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Decision Highlights Split Over Remand of Insurance Bad Faith Claims

This story is reprinted with permission from FC&S Legal, the industry’s only comprehensive digital resource designed for insurance coverage law professionals. Visit the website to subscribe.   The issue of whether an insurance bad faith claim, joined by amendment to an underlying insurance coverage action, may be removed more than a year after the original action was begun has divided judges in the U.S. District Court for the Middle District of Florida. A new opinion highlights the split. Perhaps the U.S. Court of Appeals for the Eleventh Circuit now will weigh in. The Case Jennifer Ann Hawkinson alleged that, when she was 19 years old and a college student, she was a passenger in a car when it was hit by Brian Peters, an uninsured motorist driving under the influence. As a result, Ms. Hawkinson said, she suffered severe and permanent injuries. Ms. Hawkinson claimed coverage under two insurance policies issued by State Farm Mutual Automobile Insurance Company: her own policy, which provided $25,000 of uninsured motorist coverage benefits, and her parents’ policy, which provided stackable uninsured motorist coverage limits of $250,000 per person and $500,000 per accident. On November 19, 2013, after State Farm denied her claim for uninsured motorist coverage under her parents’ policy, Ms. Hawkinson sued Mr. Peters, a Florida citizen, and State Farm, alleging negligence against Mr. Peters (Count I) and an uninsured motorist coverage claim under her parents’ policy against State Farm (Count II). State Farm was served on November 27, 2013. On December 11, 2013, Ms. Hawkinson served a civil remedy notice on State Farm, notifying the insurer that, by denying her claim, it was not acting fairly and honestly toward its insured. Once State Farm failed to cure the notice in the 60-day window, the prerequisite for a bad faith claim by Ms. Hawkinson was established. Following a bench trial, the state court found that Ms. Hawkinson was an insured under her parents’ policy. The trial court also granted Ms. Hawkinson’s amended motion for leave to file an amended complaint, which included a claim for punitive damages against Mr. Peters and a claim of bad faith against State Farm. The amended complaint, filed on April 25, 2016, alleged negligence against Mr. Peters (Count I), an uninsured motorist claim against State Farm (Count II), a bad faith claim against State Farm (Count III), and a count for punitive damages against Mr. Peters (Count IV). State Farm unsuccessfully moved to dismiss the bad faith claim, which was abated pursuant to a court order. Ms. Hawkinson and State Farm signed a “Stipulation for Entry of Final Judgment and Temporary Stay of Execution” that granted Ms. Hawkinson compensatory damages, final judgment on her uninsured motorist claim against State Farm, and attorneys’ fees and costs. The trial court entered a final judgment on Ms. Hawkinson’s uninsured motorist claim, thus resolving all matters related to Count II. State Farm appealed the final judgment. On March 8, 2018, a Florida appellate court affirmed coverage, granted Ms. Hawkinson attorneys’ fees, and remanded for resolution regarding the amount. On April 5, 2018, after Ms. Hawkinson moved to lift abatement of the bad faith claim in state court, State Farm removed the bad faith claim (Count III), invoking the district court’s diversity jurisdiction. Ms. Hawkinson moved to remand, arguing among other things that removal was untimely. The District Court’s Decision The district court granted the motion to remand, finding that the case had not been timely removed and that remand was required. In its decision, the district court explained that the case initially was not removable because the parties were not diverse. Because the case was not initially removable, the district court continued, it was subject to the one-year removability restriction in 28 U.S.C. § 1446. The district court observed that State Farm had removed the case within 30 days of the appellate court affirming the trial court’s ruling on the uninsured motorist claim – but that it was “not removed within one year of the commencement of the action.” According to the district court, State Farm could “not remove the case five years after its commencement.” The district court reasoned that, under Fla. R. Civ. P. 1.050, an action is deemed commenced when the complaint is filed. Therefore, commencement happens when the complaint is filed, and amendment of the complaint adding a bad faith claim “does not commence the action anew.” The district court concluded that, because the original complaint was filed in November 2013 in state court and State Farm did not file a notice of removal until April 2018, removal was “well outside the one-year limitation imposed by [Section] 1446(c)” and, therefore, that it was untimely. The case is Hawkinson v. State Farm Mutual Automobile Ins. Co., No. 3:18-cv-461-J-32MCR (M.D. Fla. July 23, 2018). Attorneys involved include: For Jennifer Ann Hawkinson, Plaintiff: Lee Theodore Griffin, LEAD ATTORNEY, Pajcic & Pajcic, PA, Jacksonville, FL; Michael S. Rywant, LEAD ATTORNEY, Rywant, Alvarez, Jones, Russo & Guyton, PA, Gainesville, FL. For State Farm Mutual Automobile Insurance Company, Defendant: Brandi R. Londrico, LEAD ATTORNEY, Taylor, Day, Grimm & Boyd, Jacksonville, FL; Carol M. Bishop, LEAD ATTORNEY, Taylor, Day, Grimm & Boyd, Jacksonville, FL. FC&S Legal Comment Several judges in the U.S. District Court for the Middle District of Florida have opined that the post-verdict accrual of a bad faith claim was the commencement of a new civil action that reset the removal clock. See Johnson v. State Farm Mutual Automobile Ins. Co., No. 6:15-cv-1942-Orl-31TBS (M.D. Fla. Jan. 22, 2016); Thorne v. State Farm Mutual Automobile Ins. Co., No. 8:14-CV-827-T-17AEP (M.D. Fla. Feb. 25, 2015); Lahey v. State Farm Mutual Automobile Ins. Co., No. 8:06-CV-1949-T27-TBM (M.D. Fla. July 2007). Others have concluded that this interpretation was not in accord with the removal statute. See, e.g., Florida Health Scis. Ctr., Inc. v. Government Employees Ins. Co., No. 8:17-CV-339-T-36AAS (M.D. Fla. Aug. 7, 2017); Fridman v. Safeco Ins. Co. of Illinois, No. 616CV2020ORL37KRS (M.D. Fla. May 22, 2017); Barroso v. Allstate Property & Casualty Ins. Co., 958 F. Supp. 2d 1346 (M.D. Fla. 2013); Franck v. State Farm Mutual Automobile Ins. Co., No. 6:11-CV-1422-ORL (M.D. Fla. Oct. 21, 2011). The U.S. Court of Appeals for the Eleventh Circuit has noted that an intra-district split exists on this issue, King v. Government Employees Ins. Co., 579 F. App’x 796 (11th Cir. 2014), but it has not yet resolved the matter. Perhaps now it will do so. Steven A. Meyerowitz, Esq., is the Director of FC&S Legal, the Editor-in-Chief of the Insurance Coverage Law Report, and the Founder and President of Meyerowitz Communications Inc. As FC&S Legal Director, Mr. Meyerowitz, a member of the team that conceptualized FC&S Legal, provides daily analysis and commentary on the most significant insurance coverage law decisions from courts across the country and news regarding legislative and regulatory developments. A graduate of Harvard Law School, Mr. Meyerowitz was an attorney at a prominent Wall Street law firm before founding Meyerowitz Communications Inc., a law firm marketing communications consulting company.