United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
the Court is Defendant Safeco Insurance Company of
Illinois' (“Safeco”) Motion to Dismiss Count
Three of the Complaint (Doc. 8). Plaintiffs Robert Harry
Diggory, IV (“Diggory”) and Nancy Jean McArdle,
collectively (“Plaintiffs”), have not filed a
response in opposition and the time to do so has expired. For
the reasons set forth below, the Motion is granted.
a car crash case and Plaintiffs allege three claims against
Safeco: (1) uninsured motorist coverage; (2) loss of
consortium; and (3) bad faith. (Doc. 4). About this time last
year, Diggory suffered extensive injuries from a car
accident; injuries he claims were covered under his insurance
policy with Safeco. (Doc. 4 at 2). Earlier this year,
Plaintiffs filed this three-count Complaint in state court
and Safeco timely removed. (Docs. 1; 4).
moves to dismiss only Count III of the Complaint, arguing
Florida law requires a plaintiff to prevail in the underlying
action for insurance benefits before it can bring a bad faith
claim. (Doc. 8 at 1). Further, the Court should dismiss Count
III without prejudice instead of abating until resolution of
the underlying coverage dispute. (Doc. 8 at 2-6). The Court
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 [uninsured/underinsured
motorist (“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., 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., 753 So.2d 1270, 1275 (Fla. 2000));
see also Allstate Indem. Co. v. Ruiz, 899
So.2d 1121, 1124 (Fla. 2005).
the bad faith claim is not yet ripe because it is contingent
upon Plaintiffs prevailing on the underlying UM breach of
contract claim. Bottini, 859 F.3d at 993. The only
remaining question is whether the unripe claim should be
stayed pending a successful outcome of the UM claim or
dismissed without prejudice to be refiled.
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., 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, 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. Dist. Ct.
App. 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).
did not respond, and Safeco requests dismissal without
prejudice. The Court agrees with the reasoning in the cases
that have dismissed unripe bad faith claims without
prejudice. See Wadsworth v. State Farm Mut.
Auto. Ins., No. 2:17-CV-502-FTM-99CM, 2017 WL 5702833,
at *2 (M.D. Fla. Nov. 27, 2017) (deciding the same abate or
dismiss issue involving the same plaintiffs' attorney).
Notably, those decisions have recognized that Florida state
courts do not have the same jurisdictional requirements as
federal courts which prevents federal courts from
adjudicating cases that are unripe for review or rest upon
contingent future events that may not occur. See
Nat'l 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
it is now
Defendant's Motion to Dismiss Count Three of the
Complaint (Doc. 8) is GRANTED.
Plaintiffs' bad faith clam in Count III of the Complaint
(Doc. 4) ...