lopez versus allstate fire in casualty to circumvent florida statute sixty four one five five in the under the guise of a third party bad faith action florida law is clear that pip is a first party coverage and there is no common law cause of action bad faith calls of action for failure to tender a first party coverage the party has to go under the bad statute six two four one five five and since that statues in derogation of the common law it must be strictly construed so what does that statute require it requires that the claimant per vied the insurance company with notice and an opportunity to cure that alleged violation and this is called a civil remedy notice or  r in for shorthand and it is an absolute condition proceed it for pursuing a first party bad claim for failure to tender a first party calls of action and sent it seems to me  should to properly defend varian which may include fe you know make a good faith off of sentiment within the policy limits all of which results in the end should being exposed to excess judgement that seems to the liability policy limit which would expose the insurer to that excess judgment it's bodily injury liability coverage and that is a lot different than pip i mean under the law pip is a statutory first party bridge and that's what they were alleging that all say failed to tender ten thousand dollars they clearly alleged a third party common law but they claimed assuming that the plaintiffs had an election here the election was clearly to go the common route is that not clear they didn't like that way but they were forced to because they didn't follow a c r n and i'd like to port this point this court's decision there's a northern district case webber versus national general insurance company and the judge in that case discusses this kind of contacts that there's you know different types of bad faith cases and it talks about how there is a first party's third party bad faith a third parties third party bad fa and the most important part it says either can be a third party claim so long as it involves an allegation that ensure acted in bad faith concerning a claim arising under third party coverage and be a common law the party but it's a claim when the issue involves pip coverage that is correct if they wanted to pursue it this way in try to essentially join the b i in the pits in the same lawsuit they were required to file a c r in in i mean there's other conditions proceeded that didn't happen that or i thought they also had in addition to the ten thousand pick up as to the wife they made a claim that you didn't pay the bodily injury part the twenty five thousand tomei so that was part of the common law bad faith claim right that is correct and they could make that they absolutely can make that and walk on the jury just fine on that basis alone and we don't know what the jury said the jury just said they found bad face so that would support the verdict forget about this pip business  is they had bad faith as to the twenty five thousand because they dick around asking for the marriage and everything i think it was only twenty six days or whatever it was but that gets to the sufficiency evidence but they had a common law bad faith claim for the failure time to pay the twenty five thousand didn't they i mean they made that claim they didn't make that claim however why doesn't that support the vertica simonis evidence of bad faith as to that part well that's the key there is no evidence of that face all of the tender the limits with me what i'm trying to say is we don't need to get into the ten thousand pip or resolve anything under florida law about whether that's in common law bad faith not whether it's first the third if there's enough evidence to support the twenty five thousand that there's enough evidence to support the acting right if there's enough of it however ok but we don't get to the evidence but they made that claim so we don't we could decide this case if there's enough evidence of bad faith as to be without getting into the ten thousand but the problem with them essentially time this was not just presented as we know they tied together and that went to the jury on the whole a bad faith fill your tender pip scott versus progressive express insurance company it's a four dca case from two thousand and six road dante vs fidelity national insurance its second dca case from one nine hundred ninety eight a third dca case from one nine hundred ninety eight and all of these cases specifically deal with an allegation that there is a bad faith failure tendered to pip and there were c arents filed in each of these cases so they did not hold that they could not be a common law a common law third party claim no they were all addressing it in the first party context there's no specific case on point dealing with this exact situation where you have a third and that case you aren't my dad make much sense to me just because you have a right as a third party beneficiary so you may have a first party claim also doesn't to me seem to suggest that you don't also have a third party claim we do not dispute that they have a third party claim but there are other cases under florida law that talks about how this do the site is eight nine nine southern second eleven twenty one ok and then again going back to bellevue geico because that really is the case that is the meanwhile there's a mix up with pic coverage and essentially ten thousand dollars went to the ambulance company and five thousand of it should've went to the hospital but geico at that point refused to reissue the payment and so fast forward to the bad fa court held that number one did not address pip and so therefore geico was not afforded notice an opportunity to be heard sorry a charity to cure the village violation and so no cause of action ever came into existence so we believe that bell is determinative on this issue and i believe judge anderson i believe you were on the panel that decided bell and that per curiam decision pip is a first party coverage and so because there was no c r in here alleging that there was a bad faith tender also it was never given notice of this claim and they were never given an opportunity to cure and without this claim of pip no reasonable jury could have found that all state acted in bad faith for failing to tender that twenty five thousand dollars limit in the evidence at trial they would never accept just the twenty five limit and the plaintiff's own expert said that the handling of the twenty five limit to god it was stellar there was no delay so this is a case again their entire bad faith case hinges on this and that last thing again who said it was  they tied them all together right what they did i'm so there was no individual claim oh they acted in bad faith towards the beyond i it was all tied together and because it was tied together again that's where the c r rain comes and al docket entry ninety seven and again excluded any evidence that plaintiff failed to file or c r in and it also denied all state's request to exclude any mention of pip coverage so at that point you know we're t d up we've been taking the position this entire case that they are not allowed to talk about pip because there is so no c r in their calls of action never crude and these actions specifically the district court's orders allowed the limits of the coverage including the ten thousand dollar pay up why would not a reasonable person in the position of this adjuster up the total limits in first this regards to god oh and it's our position that it wasn't clear that she was injured she did not even receive medical treatment but she it was obvious that she saw this car run over and killed her husband right next to her that's correct but it has to manufacture manifest in a physical injury and that's the key a perceiving for that type of intentional infliction claim under florida law there has to be a manifestation of physical injury and without any medical records without any medical bills also they did not know that his mental depression or mental shock or mental anguish physical injury when you're mentally watch your husband get killed  i agree it would be it would be devastating to watch your husband i know how it doesn't that qualifies injury under the hasi know it there has to be some type of physical manifestation here and it kind of begs the point here because all states inside out not being able to sleep with that work would that be a physical manifestation i absolutely would be ok you're not imagine should suffer that in the first month we had no proof one way to make you not answer my question the question is and if it's not true at least backs assume it for the question that it was absolutely obvious that they were going to have to pay this for sixty thousand dollars why would any reasonable person do that when they had an opportunity to do that without requiring these tactical little moves statute i'm tom but common sense why would not any reasonable person knowing that they had a chance to save the insured from a potential large excess judgment pony up the full sixty five thousand dollars without requiring technical compliance with anything an insurance company has no duty under florida law to pay a coverage it does not show and it did not coverage here  and that's that's why this this is very important here because again there's all the conditions proceed it having to do with pip coverage never came into play the statute the pit statute specifically requires under section fo that the insurer provide reasonable proof of loss in the amount of expenses or loss and cured never happened and after thirty days if benefits are not paid the the claimant has to make a written to may and since by certified mail to the insurance company that section ten of the statute then a lawsuit for pay pass to be filed then a c r and has to be filed and another wrinkle in this under the road dante case that i cited earlier that's the second dca case and insurance assured payment sorry insurance companies payment to its insured a pip coverage prior to filing a c r in extinguishes any right of action for bad faith furnitures failure to pip allstate eventually paid pip when it received britain demand from the plaintiff's attorneys on this and because they paid it no calls of action can ever come into existence i think you have the situation where numerous conditions precede it are not met and that's why this makes sense your argument makes and counsel you may go on but you're going to start to draw in your rebuttal if you do it your office at down thank you want you to help me with whether or not there is binding case law saying that you cannot have a common law third party bad faith claim when the only issue is your honor if you're asking me if there's case law that precludes our claim i'm not aware of any and all state has pointed to not none of the cases cited to address our set of circumstances your honor judge anderson you asked a moment ago based on a common sense why wouldn't a person in the a reasonable person in the adjuster's shoes have proactively offered sixty five thousand dollars knowing the injuries that took place in this case your honor the evidence shows that that question was answered by all state the first adjuster to speak to the lopez family's lawyers on september ninth two thousand and eleven recognized the injuries in this case and offered sixty five thousand dollars inclusive appear to settle the claim it was for the testimony of mr cow back that offer was made it was accepted it was demanded he believed it was coming he informed  client it was coming inform his client that if that's all the money there is i wave my fees three days later something happened he got a phone call from a second adjuster who according to mr callbacks testimony rescinded the offer for both bodily injury limits and p i p a limits to miss new year's delgado said we're not going to pay those we want to investigate the marriage we want to investigate the injuries  received a check that was for less than the money that had been promised he wrote it no where's the rest of it where's the pip for the mrs so in this case you're not asked to address whether in the abstract an insurance company in all states position had an affirmative duty to look at the bodily injury limits in the p i p a limits and make an offer to settle on behalf of their insurer tortfeasor i submit to you that had that been the case that they should of that good prudence would say in good faith would say they should do that but your or your issue is in fact much narrower it is having made that offer was there a duty of good faith to your insured tortfeasor to see it through now there's been a discussion and i said there are two matters i want to address the first is why this case is not a case of first party bad faith in the second is why the court's decision to bifurcate the verdict was a misstatement of florida law with respect to whether this is  first party claim we have never raised that all state reached a duty of good faith to miss nguni as delgado every single case cited in all states brief with respect to pip involved the pip claimant saying i was owed this contractually and they failed to pay in this case what we have presented is that allstate had a duty not to miss noon yes delgado pay ten thousand dollars but to miss soto to settle for sixty five thousand dollars after it made that offer the person who originally looked at this claim did not testify at trial but it was a supervisor for all for all stake who wrote the claims note that said describe the the event and wrote limits warranted that happened two days after the accident on september the eighth on september the night the needham a taco the adjuster who all who spoke to mr cow back who also did not testify a trial offered mr cal back the full sixty five thousand dollars that day the third a third adjuster miss burnett who did testify and he was the person that mr callback spoke to on the twelve and who  callbacks testimony re neg rescinded the offer left a message mr callbacks all office which is memorialized in the claims news that says spoke to mr cal backs paralegal advised that allstate would be ten it sufficient evidence on which the jury could find that it breached its obligation to faith to miss soto the insured tortfeasor or is it as all state says decidable as a matter of law that whether it made this offer   the law strong the law is that these the issues of reasonableness prudence do care are typically issues for the jury we're not asking the court to find as a matter of law that we n on a settlement offer inclusive of pip is bad faith we are suggesting that it is a question of fact different cases might have different results the jury in this case plainly saw this evidence in thought it was it met the standard of proof that the plaintiffs had to show that they should have and they could have settled this case for sixty five thousand dollars and a that's correct all state took the matter from the court's hands to decide whether it had an affirmative obligation to offer sixty five because it did it made that decision for us or at least our evidence that the jury saw suggested that it made the decision that this was the best way to get miss soto out of trouble have a general verdict so we don't know whether the jury found on the basis of the offer or whether they found on the basis of  general refusal to provide limits that's correct there's no this is a general verdict form included an affirmative defense we also don't know whether they considered the offer a looked at the whole ball of wax and said well they had the offer they reneged on it then they quickly said well paid the estate twenty five plus five plus am but they dragged their and we don't know the manner of what you just offered is of course one of the possible ways that the course are that the jury could have decided this case plus we don't know what they did we can come up with a plausible explanation but we really don't know the answer to this particular question that is true your own i do but what you have brought up with respect to the decision parsing out bad faith with respect to the handling of one claim not the other does lead to or cross appeal which hinge is principally on the decision to present this case to the jury as to claims now i w you mean as to how the judge and instructed us how the judge did the verdict form yes and the instructions now again that he had to pry and if they were to play it's taken by assignment and one duty of care to  dictates the number of bad faith claims it's the opportunity which the unsure ins company had adopted sorry had a duty to take the settlement opportunity that the insurance company had a duty to either extent or accept and if there are multiple settlement opportunities each of which the insurance company should have accepted but did not do you would be presented with a case with multiple bad faith claims of course or evidence was that there was a single opportunity that being that there was one opportunity to protect masoe doe and that the insurance company violated that duty to do it now the court would it can't be except the duty to settle is to ensure and miss soto but if there are two separate times one person dod one person had at least at the time of the accident no noticeable physical injuries obviously she had emotional that was going to quickly lead to physical injury i mean i can't believe they could make different decisions and your honor i would stipulate they could ok so there is no error that they have even if the duty is to miss soto the say the policy was two hundred thousand you know they may not have had to pay that to the wife they might have been able to reason or say one hundred or something it can't be that they can't separate the lines and you're exactly right and that differently ok you've answered my question i think i understand your position well i just want to add this to it there would be no error in a verdict form that allow the jury to parse out the two claims both based on all state's evidence and their argument that well we really handled at least part of it correctly that's up on the facts of this case there would be no objection to an interlocutory of that sort the problem with the instruction in the verdict form is that it asked the jury to consider the totality of the infinity case that the totality of the circumstances must apply to everything when you tell the jury that they can look at this claim and not sorry look at the as the settlement of the state's claim at the office to settle and forget that that was contingent upon settling delgado's claim while it's possible they found no bad faith as to the estate it's also possible that they were misled and did not look at the totality of the circumstances and instead disregarded the fact that this was a contingent offer a contingent settle sorry a settlement that included both claims so it seems to me that it is at least a strong argument that you ought to be a stopped from insisting upon a single claim here but goes seems pretty clear to me that there was no wrongdoing  with respect to the estate or even with respect to the twenty five thousand dollars to the wife and they did they only possible  bad faith had to do with the hold in the paper bag and and yet you tried to use especially the twenty five thousand to the wife as a lever as leverage to get the other your own or there is not a stamp or because the the reason why mr lopez wanted to settle these all together was he wanted and he testified to this all the money was going to his mother his mother was the sole beneficiary of the estate she had her own injuries from her vantage point it might have been two claims but it was it was all going to her it was how she would be resolved and she would continue to be involved and she's in a terrible state crew the main drive in trying to get the settlement done quickly but for everything in other words it also it was free to argue this was an unreasonable settlement attempt but the jury was also entitle to find that this was a reasonable settlement offer motivated by legitimate reasons and of course there was an affirmative defense that was on the verdict form that that would have absolved all state had it found that this was an unreasonable settlement attempt that there was no reasonable possibility of so i do have to know really a question about another matter if you just because my time's up and i want to correct something that was said with regard to the record there was no testimony from the expert with respect to miss nino's delgado's claim being handled in a stellar matter his testimony i would point you to the record five twenty nine thirty was that the offer to miss nino still gone it was problematic because it did not satisfy the full demand you did testify with respect to the handling of the state's claim you could characterize that handling as stellar that is on page five twenty three five twenty four of the r full you would be put in a position of having to go to the jury again on the underlying bad faith the issue your honor with respect to that i believe the doctrine of invited error gives the answer a party cannot complain of an inconsistent verdict when the inconsistency was brought upon a verdict form that both misstated the law and invited that inconsistency this was not an issue that allstate had raised so i did not brief i'm prepared to brief it if you need supplemental brief it is an issue on which place just seems to me would not be fair to give you the benefit of the verdict in your favor when the they so they split the vote and if they had to decide up or down they may well decide against you and that just seems by the only answer i have to your honor is th cases that have interpreted invited error which say that the party against the party who complains of an inconsistency within a verdict but who was the impetus for that or the cause of that inconsistency by requesting a jury instruction that permitted the companies duty runs to the claimant not to the insured and this is the fundamental difference between pip coverage and liability coverage liability coverage and it is intended to protect the insured from excess judgment whereas the coverage is intended to protect the claimant making it and again it's a first party statutory system and because there is no duty under florida law this court cannot create a duty and the district court could not create a duty and there's to quote cases that say that explicitly one is maldonado versus first liberty and the other is nipper vs all states and in both of those cases and the courts refused and said you cannot just come up with duties the duties of an insurance company in a third party bad faith case are very explicit under the boston old colony case and it's our position to hear that the jury without the pip they wouldn't of found bad faith in favor of all satan again if you look back at the other stuff that happened all state that leads into it's other issues that they could not defend on the c r and because it was precluded in emotional in many from talking about it the just trial court struck its only expert witness that was going to address the pip and the bad faith handling and whether there was any so this jury only received a one sided view and the other thing and again this leads to another issue in our brief is this jury never ruled on causation it never ruled that all states actions that they found were in bad faith calls this excess judgment and this court dealt with that in pereiro and it certified a question to the florida supreme court about whether or not causation has to be proven and the floor supreme court answered yet the court charged on causation i just looked at the jury instruction court carr said you had to prove it was caused only there's one sentence that says resulting in bad faith however the court  basically denied our request for calls ation and that's more than that instruction it's our instruction ten and twelve but there is no line item on the verdict regarding causation you don't have to put a lot out in and that constituted a way you know think of any of these technicalities and again that statement right there in those facts are relevant to whether or not all states should get judgment as a matter of law or summary judgment in the reason why is because of the kit titian's proceeding on pip whether the payment of it and i don't believe you add to my question if you do that all relevant basically it never owed the coverage and there's florida case law that says that insurance company can't be held liable for insurance coverage it does not if it enters into a contract to pay sixty thousand dollars he can't be held to that so there was no contract here  so mr cow back testified at trial that any acceptance of this was conditioned upon him confirming assets in this otoh and this is contract want to one that's not mere acceptance so if this alleged offer was made it had to be accepted unconditionally by placing conditions on it there is no they could consider it in the totality of the circumstances right yes ok i'm like an instruction number  twelve to prevail i'm a bad first climb the crime must prove a preponderance of evidence to ensure active in bad faith and that that bad faith caused the excess judgment i have that is part of the charge number twelve it was given is that i'm talking about looking at the charge in the record and toto as what he read to the jury thought that was given maybe it was no twelve is one of the ones that the court kept out ok so then mosco see what you're saying and that the bad fa language and if so whether that that say i think she's i think you have trouble has your answer thank you did you have anything else thank you both very much this court will be in recess until nine am tomorrow morning