facts, procedural history, and disposition for this case are member content.
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Sandra and Gregory Barton appeal the final summary judgment entered in favor of Capitol Preferred Insurance Company, Inc., on the Bartons’ first-party bad-faith complaint. In granting Capitol’s motion for summary judgment, the trial court found that by accepting Capitol’s proposal for settlement on their underlying breach of contract claim for an amount less than the policy limits, the Bartons had failed to obtain a determination of liability or the extent of their damages. We disagree and, accordingly, reverse.
Capitol provided homeowners’ insurance to the Bartons from April 28, 2003, through 12:01 a,m., April 28, 2011. The homeowners’ policy included sinkhole coverage up to policy limits of $312,000. Capitol did not renew the Bartons’ policy after April 28, 2011, and the Bartons then obtained homeowners insurance with Universal Property and Casualty Insurance Company, effective from April 28, 2011 through April 28, 2012. Within two weeks of obtaining insurance with Universal, the Bartons noticed damage to the walls and floor of their home. They filed a claim for sinkhole-related damages with Universal. Universal denied the claim, determining that the damage occurred prior to the effective date of its policy. Thereafter, by letter dated October 7, 2011, the Bartons, through their attorney, submitted a claim and request for sinkhole testing to Capitol, pursuant to section 627.707, Florida Statutes (2011).1 The Bartons did not provide a date of loss in their claim. Capitol denied the claim by letter dated October 17, 2011. In its letter, Capitol identified the date of loss as “Unknown” and stated that it could not process any claim payments because the policy was not renewed on April 28, 2011. The letter also stated, “However, if you believe you have documentation which confirms that the incident occurred within the policy effective period, please forward it to this office for review.”
The Bartons filed a breach of contract action against both Capitol and Universal in August 2012. Subsequently, Universal retained Ground Down Engineering (“GDE”) to perform sinkhole testing. GDE issued a report on January 8, 2013, determining that “the cracks and separations within and on the exterior of the Barton residence are likely the result of soil movement associated with sinkhole activity.” GDE estimated the cost of repairs would be between $129,220 and $146,220. The Bartons settled their breach of contract action with Universal for an undisclosed amount, but continued to pursue their action against Capitol.
In March 2013, pursuant to section 624.155, Florida Statutes (2013),2 the Bar-*241tons filed a “Civil Remedy Notice of Insurer Violation” with the Florida Department of Insurance. Section 624.155 of the Florida Insurance Code,3 requires insureds to file a civil remedy notice with the Department of Insurance (with a copy served on the insurer) as a condition precedent to bringing a bad-faith claim against an insurer. See § 624.165(l)(b), Fla. Stat. (2013). The notice must set forth the specific statutory provision the insurer allegedly violated, the facts giving rise to the violation, the relevant policy language, and a statement that the notice is given to perfect the right to pursue the civil remedy authorized by the statute. § 624.155(3)(b), Fla. Stat. (2013). If the insurer pays the damages or corrects the violation within sixty days of the filing of the notice, then the insureds are precluded from filing a bad-faith claim. § 624.155(3)(a), (d), Fla. Stat. (2013).
In their civil remedy notice, the Bartons alleged that rather than perform a “complete, thorough and statutorily compliant sinkhole/subsidence investigation,” Capitol merely summarily denied the sinkhole claim, thereby placing its interests ahead of those of its insureds. The civil remedy notice further alleged that Capitol wrongly denied a valid claim.
On April 5, 2013, Capitol responded to the civil remedy notice by denying all allegations. Approximately six months later, Capitol served the Bartons with a proposed settlement, pursuant to section 768.79, Florida Statutes (2013), offering to settle the Bartons’ claim for $65,000. Sig-*242nifieantly, the proposal did not require the Bartons to execute a release or to expressly waive their right to pursue a bad-faith action against Capitol. The Bartons timely accepted Capitol’s proposal for settlement. Shortly thereafter, Capitol paid the Bar-tons $65,000, and the Bartons dismissed their breach of contract complaint.
After settling the underlying action, the Bartons filed a first-party bad-faith action against Capitol, alleging that in handling the Bartons’ sinkhole claim, Capitol violated sections 624.155(l)(b) and 626.9541(1)(i)3,4 Florida Statutes (2013), by, inter alia, failing to properly investigate the Bartons’ claim and failing to act in good faith to settle that claim. Capitol filed an answer and affirmative defenses denying liability.5
Capitol filed a motion for summary judgment in December 2014. It alleged that it was entitled to judgment as a matter of law on the Bartons’ bad-faith claim because the Bartons failed to establish the necessary prerequisites to maintain such a claim against Capitol. Specifically, Capitol alleged that the Bartons failed to prove that: (1) the underlying breach of contract case had been resolved in their favor; and (2) there had been a determination of the “actual extent of [their] loss.” In support of summary judgment, Capitol submitted an affidavit from one of its claims supervisors, who averred that as a claims supervisor she oversaw all claims, evaluated liability, and made coverage decisions. According to her affidavit, Capitol never admitted liability for the Bartons’ *243claim and the proposal for settlement was made in an effort to dispose of litigation costs. The claims supervisor further averred that there had not been a determination of liability against Capitol, nor had there been a determination of the extent of the Bartons’ alleged damages.
The Bartons filed a response in opposition to Capitol’s motion for summary judgment. They alleged that although a release was discussed, the parties ultimately agreed to a settlement without a release. Additionally, the Bartons’ posited that Capitol’s payment of $65,000 on the policy was a confession of judgment and constituted a determination of liability and damages. In support of their response, the Bartons filed the affidavits of the Bartons and their attorney. The trial court granted Capitol’s motion for summary judgment, stating that “a proposal for settlement does not equate to a determination of liability and the extent of damages.” The Bartons timely appealed the final summary judgment granted in favor of Capitol.
A cause of action for an insurer’s failure to settle its insured’s claim in good faith does not accrue until and unless the insured’s underlying first-party action for insurance benefits is resolved favorably to the insured. Blanchard v. State Farm Mut Auto. Ins. Co., 575 So.2d 1289, 1291 (Fla. 1991). Furthermore, a bad-faith action is premature until there is a determination of liability and extent of damages owed on the first-party insurance contract. Vest v. Travelers Ins. Co., 753 So.2d 1270, 1276 (Fla. 2000). However, the Florida Supreme Court has specifically stated that the insured is not obligated to obtain the determination of liability and the full extent of his or her damages through a trial, but may do so by other means — such as a settlement:
Certainly, the insured is not obligated to obtain the determination of liability and the full extent of his or her damages through a trial and may utilize other means of doing so, such as an agreed settlement, arbitration, or stipulation before initiating a bad faith cause of action.
Fridman v. Safeco Ins. Co. of Ill., 185 So.3d 1214, 1224 (Fla. 2016).
Here, Capitol’s payment of $65,000 constituted a favorable resolution for the Bartons. Cf. Ivey v. Allstate Ins. Co., 774 So.2d 679, 684-85 (Fla. 2000) (holding that Allstate’s voluntary payment of additional monies after insured brought action to recover personal injury protection benefits operated as confession of judgment, thereby entitling insured to recover attorney’s fees). The settlement further served as a determination of liability and extent of the Bartons’ damages. See Fridman, 185 So.3d at 1224 (stating that settlement may serve as determination of liability and full extent of insured’s damages); Brookins v. Goodson, 640 So.2d 110, 112 (Fla. 4th DCA 1994), disapproved on other grounds, State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 62 (Fla. 1995) (holding that insurer’s payment of policy limits pursuant to settlement of underinsured motorist claim established that insured had valid claim for underinsured motorist benefits for purpose of first-party bad-faith action against insurer).
Capitol suggests that because it settled for an amount less than policy limits or the amount initially demanded by the Bartons, that there has been no determination of liability or extent of damages. We reject that argument. Section 624.155 authorizes an insured to bring a first-party bad-faith action where the insured has been damaged by the insurer’s failure to comply with certain enumerated statutory provisions. The statute does not condition the right to bring an action on the insured’s recovery of the policy limits or an amount *244equal to or greater than its initial demand in the underlying action.
REVERSED AND REMANDED.
LAWSON, C.J., and SCHUMANN, B.B., Associate Judge, concur.
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Demase v. State Farm Fla. Ins. Co., 239 So. 3d 218 (Fla. 5th DCA 2018)…paid within 60 days meaningless). In obtaining a determination of liability and a determination of damages, the "key" is not the underlying breach of contract action, but rather, the payment by the insurer.3 See Barton v. Capitol Preferred Ins. Co., 208 So. 3d 239, 243 (Fla. 5th DCA 2016) (holding that insurer's $65,000 settlement payment paid after sixty-day cure period constituted favorable resolution for insureds even though amount was less than policy limits and amount that insureds initially demanded).…
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Demase v. State Farm Fla. Ins. Co. (Fla. 5th DCA 2018)…id within 60 days meaningless). In obtaining a determination of liability and a determination of damages, the “key” is not the underlying breach of contract action, but rather, the payment by the insurer.3 See Barton v. Capitol Preferred Ins. Co., 208 So. 3d 239, 243 (Fla. 5th DCA 2016) (holding that insurer’s $65,000 settlement payment paid after sixty-day cure period constituted 3 State Farm’s reliance on State Farm Mutual Automobile Insurance Co. v. Brewer, 940 So. 2d 1284 (Fla. 5th DCA 2006), in arguin…
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Healthy Food Experts, LLC v. Amguard Ins. Co. (Fla. 4th DCA 2026)…ured by the excess judgment amount.” McLeod v. Cont'l Ins. Co., 591 So. 2d 621, 624 (Fla. 1992), superseded on other grounds by ch. 92-318, § 79, Laws of Fla., as recognized in Fridman, 185 So. 3d at 1221; see also Barton v. Cap. Preferred Ins. Co., 208 So. 3d 239, 243–44 (Fla. 5th DCA 2016) (holding, in a first-party bad faith action, that “[section 624.155] does not condition the right to bring an action on the insured's recovery of the policy limits"); Cingari, 377 So. 3d at 1171–75 (the insurer's payment…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Farren Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000)
- State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55 (Fla. 1995)
- Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So. 2d 1289 (Fla. 1991)
- Vest v. Travelers Ins. Co., 753 So. 2d 1270 (Fla. 2000)
- Fridman v. Safeco Ins. Co. OF Ill., 185 So. 3d 1214 (Fla. 2016)
- Brookins v. Goodson, 640 So. 2d 110 (Fla. 4th DCA 1994)