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Government Employees Insurance Co. v. Arreola

Florida Court of Appeals, Second District

June 2, 2017

GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant,
v.
ELIZABETH ARREOLA and MARIA DE ARREOLA, GEICO GENERAL INSURANCE COMPANY, and KIMBERLY LEE, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Hillsborough County; Mark R. Wolfe, Judge.

          B. Richard Young, Amanda L. Kidd, Stephanie A. McQueen, and Joshua J. Hartley of Young, Bill, Boles, Palmer & Duke, P.A., Pensacola, for Appellant.

          Charles M. Schropp and Charles P. Schropp of Schropp Law Firm, P.A., Tampa; and Dennis G. Diecidue of The Diecidue Law Firm, P.A., Tampa, for Appellees Elizabeth Arreola and Maria De Arreola.

          No appearance for remaining Appellees.

          CASE, JAMES R., Associate Senior Judge.

         Government Employees Insurance Company (Geico) appeals the partial summary judgment ruling that it was required to pay an attorney's fee judgment entered against Elizabeth Arreola and Maria De Arreola (the Arreolas) under the supplemental payments provision of the Arreolas' policy. We decline to address Geico's arguments on appeal because the partial summary judgment is a nonfinal, nonappealable order. However, because the partial summary judgment impermissibly authorized execution before the entry of a final judgment, we convert the appeal into a petition for writ of certiorari and quash the order on review.

         Elizabeth Arreola was driving a vehicle owned by Maria De Arreola when she was involved in an accident with another vehicle. The driver of the other vehicle filed a personal injury action against the Arreolas. Pursuant to the Arreolas' policy, Geico defended the suit and assigned a salaried attorney employed by Geico. The policy gave Geico the right to control the defense. During the litigation, the driver served $25, 000 proposals for settlement on both Elizabeth and Maria De Arreola. Geico's attorney did not accept the proposals and allowed them to expire. Following a jury trial, the driver obtained a verdict which resulted in a judgment against the Arreolas for $80, 428.32. The driver also obtained a judgment for attorney's fees against the Arreolas for $121, 000 pursuant to the proposal for settlement statute. See § 768.79, Fla. Stat. (2014).

         The Arreolas filed suit against Geico. Their complaint alleged that Geico acted in bad faith and breached its fiduciary duty in handling the claim against the Arreolas, that the attorney assigned to the case by Geico was professionally negligent, and that Geico was responsible for such negligence under the doctrine of respondeat superior.

         The Arreolas moved for summary judgment as to the attorney's fee judgment entered against them, arguing that Geico was required to pay for these fees under the additional payments provision of the Arreolas' policy-a theory of liability that was not alleged in the complaint. The trial court granted the motion and entered the partial summary judgment, finding that Geico was liable for the attorney's fee judgment under the supplemental payments provision in the Arreola's policy. The judgment also let execution issue.

         Geico timely appealed the partial judgment, arguing that the trial court erred in determining that it was liable for the attorney's fees assessed against the Arreolas. This court issued an order to show cause as to why this appeal should not be dismissed as from a nonfinal, nonappealable order.

         Both parties insist that this court has jurisdiction over the final judgment. They insist that the judgment was final in name and form and that it authorized execution. They further argue that the breach of contract claim is separate and distinct from the bad faith claim and that the two claims could be tried independently of one another. In support of this, they allege that the claims are based on separate facts and issues: the bad faith claim requires a determination that under the totality of the circumstances Geico acted in bad faith in handling the claim, while the breach of contract claim simply requires the interpretation of the policy.

         We disagree that the judgment is an appealable partial final judgment. Florida Rule of Appellate Procedure 9.110(k) provides:

Except as otherwise provided herein, partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case. A partial final judgment, other than one that disposes of an entire case as to any party, is one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims. If a partial final ...

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