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GEICO General Insurance Co. v. Martinez

Florida Court of Appeals, Third District

January 3, 2018

GEICO General Insurance Company, Petitioner,
v.
Katherine Martinez, Respondent.

         Not final until disposition of timely filed motion for rehearing.

         A Writ of Certiorari to the Circuit Court for Miami-Dade County Lower Tribunal No. 09-92831 Pedro P. Echarte, Jr., Judge.

          Young, Bill, Boles, Palmer & Duke, Michel A. Morgan, B. Richard Young, Adam A. Duke and Cody S. Pflueger, for petitioner.

          Brodsky Fotiu-Wojtowicz and Alaina Fotiu-Wojtowicz; Michael S. Olin, for respondent.

          Before SALTER, EMAS and LOGUE, JJ.

          EMAS, J.

         INTRODUCTION

         GEICO General Insurance Company, a defendant below, petitions this court for a writ of certiorari, following the trial court's orders, which: 1) permitted plaintiff Katherine Martinez to add GEICO as a party defendant to Martinez's negligence claim against GEICO's insured, arising out of an automobile accident; 2) permitted Martinez to amend her complaint to add a third-party bad-faith claim against GEICO; and 3) abated, rather than dismissed, Martinez's unaccrued and premature third-party bad-faith claim against GEICO.

         We grant the petition and quash the orders under review because, under these circumstances and given our existing precedent, abatement (rather than dismissal) of a third-party bad-faith claim filed in contravention of the express requirements of the nonjoinder statute (section 627.4136, Florida Statutes (2016)), constitutes a departure from the essential requirements of the law, and results in irreparable harm that cannot be remedied on appeal.

         FACTS AND PROCEDURAL BACKGROUND

         The facts material to this petition do not appear to be in dispute: On February 12, 2009, Katherine Martinez sustained injury when the car she was riding in was struck by a car being driven by Diana Guevara. Guevara was insured under a policy issued by GEICO. That policy provided bodily injury coverage in the amount of $10, 000 per person and $20, 000 per occurrence.

         Martinez filed a one-count negligence complaint against Guevara in 2009. In October 2016, Martinez filed a motion to amend her complaint to add GEICO as a party defendant to the action and to add a third-party bad-faith claim against GEICO. The trial court granted the motion, and Martinez filed an amended complaint, adding GEICO as a party defendant and pleading a count for third-party bad-faith against GEICO.

         GEICO moved to dismiss the third-party bad-faith count, and at the hearing on the motion to dismiss, Martinez conceded that the bad-faith claim against GEICO was unaccrued and premature because, pursuant to the nonjoinder statute, the bad-faith claim had not yet accrued and would not accrue unless and until Martinez first obtained a settlement or verdict against Guevara on the underlying negligence claim.

         The trial court denied the motion to dismiss, and instead, abated the action to await resolution of Martinez's underlying ...


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