The Week in Torts – Cases from the Week of May 1, 2020
Stacking Only Goes So Far
FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 17
CASES FROM THE WEEK May 1, 2020
TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT FOR INSURANCE COMPANY LIMITING NON-STACKABLE UM BENEFITS WHEN PLAINTIFFS RECOVERED STACKABLE BENEFITS UNDER OTHER POLICIES.
Hoffman v. Progressive, 45 Fla. L Weekly D997 (Fla. 1st DCA April 27, 2020):
The plaintiffs were injured after being struck by an uninsured motorist. The vehicle they were driving, a 1992 Volvo truck, was insured by a commercial policy issued to the plaintiff husband and his company, and providing non-stacked UM coverage with a policy limit of $300,000. The insurance company paid these policy limits.
At the time of the accident, the plaintiffs also had three other insurance policies that provided UM coverage to them. First, they had a family auto policy with Geico covering two vehicles, and providing stacked UM coverage of $300,000 per person and $300,000 per occurrence. They eventually reached a settlement under that policy for the full $600,000.
There was another policy with Allstate covering two other vehicles, that also provided stacked UM coverage with a policy limit of $50,000 per person and $100,000 per accident. Allstate paid the $100,000 policy limits on that policy.
Plaintiff then had an additional commercial policy that provided non-stacked UM coverage. The insurance company asserted that it was not obligated to provide UM coverage, because plaintiffs had recovered UM benefits from Geico.
The plaintiff filed a motion summary judgment arguing that no case supported the insurance company’s position that a named insured was prevented from recovering non-stacked UM coverage for which he had paid the premium, when the named insured was injured by a non-insured motorist while occupying a non-owned vehicle. Alternatively, plaintiffs argued that their insurance contract was ambiguous and should be construed in their favor.
The insurance company filed a cross-motion for summary judgment, citing the language of the UM policy, the election of non-stacked UM coverage form, and §627.727(9)(c). It argued that the plaintiffs were prohibited from recovering UM benefits under the commercial auto policy issued to them because (1) plaintiffs were not occupying a motor vehicle owned by them or a family member who resided with them, and (2) they were entitled to recover from Geico the highest limits of UM coverage for any vehicle as to which they were a named insured or an insured family member.
The insurance company further argued that such a conclusion was mandated by the court’s decision in Padgett v. Horace-Mann Insurance Co., which recognized that §627.727(9)(c) limited the stacking of UM policies regardless of whether they were issued by single insurer or multiple insurers.
The plaintiffs claimed that the trial court erred in entering summary judgment for the insurance company upon determining that the plaintiffs were not entitled to non-stacking benefits under their policy with the insurance company defendant, simply because they accepted stacked UM benefits under their policy with another insurer.
The court clarified the distinction between “stacked” and “non-stacked” UM coverage, noting how stacked coverage is expensive and generally provides protection “whenever or wherever” the insured in injured by an uninsured motorist, which gives rise to the practice of aggregating or stacking UM coverage limits when an insured has purchased multiple policies.
By contract, “non-stacked” UM coverage applies a narrow set of circumstances, and does not generally stack or aggregate because it does not apply “whenever or wherever” the named insured is injured by an uninsured motorist.
Although the legislature has defined UM coverage, §627.727(9)(c) provides a list of coverage limitations that a non-stacked UM policy may contain with the insured’s informed consent, in exchange for the payment of a reduced premium.
In this case, it was undisputed that the plaintiffs were injured in a vehicle not owned by them or insured by the policy in question which provided non-stacked coverage. Thus, their entitlement to UM benefits was governed by the policy provision stating that the UM benefits would not be available if the insured elects to receive excess UM benefits under a different policy.
Under the policy and statutory provisions, the plaintiffs could have either elected non-stacked UM benefits under their policy with Progressive, which limited the benefits to $300,000, or elected stacking UM benefits under their policies with Geico and Allstate which provided total benefits of $700,000. By choosing to receive greater stacked benefits under the Geico and Allstate policies, the plaintiffs elected not to receive lesser non-stacked benefits under their other policy, and could not seek them on top of the other benefits.
DISMISSAL OF MED MAL CASE UPHELD BECAUSE PLAINTIFF FAILED TO COMPLY WITH PRESUIT REQUIREMENTS.
Diaz v. Salomon, 45 Fla. L Weekly D976 (Fla. 3rd DCA April 22, 2020):
The plaintiff failed to include a certification that a reasonable investigation gave rise to a good faith belief that grounds existed for the malpractice action listed against each named defendant (and because no such investigation was done). The trial court dismissed plaintiff’s complaint due to this failure, and the appellate court affirmed.
WHERE ENTITLEMENT TO FEES FOR TRIAL AND APPELLATE WORK WAS ESTABLISHED BY THE APPEALLATE COURT, AND THE CASE WAS REMANDED FOR A HEARING TO DETERMINE THE AMOUNT OF REASONABLE FEES TO BE AWARDED, IT WAS ERROR FOR THE TRIAL COURT TO AWARD FEES FOR WORK DONE AFTER THE MANDATE ISSUED.
State Farm v. Markovits, 45 Fla. L Weekly D998 (Fla. 1st DCA April 27, 2020):
Plaintiff earned attorneys’ fees under the Florida Offer of Judgment statute, §768.79.
At first, the trial court denied attorney’s fees, finding that the proposal was served prematurely. The First District reversed, however, and remanded the matter back to the trial court for a hearing to determine the amount of reasonable fees to be awarded. The court also granted the plaintiff’s motion for appellate attorney’s fees.
During the post-remand period, the plaintiff’s attorney maintained that entitlement was still an issue, and presented testimony regarding the work done from the initial appeal through the post-remand hearing.
The court found it was error for the trial court to award fees post-mandate, however, rejecting the plaintiff’s argument that there was still a question about entitlement to fees. The court had clearly found that the plaintiff was entitled to attorney’s fees for both trial and appellate work, so the only issue being litigated on remand was the reasonable amount of the fees; not entitlement. Since entitlement was no longer an issue, work after the mandate was spent either litigating the amount of fees, or unnecessarily litigating entitlement to fees.
The court rejected the argument that entitlement was still an issue because State Farm had sought review of the court’s decision in the Florida Supreme Court. The court said that fact was irrelevant because it had denied State Farm’s motion to stay the mandate pending the resolution of whether the supreme court was going to accept the case.
Thus, the mandate issued, and the trial court was bound to follow it. The plaintiff was only entitled to recover attorney’s fees until the time of the court’s mandate.