Zebrowski v. State Farm Fire & Cas. Co.Zebrowski v. State Farm Fire & Cas. Co.
The issue presented in this appeal is whether
Appellant and plaintiff below, Carol Zebrowski, was injured on property insured by appellee and defendant below, State Farm Fire & Casualty Company. The Zebrowskis brought a personal injury action against State Farm‘s insured and obtained a judgment within the policy limits. The Zebrowskis then brought this action against State Farm for statutory bad faith pursuant to
Section 624.155 provides in part as follows:624.155 civil remedy.—
(1) Any person may bring a civil action against an insurer when such person is damaged:
(a) By a violation of any of the following provisions by the insurer:
1. Section 626.9541(1)(i), (o), or (x);
2. Section 626.9551;
3. Section 626.9705;
4. Section 626.9706;
5. Section 626.9707; or
6. Section 627.7283.
(b) By the commission of any of the following acts by the insurer:
1. Not attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured with due regard for “his interests.”
In Auto-Owners Insurance Co. v. Conquest, 658 So.2d 928 (Fla.1995), the supreme court held that a third party could bring a direct action for bad faith against an insurer under
Section 624.155 is the mechanism by which a person may bring a civil suit against an insurer who violates the Insurance Code and provides that “[a]ny person may bring a civil action against an insurer when such person is damaged.” We find the section‘s use of the words “any person” dispositive. The words are precise and their meaning unequivocal.
Although the second district held in Conquest v. Auto-Owners that a third party may not bring a direct action under
Based on the supreme court‘s holding in Auto-Owners v. Conquest that an injured party may bring a claim directly against the insurer when the injured party alleges a business practice of unfair dealing under
In finding that
Moreover, we are unable to distinguish between sections
[W]e have undertaken a careful reading of the instant statute and those other statutory sections referred to within
section 624.155 . There is repeated reference, not to the rights of third persons, but to the rights of the insured in his dealings with his insurance company.
538 So.2d at 496. We agree with the third district‘s analysis of the rights referred to within
While the statutory cause of action has certain elements which are stated in relation to the insurer‘s duty to the insured, the language of the statute implicitly recognizes that persons other than the insured may be injured by the insurer‘s conduct in handling the claim. One person who may potentially be damaged by the insurer‘s failure to settle an insurance claim in good faith is the injured third-party, who stands to benefit from an expeditious resolution of his damages demand if for no other reasons than the time-value of money and the costs associated with protracted litigation.
Obviously though, the injured party attempting to bring suit against the insurer for a bad faith failure to settle, like the injured party suing for unfair claims practices, must be able to plead and prove damages. Generally, damages in common law bad faith actions, whether to the insured or the injured party, stem from a judgment in excess of the insured‘s policy limits. See Thompson v. Commercial Union Ins. Co. of New York, 250 So.2d 259 (Fla.1971). Further, an injured third-party‘s right to sue the insurer was considered to be merely derivative of the insured‘s rights. Fidelity and Cas. Co. of New York v. Cope, 462 So.2d 459, 461 (Fla. 1985). On the contrary, there is no indication in the statute that the injured party‘s cause of action against the insurer is merely subordinate to, and derivative of, the insured‘s cause of action, or that an excess judgment is an essential ingredient of the injured party‘s cause of action. Indeed, in Cope, which discussed the derivative nature of a third party‘s right to sue the insured for common law bad faith, the court in a footnote may have forecast the statutory cause of action:
Should this court recognize a duty from an insurer to a third party injured party to settle a claim within its policy limits, the damages of that third party would be entirely different from the damages of an insured. At best such damages would be the extra cost of going to trial and loss of the money that earlier should have been paid.
462 So.2d at 461, n. 5. More directly on point,
The damages recoverable pursuant to this section shall include those damages which are a reasonably foreseeable result of a specified violation of this section by the insurer and may include an award or judgment in an amount that exceeds the policy limits. (emphasis added).
In the instant case, the question of the sufficiency of the alleged damages to the injured party was not raised in the motion for summary judgment. The final order was based primarily on the trial court‘s conclusion that an injured party may not bring an action directly against the insurer. Therefore, we do not address whether the damages alleged in the instant case were legally sufficient because we are reluctant to decide an issue which was not first adjudicated in the court below.
Accordingly, the trial court‘s order on summary judgment, predicated on the conclusion that an injured party, in the absence of an excess judgment, may not bring a direct cause of action against an insurer under
REVERSED and REMANDED.
WARNER and POLEN, JJ., concur.