United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant's Motion to
Dismiss Amended Complaint (Doc. 23) filed on
November 6, 2017, seeking dismissal of Plaintiff's
bad-faith insurance claim (Count III). Plaintiffs have not
filed a response and the time to do so has expired. For the
reasons set forth below, the Motion is granted.
case arose from an automobile insurance coverage dispute
between James Robert Wadsworth and his insurance carrier
after he sustained injuries while crossing a street.
(Doc. 22, ¶ 4). In the aftermath of the
incident, James Robert Wadsworth sought compensation from the
owner of the vehicle, and ultimately settled his claim.
(Id. at ¶ 8). Subsequent to the settlement, he
then demanded underinsured motorist coverage from a State
Farm insurance policy he had previously procured.
(Id.at ¶¶ 7-8, 14). When State Farm failed
to pay, Plaintiffs instituted the instant suit for breach of
contract/underinsured (UM) motorist benefits (Count I), loss
of consortium (Count II), and bad faith and unfair claims
practices (Count III). Now, State Farm moves to dismiss Count
III of the Complaint, arguing the claim does not accrue until
there has been a favorable resolution of the coverage issue.
not the first time Plaintiffs have failed to respond to
Defendant's argument that Plaintiffs' premature bad
faith claim should be dismissed. Previously, the Court
allowed Plaintiffs to file a belated Response to
Defendant's first Motion to Dismiss. (Doc. 11).
In that Response, Plaintiffs agreed that a bad faith claim is
not ripe until the underlying coverage has been determined,
stating, “the only question for this court is whether
the bad faith claim should be abated or dismissed pending
that determination.” (Doc. 15, ¶ 3).
Plaintiffs argue that abatement, rather than dismissal is
that the first Complaint was a shotgun pleading, the Court
did not rule on the substance of the Motion, but noted that
it maintained serious doubt as to the viability of
Plaintiffs' bad faith claim at this stage of the
litigation. (Doc. 21, p. 2). Still, Plaintiffs
included the bad faith claim in their Amended Complaint
(Doc. 22, Count III).
by statute, imposes a duty on insurers to settle their
policyholders' claims in good faith. Fla. Stat. §
624.155. “Before a policyholder may file a bad-faith
lawsuit in which she alleges that her UM insurer failed to
settle a meritorious claim in good faith, she must first
establish that her claim was, indeed, meritorious.”
Bottini v. Geico, 859 F.3d 987, 993 (11th Cir. 2017)
(citing Blanchard v. State Farm Mut. Auto. Ins. Co.,
575 So.2d 1289, 1291 (Fla. 1991). “She does so by
obtaining a determination that her insurer is contractually
liable under her UM insurance policy.” Id. The
determination of liability and the extent of damages are
elements of a cause of action for bad faith. Id.
(quoting Vest v. Travelers Ins. Co., 753 So.2d 1270,
1275 (Fla. 2000). See also Allstate Indem. Co.
v. Ruiz, 899 So.2d 1121, 1124 (Fla. 2005).
it is undisputed the bad faith claim is not yet ripe because
it is contingent upon Plaintiffs prevailing on the underlying
UM breach of contract claim. That being the case, the
question is whether the unripe claim should be stayed pending
a successful outcome of the UM claim, or dismissed without
prejudice to be refiled. Courts have not settled on a single
course of action for handling unripe bad faith claims
simultaneously filed with coverage claims. See
Bele v. 21st Century Centennial Ins. Co., 126
F.Supp.3d 1293, 1295 (M.D. Fla. 2015) (collecting cases).
Some courts have dismissed the claim without prejudice,
reasoning they are not justiciable claims under Article III
of the United States Constitution, while others have abated
the claims, citing judicial economy. See Shvartsman v.
Geico, Case No. 6:17-cv-437-Orl-28KRS, 2017 WL 2734083,
*1 (M.D. Fla. June 22, 2017) (collecting cases).
“Ultimately, the decision of whether to abate or
dismiss without prejudice rests in the sound discretion of
the Court.” Id. (citing Vanguard Fire
& Cas. Co. v. Golmon, 955 So.2d 591, 595 (Fla. 1st
DCA 2006). The Florida Supreme Court has found that abatement
is appropriate and favored. Fridman v. Safeco Ins. Co. of
Illinois, 185 So.3d 1214, 1229 (Fla. 2016).
Plaintiffs argued that abatement would be preferred to
conserve judicial resources. (Doc. 15, ¶ 7).
However, the Court agrees with the reasoning in the group of
cases that have dismissed unripe bad faith claims without
prejudice. Notably, those decisions have recognized that
Florida state courts do not have the same jurisdictional
requirements as federal courts do under Article III, which
prevents federal courts from adjudicating cases that are
unripe for review or rest upon contingent future events that
may not occur. See Natl. Advertising Co. v. City
of Miami, 402 F.3d 1335, 1339 (11th Cir. 2005). Because
that is the case here, the Court will dismiss Plaintiffs'
unripe bad faith claim without prejudice to refiling if the
UM contract claim is favorably resolved.
it is now
Motion to Dismiss Amended Complaint (Doc. 23) is
GRANTED. Plaintiffs' bad faith claim in
Count III of the Amended Complaint is DISMISSED
WITHOUT PREJUDICEDONE and