Lead Opinion
The conflict issue in this case is whether an insured is entitled to a determination of liability and the full extent of his or her damages by first bringing an’ uninsured/underinsured motorist (UM) action before litigating a first-party bad faith cause of action under section 624.155, Florida Statutes (2007). The related issues we address are whether that determination of damages is then binding, as an element of damages, in a subsequent first-party bad faith cause of action against the same insurer,' and whether the trial court in this case erred in retaining jurisdiction to allow the insured to file a bad faith cause of action.
In Safeco Insurance Co. of Illinois v. Fridman,
For the reasons explained in this opinion, we hold that an insured is entitled to a determination of liability and the full extent of his or her damages in the UM action before filing a first-party bad faith action. That determination of .damages is then binding, as an element of damages, ip a subsequent first-party bad faith action against the same insurer so long as the parties have the right to appeal any properly preserved errors in the verdict. The history, of first-and third-party bad faith actions, this Court’s precedent, and the legislative intent to eliminate the distinction between first- and third-party bad faith claims all support our conclusion. We also conclude that the trial court in .this case did not err in retaining jurisdiction to allow the filing of a bad faith cause of action. Accordingly, we quash the Fifth District’s decision and remand for further proceedings consistent with this opinion.
5
FACTS AND BACKGROUND
In January 2007, Petitioner Adrian Frid-man suffered injuries as a result of an automobile accident with an underinsured motorist. After the accident, Fridman filed a claim with Sаfeco Insurance Gom-pany of Illinois, his insurer, for the $50,000 limits of his UM policy. By October 2008, after Safeco refused to pay, Fridman filed a Civil Remedy Notice, as required by section 624,155(3)(a), Florida Statutes (2007). The notice, in which he alleged that Safeco failed to attempt in good faith to settle his UM claim in violation of section 624.155(l)(b)l, set forth the following facts and circumstances:
Failure to pay UM policy limits of $50,000 in a clear liability crash with over $12,000.00 of property damage to insured’s vehicle. Insured has sustained medical bills in excess of $16,800.00 [and] out of pocket medical expenses in excess of $8,000.00. Insured has sustained C3/4 and C5/6 disc herniations, as well ás L5.S1 disc herniation which displaces the SI nerve root. NCV/ÉMG testing revealed C6/7 radiculopathy and ■right, carpal tunnel syndrome. Insured is without any health insurance to cover future medical treatment which insured will require. Insurer has failed to offer the $50,000.00 uninsured motorist coverage policy limits in spite of the demand to do so, and has instead made' a wholly inadequate offer of $5,000.00
In April 2009, after having received no response from Safeco within the statutory sixty-day civil remedy notice period or any time thereafter,-Fridman filed a.complaint against Safeco to determine liability under the UM ;policy and the full extent of the damages he suffered in the accident with the underinsured driver. In the complaint, he stated that he was “entitled to recover damages from the Defendant, Safeco Insurance Company of Illinois, in accordance with the provisions of § 627.727.” That section provides that the
In February 2010, (Fridman filed a notice of a settlement proposal pursuant to Florida Rulé of Civil Procedure 1.442 and section 768.79, Florida Statutes. (2010), in the amount of $50,000. Safeco did not respond and, thus, the unanswered proposal for settlement was deemed rejected after thirty days. See § 768.79, Fla. Stat.; Fla. R. Civ. P. 1.442(f).
The month before the case was originally set for trial in March 2011 — over four years after the automobile accident — Safe-co tendered a check to Fridman for the $50,000 policy limits, stating on the check that it was the full and final settlement of any and all claims. Fridman rejected the check containing this language. Safeco moved for a continuance, which the trial court granted.
About six months later, prior to the rescheduled trial, Safeco tendered a new check for $50,000 — not containing the settlement language — and filed both a “confession of judgment” and a separate motion for entry of confession of judgment. Fridman opposed the entry of a confessed judgment, arguing, among other things, that a jury verdict would determine the upper limits of Safeeo’s potential liability under a future bad faith claim.
At the hearing on the motion to confess judgment, Fridman’s counsel indicated Fridman’s intention to later file a bad faith action, which he explained he had not already filed because he was under the impression that precedent precluded an insured from bringing a bad faith action in the same complaint a®' the UM action. Fridman’s counsel stated that “some lawyers used to file their UM-and bad faith case concurrently, and then some case law has come out that says you’re not allowed to do that because until you have some judgment in excess of the policy limits, it’s premature and inappropriate to litigate a bad faith case concurrent with a UM case.” The trial court ultimately denied Safeco’s motion to “confess judgment,” finding that to do otherwise “would ignore the plain legislative intent of section 627.727(10),” governing the damages recoverable in bad faith actions.
The case proceeded to trial, and the jury found that the underinsured driver involved in the accident was negligent and one hundred percent responsible for Frid-man’s damages, which the jury determined to be $1,000,000. During the course of the trial, Safeco moved for a mistrial, alleging that Fridman’s counsel made improper comments. The trial court denied that motion.
After the trial, Safeco filed а motion for a new trial, alleging that the trial court committed several errors, including allowing Fridman’s counsel to .make “impermissible, irrelevant, misleading, and inflammatory arguments” and permitting an excessive yerdict that was not supported by the evidence. Safeco also timely filed a motion for remittitur of the jury’s award.
The trial court denied the post-trial motions and entered a final'judgment, which included the following language:
1. That the Plaintiff, . ADRIAN FRIDMAN, recovers from Defendant, SAFECO INSURANCE^ "COMPANY OF ILLINOIS, the sum of $50,000.00, that shall bear interest, pursuant ■ to Florida Statute- § 55.03 for which let execution issue, notwithstanding the excess jury verdict rendered in this matter.
2. The Court reserves jurisdiction to determine the Plaintiffs right to Amend his Complaint to seek and litigate bad faith damages from the Defendant as a result of such jury verdict in excess of policy limits. If the Plaintiff should ultimately prevail in his action for bad faith damages against. Defendant, then the Plaintiff will be entitled to a judgment, in accordance with the jury’s verdict, for his damages in the amount. of $980,072.91 plus interest, fees and costs.
3. The Court hereby also reserves jurisdiction to consider any applicable attorney’s fees and costs incurred in the Plaintiffs prosecution of this action for the purpose of entering a supplemental judgment in favor of the Plaintiff upon proper motion.
Safeco appealed the trial court’s final judgment to the Fifth District, arguing that (1) the trial court should have granted its motion for entry of confession, of judgment; (2) the final judgment was void because the trial court had no authority to reserve jurisdiction in the judgment to allow an' amendment to the pleadings or establish Fridman’s damages to be awarded in a future bad faith action; (3) the trial court erred in denying Safeco’s motion for remittitur;' and (4) the trial court erred in denying Safeco’s motions for mistrial and new trial.
The Fifth District considered only the first two of these issues without reaching the other two trial-related issues. In its decision, the Fifth District vacated the jury’s verdict and directed the trial court to enter an amended final judgment deleting any reference to the jury verdict and declining to reserve jurisdiction to consider a request to amend the complaint to add a claim seeking relief for .bad faith under section 624.155. Fridman,
The;Fifth District reasoned that where no dispute exists as to the policy limits or available coverage, the amount of the judgment in the UM case may not exceed' the policy limits. Id. at 19. The Fifth District stated that “the only cause of action before the trial court was Fridman’s UM claim” because “Fridman had appropriately not included a bad faith count in his -complaint.” Id. The Fifth District determined that when Safeco confessed judgment in the amount of the policy limits, “the issues between the parties, as ■ framed by the pleadings, became moot.” Id. Instead of proceeding to trial, the Fifth District explained, “the trial court should have merely entered the confessed judgment in favor of Fridman, reserving jurisdiction to award costs, prejudgment interest, and, if authorized by law, reasonable attorney’s fees.” Id. at 20. The Fifth District reasoned that this “would provide Fridman a sufficient basis to pursue a bad faith claim against Safeco,” because “Fridman can seek the full measure of damages afforded by- [section 627.727(10) ] in a subsеquent bad faith action.” Id. at 20-21.
Judge Sawaya wrote a lengthy dissenting opinion, explaining his disagreement with the majority’s reasoning and the effect of its decision:
This court today has declared void a jury-verdict rendered in an uninsured motorist (UM) case brought against Safeco Insurance Company of Illinois because it refused to timely pay the uninsured motorist benefits under the policy it issued to the injured insured, Adrian Fridman. That verdict declares the full measure of the damages suffered by Fridman to be $1,000,000. In reaching its decision, the majority erroneously concluded that Fridman did. not have a pending bad faith claim and if he did, he should have pled it in the complaint filed in the UM ease. Because he did not, the majority holds that Safeco had the -right to confess judgment for the policy limits of $50,000 shortly before trial and, based on the mootness doctrine, end Fridman’s right to have the jury determine the full extent of his damages.
The majority has misread the Notice of Civil Remedy.filed by Fridman; the pleadings, filed in this case; and the provisions of sections 627.727 and 624.166, Florida Statutes (2007). In addition, the majority has failed to apply the numerous decisions rendered by the Florida Supreme Court that hold that the jury in a UM case is to determine the full extent of the injured victim’s damages prior to the filing of any bad faith action.. The majority has also misapplied the mootness doctrine. = I strongly believe that Fridman had.the right to have the jury determine the full extent of his damages, and he properly exercised that right. I do not believe it should be taken away by declaring the jury verdict void.
As troubled as I am about what.the majority has done to the verdict in this case, I am equally troubled by the precedent the majority has established. I believe that the majority decision will open the door' to mischief by insurers who, with this court’s precedent in hand, may sit back while the injured insured spends all of his time and effort preparing his case for trial and, after the injured insured has hemorrhaged his resources, confess judgment for policy limits and prevent the insured from proceeding to have the jury declare the full measure of his damages as a predicate for the insured’s ensuing bad faith action. Then, the insured will have the arduous task of doing it all again when his bad faith action is fifed, only to encounter the obstacles, of dismissal or abatement of the bad faith issues until the damage issue is first resolved so the jury will not be prejudiced by the bad faith evidence when determining the measure of damages inflicted on the insured by the tortfeasor.
- The trial judge understood this case and what Safeco was trying to do with its motion to confess- judgment. -He properly denied that motion to allow the jury trial to proceed so the jury could speak the truth about the extent of Frid-man’s injuries.
Id. at 29-30.
ANALYSIS
The conflict in this- ease involves two interrelated issues. The first issue, implicating the heart of UM and. first-party bad faith litigation, is whether an insured is entitled to a. determination of liability and the full extent of his or her damages in the UM case, before litigating the first-party bad faith claim. The. seсond and critical interrelated issue is whether that determination of damages is then binding, as an element of damages, in a subsequent first-party bad faith cause of action, for which the insured has provided notice pursuant to section 624.156, against the same insurer. An ancillary issue pertaining to this case is whether a procedure such as the one employed by the trial court — entering the amount of the jury verdict in the final judgment and retaining jurisdiction to consider an amendment of the pleadings to add the bad faith claim — was erroneous. These questions are matters of law, which we review de novo. See Travelers Commercial Ins. Co. v. Harrington,
We begin our analysis with a discussion of the applicable statutes and this Court’s relevant case law, focusing in particular on the background of the statutory first-party bad faith claim.and-its relationship.to the
I. Statutory First-Party Bad Faith Claim
Until 1982, the only recognized bad faith cause 'of action was the common law third-party bad faith action. See Laforet,
In 1982, .the Florida Legislature created a statutory first-party bad faith cause of action through the enactment of section 624.155. See § 624.155(l)(b)l, Fla. Stat. This provision extended the duty of an insurer to act in good faith in handling claims brought by its own insured under a UM policy and exposed the insurer to the consequences of failing to do so. § 624.155, Fla. Stat.
As a condition precedent to filing a civil action under section 624.155, “the [Florida Department of Financial Services] and the authorized insurer must have been given 60 days’ written notice of the violation.” § 624:155(3)(a), Fla. Stat. (2007); see also § 624.05(1), Fla.' Stat: -(2007): This notice is commonly referred to as the “civil remedy- notice.” The statute further provides that “[n]o action shall-lie if, within 60 days after filing notice, the damages are paid or the circumstances giving rise to the violation are corrected:” § 624.155(3)(d), Fla. Stat. (2007). This'sixty-day window provides insurers with a final opportunity “to comply with their claim-handling obligations, when a good-faith decision by the insurer would indicate that contractual benefits are owed.” See Talat Enters., Inc. v. Aetna Cas. & Sur. Co.,
In 1990, the statute was amended to add subsection 624.155(7), specifying the dam
In McLeod v. Continental Insurance Co.,
Just months after this Court issued its opinion in McLeod, the Legislature enacted section 627.727(10), Florida Statutes (1992), to provide:
The. damages recoverable from an uninsured motorist carrier in an action brought under s. 624.155 shall inсlude the total amount of the claimant’s damages, including the amount in excess of the policy limits, any interest on unpaid benefits,' reasonable attorney’s fees and costs, and any damages caused by a violation of a law of this state. The total amount of the claimant’s damages is re-eoverable whether caused by an insurer or by a third-party tortfeasor. '
(Emphasis added.) The language of the amended section, which remains the same today, clearly and unambigúously reflects the legislative intent that the damages in section 624.155 bad faith actions shall include any amount in excess of the policy limits. See § 627.727(10), Fla. Stat. (2015).
As this Court has recognized, “previous actions of this Court limiting the relief afforded under section 624.155 based upon distinctions between first- and, third-party claims have been rebuked by the Legislature” by the 1992 enactment, Allstate Indem. Co. v. Ruiz,
II. Intertwined Nature of UM Verdict & First-Party Bad Faith Action .
A, Entitlement to a Determination of Liability & Full Extent of Damages
. The Fifth District and Safeco both recognize that an element of damages within
In the first case, Blanchard,
In the second case, Imhof,
, This Court, echoed this point again in the third case — Vest,
In the fourth case, this Court in Laforet,
Nothing in our precedent suggests that the eventual tendering of the policy limits renders the UM case moot. We have already addressed this same scenario in the common law third-party bad faith context, holding that “the tender of the policy limits to the insured when the underlying tort action is still pending d,oes not eliminate the underlying tort action or the insured’s exposure to an excess verdict.” Macola,
Additionally, the UM trial involves more than just a determination of whether the insurer owes the insured the UM-policy limits. Rather, the UM trial also includes a determination of whether the uninsured or underinsured driver is liable and the full extent of the insured’s damages. As Judge Sawaya cogently explained:
The purpose of UM litigation is to determine the damages caused by a negligent tortfeasor. It is, in essence, a personal injury action filed against the insured’s insurer, who steps into the shoes of the tortfeasor, and the litigation proceeds as if the suit was filed against the tortfeasor. See Allstate Ins. Co. v. Boynton,486 So.2d 552 (Fla.1986); The relevant evidence relates to how the accident happened,- who was at fault, how the injuries occurred, the extent of those injuries, how those injuries were treated and are to be treated in the future, the cost of the treatment, lost wages, and all of the .other, damage ¡issues generally present in . personal injury litigation. Thus, absent coverage issues, causation and damages to the injured insured are the primary focus of the UM litigation.
Judge Sawaya fúrther aptly described why the' UM action is' not moot merely because the insurer has tendered the policy limits: '
“An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect. A case'is ‘moot’ when’it'presents no actual controversy or when the issues have ceased to exist.” Godwin v. State,593 So.2d 211 , 212 (Fla.1992) (citations omitted). The damage issue is not moot because a verdict in excess of the policy limits is evidence and a recoverable measure of damages in the subsequent bad faith action, and Fridman had the right to seek such a verdict in the' UM case.
Moreover, an exception to the mootness doctrine provides that “an otherwise moot case will not be dismissed if collateral legal consequenсes that affect the rights of a party flow from the issue to be determined.” Id. As previously indicated, the courts have repeatedly held that a determination of the extent of the damages is a prerequisite to the bad faith action. See Vest[,753 So.2d at 1276 ]; Blanchard[,575 So.2d at 1291 ]; [Progressive Select Ins. Co. v.] Shockley[,951 So.2d 20 (Fla. 4th DCA 2007) ]. A collateral legal consequence of the UM proceedings is that the confessed judgment in the amount of the policy limits, which has been foisted upon Frid-man-against his will by Safeco in an attempt to deprive Fridman of his right to a jury trial, is not a determination of the extent of the insured’s damages.
Id. at 28-29.
- We agree with Judge Sawaya’s reasoning that the amount of damages in the UM case does not become moot by virtue of an insurer’s “confession of judgment” and tendering of the policy' limits. Such a position as that taken by the Fifth District majority would “countenance the'actions of an insurer that confesses judgment at the last hour in an effort to avoid a trial that would reveal, through the jury’s verdict, the true extent of the insured’s injuries and provide a basis to award damages in the inevitable bad faith action the insurer foresaw on the horizon.” Id. at 29.
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. See, e.g., Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co.,
B. Binding Effect of UM Verdict in First-Party Bad Faith Trial
Having reached this .conclusion, an interrelated question is whether the determination of damages that ⅛ reflected in the UM verdict is binding, as an element of damages, in the subsequent bad faith action. The key to answering this question is whether the insurer has a right to appellate review of properly preserved claims of error in the determination of damages obtained in the UM action.
First, it is obvious that the UM vеrdict to which the insured is entitled must be binding in the bad faith action.- Because a determination of the full extent of the insured’s damages is one of the prerequisites
If the amount of the UM verdict is not binding as an element of damages in the bad faith litigation; it would allow the insurer — or the insured, if the verdict were less than anticipated — a second bite at the proverbial apple. As the Fourth District Court of Appeal stated in GEICO General Insurance Co. v. Paton, it would be “such bad policy” that there is hot “even a hint of its existence in any case the Supreme Court has decided in this area.”
In GEICO Casualty Co. v. Barber, Judge Sawaya explained that utilizing the UM and bad faith statutes “as a charade whereby insurers are allowed, through the expedient of a fictional confession of judgment made years into the litigation,, to push and pull their insureds from one lawsuit to another only to require the insureds to -try the same damage issues all over again” would “def[y] all logic and common sense; eontravene[ ] the fundamental principles underlying the UM and bad faith statutes, and improperly ignore[ ] the last chance provisions of section 624.155(3)(a), thus rendering that statute virtually meaningless.”
The same is.true when the insured, attempts to relitigate the issue of damages in the bad faith case, as a federal court recently properly found. See Wiggins v. Allstate Prop. & Cas. Ins. Co., No. 13-23354-CIV,
Nevertheless, Safeco argues that the determination of damages reflected in the UM verdict cannot fix the amount of damages in the subsequent bad faith cause of action because this determination of damages in excess of.the.policy limits is not and cannot be subject to appellate review of trial court errors. This inability to re
Of course, if the parties were actually unable to appeal the UM verdict that fixed damages in- the bad faith case, a due process concern — or at least a question of basic fairness — could arise. However, in this case, the Fifth District nowhere indicated that it was without authority to review the jury, verdict for trial, errors and Safeco had not made that argument below as a reason to vacate the jury verdict. Instead, Safeco appealed the denial of its motion for mistrial and post-trial motions. And in another UM cаse, the Fifth District reviewed a substantial UM jury verdict for error. See Nationwide Mut. Fire Ins. Co. v. Darragh,
We agree with Safeco that there must be an opportunity for both parties to obtain appellate review of any timely raised claims of error in the determination of damages obtained in the UM trial, for the very reason that it becomes binding as an element of damages in the subsequent bad faith case. However, we do not agree— nor does Fridman suggest — that the appellate court is without jurisdiction to review the UM verdict.
District courts of appeal have appellate jurisdiction under article V, section 4(b)(1), of the Florida Constitution. While district courts do not have jurisdiction over all non-final orders, in this case, the final judgment including the determination of the full extent, of dapaages was properly within the jurisdiction of the Fifth District. Further, once the trial court denied Safe-co’s motion for a new trial, rejecting a claim of. an excessive verdict, that order also became subject to appellate review— as Safeco evidently understood when it filed its appeal in this case.
We therefore respectfully disagree with the view that a district court lacks jurisdiction to review an excess verdict, if the amount of damages was not included within the final judgment. See Geico Gen. Ins. Co. v. Bottini,
[bjecause the damages in the first trial fixed the amount of bad faith damages and an order denying a motion for new trial could have addressed damages in excess of $100,000, an appeal after the final judgment in the first trial directed at the total amount of damages thus would have fallen within the constitutional parameters of the jurisdiction of this Court as an appeal from a “final judgment ] or order[]” of the trial court. Art. V, § 4(b)(1), Flа. Const.
Id. Further, as Judge Gross recognized, “[t]his approach conserves judicial resources and best serves, the procedure contemplated by Blanchard.” Id.
[O]rders granting remittiturs are reviewed for abuse of discretion; on review, the appellate courts must look at whether the verdict was- so high as to be against the manifest weight of the evidence. See, e.g., Normius v. Eckerd Corp.,813 So.2d 985 , 988 (Fla. 2d DCA 2002). Similarly, orders granting judgment notwithstanding the verdict are reviewed de novo; there, appellate courts must look to whether any reasonable jury could have rendered the verdict. See, e.g., Duclos v. Richardson,113 So.3d 1001 , 1003-04 (Fla. 1st DCA 2013). In both of these instances, even though there is a judgment that is different than the verdict, the appellate courts can and must review the verdict and the evidence supporting the verdict to determine whether the judgment was appropriate.
Alternatively, other trial courts have entered a partial final judgment for the amount of damages, recognizing the right to appellate rеview' of a partial final judgment. See, e.g., Safeco Ins. Co. of Ill. v. Rader,
We also disagree with .the view taken by the Second District Court of Appeal in Bottini, in which it held that “even if Geico were correct that errors may have affected the jury’s computation - of damages,” any errors in the jury’s computation of damages were “harmless” in the “context of [the] case and the amount of the judgment.”
For all these reasons, we conclude that the determination of damages obtained in the UM action becomes a binding element of damages in the subsequent bad faith -litigation against- the same insurer and that the parties have the opportunity to appeal timely-raised errors in the UM verdict. We now turn to this case.
III. This Case
Sixty days after Fridman filed his civil remedy notice without action on Safe-co’s part, a presumption of bad fаith arose. Almost three years later, on the eve of trial, Safeco finally tendered the policy limits and moved for entry of a “confession of judgment.” Even if Fridman had chosen to accept Safeco’s tendering of the policy limits after years of litigating, Frid-man*-would still, at some point, need to obtain a determination of the full extent of his damages, including'-any amount in excess of the policy limits, if he planned to pursue his first-party bad faith claim. He appropriately chose to obtain this determination in the UM action that he had filed and which had been proceeding years before the offer of. the policy limits was made. Fridman was entitled to do so.
Even before the. complaint was filed, Safeco knew that Fridman’s case against it was not limited to the issue of its liability under the UM policy:
As the court in Vest indicated, Fridman was proceeding in a claim for bad faith and notified Safeco of his claim prior to filing the UM case. There is no way that- Safeco can argue, and indeed it does not argue, that it was not put on notice prior to thе UM suit being filed of Fridman’s bad faith claim, Moreover, when Safeco, did tender its policy limits and attempt to confess judgment years into the litigation, and after it requested a continuance of the scheduled trial date, Fridman argued that he had a right to seek a judgment in excess of the policy limits in accordance with section 627.727(10) for the bad faith action he planned to file.
Safeco’s conduct of confessing judgment on the eve of trial would prevent Fridman from obtaining a jury award that Safeco knew would be used in Fridman’s subsequent first-party bad faith action. See Barber,
Additionally, the trial court did not err by retaining jurisdiction to determine Fridman’s right to amend the complaint to add a claim for bad faith. The trial court’s approach is consistent with our precedent in Ruiz,
In Ruiz, this. Court determined that there was no basis to apply different rules as to the discoverability of material such as the insurer’s claim file and other related materials to third-party bad faith actions and first-party bad faith actions. This Court accordingly held that all materials contained in the underlying UM claim and related litigation file material created up to the date of resolution of the underlying matter should be produced in a first-party bad faith action. Id. at 1129-30.
We explained that when the claims are brought- simultaneously,' certain documentation relevant to the bad faith action is not discoverable until the underlying claim for benefits has been resolved, after which it would be discoverable just as in a third-party bad faith claim. Id. at 1130. To resolve the issue of an insured having an unfair advantage in the underlying negligence action, we advised that “the courts should employ existing tools, such as the abatement of actions and in-camera inspection, to ensure full and fair discovery in both causes of action.” Id.
The Fourth District held in State Farm Mutual Automobile Insurance Co. v. Tranchese,
While this Court noted in Vest that a bad faith claim is premature if it is brought before a determination of damages is obtained,
If abatement is permitted when the bad faith action is brought simultaneously with the UM claim, then it follows that a trial court may also reserve jurisdiction to allow an insured to formally amend his or her complaint to add the bad faith claim after the conclusion of the UM proceedings. Indeed, this procedure has been used in other cases. In Rader, in which the trial court entered a partial final judgment in the underlying UM case, the First District likewise approved the procedure of allowing the insured to subsequently amend the complaint to add the bad faith cause of action.
Finally, we make clear that the insurer has the full opportunity to defend its actions related to its handling of the insured’s UM insurance claim when litigating the bad faith action. In other words, just because the amount of the UM verdict is a binding element of damages under section 627.727(10) in the bad faith case, the insurer is not precluded from explaining its actions in failing to pay the policy limits when demanded and presenting its сase for why it did not act in bad faith in the handling of the UM claim.
CONCLUSION
We conclude that an insured is entitled to a jury determination of liability .and the full extent of his or her damages, which may be in excess of the policy limits, in the underlying UM case, prior to litigating a first-party bad faith cause of action. This determination is then binding in the subsequent bad faith action,-provided the parties have had the opportunity for appellate review of any trial errors that were timely raised. An approach such as the one taken by the trial court in this case — that is, going forward with the trial, including the verdict amount in the final judgment, and reserving jurisdiction to consider a motion to amend to add the bad faith cause of action — appropriately addresses how the parties can review that jury determination of the extent of the damages for error prior to it being used in the subsequent bad faith litigation as an element of damages. Accordingly, we quash the decision of the Fifth District and remand for the Fifth District to consider the other appellate issues Safeco raised in the appeal to the Fifth District.
It is so ordered.
Notes
. The American Insurance Association, the Property Casualty Insurers Association of America, the National Association of Mutual Insurance Companies, and the Florida Insur-anee Council filed a joint amicus curiae brief in support of the Respondent, Safeco Insurance Company of Illinois.
. The injured third party is the ultimate beneficiary-of the third-party ¡bad faith claim — the real party ⅛ interest, akin to a "judgment creditor.” See Thompson v. Commercial Union Ins. Co.,
. Indeed, the Note for use on the current standard jury instruction reflects the same. The pertinent instruction and Note read as follows, in relevant part:
404.4 INSURER’S BAD FAITH (FAILURE TO SETTLE)
Bad faith on the part of an insurance company is failing to settle a claim when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward [its policyholder] [its insured] [an excess carrier] and with due regard for [his] [her] [its] [their] interests. Notes on Use for 404.4
■ 1. Instruction 404.4 does not distinguish statutory claims from common law claims or first party claims from third party claims. See State Farm Mutual Automobile Insurance Co. v. Laforet,658 So.2d 55 (Fla.1995).
Fla. Std. Jury. Instr. (Civ.) 404,4.
. The insurer sought review of Patón in this ' Court. Because Patón also involved the issue of whether the parties may rely on the determination of damages made in the UM case in the subsequent first-party bad faith action between the same insurer and insured, we stayed review of Patón pénding disposition of this case. Geico Gen. Ins. Co. v. Paton, No. SC15-63 (Fla.Sup.Ct. order filed Apr. 9, 2015).
. This issue of the binding effect of the underlying verdict for damages in excess of the policy limits and the ability to appeal the verdict for errors appears to have created concerns for Federal District Court judges in Florida. At least four Federal District Court judges — Judgés Kovachevich, Presnell, and Williams, in addition to Judge -Dalton in Batchelor — have concluded that the jury determination of the full extent of the damages in the UM action becomes a binding element of the damages recoverable in the subsequent first-party bad faith claim, with the issue of the right to appeal the underlying verdict becoming central. See Wiggins,
On the other hand, in King v. Government Employees Insurance Co., No. 8:10-cv-977-T-30AEP,
. However, we do not perceive a need for a rule codifying this procedure, as suggested by Judge Gross in Paton. See Paton,
. The two trial-related errors raised by Safeco before the Fifth District and this Court, that neither we nor the Fifth District have addressed, are: (1) whether the trial court erred in denying Safeco's motion for remittitur; and (2) whether the trial court erred in denying Safeco’s motions for mistrial and a new trial for improper arguments made by Frid-man’s trial counsel.
Dissenting Opinion
dissenting.
Under Article V, section 3(b)(3) of the Florida Constitution, “[t]his Court may only review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or the Supreme Court on the same
In the instant case, “the only cause of action before the trial court was Fridman’s UM claim.” Fridman,
In contrast to the case before the Court, which addressed a UM suit, the three alleged conflict .cases — Blanchard, Imhof, and Vest — raddressed issues in first-party actions for bad faith against an insurer. Blanchard held that “an insured’s underlying first-party action for insurance benefits against the insurer necessarily must be resolved favorably to the insured before the cause of action for bad' faith in settlement negotiations can accrue.”
The three alleged conflict cases all address issues regarding. bad faith claims against insurers for failing to settle. In this ease, however, the petitioner did not bring or argue a bad faith caqse of action in the trial court. And the district .court’s opinion acknowledges that there is no bad faith claim in the case. Moreover, the district court’s statement that a determination of the dollar amount' of the damages is not required > to 1 establish the extent of damages for a bad faith suit is congruent with this Court’s decisions in the alleged conflict cases. Because the alleged conflict cases are factually distinguishable and their holdings do not conflict with the district court’s decision in this case on the same question of law, this Court lacks jurisdiction. Accordingly, I would discharge'the case'on that basis.
POLSTON, J., concurs.