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
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.