FIRST PARTY INSURANCE BAD FAITH: IN FEDERAL COURT, A PREMATURE BAD FAITH CLAIM SHOULD BE DISMISSED RATHER THAN ABATED: FAILURE TO INVESTIGATE, ADJUST, AND PAY PROMPTLY IS A LEGITIMATE GRIEVANCE IN A BREACH OF CONTRACT CASE

AM Grand Court Lakes, LLC v. Rockhill Insurance Company, Case No. 18-23576-CIV-Williams (S.D. Fla. November 30, 2018)
 

After a commercial property insurer denied the insured’s windstorm claim, the insured sued the insurer for breach of contract and bad faith.  Judge Kathleen Williams of the United States District Court for the Southern District of Florida dismissed the bad faith claim without prejudice as premature.  Dismissal, rather than abatement, was the appropriate remedy because lack of ripeness deprives a federal court of subject matter jurisdiction. Even if abatement would be more efficient than dismissal (which is a matter of dispute among Florida federal district court judges), lack of jurisdiction may not be disregarded for expedience.  The court denied the insurer’s motion to strike the word “promptly” from the insured’s allegation in its claim for breach of contract that the defendant had the duty to investigate, adjust, and pay the loss. The court found that the use of the word “promptly” was “consistent with a breach of contract claim and [was] not an attempt to incorporate bad faith.”

INSURANCE: THE INSURED UNDER A HULL AND MACHINERY INSURANCE POLICY WAS REQUIRED TO MEDIATE HIS CLAIM BEFORE SUING THE INSURER FOR DECLARATORY RELIEF AND BREACH OF CONTRACT

Mullales v. Aspen American Insurance Company, Case No. 18-23661-CIV-Moreno (S.D. Fla. November 29, 2018)
 

The insured under a hull and machinery insurance policy sued the insurer for declaratory relief and breach of contract based upon the denial of his claim after the insured vessel sank.  Judge Federico Moreno of the United States District Court for the Southern District of Florida dismissed the action without prejudice for failure to comply with a provision in the policy making mandatory non-binding mediation a condition precedent to litigation between the insured and the insurer.  Mediation was required to take place within thirty days after the completion of any required examination under oath (EUO). This provision did not preclude mediation because an examination under oath had not been requested. The mediation requirement was enforceable despite the failure to specify a time limit for the completion of mediation.

EVIDENCE: EXCITED UTTERANCE: THE TRIAL COURT ERRED BY EXCLUDING AN EXCITED UTTERANCE BECAUSE IT WAS SELF-SERVING AND EXCULPATORY

Hinck v. State, ___ So. 3d ___, 43 Fla. L. Weekly D2681 (Fla. 4th DCA December 5, 2018)
 

Less than one minute after stabbing the alleged victim in a hotel room, the defendant dropped the knife, ran out of the room, took an elevator from the third floor to the lobby, and asked a hotel employee to call the police and an ambulance because he stabbed a man who tried to molest him.  The trial court excluded the defendant’s statement as hearsay, ruling that it did not qualify as an excited utterance because the statement was self-serving and exculpatory. The Fourth District Court of Appeal reversed because the three requirements for an excited utterance were satisfied: (1) “[T]he stabbing was an event startling enough to cause nervous excitement.”  (2) The statement was made “before there was time to contrive or misrepresent.” (3) “[T]he hotel employee described the defendant as a person still under the stress or excitement caused by the event.” The trial court confused an excited utterance with a spontaneous statement. A statement does not qualify as spontaneous if it is “made under circumstances that indicate its lack of trustworthiness.”  This provision is “conspicuously absent” from the excited utterance exception to the hearsay rule. Even if the trustworthiness requirement was incorporated in the excited utterance exception by requiring the statement to be made “before there was time to contrive or misrepresent,” the court held that a statement that otherwise satisfies the exception is not disqualified merely because it is self-serving.  The court distinguished a case in which the declarant scripted his statement before shooting the victim because of the absence of evidence that the defendant planned to stab the alleged victim or make his statement to the hotel employee.

PROPOSAL FOR SETTLEMENT: BROAD RELEASE LANGUAGE DID NOT INVALIDATE A PROPOSAL FOR SETTLEMENT

Keystone Airpark Authority v. Pipeline Contractors, Inc., ___ So. 3d ___, 43 Fla. L. Weekly D2689 (Fla. 1st DCA December 5, 2018)
 

A proposal for settlement was not invalidated by incorporating a “broad and expansive” release because the release “[did] not impermissibly encompass ‘causes of action that may accrue in the future based on unrelated facts and events that have not yet occurred. . . .  Likewise, the release language describing the parties to be discharged [was] not so expansive that it lack[ed] sufficient particularity to inform [the offeree] of the affiliated parties who would be governed by the release.”

SANCTIONS: A LAWYER WAS SANCTIONED FOR IMPUGNING THE QUALIFICATIONS OR INTEGRITY OF THE TRIAL AND APPELLATE JUDGES

Aquasol Condominium Association, Inc. v. HSBC Bank USA, National Association, ___ So. 3d ___, 43 Fla. L. Weekly D2699 (Fla. 3d DCA December 5, 2018)
 

The Third District Court of Appeal sanctioned a lawyer for launching “extraordinary and corrosive” attacks on “the qualifications or integrity” of the trial and appellate courts judges who presided over his client’s case.  The court concluded that the lawyer had “no objectively reasonable factual basis for the [offending] statements . . . in his motion for rehearing and rehearing en banc.” According to the court, the lawyer violated the Rules Regulating the Florida Bar, the Rule of Appellate Procedure, and “the most elementary norms of civility and professionalism.”  The court determined that sanctions were necessary because of the egregiousness of the misconduct, although the lawyer, through retained counsel, apologized for his misconduct and stated that he was “pursuing appropriate corrective measures.” Judges Emas and Fernandez concurred in a per curiam opinion. Judge Lagoa dissented because of the “not insubstantial” measures identified in the lawyer’s response to the court’s order to show cause.

JUDGES: A JUDGE WAS DISQUALIFED FOR GIVING ADVICE TO A PARTY’S LAWYER

Wright v. Wright, ___ So. 3d ___, 43 Fla. L. Weekly D2708 (Fla. 5th DCA December 6, 2018)
 

The trial judge in an action for dissolution of marriage advised the husband’s lawyer to file a motion for entry to storage sheds to discover assets the wife planned to sell to a third party and to serve the motion on the prospective buyer together with a motion and notice of hearing on a rule to show cause because the judge would be “happy to drag [the buyer] in [to court].”  The trial judge also “dissuaded Husband’s counsel from seeking to amend his pleadings to interject Husband’s business entity into the litigation. The trial judge denied the pro se wife’s motion for disqualification, but the Fifth District Court of Appeal reversed. “Here, assuming Wife’s allegations to be true, the judge’s suggestions to Husband’s counsel on how to proceed reasonably created the appearance of favoring one party and, thus, was a departure from the judge’s role as a neutral arbiter.”

APPEALS: PRESERVATION OF ERROR: THE DEFENDANT FAILED TO PRESERVE AN ARGUMENT THAT IT MADE FOR THE FIRST TIME IN ITS PETITION FOR CERTIORARI

First Service Residential Florida, Inc. v. Rodriguez, ___ So. 3d ___, 43 Fla. L. Weekly D2709 (Fla. 5th DCA December 7, 2018)
 

The plaintiff slipped on a transitory foreign substance and fell while walking to the elevator in her condominium building.  She sued the property management company and set the deposition duces tecum of its corporate representative. The defendant objected, based on work product, to producing or testifying about two photographs.  The plaintiff moved to compel because she did not have photographs depicting the condition of the scene on the day of the accident. The trial court granted the motion, and the defendant filed a petition for certiorari, in which it argued for the first time that the plaintiff “improperly relied solely upon the assertions of her counsel to prove” the exception to the work product privilege.   The Fifth District Court of Appeal held that the defendant waived “any challenge to the sufficiency of [the plaintiff’s] evidence” by failing to raise it in the trial court.

UNINSURED MOTORIST COVERAGE: THE POLICY DEFINITION OF MOTOR VEHICLE PREVAILED OVER THE COMMON USAGE OF THE TERM

Eckols v. 21st Century Centennial Insurance Company, ___ So. 3d ___, 43 Fla. L. Weekly D2710 (Fla. 5th DCA December 7, 2018)
 

An uninsured motorist policy excluded coverage for bodily injury sustained by an insured while occupying a motor vehicle owned by the insured for which uninsured motorist coverage had not been purchased under that policy.  The Fifth District Court of Appeal held that the exclusion did not apply to an insured’s use of his uninsured motorcycle because the policy defined a motor vehicle as a four wheel conveyance, and the motorcycle did not have four wheels.  Although a motorcycle may be a motor vehicle under the common usage of the term, the policy definition controlled, and any ambiguity had to be construed in favor of coverage.

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