United States District Court, S.D. Florida
NYA YANITZA MONTANEZ, as Personal Representative of the Estate of Yanely Gonzalez, deceased, Plaintiff,
LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
RODOLFO RUIZ, UNITED STATES DISTRICT JUDGE
CAUSE comes before the Court on Defendant Liberty
Mutual Fire Insurance Company's (“Defendant”
or “Liberty Mutual”) Motion for Summary Judgment,
filed April 24, 2019 [ECF No. 35]. At issue is whether
Liberty Mutual acted in bad faith when it failed to
immediately tender its insured's full per-person policy
limit to settle a wrongful death case arising from a car
accident that resulted in the death of a child and injury to
four passengers. Having considered the parties' written
submissions, the record, and applicable case law, it is
AND ADJUDGED that Defendant's Motion for Summary
Judgment [ECF No. 35] is GRANTED as set
genesis of this litigation occurred on January 30, 2010, when
Jason Brown rear-ended Nya Yanitza Montanez (“Ms.
Montanez”) and her two minor children, Yanely Gonzalez
and Eduardo Gonazlez, Jr. See Defendant's
Statement of Material Facts (“Def. SOMF”) [ECF
No. 34 at ¶ 2]; Plaintiff's Statement of Material
Facts (“Pl. SOMF”) [ECF No. 46 at ¶ 2].
Because of the tragic impact, three-month-old, Yanely
Gonzalez, was killed; eight-year-old, Eduardo Gonzalez, Jr.,
was ejected from the vehicle, suffering head trauma; and Ms.
Montanez was injured. Id. After hitting the Gonzalez
family, Jason Brown's vehicle spun into another car
occupied by Jose Ramos (thirty-eight-years-old) and Maria
Carmona (two-years-old), both of whom were also injured.
February 1, 2010, Douglas Brown (“Mr. Brown”),
Jason Brown's father, contacted Liberty Mutual to report
that his son had been involved in an accident in West Palm
Beach and that a child had been killed. Def. SOMF at ¶
3; Pl. SOMF at ¶ 3. Jason Brown was driving his
father's vehicle at the time of the accident, and Mr.
Brown had a Liberty Mutual automobile insurance policy, which
provided liability limits of $250, 000 per person and $500,
000 per accident. Def. SOMF at ¶¶ 1, 2; Pl. SOMF at
¶¶ 1, 2. Upon learning of the accident, Liberty
Mutual assigned claims adjuster, Colleen Edwards (“Ms.
Edwards”), to the case and sent the insureds
“other insurance” affidavits and excess exposure
letters. Def. SOMF at ¶ 4; Pl. SOMF at ¶ 4. Ms.
Edwards also requested a police report and ran an internet
search, which revealed that in addition to the child
fatality, the accident had left four others injured and in
need of attention at the hospital. Def. SOMF at ¶ 5; Pl.
SOMF at ¶ 5.
February 2, 2010, Ms. Edwards obtained an “events
report” from the Palm Beach County Sheriff and
contacted Mr. Brown to advise him that it would be in his
best interest to retain counsel. Def. SOMF at ¶¶
6-8; Pl. SOMF at ¶¶ 6-8. Ms. Edwards also called
the Liberty Mutual sales department and determined that Jason
Brown was not listed on the policy as an additional driver,
which presented a potential coverage issue, requiring an
investigation. Def. SOMF at ¶ 9; Pl. SOMF at ¶ 9.
As such, Ms. Edwards sent the insureds reservation of rights
February 5, 2010, Ms. Edwards spoke to Progressive Insurance,
the Personal Injury Protection (“PIP”) carrier
for Ms. Montanez, and learned, for the first time, that
Plaintiff had retained Toral, Garcia & Franz as counsel.
Def. SOMF at ¶ 10; Pl. SOMF at ¶ 10. That same day,
Ms. Edwards called Mr. Toral's office, but she was
advised that she would need to call back later. Def. SOMF at
¶ 11; Pl. SOMF at ¶ 11. On February 9, 2010, Ms.
Edwards called Plaintiff's attorney's office for a
second time and left a message, requesting a callback, but
did not receive one. Def. SOMF at ¶ 13; Pl. SOMF at
¶ 13. On February 23, 2010, Ms. Edwards called
Plaintiff's attorney for a third time, but she could not
reach Plaintiff's counsel. Def. SOMF at ¶ 18; Pl.
SOMF at ¶ 18. Ms. Edwards left a message requesting that
Plaintiff's counsel call her back to discuss the claim
and noting that Liberty had not yet received a letter of
March 2, 2010, Ms. Edwards called Plaintiff's counsel for
a fourth time to give counsel a status update on the claim;
Ms. Edwards's call was transferred to a voicemail and she
left a message requesting a call back. Def. SOMF at ¶
19; Pl. SOMF at ¶ 19. The following day, on March 3,
2010, Ms. Edwards called Plaintiff's counsel for a fifth
time and left “an important message, ” requesting
a call back, but did not receive a call. Def. SOMF at ¶
23; Pl. SOMF at ¶ 23. During the scope of its
investigation, Liberty Mutual also communicated with
Plaintiff's PIP Adjuster on multiple occasions. Def. SOMF
at ¶¶ 10, 25, 32; Pl. SOMF at ¶¶ 10, 25,
March 4, 2010, Liberty Mutual sent a letter to counsel for
all claimants, stating that Defendant was making its full
$250, 000 per person and $500, 000 per accident policy limits
available to settle the claims arising from the accident.
See Letter Dated March 4, 2010 [ECF No. 34-13]. In
addition, Liberty Mutual noted that it would be arranging a
settlement conference to assist all claimants in reaching an
apportioned settlement. Id. On that same day, Lewis
Jack, Esq., called Ms. Edwards and stated that he and Mr.
Toral represented Plaintiff. Def. SOMF at ¶ 29; Pl. SOMF
at ¶ 29. When Ms. Edwards attempted to give
Plaintiff's counsel the contact information for Defense
counsel, Mr. Jack stated that he would not be needing it.
Id. This was the first communication to Liberty
Mutual from anyone on behalf of Plaintiff. Def. SOMF at
¶ 30; Pl. SOMF at ¶ 30.
March 31, 2010, Plaintiff's counsel rejected the
opportunity to settle Plaintiff's wrongful death claim on
grounds that Defendant should have immediately tendered the
$250, 000 policy limit, rather than attempt to settle all
claims at a settlement conference. See Letter Dated
March 31, 2010 [ECF No. 34-15]. The letter also requested
that Liberty Mutual tender $125, 000 for Ms. Montanez's
claims and $125, 000 for Eduardo Gonzalez Jr.'s claims.
Id. On April 6, 2010, counsel for Liberty Mutual
sent Plaintiff's counsel a letter, noting that Defendant
had issued checks to resolve the claims of Ms. Montanez and
her son in accordance with Plaintiff's March 31, 2010
letter. See Letter Dated April 6, 2010 [ECF No.
34-16]. In addition, the letter noted that because Liberty
Mutual was settling Ms. Montanez and Eduardo Gonazlez
Jr.'s claims, it was able to offer the remaining
available policy limit of $250, 000 to settle and resolve the
claim of the Estate of Yanely Gonzalez. Id. To that
end, on April 8, 2010, Liberty Mutual delivered the two $125,
000 checks to settle Ms. Montanez and her son's
claims. Def. SOMF at ¶ 37; Pl. SOMF at ¶
37. Similarly, on April 13, 2010, Liberty Mutual attempted to
deliver a check in the amount of $250, 000 to Plaintiff's
counsel to settle the wrongful death claim, but
Plaintiff's counsel refused to accept it. Def. SOMF at
¶ 38; Pl. SOMF at ¶ 38.
April 14, 2010, attorney Lewis Jack filed a lawsuit against
the Browns on behalf of Ms. Montanez and Eduardo Gonzalez (as
parents and Personal Representatives of the Estate of Yanely
Gonzalez and as parents of Eduardo Gonzalez, Jr.), Ms.
Montanez individually, and Eduardo Gonzalez, individually,
asserting a wrongful death claim, two personal injury claims,
and a loss of consortium claim. Def. SOMF at ¶ 39; Pl.
SOMF at ¶ 39. All claims were eventually dismissed
except for the wrongful death claim against Jason Brown,
which resulted in a consent judgment in the amount of $8,
250, 000. Id.
15, 2018, Plaintiff Nya Yanitza Montanez, as Personal
Representative of the Estate of Yanely Gonzalez, filed the
instant lawsuit, alleging one count of common law bad faith
[ECF No. 1]; Plaintiff amended her Complaint on August 14,
2019 [ECF No. 12]. Plaintiff seeks damages including, but not
limited to, the final judgment against Jason Brown of $8,
250, 000. On April 24, 2019, Defendant filed the instant
Motion for Summary Judgment [ECF No. 35].