October 27, 2015

Florida Appellate Court Upholds Dismissal of Direct Action Against Insurer in Wrongful Death Case

439674317_da332396cc_zThe majority of insurance claims associated with car accidents are paid through an insurance company. Despite this, the general rule holds that an insurance company is not named as a party to the lawsuit against the driver who allegedly caused the crash. The purpose of these laws is to prevent a jury from learning that an insurance company would ultimately pay for any judgment awarded in the plaintiff's favor, which may skew the amount of damages that the jury awards.

In GEICO General Insurance Company v. Lepine, Florida's Second Appellate District considered whether a plaintiff could name a liability insurer as a party in a lawsuit on the basis that the insurance company had allegedly reneged on an agreement to pay the policy limits. The facts of this case are as follows. The plaintiff's husband unfortunately lost his life in a fatal car accident.

The complaint named the other driver and the other driver's insurance company as the defendants and included allegations that the insurance company had agreed to pay the policy limits both in an oral conversation with the company's lawyer and in a voicemail message, and that the insurance company later refused to make payments. The plaintiff's complaint also included a breach of contract claim against the other driver, based on the insurance company's alleged failure to pay.

The insurance company filed a motion to dismiss the breach of contract claim against it in the complaint, claiming that Florida's statute barring direct actions against insurance companies prevented joinder of the insurance company. Florida Statutes Section 627.4136 provides that any individual who is not included within an insurance policy cannot bring a direct action against the insurance company for any claim that is within the scope of the policy's coverage without first securing a verdict or settlement against the insurance company.

In denying the motion to dismiss, the trial court concluded that the plaintiff's breach of contract claim was in essence a claim to enforce a settlement. The insurance company appealed.

On appeal to the Second District, the court discussed a previous case in which the court found that a pre-litigation agreement between an injured party and an insurance company did not constitute a settlement or verdict for the purposes of the non-joinder statute.

According to the appellate court, permitting a direct claim against the insurer to proceed would provide the jury with information regarding the availability of insurance payments, potentially skewing the jury's unbiased view of the case and any award of damages.  According to the court, however, the plaintiff was still free to pursue her claim against the other driver for the insurer's alleged failure to pay pursuant to the messages and verbal conversation.

If you or someone you love has suffered injuries as the result of another driver's negligence, you may be entitled to compensation. At Lusk, Drasites & Tolisano, P.A., we know how devastating a car accident can be for you and your family. We have helped many victims throughout Naples, Fort Myers, and Cape Coral bring claims against negligent drivers, including actions for wrongful death. We offer a free consultation and always treat our clients with the compassion and personal attention that they deserve. Call us now at 1-800-283-7442 or contact us online to set up your appointment.

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Posted in: Wrongful Death

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