MARY BOTTINI, as Personal Representative of the Estate of Gerard Bottini, Plaintiff - Appellee,
from the United States District Court for the Middle District
of Florida D.C. Docket No. 8:13-cv-00365-EAK-AEP.
TJOFLAT and MARCUS, Circuit Judges, and STEELE, [*] District Judge.
§ 1292(b) interlocutory appeal, we consider a narrow
issue concerning claims against uninsured/underinsured
motorist ("UM") insurance providers under Florida law. Florida, by
statute, imposes a duty on insurers to settle their
policyholders' claims in good faith. Fla. Stat. §
624.155. If a UM insurer fails to settle a legitimate claim
within the statutory time limit, its policyholder may obtain,
through two lawsuits, two sets of damages: one for breach of
contract up to the policy maximum and another for bad faith
for the full amount of the policyholder's injury
("statutory damages"). Here, the parties disagree about whether
the Court in this bad-faith case is bound by the state court
jury's determination of damages in the underlying UM
the pendency of this appeal-but prior to oral argument-the
Florida Supreme Court held that the determination of damages
in a UM contract case is binding in a subsequent bad-faith
case. Fridman v. Safeco Ins. Co. of Ill., 185 So.3d
1214, 1216 (Fla. 2016). Critical to this appeal, however,
Fridman contained a caveat that the parties have a
right to appellate review of the statutory-damages
determination before it becomes binding in the subsequent
bad-faith case. Id. at 1226. We conclude that the
defendant, GEICO, did not receive appellate review of the
statutory-damages determination in the parties'
underlying breach-of-contract case. Therefore, that damages
determination does not bind the parties in this bad-faith
case. We thus reverse the District Court's order granting
partial summary judgment on the binding effect of the verdict
in the Circuit Court's breach-of-contract case, and hold
that the parties must again litigate statutory damages.
case began tragically. On March 3, 2007 at around 12:10 AM,
Gerard Bottini was traveling on I-75 in Hillsborough County,
Florida. A car ahead of him caught fire and began emitting
smoke, obscuring his view of the road. As a result, he lost
control of his vehicle, which left the roadway, rolled over,
and ejected him. He died later that day from his injuries.
vehicle Mr. Bottini was driving was insured by a GEICO policy
that provided $50, 000 of UM coverage. The car that caught
fire was underinsured for purposes of Fla. Stat. §
627.727. After Mr. Bottini's death, Mary Bottini, his
wife, became the personal representative of Mr. Bottini's
estate. In the months following the crash, Ms. Bottini's
lawyer sent two letters to GEICO demanding payment of the
policy maximum because Mr. Bottini was not at fault, and
GEICO had possession of crash reports supporting that
conclusion. GEICO denied the requests, stating that it was
still conducting its own investigation to determine whether
Mr. Bottini was at fault for the accident, which would render
the coverage inapplicable.
August 8, 2007, 104 days after Ms. Bottini's lawyer sent
her first letter to GEICO and 158 days after the crash, she
filed a Civil Remedy Notice of Insurer Violation
("CRN") with the Florida Department of Financial
Services. Filing the CRN is a statutory prerequisite to
filing a bad-faith claim against an insurer. Fla. Stat.
§ 624.155(3). As required by § 624.155(3)(b)(1),
Ms. Botini's CRN listed the statutory provisions that she
alleged GEICO was violating by failing to honor her
claim. GEICO responded to Ms.
Botini's CRN on October 5, 2007, stating that its
investigation had led it to conclude that smoke from the
vehicle in front of Gerard Bottini did not cause him to lose
control of his vehicle, it had not acted in bad faith, and it
would "continue to make every attempt to resolve this
claim amicably." About two weeks later, in an apparent
change of heart, GEICO sent Ms. Bottini's lawyer a check
for the full $50, 000, including with it a complete release
of liability for any related claims. Ms. Bottini rejected the release of
liability and returned the check.
April 2008, Ms. Bottini sued GEICO in the Circuit Court for
Hillsborough County, Florida seeking benefits under the UM
policy. GEICO defended on the basis that Mr. Bottini was
negligent in driving his vehicle and such negligence was
either the sole or contributing cause of the accident. Ms.
Bottini countered that the vehicle that caught fire ahead of
Mr. Bottini was maintained and operated negligently, and
that negligence caused the crash, not any breach of
duty committed by Mr. Bottini.
case was tried to a jury, and the jury found for Ms. Bottini.
It decided that Mr. Bottini was not negligent, that both the
operator and owner of the smoking vehicle were negligent, and
that GEICO was therefore liable. The jury also decided the
full extent of damages arising from the accident-$103, 552 to
the estate; $14, 522, 478 to Ms. Bottini for loss of support,
services, companionship, and pain and suffering; and around
$5, 400, 000 to each of Mr. Bottini's three children for
loss of support and services, parental companionship,
instruction and guidance, and pain and suffering. In total,
the jury found damages amounting to $30, 872, 266.
the verdict, GEICO filed motions for new trial and
remittitur, but those were denied. It then filed a motion in
the Circuit Court to limit the judgment to the $50, 000
policy maximum, and that motion was granted. Thus, after
reciting the jury's $30, 872, 266 damages verdict and
assessing setoffs,  the Court entered
a final judgment for $50, 000.
appealed the judgment to the Second District Court of Appeal.
It sought a new trial on several grounds, three of which were
pertinent to the computation of damages. It argued that Ms.
Bottini's counsel impermissibly attacked the character of
the driver of the vehicle that caught fire, that Ms.
Bottini's counsel made a highly inflammatory closing
argument, and that $30, 000, 000 in damages was excessive and
against the "manifest weight of the evidence."
GEICO also contended that the judgment clearly reflected a
"punitive component" as a result of
"prejudicial and improperly admitted evidence and
Second District affirmed the judgment in a short per curiam
opinion that reads in its entirety as follows:
Geico General Insurance Company raised five issues in this
appeal. We conclude that none of the issues warrants
reversal. We note that Geico's arguments include claims
of error that impacted the amount of damages determined by
the jury. The jury verdict found that the Estate's
damages were $30, 872, 266. But the judgment amount entered
by the trial court against Geico is $50, 000, based on the
applicable insurance policy limits. Based on the evidence
presented, we are satisfied that even if Geico were correct
that errors may have affected the jury's computation of
damages, in the context of this case and the amount of the
judgment, any such errors were harmless. Thus, we do not
address further Geico's claims of error.
Geico Gen. Ins. Co. v. Bottini, 93 So.3d 476, 477
(Fla. Dist. Ct. App. 2012).
Altenbernd wrote separately to address the elephant in the
room-the effect of the jury's calculation of damages in
the UM suit on the inevitable, forthcoming bad-faith lawsuit:
This appeal is motivated by the lawsuit that both parties
know will follow. The Estate will sue GEICO under section
624.155, Florida Statutes (2006), for failure to settle this
claim at an earlier time . . .
The statute does not explain how the finder of fact in the
next lawsuit determines the "total amount" of the
claimant's damages. Not unreasonably, both sides in this
appeal anticipate that the Estate will attempt to use the
verdict in this case as evidence of the total amount of
damages in the next lawsuit.
Constitutionally, this court is given power to review final
judgments for reversible error. We can also write an opinion
affirming a judgment as to issues that, if we were to reach
an opposite result, would lead to a reversal of the judgment.
But I am unconvinced that we have a scope of review that
allows us to rule on issues that do not and cannot affect the
judgment on appeal. In this case, given that we decided to
affirm on the issues relating to liability, GEICO essentially
wants this court to write an opinion that affirms the
judgment, but "reverses" the verdict as to elements
of damage not included within the judgment. I simply conclude
that this court does not have the power to issue such an
opinion. The fact that such an opinion might be convenient
for purposes of the next lawsuit or facilitate its settlement
does not change the authority given to me under the Florida
Accordingly, this concurrence permits both sides to know that
at least one judge on this panel has not decided that the
verdict is correct or incorrect. . . . If I am refusing to do
that which the law requires me to do, I would assume that by
writ of mandamus the supreme court could order me to conduct
such a review. If so ordered, I would perform that review.
Id. at 478 (Altenbernd, J., concurring) (footnote
omitted). GEICO did not seek discretionary postjudgment
review in the Second District or in the Supreme Court of
Bottini brought this action in the District Court on February
8, 2013, invoking the Court's diversity jurisdiction
under 28 U.S.C. § 1332. She alleged that GEICO acted in
bad faith, violating several provisions of Fla. Stat. §
624.155. She contended that she was therefore entitled, in
accordance with Fla. Stat. § 627.727(10), to the full
amount of damages designated by the jury in the UM
breach-of-contract lawsuit. Ms. Bottini then moved the
District Court for summary judgment on the issue of damages,
arguing that the Circuit Court jury verdict fixed the damages
at $30, 872, 266. GEICO countered, arguing that it never
received appellate review of that damages verdict; therefore,
giving effect to the verdict in the bad-faith lawsuit would
violate its right to procedural due process.
District Court granted Ms. Bottini's motion, holding that
the verdict was binding as the measure of damages in the
bad-faith suit. GEICO subsequently filed a motion for
reconsideration of the District Court's order, or
alternatively, to certify the order for interlocutory appeal
pursuant to 28 U.S.C. § 1292(b). The District Court denied reconsideration
but certified the order for interlocutory appeal. This Court
agreed to hear the appeal.
Part, we explain the mechanics of an insurer-bad-faith suit
under Florida law. Part II.A details the history of
Florida's bad-faith cause of action. Part II.B explains
the requirements for a plaintiff to prevail on a bad-faith
claim against a UM insurer, including the Florida Supreme
Court's recent clarification in F ...