By Aaron Proulx, Esquire
In this case, the Third District Court of Appeal addressed the common issue regarding whether an unripe bad faith claim must be dismissed or whether such a claim may be merely abated and remain within the underlying case. The Third District held that such a claim must be dismissed.
This was an automobile accident case. Plaintiff, Katherine Martinez, filed suit against the tortfeasor, Diana Guevara. Guevara was insured by GEICO. Martinez presented a third-party bad faith claim against GEICO. GEICO filed a motion to dismiss, arguing that pursuant to the non-joinder statute, the bad faith claim cannot accrue unless Martinez first obtains a settlement or verdict against Guevara on the underlying negligence claim. Martinez conceded that the bad faith claim was not ripe. Martinez argued, however, that the proper remedy would be abatement, not dismissal, of the bad faith claim. The trial court agreed. GEICO filed a petition for writ of certiorari with the Third District.
The nonjoinder statute creates a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person who is not an insured. Such a person must first obtain a verdict or settlement against the insured in a cause of action covered by the policy. Further, the non-insured is not deemed to even have an interest in the policy before obtaining that verdict or settlement. See Fla. Stat. § 627.4136. The Third District simply applied this plain language and reasoned that “the irreparable harm [element that must be satisfied to obtain a writ of certiorari] in such cases arises from the fact that an insurer (GEICO) is being forced to litigate an action brought by a third-party plaintiff (Martinez) which would be barred if, in fact, the requirements of section 627.4136 have not been met.” Notably, Martinez presented a prior Third District case in which that court did abate rather than dismiss the unripe bad faith claim. The Third District pointed out, however, that Martinez’s authority was a first-party bad faith claim for which the non-joinder statute was inapplicable. Unlike, first-party claims, third-party claims must be evaluated in light of the non-joinder statute. Under the plain language of that statute, the Third District held, Martinez did not have standing to file or maintain the suit against the insurer. Accordingly, the Third District granted GEICO’s petition, quashed the trial court’s order denying dismissal in favor of abatement, and remanded with instructions for the trial court to enter an order dismissing the claim without prejudice.