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Fridman v. Safeco Insurance Co. of Illinois

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

May 20, 2017

ADRIAN FRIDMAN, Plaintiff,
v.
SAFECO INSURANCE COMPANY OF ILLINOIS, Defendant.

          ORDER

          ROY B. DALTON JR. United States District Judge

         This cause is before the Court on consideration of: (1) Plaintiff's Motion to Remand and Incorporated Memorandum of Law (Doc. 15), filed December 15, 2016; (2) Defendant's Response to Plaintiff's Motion to Remand (Doc. 16), filed December 21, 2016; and (3) Plaintiff's Reply to Defendant's Response to Plaintiff's Motion to Remand (Doc. 22), filed February 3, 2017.

         I. Background

         Defendant Safeco Insurance Company of Illinois (“Safeco”) and Plaintiff Adrian Fridman (“Fridman”) are before this Court after extensive litigation in the Florida courts (“State Proceedings”), [1] which commenced on April 29, 2009, when Fridman filed a complaint against Safeco (“Initial Complaint”) in the Circuit Court of the Ninth Judicial Circuit, in and For Orange County Florida (“State Trial Court”).[2] “[I]n accordance with the provisions of § 627.727, Florida Statutes” and insurance policy number X5140979 (“Policy”)-Fridman demanded “damages in excess of $15, 000.00, exclusive of prejudgment interest, costs and attorney's fees” (“UM Claim”), which damages arose out of an automobile accident with an underinsured tortfeasor (“UTF”) on January 8, 2007 (“Accident”).[3]

         Before initiating the State Proceedings, Fridman sent Safeco multiple unsuccessful settlement demands, which advised that:

(1) the UTF's insurance carrier tendered $10, 000 to Fridman for the Accident (“UTF Payment”);[4]
(2) due to injuries from the Accident, chiropractor Vincent A. Preziosi, D.C. assigned Fridman a “10% permanent, partial impairment to the body as a whole, ” and estimated that Fridman would annually incur $1, 000 to $1, 800 in future medical expenses;[5] and
(3) Fridman had incurred $16, 800 in medical bills-$8, 600 of which was paid by Safeco as personal injury protection benefits (“PIP Payment”), and $8, 000 of which was paid “out of pocket” by Fridman.[6]

         Fridman also served Safeco with a civil remedy notice (“CRN”), which Safeco did not cure.[7] Nonetheless, Fridman did not assert a statutory bad faith claim (“Bad Faith Claim”) against Safeco in his Initial Complaint.

         In the year following commencement of the State Proceedings, Fridman and Safeco conducted discovery concerning Fridman's claimed injuries and economic damages (“State Discovery”).[8] By August 2009, Fridman had provided Safeco with discovery responses representing that his medical expenses totaled approximately $17, 049.00.[9]Subsequently, Fridman incurred an additional $62, 217.00 in medical expenses; however, it is unclear when Safeco learned of these additional damages.[10]

         In 2011: (a) Safeco tendered the UM Limits and requested entry of final judgment in favor of Fridman;[11] (b) after a hearing on the matter, the State Trial Court denied Safeco's request (“Confessed Judgment Ruling”);[12] (c) Fridman then prevailed in a jury trial-obtaining a one million dollar verdict against Safeco (“Excess Verdict”));[13] and (d) the State Trial Court entered judgment in favor of Fridman and against Safeco in “the sum of $50, 000.00 . . ., notwithstanding the [Excess Verdict]” (“2011 Judgment”).[14] In the 2011 Judgment, the State Trial Court reserved “jurisdiction to determine” Fridman's right to amend his Complaint to assert a Bad Faith Claim against Safeco “as a result of” the Excess Verdict (“Reserved Jurisdiction Ruling”).[15]

         On direct appeal to the Fifth District Court of Appeals for the State of Florida (“State Appellate Court”), Safeco challenged the Confessed Judgment Ruling, the Excess Verdict, and the Reserved Jurisdiction Ruling.[16] Ruling in favor of Safeco, the State Appellate Court: (1) held that the State Trial Court should have entered the confessed judgment in favor of Fridman as Safeco requested; and (2) directed the State Trial Court on remand to “enter an amended final judgment deleting any reference to the [Excess Verdict] and declining to reserve jurisdiction to consider a request to amend the complaint to add a [Bad Faith Claim].” Fridman I, 117 So.3d at 20-21. On remand, the State Trial Court entered an amended final judgment as directed by the State Appellate Court (“2013 Judgment”).[17]

         Fridman sought reconsideration or review of the State Appellate Court's decision, [18] and the Florida Supreme Court invoked its jurisdiction over the matter on April 14, 2014. Fridman v. Safeco Ins. Co. of. Ill., 145 So.3d 823 (Fla. 2014). After full briefing and oral argument, [19] the Florida Supreme Court held that:

(1) the Consent Judgment Ruling was proper because Fridman was “entitled to a determination of liability and the full extent of his . . . damages in the UM action before filing a first-party bad faith action”;
(2) the Excess Verdict is “binding, as an element of damages, in a subsequent first-party bad faith action against [Safeco] so long as the parties have the right to appeal any properly preserved errors in the [Excess Verdict];” and
(3) the State Trial Court “did not err in retaining jurisdiction to allow the filing of a bad faith cause of action.”

See Fridman II, 185 So.3d at 1216, 1229-30. Hence Fridman I was quashed, and the matter was remanded to the State Appellate Court. See id. at 1230.

         On remand, the State Appellate Court held that the State Trial Court erred in denying Defendant's request for remittitur of lost earnings damages, and remanded for further proceedings. See Fridman III, 196 So.3d at 1285. The State Trial Court then vacated the 2013 Judgment and entered an amended final judgment (see Doc. 1-1 (“Final Judgment”)). The Final Judgment provided that: (1) Fridman had already accepted Safeco's tender of the UM Limits, which was all Fridman was “entitled to recover” from Safeco; (2) the trial court reserved “jurisdiction to determine [Fridman's] right to amend his [Initial] Complaint” to assert a Bad Faith Claim; and (3) if Fridman prevails on a Bad Faith Claim, then he “will be entitled to a judgment” of $692, 632.91 in accordance with the jury's remitted Excess Verdict, “plus any other damages allowed by the law.”[20]

         Based on the Final Judgment, Fridman sought leave to amend his Initial Complaint to assert his Bad Faith Claim (“Motion to Amend”).[21] After conducting a hearing on October 26, 2016 (Doc. 16-1 (“Amendment Hearing”)), the State Trial Court granted the Motion to Amend on October 28, 2016 (Doc. 1-11, p. 39 (“Amendment Order”)). Fridman then filed an amended complaint on November 7, 2016 (Doc. 2 (“Amended Complaint”)), which set forth a single Bad Faith Claim against Safeco.

         On November 18, 2016, Safeco removed the action to this Court based on diversity jurisdiction under 28 U.S.C. § 1332.[22] (Doc. 1 (“Notice of Removal”).) According to the Notice of Removal, Safeco was “entitled to remove within 30 days of [the] filing” of the Amended Complaint because such pleading reflected Fridman's first assertion of a Bad Faith Claim, “which is a separate and distinct cause of action.” (See id. ¶ 5 (citing 28 U.S.C. § 1441 and Lahey v. State Farm Mut. Auto. Ins. Co., 8:06-cv-1949-T-27TBM, 2007 WL 2029334, at *2 (M.D. Fla. 2007).)) Fridman timely moved for remand (Doc. 15 (“Remand Motion”)), Safeco responded (Doc. 16), and Fridman replied (Doc. 22).[23] The matter is now ripe for the Court's consideration.

         II. Legal Standards

         Although plaintiffs are well-recognized to be the master of their own claims, [24]Congress has conferred a limited right on defendants to remove a civil action from state court to “the district court of the United States for the district and division within which such action is pending.” See 28 U.S.C. § 1446(a); see Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Defendants may remove only those “actions that originally could have been filed in federal court, ”[25] and they bear the burden of proving by a preponderance of the evidence that original jurisdiction exists (“Removal Jurisdiction”). See Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001); see also Lowery v. Ala. Power Co., 483 F.3d 1184, 1207-09 (11th Cir. 2007); Fowler v. Safeco Ins. Co. of Am., 915 F.2d 616, 617 (11th Cir. 1990).

         In addition to the Removal Jurisdiction requirement, Congress also imposed time constraints on the right to remove-particularly when removal is based on diversity jurisdiction:

(b) Requirements; generally.-
(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
* * *
(3) Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.
(c) Requirements; removal based on diversity of citizenship.-
(1) A case may not be removed under subsection (b)(3) on the basis of [diversity] jurisdiction . . . more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in ...

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