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Montanez v. Liberty Mutual Fire Insurance Co.

United States District Court, S.D. Florida

July 23, 2019

NYA YANITZA MONTANEZ, as Personal Representative of the Estate of Yanely Gonzalez, deceased, Plaintiff,



         THIS 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 hereby

         ORDERED AND ADJUDGED that Defendant's Motion for Summary Judgment [ECF No. 35] is GRANTED as set forth herein.


         The 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. Id.

         On 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.

         On 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 letters. Id.

         On 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 representation. Id.

         On 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, 32.

         On 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.[1] 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.

         On 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.[2] 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.

         On 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.

         On June 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].

         LEGAL ...

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