Owners Insurance Company v. Berke

Filing 28

ORDER denying 24 motion to stay; denying as moot 25 Motion to extend time. On or before Tuesday, October 24, 2017, Plaintiff/Counter-Defendant Owners Insurance Company is DIRECTED to file a responsive pleading to Count I of the Answer to Second Amended Complaint and Counterclaim[s] (Doc. 18, 7-15). Signed by Judge Roy B. Dalton, Jr. on 10/17/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
OWNERS INSURANCE COMPANY,
Plaintiff/Counter-Defendant,
v.

Case No. 6:17-cv-1505-Orl-37TBS

MICHAEL BERKE,
Defendant/Counter-Plaintiff.
_____________________________________
ORDER
In this insurance coverage dispute, Plaintiff Owners Insurance Company
(“Owners”) seeks declaratory judgment. (Doc. 17.) On September 22, 2017, Defendant
Michael Berke (“Mr. Berke”) answered the Second Amended Complaint and asserted
two counterclaims: (1) a claim for uninsured motorist benefits (“UM Counterclaim”); and
(2) a claim for bad-faith under Florida law (“Bad Faith Counterclaim”). (Doc. 18, ¶¶ 7–
28.) 1
Now, Owners moves: (1) to stay the Bad Faith Counterclaim or, in the alternative,
sever and abate it (Doc. 24 (“Motion to Stay”)); and (2) for an extension of time to respond
until the Court rules on the Motion to Stay (Doc. 25 (“Extension Motion”)). Despite
Owners’ requested relief, the Court finds that the Bad Faith Counterclaim is due to be
dismissed without prejudice. 2

Mr. Berke inadvertently mislabeled the paragraphs of his Counterclaims. Thus,
there are a total of twenty-eight, not twenty-seven, paragraphs. (See Doc. 18, pp. 6–7.)
2 Owners represents that Mr. Berke objects to all requested relief. (Doc. 24, p. 8;
1

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Florida law does not recognize a “valid” bad faith claim until “there has been a
determination of the insured’s damages.” Dadeland Depot, Inc. v. St. Paul Fire & Marine
Ins. Co., 483 F.3d 1265, 1270 n.3 (11th Cir. 2007); see also Fridman v. Safeco Ins. Co. of Ill., 185
So. 3d 1214, 1216, 1230 (Fla. 2016) (clarifying that “an insured is entitled to a
determination of liability and the full extent of his or her damages in the [coverage action]
before filing a first-party bad faith action”). Indeed, Mr. Berke concedes that no such
determination has been made yet. (See Doc. 18, ¶ 17 (explaining that the Bad Faith Claim
“will ripen upon the determination that [Defendant] is entitled to the limit of uninsured
motorist benefits”).) In such circumstances, this Court finds that dismissal—rather than
a

stay

or

abatement—is proper.

See, e.g., Ralston

v.

L.M.

Gen.

Ins.

Co.,

No. 6:16-cv-1723-Orl-37DCI, 2016 WL 6623728, at *2–3 (M.D. Fla. Nov. 9, 2016).
Therefore, the Court concludes that the Motion to Stay is due to be denied and the
Extension Motion is due to be denied as moot.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

Count II of the Defendant/Counter-Plaintiff’s Answer to Second Amended
Complaint and Counterclaim[s] (Doc. 18, ¶¶ 16–28) is DISMISSED
WITHOUT PREJUDICE.

2.

Plaintiff/Counter-Defendant’s Motion to Stay Counterclaim or in the
Alternative Motion to Sever Counterclaim and Abate Count II of
Counterclaim-Violation of Fla. Stat. § 624.155 (Doc. 24) is DENIED.

Doc. 25, p. 2.) Under the circumstances, the Court finds a response unnecessary.
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3.

Plaintiff/Counter-Defendant’s Motion for Extension of Time to Respond to
Counterclaim Until After This Court Rules on [the] Motion to Stay/Motion
to Sever and Abate (Doc. 25) is DENIED AS MOOT.

4.

On or before Tuesday, October 24, 2017, Plaintiff/Counter-Defendant
Owners Insurance Company is DIRECTED to file a responsive pleading to
Count I of the Answer to Second Amended Complaint and Counterclaim[s]
(Doc. 18, ¶¶ 7–15).

DONE AND ORDERED in Chambers in Orlando, Florida, on October 17, 2017.

Copies to:
Counsel of Record

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