Bottini v. GEICO
Filing
99
ORDER granting 29 Motion for Partial Summary Judgment. See Order for details.. Signed by Judge Elizabeth A. Kovachevich on 9/23/2014. (Attachments: # 1 Exhibit Statement of Facts, # 2 Exhibit Statement of Facts) (JM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARY BOTTINI, etc.,
et al.,
Plaintiff,
v.
CASE NO. 8:13-CV-365-T-17AEP
GEICO GENERAL
INSURANCE COMPANY,
Defendant.
/
ORDER
This cause is before the Court on:
Dkt. 28
Dkt. 29
Dkt. 30
Dkt. 31
Dkt. 34
Dkt. 35
Dkt. 53
Dkt. 54
Statement of Undisputed Facts
Motion for Partial Summary Judgment on
Binding Effect of Underlying Verdict of
Liability and Damages
Deposition
Request for Oral Argument
Response
Response
Notice
Notice
In the complaint, Plaintiff Mary Bottini, as Personal Representative of the Estate
of Gerard Bottini, alleges a first-party bad faith claim against Defendant GEICO General
Insurance Company. Plaintiff seeks to recover the total amount of Plaintiff’s damages,
including any amount in excess of Plaintiffs policy limits awarded by jury verdict in the
Underlying Action, and damages caused by Defendant’s alleged bad faith, pursuant to
Secs. 624.155 and 627.727(10), Florida Statutes. The basis of jurisdiction is diversity.
Case No. 8:13-CV-365-T-17AEP
Plaintiff Bottini moves for entry of partial summary judgment on the binding effect
of the verdict in the Underlying Action, Case No. 08-8851 in Hillsborough County Circuit
Court, Mary Bottini, as Personal Representative of the Estate of Gerard Bottini v.
GEICO General Insurance Company and Marissa D. Pensa. A final judgment in the
amount of $50,000.00 (the UM policy limits) was entered against Defendant GEICO
General Insurance Company (“GEICO”).
The jury determined the total amount of
damages to be $30,872,266.00; after a net set off of $1,040,000.00, the full amount of
Plaintiff’s damages resulting from the death of the decedent is $29,832,266.00. (Dkt. 17). The Second District Court of Appeal affirmed the final judgment in the amount of
$50,000.00 against Defendant GEICO.
Plaintiff Bottini argues that the jury’s verdict in the Underlying Action, after
setoffs, is binding for the purpose of determining the damages recoverable by Plaintiff
under Sec. 627.727(10), Florida Statutes. Plaintiff argues that the jury’s verdict is
binding according to Florida case law, legislative intent, and the doctrine of collateral
estoppel.
Defendant GEICO has responded in opposition to Plaintiff’s Motion; Defendant
argues that the Court must deny Plaintiffs Motion for Partial Summary Judgment.
Defendant GEICO argues that the Court has no authority to find that the verdict
reached by the jury in the Underlying Action constitutes a measure of damages in this
bad faith case. Although Florida law provides that Plaintiff Bottini will be entitled to
recover the full amount of her damages in the event Plaintiff prevails in the bad faith
action, the applicable case law and statute do not specify the manner in which those
damages should be determined.
Defendant GEICO argues that: 1) the underlying UM jury’s verdict does not
constitute the proper measure of damages in a subsequent first party bad faith action;
2) GEICO’s right to procedural due process would be violated if the Court were to hold
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that the underlying jury’s verdict is binding in this bad faith action; 3) collateral estoppel
does not bind GEICO or the Court to the underlying jury verdict; and 4) GEICO was
denied appellate review of the jury verdict; 5) GEICO did not waive any objections to
the scope of appellate review; 6) the Court should reject Plaintiffs public policy
argument.
I. Standard of Review
Summary judgment should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c).
The plain language of Rule 56(c) mandates the entry of
summary judgment after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the
burden of proof at trial.”
Celotex Corp. v. Catrett. 477 U.S. 317 (1986).
The appropriate substantive law will guide the determination of which facts are
material and which facts are...irrelevant. Anderson v. Liberty Lobby. Inc.. 477 U.S.
242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences
are resolved in favor of the non-movant. See Fitzpatrick v. Citv of Atlanta. 2 F.3d 1112,
1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable
jury could return a verdict for the non-moving party.” See Anderson. 477 U.S. at 248.
But, “[i]f the evidence is merely colorable...or is not significantly probative...summary
judgment may be granted.” id. at 249-50.
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II. Controlling Principles of Florida Law
1. Jury’s Determination of Negligence and Compensatory Damages
Where material facts are disputed, negligence is a question of fact to be resolved
by the jury. Sec. 768.21, Florida Statutes, specifies the damages recoverable for
wrongful death. The jury in the Underlying Action determined negligence and
compensatory damages. The verdict includes, inter alia, amounts for loss of
companionship and protection, loss of parental companionship, instruction and
guidance, and for pain and suffering. There is no objective standard which can
precisely measure these damages; under Florida law, the jury, guided by its judgment
and everyday life experiences, determines what amount is fair. Anarand v. Key. 657
So.2d 1146, 1149 (Fla. 1995).
The objective is to make the plaintiff whole. Sheelv v
MRI Radiology Network. P.A.. 505 F.3d 1173, 1203 (11th Cir. 2007)(compensatory
damages designed to “make good the wrong done”; holding emotional distress
damages available for intentional violations of Rehabilitation Act).
2. Remittitur
Defendant GEICO moved for a remittitur in the Underlying Action. Pursuant to
Sec. 768.043, Florida Statutes, the trial court reviews the amount of the award to
determine if the amount is clearly excessive in light of the facts and circumstances
presented to the trier of fact. Sec. 768.043(3) explains:
3) It is the intent of the Legislature to vest the trial courts of this state with
the discretionary authority to review the amounts of damages awarded by
a trier of fact, in light of a standard of excessiveness or inadequacy. The
Legislature recognizes that the reasonable actions of a jury are a
fundamental precept of American jurisprudence and that such actions
should be disturbed or modified only with caution and discretion.
However, it is further recognized that a review by the courts in accordance
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with the standards set forth in this section provides an additional element
of soundness and logic to our judicial system and is in the best interests of
the citizens of Florida.
The determination of whether an award is excessive, and the amount by which
an award of damages exceeds a reasonable amount, requires the trial court to
consider:
1. Whether the amount awarded is indicative of prejudice, passion or
corruption on the part of the trier of fact;
2. Whether it clearly appears that the trier of fact ignored the evidence in
reaching a verdict or misconceived the merits of the case relating to the
amount of damages recoverable;
3. Whether the trier of fact took improper elements of damages into
account or arrived at the amount of damages by speculation or
conjecture;
4. Whether the amount awarded bears a reasonable relation to the
amount of damages proved and the injury suffered;
5. Whether the amount awarded is supported by the evidence and is
such that it could be adduced in a logical manner by reasonable persons.
In this case, the trial court denied Defendant’s Motion for Remittitur. By the trial
court’s denial, the Court understands that the trial court determined that the amount of
compensatory damages awarded was not clearly excessive in light of the facts and
circumstances presented to the trier of fact. By the denial of the Motion for Remittitur,
the trial court was required to consider whether the jury took improper elements of
damage into account; the trial court therefore implicitly rejected Defendant’s assertion
that the award of compensatory damages includes some amount of punitive damages.
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3. Motion for New Trial
Defendant GEICO moved for a new trial. The trial court denied Defendant’s
Motion for New Trial.
“A motion for new trial is directed to the sound, broad discretion of the trial judge,
who, because of his contact with the trial and his observation of the behavior of those
upon whose testimony the finding of fact must be based, is better positioned than any
other one person to fully comprehend the processes by which the ultimate decision of
the triers of fact, the jurors, is reached.” Cloud v. Fallis. 110 So.2d 669, 673 (Fla.
1959.) “When the trial judge, who must be presumed to have drawn on his talents, his
knowledge and his experience to keep the search for truth in a proper channel,
concludes that the verdict is against the manifest weight of the evidence, it is his duty to
grant a new trial, and he should always do that if the jury has been deceived as to the
force and credibility of the evidence, or has been influenced by considerations outside
the record.” (citations omitted), id.
“If the issue of an opponent's improper argument [or conduct] has been properly
preserved by objection and motion for mistrial, the trial court should grant a new trial if
the argument was ‘so highly prejudicial and inflammatory that it denied the [objecting]
party its right to a fair trial.’ ” Enale v. Liaaett Grp.. Inc.. 945 So.2d 1246, 1271 (Fla.
2006). “...[I]f the issue of an opponent's improper argument or conduct has not been
preserved by contemporaneous objection and motion for mistrial, a new trial will only be
warranted when the improper behavior is ‘of such a nature as to reach into the validity
of the trial itself to the extent that the verdict could not have been obtained but for such
comments.’” id. To prevail on a motion for new trial under Murphv v. In’tl Robotic Svs..
Inc.. 766 So.2d 1010 (Fla. 2000) requires that the complaining party “establish that the
[challenged] argument [or attorney misconduct] was (1) improper, (2) harmful, (3)
incurable, and (4) so damaging to the fairness of the trial that the public's interest in our
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system of justice requires a new trial.”
A trial judge may order a new trial on the grounds that the verdict is excessive or
against the manifest weight of the evidence, or both. A new trial may be ordered on the
ground that the verdict is excessive when: 1) the verdict shocks the judicial conscience;
or 2) the jury has been unduly influenced by passion or prejudice. Brown v Estate of
Stuckev. 749 So.2d 490 (Fla. 1999)(reversing district court, which reversed trial judge’s
grant of new trial; district court erred in not applying broad discretion standard; clarifying
principles to be applied by trial judge when ruling on motion for new trial on the grounds
that verdict is against manifest weight of evidence, and the standard to be applied on
appeal of grant of new trial).
A circuit court’s order granting a new trial is reviewed for abuse of discretion.
The appellate court presumes that the trial court exercised its discretion properly;
unless it clearly appears that the circuit court abused its discretion, the appellate court
will not disturb the ruling of the trial court. Allstate Ins. Co. v. Manasse. 707 So.2d
1110,1111 (Fla. 1998). Discretion is abused only where no reasonable person would
take the view adopted by the trial court.
In this case, the trial court denied the Amended Motion for New Trial. By the trial
court’s denial, the Court understands that amount of damages awarded did not “shock
the judicial conscience” of the trial court, and the trial court determined that the jury
verdict was not awarded by a jury unduly influenced by passion or prejudice.
4. Award of Compensatory Damages Characterized as Punitive Damages
Defendant GEICO asserted on appeal that the award of compensatory damages
impermissibly includes a punitive element.
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A jury’s assessment of compensatory damages is a factual determination. A
jury’s award of punitive damages is not a finding of fact, but a private fine intended to
punish the defendant and deter future wrongdoing. Cooper Indus.. Inc. v. Leatherman
Tool Group. Inc.. 532 U.S. 424 (2001). The Fourteenth Amendment’s Due Process
Clause imposes substantive limits on the States’ discretion, making the Eighth
Amendment prohibition against excessive fines and cruel and unusual punishments
applicable to the States, Furman v. Georgia. 408 U.S. 238 (1972), and prohibits States
from imposing “grossly excessive” punishments on tortfeasors, B.M.W. of North
America. Inc. v. Gore. 517 U.S. 559 (1996).
Under Florida law, the award of punitive damages is subject to due process
analysis, but the award of compensatory damages is not. On its face, the jury verdict
identifies the elements of damages awarded. The jury verdict at issue does not award
punitive damages.
The Court relies on the categories of damages stated on the jury verdict; the
Court cannot speculate about the jury’s motivation.
5. Harmless Error
Sec. 59.041, Florida Statutes, provides:
No judgment shall be set aside or reversed, or new trial granted by any
court of the state in any cause, civil or criminal, on the ground of
misdirection of the jury or the improper admission or rejection of evidence
or for error as to any matter of pleading or procedure, unless in the
opinion of the court to which application is made, after an examination of
the entire case it shall appear that the error complained of has resulted in
a miscarriage of justice. This section shall be liberally construed.
In State v. DiGuilio. 491 So.2d 1129, 1138 (Fla.1986)(holding that comments on
defendant’s silence are subject to harmless-error analysis; receding from per se
Case No. 8:13-CV-365-T-17AEP
reversal rule), the Florida Supreme Court explains the harmless error test:
The harmless error test, as set forth in Chapman and progeny, places the
burden on the state, as the beneficiary of the error, to prove beyond a
reasonable doubt that the error complained of did not contribute to the
verdict or, alternatively stated, that there is no reasonable possibility that
the error contributed to the conviction. See Chapman. 386 U.S. at 24, 87
S.Ct. at 828. Application of the test requires not only a close
examination of the permissible evidence on which the jury could
have legitimately relied, but an even closer examination of the
impermissible evidence which might have possibly influenced the
jury verdict.
(Emphasis added). The Florida Supreme Court also includes a summary of various
errors an appellate court may fall into when applying harmless error analysis:
In his perceptive essay, The Riddle of Harmless Error, former Chief
Justice Traynor addressed various common errors which, historically,
appellate courts fall into when applying harmless error analysis. The worst
is to abdicate judicial responsibility by falling into one of the extremes of
all too easy affirmance or all too easy reversal. Neither course is
acceptable. The test must be conscientiously applied and the reasoning of
the court set forth for the guidance of all concerned and for the benefit of
further appellate review. The test is not a sufficiency-of-the-evidence, a
correct result, a not clearly wrong, a substantial evidence, a more
probable than not, a clear and convincing, or even an overwhelming
evidence test. Harmless error is not a device for the appellate court to
substitute itself for the trier-of-fact by simply weighing the evidence. The
focus is on the effect of the error on the trier-of-fact. The question is
whether there is a reasonable possibility that the error affected the verdict.
The burden to show the error was harmless must remain on the state. If
the appellate court cannot say beyond a reasonable doubt that the error
did not affect the verdict, then the error is by definition harmful. This rather
truncated summary is not comprehensive but it does serve to warn of the
more common errors which must be avoided.
DiGuilio at 1138-1139.
In Damico v. Lundbera. 379 So.2d 964, 965 (Fla. 2d DCA 1979), the harmless
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error test is stated in different terms:
Error is reversible only when, considering all the facts peculiar to the
particular case under scrutiny, it is reasonably probable that a result more
favorable to the appellant would have been reached if the error had not
been committed. 3 Fla. Jur.2d 499. Stecher v. Pomerov. 253 So. 2d
421,422 (Fla. 1971).
This standard implies that the appellate court will consider all the facts, and then
determine the probability of a different outcome without the alleged error.
The harmless error test as described in DiGuilio and Damico requires the
appellate court to consider the evidence, and assess the effect of impermissible
evidence, or challenged conduct.
III. Discussion
A. Verdict in Underlying UM Action as Measure of Damages Recoverable
Under Sec. 627.727(10), RS,
Sec. 627.727(10) provides:
(10) The damages recoverable from an uninsured motorist carrier in an
action brought under S. 624.155 shall include the total amount of the
claimant’s damages, including the amount in excess of the policy limits,
any interest on unpaid benefits, reasonable attorney’s fees and costs, and
any damages caused by a violation of a law of this state. The total
amount of the claimant’s damages is recoverable whether caused by an
insurer or by a third-party tortfeasor.
Plaintiff Bottini argues that the Florida Supreme Court has held that the damages
recoverable under Sec. 627.727(10) are the damages determined in the underlying UM
suit, based on State Farm Mutual Automobile Insurance Company v. Laforet. 658 So.2d
55 (Fla. 1995)(holding Sec. 627.727(10) could not be applied retroactively). In Laforet.
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the Florida Supreme Court explains that the Florida Legislature amended Sec. 627.727,
Fla. Stat. in reaction to McLeod v. Continental Insurance Co.. 591 So.2d 621 (Fla.
1992) (holding excess judgment was not an element of damages recoverable for firstparty bad faith). Plaintiff argues, inter alia, that the Florida Supreme Court defined
“excess judgment” to mean the excess portion of the verdict returned in the underlying
case, and by enacting Sec. 627.727(10), the Legislature eliminated the distinction
between the damages available in first-party cases and the damages available in thirdparty cases.
In Laforet. the Florida Supreme Court found that Sec. 627.727(1) is penal rather
than remedial:
Just because the Legislature labels something remedial, however, does
not make it so....In fact, in McLeod, we signified a contrary conclusion by
finding that the imposition of the amount of the excess judgment as
damages would be “analogous to imposing a penalty or punitive damages
on the insurer.”...Further, in addition to imposing a significant penalty on
all insurers found guilty of bad faith, section 627.727(10) is an entirely new
provision; it would apply to all actions brought under section 625.155
since its effective date in 1982 were it to be applied retroactively; and it
significantly alters the language used to determine damages. By
implementing section 627.727(10), the Legislature is in essence
subjecting insurance companies in first-party bad faith actions to two
penalties because, not only are they subject to punitive damages for the
willful and reckless refusal to pay a claim, they are also subject to a
penalty for the wrongful failure to pay a claim. This means that an
insurance company found to have acted in bad faith in a first-party action
may now be liable for: (1) damages proximately caused by the bad faith
including interest, attorney’s fees, and costs; (2) a penalty consisting of
the entire amount of the excess judgment without regard to proximate
causation; and (3) the additional penalty of punitive damages when the
bad faith is found to be willful and reckless.
Laforet. 658 So.2d at 61. Plaintiff Bottini also cites Allstate Indem. Co. v. Ruiz. 899
So.2d 1121, 1128 n. 2 (Fla. 2005) and Time Ins. Co. v. Burner. 712 So.2d 389, 392
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(Fla. 1998). The Court notes that the Florida Supreme Court did not rule on the same
issue before this Court in the above cases; however, the Court views Laforet as
strongly persuasive.
Plaintiff Bottini argues that the concurring opinion in GEICO General Ins. Co. v.
Bottini. 93 So.3d 476, 478 (Fla. 2d DCA 2012) implies an unresolved question of how
damages recoverable Sec. 627.727(10) should be determined. In that opinion, Judge
Altenbernd states “The statute does not explain how the finder of fact in the next lawsuit
determines the ‘total amount’ of the claimant’s damages.” Plaintiff argues that this
opinion is not binding authority, and does not supersede Laforet.
In GEICO General Ins. Co. v. Bottini. in his concurring opinion, Judge
Altenbernd states:
I concur in the affirmance of this judgment. I write to explain
that I have reviewed only the judgment on appeal. In my
opinion, this court’s scope of review gives it no power to
consider alleged errors the verdict that do not affect the
judgment. Accordingly, I conclude that there is no proper
legal basis to reverse the $50,000 judgment in this case,
and I express no opinion as to the correctness of the jury’s
verdict awarding $30,872,266.
On appeal, GEICO has argued several issues that might
affect the judgment as to liability and comparative
negligence, but this court has found no preserved reversible
error on those issues. It has also argued that the verdict is
excessive and that it was influenced by improper arguments.
However, GEICO concedes that after finding liability, a jury
would be free under the facts of this case to award a total of
$1,050,000 even in the fairest of trials. Accordingly, no
alleged error raised by GEICO can be a harmful error as to
the judgment totaling $50,000.
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This appeal is motivated by the lawsuit that both parties
know will follow. The Estate will sue GEICO under section
624.155, Florida Statutes (2006), for failure to settle this
claim at an earlier time. The available damages in that
action are specified by the legislature. Sec. 627.727(10),
Florida Statutes (2006), states:
The damages recoverable from an uninsured motorist
carrier in an action brought under s. 624.155 shall include
the total amount of the claimant’s damages, including the
amount in excess of the policy limits, any interest on unpaid
benefits, reasonable attorney’s fees and costs, and any
damages caused by a violation of a law of this state. The
total amount of the claimant’s damages is recoverable
whether caused by an insurer or by a third-party tortfeasor.
(Emphasis added.) The statute does not explain how the
finder of fact in the next lawsuit determines the “total
amount” of the claimant’s damages. Not unreasonably, both
sides in this appeal anticipate that the Estate will attempt to
use the verdict in this case as evidence of the total amount
of damages in the next lawsuit. (FN 1).
FN 1: In a standard “bad faith” case involving a
liability insurance company, the verdict in excess of the
insurance limits results in a judgment against the defendant,
but not against his or her liability insurance company. Only
in a lawsuit against the plaintiffs own insurer, a “first-party”
insurance claim, does the excess verdict result in no
judgment of any sort. Thus, the problem presented by this
case appears unique to bad faith claims arising from
coverage under section 627.727.
Constitutionally, this court is given power to review final
judgments for reversible error. We can also write an opinion
affirming a judgment as to issues that, if we were to reach
an opposite result, would lead to a reversal of the judgment.
But I am unconvinced that we have a scope of review that
allows us to rule on issues that do not and cannot affect the
judgment on appeal. In this case, given that we decided to
affirm on the issues relating to liability, GEICO essentially
wants this court to write an opinion that affirms the
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judgment, but “reverses” the verdict as to elements of
damage not included within the judgment. I simply conclude
that this court does not have the power to issue such an
opinion. The fact that such an opinion might be convenient
for purposes of the next lawsuit or facilitate its settlement
does not change the authority given to me under the Florida
Constitution.
Accordingly, this concurrence permits both sides to know
that at least one judge on this panel has not decided that the
verdict is correct or incorrect as to damages awarded in
excess of $1,050,000 because that issue is not within our
permissible scope of review. If I am refusing to do that
which the law requires me to do, I would assume that by writ
of mandamus the supreme court could order me to conduct
such a review. If so ordered, I would perform that review.
Plaintiff Bottini argues that the opinion in Kina v. Government Employees
Insurance Co.. 2012 WL 4052271, *5 (M.D. Fla. 9/13/2012) is not accurate, in light of
the holding in Laforet. as is the order entered in Harris v. GEICO General Insurance
Co.. 2013 WL 4463836, *8 (S.D. Fla. 8/7/2013).
Defendant GEICO responds that the only controversy between Plaintiff Bottini
and Defendant GEICO in the Underlying Action was whether Plaintiff was entitled to the
$50,000 UM benefits under the policy, and a judgment in the amount of $50,000 was
entered. Defendant GEICO argues that the finder of fact in the bad faith case
determines the amount of damages, not the court in the Underlying Action.
Government Employees Insurance Co. v. Kina. 68 So.3d 267 (Fla. 2d DCA
2011)(denying motion for attorney’s fees and receding from opinion authorizing
procedure of entering conditional judgments; explaining that the trial court in a
subsequent bad faith action determines whether earlier appellate attorney’s fees are an
element of damages awardable).
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Before the entry of the jury verdict, Plaintiff’s entitlement to UM benefits of
$50,000 could not be determined. If the jury had determined no liability for negligence,
or determined compensatory damages of less than $50,000, a different Final Judgment
would have been entered.
Once the jury determined liability and compensatory
damages, Plaintiff could prove she was legally entitled to recover from the tortfeasor,
and therefore from the UM insurer, Defendant GEICO.
The Final Judgment in the
Underlying Action sets the amount recoverable from Defendant GEICO at the UM
Policy limits, documents the total amount of compensatory damages awarded to
Plaintiff and applies the applicable setoff, to specifically identify the recoverable
damages in excess of the policy limits. Defendant GEICO obtained review of the
amount of the jury verdict through Defendant’s Motion for Remittitur and Motion for New
Trial, and the appeal of the trial court’s denial of Defendant’s Motions.
The fact that
the Second District Court of Appeal did not address this issue in an opinion does not
render the decision affirming the trial court any less final, and the per curiam disposition
of the Second District Court of Appeal does not mean that issues raised by Defendant
GEICO were not considered.
The Court agrees that, in the bad faith case, a cause of action distinct from the
Underlying Action, the finder of fact determines the damages recoverable in the event
that it is determined that Defendant GEICO has violated any statutory duties pursuant
to Sec. 624.155. Florida Statutes. In Sec. 627.727(10), the Florida Legislature has
defined the damages recoverable from a UM carrier in an action brought under Sec.
624.155 to include “the total amount of the claimant’s damages, including the amount in
excess of the policy limits.” A first party bad faith case cannot be brought before there
has been a final determination of liability as to the uninsured tortfeasor, and the extent
of the plaintiffs damages. The “extent of the plaintiffs damages” is a necessary
element of successfully pleading a first-party bad faith claim. See Porcelli v.
OneBeacon Ins. Co.. 635 F.Supp.2d 1312, 1316 (M.D. Fla. 2008)(citing Blanchard v.
State Farm Mut. Auto. Ins. Co.. 575 So.2d 1289, 1291 (Fla. 1991); Vest v. Travelers
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Ins. Co.. 753 So.2d 1270, 1275-76 (Fla. 2000)). The extent of the plaintiff’s damages,
including the amount in excess of the policy limits, caused by the uninsured tortfeasor
is one element of damages recoverable in a subsequent bad faith claim; the total
damages recoverable may also include interest on unpaid benefits, reasonable
attorney’s fees and costs, and any damages caused by a violation of a law of Florida.
The language of Sec. 627.727(10) is plain, and, in Laforet. the Florida Supreme Court
explained how the Florida Supreme Court would apply the statute, albeit in dicta.
B.
Appellate Review
Plaintiff Bottini argues that the majority opinion of the Second District Court of
Appeal did not refuse to review Defendant GEICO’s claims of error.
Defendant GEICO argues that Defendant GEICO was denied appellate review.
Defendant GEICO appealed the denial of Defendant’s Motion for Remittitur and
Amended Motion for New Trial. Defendant GEICO asserted on appeal the trial court
abused its discretion in denying Defendant’s request for a new trial, on the basis that
the jury’s damage award of $30 million was excessive, and against the manifest weight
of the evidence. Defendant GEICO also asserted that the trial court abused its
discretion in denying Defendant’s request for new trial because Plaintiff’s counsel: 1)
made improper and inflammatory arguments during closing argument, and 2) engaged
in character assassination of tortfeasor Geisbert. (Dkts. 28-1, Brief of Appellant; Dkt.
28-17, Brief of Appellee; Dkt. 28-18, Appellant’s Reply Brief).
The majority opinion of the Second District Court of Appeal states:
The jury verdict found that the Estate’s damages were
$30,872,266. But the judgment amount entered by the trial
court against Geico is $50,000, based on the applicable
policy limits. Based on the evidence presented, we are
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satisfied that even if Geico were correct that errors may
have affected the jury’s computation of damages, in the
context of this case and the amount of the judgment, any
such errors were harmless. Thus, we do not address further
Geico’s claims of error.
Affirmed.
(Dkt. 28-19).
Defendant GEICO raised the issue of the amount of damages awarded to
Plaintiff Bottini on appeal, in the context of the trial court’s denial of Defendant GEICO’s
motion for new trial; the majority opinion, which is binding, indicates that the Second
District Court of Appeal considered the issue, but determined that any errors were
harmless, and affirmed the trial court.
As other courts have observed, although parties may not appeal from verdicts,
appellate courts can and do consider potential errors in verdicts. See Batchelor v.
Geico Cas. Co.. 2014 WL 39-6312, 5 (M.D. Fla. 2014)(citing Normius v. Eckerd Corp..
813 So.2d 985, 988 (Fla. 2d DCA 2002) (review of order granting remittitur) and Duclos
v. Richardson. 113 So.3d 1001, 1003-04 (Fla. 1s DCA 2013)(review of order granting
t
jnov)).
Based on the undisputed record, the Court finds that Defendant GEICO was not
denied appellate review of the amount of damages awarded to Plaintiff in the
Underlying Action.
C. Waiver of Objection to Scope of Appellate Review
Plaintiff Bottini argues that Defendant GEICO has waived any right to complain
since Defendant chose not to take any steps to seek further appellate review. Plaintiff
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argues that Defendant GEICO consciously chose to forego all available procedures i.e.
no motion for rehearing, no motion for clarification and no petition for mandamus.
Plaintiff further argues that the decision of the Second District Court of Appeal
conflicts with decisions of other courts of appeal as to review of errors that affected the
excess portion of the verdict: Christiani v. Popovich. 363 So.2d 2 (Fla. 1st DCA 1978)
and Nationwide Mut. Fire Ins. Co. v. Darraah. 95 So.3d 897 (Fla. 5th DCA 2012).
Defendant GEICO responds that Defendant has not waived its objection to the
scope of appellate review.
The mandate of the Second District Court of Appeal affirmed the trial court.
It
is not disputed that Defendant GEICO did not seek further review. The Court notes that
Defendant GEICO submitted itself to the jurisdiction of the Hillsborough County Circuit
Court, and Defendant GEICO participated fully in the Underlying Action. The trial court
had discretion to review the jury verdict for excessiveness, but denied Defendant’s
Motion for Remittitur and for New Trial. Defendant GEICO appealed, but the Second
District Court of Appeal, finding no reversible error, affirmed the trial court.
The Court finds that Defendant GEICO did not pursue any further means of
review after the appeal in the Second District Court of Appeal, and therefore the Final
Judgment of the trial court stands as final.
D. Collateral Estoppel
Plaintiff Bottini argues that the verdict from the Underlying Action is binding
through collateral estoppel.
Plaintiff Bottini argues that Florida courts give collateral
estoppel effect to judgments that are affirmed without an opinion or “PCA.”
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Defendant GEICO responds that collateral estoppel does not bind the parties to
the verdict amount because the verdict was not a final judgment accorded conclusive
effect. See Kina v. Government Employees Insurance Co.. 2012 WL 4052271, *5
(M.D. Fla. 9/13/2012). Defendant GEICO argues that the identical issue has not been
fully litigated, and a final decision has not been rendered by a court of competent
jurisdiction.
“Under the Full Faith and Credit Act, 28 U.S.C. § 1738, a federal court must ‘give
preclusive effect to a state court judgment to the same extent as would courts of the
state in which the judgment was entered.’ ” Brown v. R. J. Reynolds Tobacco Co.. 611
F.3d 1324, 1331 (11th Cir. 2010). The Court gives preclusive effect to a state court
judgment if: “(1) the courts of the state from which the judgment emerged would do so
themselves; and (2) the litigants had a full and fair opportunity to litigate their claims
and the prior state proceedings otherwise satisfied the applicable requirements of due
process.” Quinn v. Monroe Ctv.. 330 F.3d 1320,1329 (11th Cir. 2003). In Florida,
“collateral estoppel applies if (1) an identical issue, (2) has been fully litigated, (3) by the
same parties or their privies, and (4) a final decision has been rendered by a court of
competent jurisdiction.” ]cL; see Essenson v. Polo Club Assocs.. 688 So.2d 981, 983
(Fla. 2d DCA 1997). Collateral estoppel does not require prior litigation of an entire
claim, only a particular issue. Rice-Lamar v. Citv of Fort Lauderdale. 853 So.2d 1125,
1131 (Fla. 4th DCA 2003).
“[T]he offensive use of collateral estoppel calls for the courts to use special care
in examining the circumstances to ascertain that the defendant has in fact had a full
and fair opportunity to litigate and that preclusion will not lead to unjust results.”
Johnson v. U.S.. 576 F.2d 606, 614 (5th Cir. 1978). One of the most important
considerations is whether, at the time of the earlier action, the party could foresee that
facts subject to estoppel could be important in future litigation. ]d at 615.
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Florida courts have looked to the Second Restatement of Judgments in applying
collateral estoppel. Cook v. State. 921 So.2d 631, 634 (Fla. 2d DCA 2005). In Cook,
the Court notes the following:
When there is a lack of total identity between the particular matter
presented in the second action and that presented in the first, there are
several factors that should be considered in deciding whether for
purposes of the rule of this Section the “issue” in the two proceedings is
the same, for example: Is there a substantial overlap between the
evidence or argument to be advanced in the second proceeding and that
advanced in the first? Does the new evidence or argument involve
application of the same rule of law as that involved in the prior
proceeding? Could pretrial preparation and discovery relating to the
matter presented in the first action reasonably be expected to have
embraced the matter sought to be presented in the second? ...
Sometimes, there is a lack of total identity between the matters involved in
the two proceedings because the events in suit took place at different
times. In some such instances, the overlap is so substantial that
preclusion is plainly appropriate.... Preclusion ordinarily is proper if the
question is one of the legal effect of a document identical in all relevant
respects to another document whose effect was adjudicated in a prior
action.
Restatement (Second) of Judgments § 27 cmt. c (1982).
Differences in the burden of proof or persuasion between the initial proceeding
and the subsequent proceeding may affect whether the doctrine of collateral estoppel
will be applied; Florida also recognizes a “manifest injustice exception” to the doctrine of
collateral estoppel. This exception comes into play when application of the doctrine
“would defeat the ends of justice.” The manifest injustice exception recognized in
Florida law parallels the exception in Restatement (Second) of Judgments Section
28(5)(a) for circumstances where “[tjhere is a clear and convincing need for a new
determination of the issue ... because of the potential adverse impact of the
determination on the public interest.”
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When deciding what facts have been litigated and adjudicated in prior
proceedings, courts often look to the verdict forms to help decide the issue. See
Acadia Partners. L.P. v. Tompkins. 673 So.2d 487, 488-89 (Fla. 5th DCA 1996). The
verdict form in the Underlying Action reflects that the jury determined the liability of the
tortfeasors, and the amount of damages caused by their negligence. Defendant
GEICO “stepped into the shoes” of the tortfeasor and participated fully in the Underlying
Action. Although the Final Judgment was limited to Defendant’s policy limits of
$50,000, the Final Judgment also includes a statement of the jury’s determination of the
total amount of damages, and states that all claims that Plaintiff may have for damages
pursuant to Sec. 624.155 are preserved and not affected by the Final Judgment. It was
foreseeable that the facts subject to estoppel could be important in future litigation. If
this case involved a claim of bad faith following an excess judgment against the insured
as tortfeasor, there would be no question that, following an appeal of a final judgment,
the Final Judgment of the trial court established the amount of damages in excess of
the policy limits. The Florida Legislature has chosen to make the amount of damages
in excess of the policy limits identical in first party claims and third party claims.
The Court relies on the plain language of the statute and on Florida case law in
adjudicating Plaintiffs Motion. The amount of damages caused by the tortfeasor was
necessarily determined in the Underlying Action, in which Defendant GEICO
participated fully. The due process right underlying the issue of whether a litigant
has a full and fair opportunity to litigate is whether the litigant has the opportunity to be
heard. Defendant GEICO raised the issue of the alleged excessive amount of
damages in Defendant’s Motion for Remittitur and Motion for New Trial, and on appeal.
Defendant GEICO did not pursue further relief after the decision of the Second District
Court of Appeal. While this case is distinct from the Underlying Action, in light of Sec.
627.727(10), Florida Statutes, it was foreseeable that the amount of damages could be
important in future litigation. There was no failure of due process, where Defendant
GEICO had the opportunity to, and did, raise the issue of excessive damages by post21
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trial motions and on appeal.
Defendant GEICO could have taken further steps to
obtain review of the decision of the Second District Court of Appeal, but did not do so.
The Court does not know of any factor, including a failure of due process, which would
render the application of Florida’s collateral estoppel doctrine inappropriate.
Accordingly, it is
ORDERED that Plaintiff’s Motion for Partial Summary Judgment (Dkt. 29) as to
the binding effect of the underlying verdict as to liability and damages is granted.
DONE and ORDERED in Chambers, in Tampa, Florida on this
^ J ^ ^ jp dav of September, 2014.
Copies to:
All parties and counsel of record
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