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Safeco Ins. Co. of Illinois v. Christine A. Beare, Case No. 4D13-3104 (Fla. 4th DCA)

In Beare, the insurer, Safeco, challenged the trial court’s order abating plaintiff’s claim for bad faith refusal to settlement the plaintiff’s uninsured/underinsured motorist claim, rather than dismissing the claim in favor of a separate lawsuit. The insurer argued that abatement precluded it from removing the case to federal court, which it asserted constitued irreparable harm and departed from the essential requirements of the law.

The plaintiff sued third party tortfeasors as a result of an automobile accident. The parties agreed to settle, and the plaintiff later sought leave to amend her complaint to add her insurer, Safeco, to the complaint. The plaintiff claimed uninsured/underinsured motorist benefits against Safeco, and bad faith refusal to settle her claim. Safeco answered the UM claim and moved to dismiss the bad faith claim as premature. The trial court abated the bad faith count, and the appeal followed.

The Fourth DCA first noted the requirements to obtain certiorari relief. The petitioner must establish the following three elements: (1) a departure from the essential elements of the law, (2) resulting in material injury for the remainder of the case, (3) that cannot be corrected on postjudgment appeal. The last two elements are jurisdictional and must be analyzed before the court may consider the first element. The Fourth DCA found that it has held that the loss of the right to remove a case to federal court constitutes a material irreparable injury. The First and Fifth DCA’s have issued opinions finding otherwise, but the Fourth has consistently found irreparable harm where a party loses the right to remove a claim to federal court.

The Fourth DCA nonetheless denied Safeco’s petition because it found that the trial court did not depart fomr the essential requirements of the law. The Fourth DCA cited to State Farm Mutual Automobile Insurance Co. v. Tranchese, in which it held that where a first party bad faith action is joined with a claim for UM benefits, the appropriate relief is to abate the bad faith action until liability and damages under the policy have been established. The Fourth DCA noted that its decision in Geico Gen. Ins. Co. v. Harvey was in accord with Tranchese, because the Harvey court distinguished Tranchese on the grounds that Tranchese involved a first party bad faith claim rather than a third party bad faith claim. The Fourth DCA further noted that in Harvey, it allowed the trial court to eitherdismiss or abate the bad faith action until the underlying breach of contract was determined.

The Fourth DCA found that because the case law supports the trial court’s abatement of the bad faith action in lieu of dismissal, the trial court did not depart from the essential requirements of the law.

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