I know you think its bad, but ask the Judge!

FLORIDA LAW WEEKLY

VOLUME 48, NUMBER 4

CASES FROM THE WEEK OF JANUARY 27, 2023

THE COURT DETERMINES “OUTRAGEOUS CONDUCT” FOR AN INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CASE MAY BE DECIDED AS A MATTER OF LAW

Bradley v. Trespalacios, 48 Fla. L. Weekly D151 (Fla. 3^rd DCA Jan. 18, 2023):

The trial court dismissed the plaintiff’s Second Amended Complaint for the failure to state a claim for intentional infliction of emotional distress. The appellate court affirmed the ruling. It found that what constitutes “outrageous conduct” is a question that must be decided as a matter of law.

The court further concluded that the trial judge did not abuse his discretion in denying the plaintiff’s motion for rehearing, where the plaintiff sought leave to file a proposed Third Amended Complaint. While there is no magical number of amendments which are allowed, the court explained, there is no abuse of discretion in refusing to allow an amendment that would be futile.

COURT REVERSES TRIAL COURT’S ACCEPTANCE OF PLAINTIFF INSURED’S PUNITIVE DAMAGES PROFFER FINDING THE PLAINTIFF FAILED TO MAKE “REASONABLE SHOWING OF ENTITLEMENT TO PUNITIVE DAMAGES–COURT EXPLAINS THAT THERE ARE DIFFERENCES BETWEEN THE STANDARD REQUIRED FOR BAD FAITH AND THE STANDARD NEEDED TO MAKE A SHOWING FOR PUNITIVE DAMAGES

Progressive Select Ins. Co. v. Ober, 48 Fla. L. Weekly D168 (Fla. 4^th DCA Jan. 18, 2023):

The underlying case arose from the purchase of automobile insurance. The insured had contacted the insurer over the phone to purchase automobile coverage, and during the call, verbally declined UM coverage. The insurer told the insured that she would need to sign a rejection form. Days after purchasing the policy, but before the insured received the rejection form, the insured was involved in an accident.

Nearly a month after the policy was purchased, the insurer mailed the insured a letter stating that because she had not selected UM coverage, she had to fill out and return the UM selection/rejection form. The letter contained a warning that if the insured did not return the form, that UM coverage would be added to the policy.

The insured sued the insurer seeking a declaration that she was entitled to UM coverage for the accident. The jury agreed because the insurer had failed to obtain a written rejection. Despite the insurer’s argument that Florida law allows verbal rejections, the court affirmed the final judgment entered for the insured.

The insured then sought to add a claim for bad faith arising out of the denial based on the verbal waiver, and also sought to bring a claim for punitive damages. The trial court allowed both, and the insurer took this non-final appeal of the punitive damage amendment.

The insured argued that the evidence that UM coverage would be automatically added to the policy if a rejection was not received, coupled with the insurer’s “regular business practice” of issuing policies without a written rejection, violated section 627.727.

The insurer countered that the insured failed to plead a punitive damages claim, because she failed to provide a reasonable basis to find the insurer’s acts had occurred with such frequency as to indicate a “general business practice,” or that they were willful, wanton and malicious, and in reckless disregard of the insured’s rights, as section 624.155(5) requires.

The court found that the insured had conflated the two different standards for bad faith and punitive damages. To establish a bad faith claim, an insured must prove the insurer committed one of the acts enumerated in section 624.155(1)(b), primarily that it failed to act in good faith to settle a claim, when under all circumstances it could have and should have done so had it acted fairly and honestly towards its insured with due regard for the insurer’s interests.

For a punitive damages claim, however, an insured must provide by a reasonable basis that there was a violation that occurred with such frequency as to indicate a general business practice, and that the acts were willful wanton and malicious or in reckless disregard of the rights of any insured.

While the insured in the case had alleged a bad faith claim under the statute, she failed to proffer sufficient evidence to provide a “reasonable basis” for the recovery of punitive damages. The insured never demonstrated that the policies identified had involved similar circumstances so as to constitute a business practice. Further, the insured had no proof that the insurer’s acts were willful wanton and malicious or in reckless disregard of the insured’s rights.