United States Court of Appeals,

Eleventh Circuit.

No. 95-4521.

Harvey BURGER, Gail Burger, Plaintiffs-Appellees, Cross-Appellants,

v.

TIME INSURANCE COMPANY, INCORPORATED, a foreign corporation, DefendantAppellant, Cross-Appellee.

June 20, 1997.

Appeals from the United States District Court for the Southern District of Florida. (No. 92-7127-

CIV-WDF), Wilkey D. Ferguson, Jr., Judge.

Before TJOFLAT and BARKETT, Circuit Judges, and GODBOLD, Senior Circuit Judge.

PER CURIAM:

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT TO THE SUPREME COURT OF FLORIDA, PURSUANT TO ARTICLE V, SECTION

3(b)(6) OF THE FLORIDA CONSTITUTION. TO THE SUPREME COURT OF FLORIDA AND

THE HONORABLE JUSTICES THEREOF:

In this diversity case, we review a jury award of $50,000 in compensatory damages and $1

in punitive damages to Harvey Burger, resulting from a successful "bad faith refusal to pay" claim

under Florida Statute § 624.155. Time Insurance appeals the judgment, alleging that the jury

awarded compensatory damages solely for emotional distress, damages that are not cognizable under

Florida law for this claim. This case presents an important issue of Florida law that has not been

addressed by the Supreme Court of Florida. We believe the issue is appropriate for resolution by

Florida's highest court, and defer our decision in this case pending certification of the question to

the Supreme Court of Florida. See Varner v. Century Finance Co., Inc., 720 F.2d 1228 (11th

Cir.1983).

I. STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

Sometime in 1991, Harvey Burger submitted for reimbursement a $500 medical bill for an

endoscopy to his medical insurance carrier, Time Insurance, Inc. According to Burger, the bill he

received from the doctor's office contained a "stray" mark, leading him to believe that he owed

$1,500 for the endoscopy. Burger further contends that, once informed by the doctor of the correct
 1

This argument does not join Burger's claim that he simply did without the medical care he

needed. 

 2The jury also awarded Burger $500 for unfair claim settlement practices by Time Insurance,

pursuant to Florida Statute § 626.9541. 

amount owed on the bill, he immediately relayed the information to Time Insurance and resubmitted

a corrected bill for reimbursement. Sometime later, Burger submitted the bill a third time, marking

it "Paid $500." Two weeks later, in August of 1991, Burger was informed that Time's Special

Investigations Unit (SIU) was investigating the possibility that he had attempted to defraud the

company. Between August, 1991 and November, 1992, Time did not pay any of Burger's

outstanding health care claims. (Burger did not submit any new claims during this period.)

In February, 1992, consistent with Florida law (Fla.Stat. § 624.155(2)(a)), Burger's counsel

submitted notice of a civil remedy claim to Time, requesting its payment of the non-suspect claims.

Time failed to respond to the notice within the 60-day period allowed by law. Time did not satisfy

its payment obligations with respect to Burger's claims until November, 1992.

At trial, Burger alleged that, because of Time's failure to pay his medical bills between

August, 1991 and November, 1992, and his lack of financial resources to pay for medical services,

he felt he could not go to the doctor or otherwise obtain medical services. Thus, he claimed that as

a direct result of Time's failure to pay his claims in a timely fashion, he could not obtain needed

medical treatment. He also complained of depression and an inability to communicate with his

family as a result of his dealings with Time. For its part, Time attempted to discredit Burger's claims

that he could not obtain health care during the relevant period by insisting that Burger never

submitted new claims for reimbursement; Time's failure to pay related only to claims that Burger

submitted prior to August, 1991.1

A jury found that Time Insurance violated Florida Statute § 624.155 by not attempting in

good faith to settle Burger's claims, awarding him $50,000 in compensatory damages and $1 in

punitive damages.2 On appeal, Time argues that Burger presented only evidence of emotional

distress, and no evidence of economic harm, to support his claim for damages. According to Time,

Fla. Stat. § 624.155 only created a cause of action for first party claims of bad faith failure to pay;
 3

Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). 

it did not alter case law which recognized mental anguish damages only in cases of intentional

infliction of emotional distress. The jury award of $50,000 to Burger was therefore improper.

Burger insists that: (1) Florida law does not preclude an award of damages for emotional distress

in this type of action; and (2) the damages he alleged qualify as non-emotional injury sufficient to

support the award.

There is no case law directly addressing whether the type of damages alleged by Burger

qualify as a "reasonably foreseeable result" of a violation of Fla.Stat. § 624.155, and thus serve as

an appropriate basis for compensatory damages under the statute. "Where there is any doubt as to

the application of state law, a federal court should certify the question to the state supreme court to

avoid making unnecessary Erie3

 "guesses' and to offer the state court the opportunity to interpret or

change existing law." Mosher v. Speedstar Div. Of AMCA Intern., Inc., 52 F.3d 913, 916-17 (11th

Cir.1995) (citing Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 396 (5th Cir.) cert. denied,

478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986)). We therefore certify the following question

to the Florida Supreme Court.

II. QUESTION TO BE CERTIFIED TO THE FLORIDA SUPREME COURT

(1) WHETHER THE DAMAGES ALLEGED BY APPELLEE QUALIFY AS

COMPENSATORY DAMAGES UNDER FLA.STAT. § 624.155(7)? ALTERNATIVELY,

WHETHER THE TYPE OF EMOTIONAL DISTRESS ALLEGED BY APPELLEE QUALIFIES

AS DAMAGE THAT IS A "REASONABLY FORESEEABLE RESULT" OF A VIOLATION OF

FLA.STAT. § 624.155, AND THUS SERVES AS AN APPROPRIATE BASIS FOR

COMPENSATORY DAMAGES UNDER THE STATUTE?

Our particular phrasing of the question is not intended to limit the Florida Supreme Court's

inquiry. The entire record in this case, together with copies of the briefs, shall be transmitted to the

Supreme Court of Florida.

QUESTION CERTIFIED.