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Geico General Insurance Co. v. Annie Lepine, as Personal Representative, Case No. 2D14-5903 (2nd DCA)

– In Lepine, the defendant insurer, Geico, sought certiorari review of the trial court’s order denying Geico’s motion to dismiss Count III of the plaintiff’s complaint. Geico’s insured was involved in an automobile accident that resulted in the death of the plaintiff’s decedent. Before suit was filed, Geico agreed in a voicemail and over the phone with the plaintiff’s attorney to pay the $100,000.00 policy limits. Geico later refused to pay. The plaintiff filed suit against the insured and Geico. Count III was a claim for breach of contract against Geico, arising from the alleged settlement agreement for policy limits. Geico moved to dismiss arguing that the nonjoinder statute barred the direct claim against Geico. The trial court denied the motion, finding that the claim was tantamount to a motion to enforce a settlement, which claim is not barred by the nonjoinder statute.

The Second District ruled based on Hazen v. Allstate Ins. Co. In Hazen, the plaintiff sued the insurer directly despite not having obtained a verdict or settlement with the insurer’s insured, alleging that the insurer breached a settlement agreement. On appeal, the Second District addressed whether the nonjoinder statute barred the suit. In Hazen, the Second District affirmed the dismissal of the claim, holding that a “presuit undertaking or agreement between an injured third party and an insurer about the adjustment of a claim does not satisfy the alternative condition precedent of settlement described in . . . [the] nonjoinder statute because it does not occur within the course of pending litigation in which the insured is already a party.” The nonjoinder statute allows an insurer to be joined as a party defendant only at “the time a judgment is entered or a settlement is reached during the pendency of litigation . . . for the purposes of entering final judgment or enforcing the settlement.” In Lepine, the plaintiff had not obtained a verdict against or a settlement with the insured. Therefore, applying the language of the nonjoinder statute, the Second District ruled that the plaintiff could not bring a direct claim against Geico under the circumstances. Accordingly, the Second District granted the petition and quashed the trial court’s order denying the motion to dismiss.

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