Clough v. Govt. Employees Ins. Co.

636 So. 2d 127, 1994 WL 140740
CourtDistrict Court of Appeal of Florida
DecidedApril 22, 1994
Docket93-1488
StatusPublished
Cited by7 cases

This text of 636 So. 2d 127 (Clough v. Govt. Employees Ins. Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clough v. Govt. Employees Ins. Co., 636 So. 2d 127, 1994 WL 140740 (Fla. Ct. App. 1994).

Opinion

636 So.2d 127 (1994)

Anthony CLOUGH, Appellant/Cross-Appellee,
v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellee/Cross-Appellant.

No. 93-1488.

District Court of Appeal of Florida, Fifth District.

April 22, 1994.

Charles R. Stack of High, Stack, Lazenby, Palahach, Maxwell & Morgan, Melbourne, for appellant/cross-appellee.

Dennis R. O'Connor and David B. Falstad of Gurney & Handley, P.A., Orlando, for appellee/cross-appellant.

COBB, Judge.

The primary issue on this appeal is whether, as a condition precedent to the initiation of a first party bad faith action, a claimant to underinsured motorist benefits must establish via jury verdict the exact *128 amount of his damages in excess of the applicable coverage or whether it is sufficient for the parties (the claimant and the carrier) to simply stipulate that the claimant's damages exceed the maximum available underinsured motorist coverage. The trial judge held, and we agree, that the stipulation serves as a sufficient basis for any subsequent bad faith action and that the exact amount of the damages can be determined in that action.

Clough (claimant) was seriously injured in 1990 when a motorcycle he was operating was struck by one vehicle and then he himself was struck by a second vehicle. His damages exceeded both tortfeasors' liability policy limits, which were tendered to and accepted by the claimant. He then demanded underinsured motorist benefits from the defendant, Government Employees Insurance Company (GEICO) (carrier), which had in force an automobile insurance policy on two vehicles owned by the claimant's mother. The claimant, as a resident of his mother's household, claimed entitlement to underinsured benefits. The carrier denied coverage based on the following exclusion in its policy:

2. Bodily injury to an insured while occupying or through being struck by an uninsured auto owned by an insured or a relative is not covered.

Following denial of coverage, the claimant filed the instant action against the carrier claiming entitlement to underinsured motorist benefits of $20,000, $10,000 for each vehicle. The carrier answered, admitted that the claimant was a resident of its named insured's household and that the policy was in force and effect at the time of his accident. The carrier further admitted that the two tortfeasors negligently caused the accident and that the claimant suffered damages sufficient to encompass the $20,000 in underinsured motorist benefits claimed. However, the carrier asserted that the above quoted exclusion applied to preclude coverage because the claimant was injured while occupying his uninsured motorcycle.

The trial court granted partial summary judgment in favor of the claimant on the issue of coverage and ruled that the cause should proceed to trial on the issue of damages. The claimant then amended his complaint to allege two accidents had actually occurred and that he was thus entitled to a total of $40,000 in uninsured benefits. The carrier filed an amended answer admitting that the claimant suffered damages sufficient to encompass $40,000 in uninsured benefits if the claimant was entitled to such benefits under the terms and conditions of the policy and if the court determined two separate accidents had occurred. The parties' pretrial statements reveal that the issues for trial were whether the claimant was involved in two accidents and whether the claimant had to obtain a jury verdict against the carrier prior to obtaining underinsured benefits.

The carrier moved for summary judgment asking the court to determine whether the plaintiff had been involved in two separate accidents. The carrier further asked the court to rule that the plaintiff was not entitled to a jury trial on damages in light of the concession in its answer. At the summary judgment hearing, the carrier stipulated that the claimant's injuries were caused by two separate accidents within the meaning of the insurance policy. The parties also stipulated that the claimant's damages exceeded the maximum available underinsured motorist coverage of $40,000 plus the amounts previously paid by the two tortfeasors. The trial court entered summary judgment, finding as follows:

1. (a) The Defendant, GEICO, is entitled to Summary Judgment on the question of whether the Plaintiff must first obtain a jury verdict prior to obtaining benefits pursuant to the subject policy. The Court finds that the Plaintiff does not have a right to proceed to trial in light of the aforementioned stipulations, as well as the Defendant's tender of its maximum policy limits of $40,000.00, and therefore strikes and removes this cause from the Court's trial docket;
(b) The Court does find, however, based upon the aforementioned stipulations that the Plaintiff is entitled to Summary Judgment in his favor in the amount of $40,000.00 representing the maximum amount of underinsured motorist policy limits available to the Plaintiff from the Defendant, GEICO.
*129 2. The court does not resolve whether the Plaintiff is entitled to pursue a claim of bad faith, pursuant to F.S. 624.155.
3. Based upon the foregoing, the Court entered Judgment for the Plaintiff in the amount of Forty Thousand Dollars ($40,000.00), plus interest, for which sum let execution issue.

The claimant moved for rehearing asserting that under existing case law, he was required to obtain a verdict on the issue of the amount of damages that he had sustained prior to instituting an action for bad faith. The court denied that motion and this appeal ensued.

The basis for this appeal is the claimant's desire to ultimately pursue a first party bad faith action against the carrier resulting from the latter's refusal to pay underinsured benefits upon demand. The claimant asserts that case law holds that a condition precedent to institution of such an action is a jury determination of a plaintiff's damages in excess of the applicable insurance limits.

Two types of causes of action for bad faith exist, first party and third party bad faith. Third party bad faith consists essentially of conduct of a liability insurer which exposes its insured to an excess judgment when the insurer could have and should have settled the claim against its insured within the policy limits. See Thompson v. Commercial Union Ins. Co., 250 So.2d 259 (Fla. 1971).

First party actions consist of the insurer's wrongful refusal to settle a claim accruing directly to its own insured, such as a PIP claim or an uninsured/underinsured motorist claim. At common law, Florida courts refused to recognize a first party bad faith cause of action, but the cause of action was legislatively created in 1982 by enactment of section 624.155, Florida Statutes. Thus, by statute an insured may pursue a first party bad faith action against the insured's uninsured/underinsured motorist carrier. Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289 (Fla. 1991); Opperman v. Nationwide Mut. Fire Ins. Co., 515 So.2d 263 (Fla.5th DCA 1987), rev. denied, 523 So.2d 578 (Fla. 1988).

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Cite This Page — Counsel Stack

Bluebook (online)
636 So. 2d 127, 1994 WL 140740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clough-v-govt-employees-ins-co-fladistctapp-1994.