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Dudash v. Southern-Owners Insurance Co.

United States District Court, M.D. Florida, Tampa Division

April 28, 2017

NICKY B. DUDASH, individually and as assignee of David Heisig, Plaintiff,


          JAMES D. WHITTEMORE United States District Judge.

         BEFORE THE COURT are Plaintiffs Motion for Partial Summary Judgment (Dkt. 55), Defendant's Motion for Summary Judgment (Dkt. 56), and the respective responses (Dkts. 67, 69). Upon consideration, the Motions (Dkts. 55, 56) are DENIED.


         Nicky Dudash was injured in an automobile accident with David Heisig. It is undisputed that Heisig was liable for the accident. Prior to Dudash filing suit, Heisig's automobile liability insurance carrier, Southern-Owners Insurance Company, refused to tender the limits of Heisig's insurance policy of $100, 000. After ajury trial, Dudash obtained a judgment of $865, 000 against Heisig. She then commenced this third-party common law bad faith action on behalf of herself and as assignee of Heisig alleging that Southern-Owners did not attempt in good faith to settle her claim against Heisig.[1] (Dkt. 19). Southern-Owners moves for summary judgment on Dudash's bad faith claim. Dudash moves for partial summary judgment on the narrow issue that Southern-Owners could have settled Dudash's claim against Heisig within policy limits.

         Undisputed Material Facts

         Southern-Owners issued a policy to Heisig with bodily injury liability coverage in the amount of $100, 000 per person and $300, 000 per accident. (Dkt. 58 ¶ 7). While the policy was in effect, on December 1, 2005, Heisig rearended Dudash while she was stopped. (Dkt. 58-2 at 22). He was cited for careless driving. (Dkt. 58-6 at 8). The accident was reported to Southern-Owners on December 6, 2005, and Jeremy Moore was assigned as the adjuster. Dudash retained attorney Jeffrey Byrd to represent her. After minimal activity on the claim, on May 2, 2008, Byrd offered to settle her claim against Heisig for $100, 000. (Dkt. 58-6), Included in the offer were her medical bills and records. Southern-Owners' internal review found that Heisig was fully liable. (Dkt. 58-10). Southern-Owners did not tender the policy limits or otherwise attempt to negotiate, and the offer expired on June 2, 2008. (Dkt. 58-6).

         Six months after the offer expired, on January 12, 2009, Moore requested $45, 000 in settlement authority from Scott Norris, an attorney in Southern-Owners' legal department, which was granted. (Dkt. 58-13), The same day, Moore offered to settle the claim for $29, 000. (Dkt. 58-14). On April 16, 2009, Moore followed up again on his settlement offer. (Dkt. 58-15). Between February and August, Dudash had two surgeries. (Dkt 58-22). On August 31, 2009, Dudash filed a lawsuit against Heisig. (Dkt. 19 ¶ 22). On September 18, 2009, Byrd advised that the time for pre-suit negotiations had passed. (Dkt. 58-18). On January 19, 2010, Moore requested authority of $ 100, 000 from Norris, which was granted. (Dkt. 58-23). On January 20, 2010, Southern-Owners, through counsel, offered to settle Dudash's claim for $100, 000. (Dkt. 58-24). On January 22, 2010, the offer was rejected. (Dkt. 58-26). On March 4, 2011, a jury verdict was entered in favor of Dudash for $875, 000. (Dkt. 19¶26). Finaljudgment in the amount of $865, 000 was entered in favor of Dudash and against Heisig on November 6, 2012. (Dkt. 19 at 62).


         Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as amatter of law." Fed.R.Civ.P. 56(a). "A genuine factual dispute exists only if a reasonable fact-finder 'could find by a preponderance of the evidence that the [non-movant] is entitled to a verdict.'" Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11thCir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). "An issue of fact is 'material' if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case" Atten v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (citations omitted). The court will not weigh the evidence or make findings of fact. Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003). Rather, facts are viewed and reasonable inferences are drawn in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). The court's role, therefore, "is limited to deciding whether there is sufficient evidence upon which a reasonable juror could find for the non-moving party." Morrision, 323 F.3d at 924.


         A. Southern-Owners' Motion for Summary Judgment

         Southern-Owners moves for summary judgment contending that the undisputed facts show that it acted in good faith at all times in handling the claim. Dudash counters that whether under the totality of the circumstances Southern-Owners acted in bad faith is a question for the jury.

         Dudash brings this common law bad faith action on behalf of herself and as an assignee of Heisig.[2] Florida common law recognizes third-party bad faith actions brought by an insured or the injured third party against the insured's liability carrier.[3] QBE Ins. Corp. v. Chalfonte Condo. Apartment Ass'n, Inc., 94 So.3d 541, 545 (Fla. 2012); Fidelity & Cas. Co. v. Cope, 462 So.2d 459, 461 (Fla. 1985). Whether she brings the action individually or as an assignee, the basis of the action remains the duty owed to Heisig and his damages. See Fidelity, 462 So.2d at 460-61; Thompson v. Commercial Union Insurance Co., 250 So.2d 259, 264 (Fla. 1971). And, in handling the defense of claims against Heisig, Southern-Owners "has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business." Boston Old Colony Insurance Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980).

         In determining whether Southern-Owners acted in bad faith, the "totality of the circumstances" standard applies. Berges v. Infinity Ins. Co.,896 So.2d 665, 680 (Fla. 2004). The issue therefore "is whether, under all of the circumstances, [Southern-Owners] could and should have settled the claim within the policy limits had it acted fairly ...

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