Bellemere v. Geico Gen. Ins. Co.
| Docket Number: | 2005-CA-00472-COA Linked Case(s): 2005-CA-00472-COA2005-CT-00472-SCT |
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| Oral Argument: | 01-23-2007 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-15-2007 Opinion Author: ROBERTS, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Insurance - Tortious breach of contract - Punitive damages - Amendment of judgment - Set-off - Waiver Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ. Concur in Part, Dissent in Part 1: Irving, J., concurs in part and dissents in part Procedural History: Jury Trial Nature of the Case: CIVIL - INSURANCE |
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| Trial Court: |
Date of Trial Judgment: 01-25-2005 Appealed from: Harrison County Circuit Court Judge: Kosta N. Vlahos Disposition: JURY VERDICT IN FAVOR OF BELLMERE. Case Number: A2401-2000-50 |
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| Party Name: | Attorney Name: | |||
| Appellant: | INGRID BELLEMERE |
ROBERT H. TYLER
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| Appellee: | GEICO GENERAL INSURANCE COMPANY | DAVID BRUCE KRAUSE MELANIE M. STEWART EDWARD C. TAYLOR |
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| Topic: | Insurance - Tortious breach of contract - Punitive damages - Amendment of judgment - Set-off - Waiver |
| Summary of the Facts: | Ingrid Bellemere was injured when the vehicle in which she was a passenger was struck from behind. While insurance coverage was eventually afforded to Bellemere, her claims were initially denied by GEICO. Subsequent to exhausting her coverage, Bellemere brought suit against GEICO and Betty Bowen, the tortfeasor. Following a settlement on the claim against Bowen, GEICO and Bellemere went to trial on her claims for contractual damages and punitive damages. The court granted GEICO’s motion for directed verdict as to Bellemere’s punitive damages claims. The jury found for Bellemere on the remaining claim and awarded her $115,000. This amount was reduced when the court granted GEICO’s post-trial motion to amend the judgment. Bellemere appeals. |
| Summary of Opinion Analysis: | Issue 1: Tortious breach of contract Bellemere argues that the court erred in granting GEICO’s motion for directed verdict on her claim for tortious breach of contract. As the insurance contract stated as such, the parties stipulated that Florida law was controlling. The court granted the motion based on its conclusion that Bellemere had failed to satisfy the requirements of Fla. Stat. § 624.155, to include notice, cure and the proof of bad faith in GEICO’s general business practices. However, Bellemere argued that she did not allege a violation of section 624.155, but an independent tort worthy of punitive damages and not dependent on the provisions of section 624.155. Section 624.155(8) explicitly states that, “[t]he civil remedy specified in this section does not preempt any other remedy or cause of action provided for pursuant to any other statute or pursuant to the common law of this state.” Fla. Stat. § 624.155(8). As such, the trial court erred in granting GEICO’s motion for directed verdict as a result of any deficiency on Bellemere’s part in regards to compliance with section 624.155. However, a directed verdict in GEICO’s favor was proper on other grounds. Bellemere, in requesting punitive damages, alleged gross negligence and emotional distress. In Florida, evidence of a continued course of dishonestly or conduct of such a gross and flagrant nature showing wantonness and recklessness to the welfare of its insured is required in order to recover punitive damages. Additionally, an insured’s conduct must rise to the level of deliberate, overt and dishonest dealings. The record shows that GEICO initially denied Bellemere both the medical payment coverage and PIP coverage as a result of her inaccurately perceived status as a non-owner and non-insured. Bellemere’s claim was forwarded to GEICO’s legal department, and after its review of the circumstances surrounding Bellemere’s claim, she was afforded full medical payment and PIP coverage. While GEICO’s claims attorney who made the final decision to afford coverage, admitted that GEICO may have made a mistake in initially denying Bellemere’s claims, there was no testimony or other evidence indicating that GEICO’s actions rose to the level required under Florida law to support punitive damages. Additionally, the attorney’s testimony explaining that the delay of coverage came as a result of the unique circumstances surrounding the claim, further supports the granting of the directed verdict. Issue 2: Waiver Bellemere argues that the court erred in allowing GEICO to offset the $50,000 paid on behalf of its insured, Bowen. While Bellemere concedes that under Florida law, an under-insured motorist carrier such as GEICO is entitled to a complete set off of any liability payments made by the under-insured tortfeasor, she argues that GEICO waived this right. Waiver has been defined by the Florida Supreme Court as the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right. The trial court did not abuse its discretion in finding that GEICO’s letter in response to Bellemere’s letter did not waive its right to set off , but only its right to subrogation concerning Bowen. |
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