Summary
finding that a plaintiff may not proceed simultaneously on a claim to determine liability or damage and a bad faith claim.
Summary of this case from Grey Oaks Country Club, Inc. v. Zurich Am. Ins. Co.Opinion
No. 4D06-4602.
February 7, 2007.
Appeal from the Fifteenth Judicial Circuit Court, Palm Beach County, Kenneth Stern, J.
John J. Wilke of Wilke Brooks, P.A., Boca Raton, and Robert I. Buchsbaum of Kramer, Green, Zuckerman, Greene and Buchsbaum, P.A., Hollywood, for petitioner.
John J. Hoffman of Hoffman Morris, LLC, Singer Island, for respondent.
Progressive seeks a writ of certiorari to quash the trial court's order denying its motion to dismiss a statutory claim for bad faith under sections 624.155 and 626.9541, Florida Statutes (2006). We grant the petition because both the existence of liability and the extent of damages are elements of a statutory cause of action for bad faith, and in this case the extent of damages has not been determined. In allowing this case to proceed before damages have been determined, the trial court has departed from the essential requirements of law. Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289 (Fla. 1991). For the reasons expressed by the first district in Vanguard Fire Casualty Co. v. Golmon, 31 Fla. L. Weekly D2835, ___ So.2d ___, 2006 WL 3299196 (Fla. 1st DCA Nov.15, 2006), we agree with Progressive that it will suffer irreparable harm, which includes discovery of its accident file, if it is forced to defend against both the UM claim and the bad faith claim simultaneously. We therefore grant the petition and remand for the trial court to either dismiss the bad faith claim or abate the bad faith claim until the UM claim is resolved.
KLEIN, SHAHOOD and TAYLOR, JJ., concur.