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Florida Third DCA rules that dismissal rather than abatement is required for third-party bad faith claim filed prematurely before settlement or verdict obtained against insured driver

On January 3, 2018, in GEICO v. Martinez, No. 3D17-1086, the Florida Third DCA reversed a trial court’s order granting a plaintiff’s motion to amend her complaint against the alleged at-fault driver in a motor vehicle negligence lawsuit to add a third-party bad faith claim against the driver’s insurance company. Under Florida’s nonjoinder statute, Section 627.4136, a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract is that such person first must obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy. The plaintiff conceded that she was not an insured under the policy, but successfully argued before the trial court that it was within the court’s discretion to allow the filing of the amended complaint including the bad faith count and to simply abate the premature bad faith claim pending resolution of the underlying claim against the alleged at-fault driver. The Third DCA concluded that the case was controlled by Lantana Insurance, Ltd. v. Thornton, 118 So. 3d 250 (Fla. 3d DCA 2013), in which the Court had determined that abatement was improper in an otherwise similar case involving homeowner’s insurance coverage. The plaintiff cited State Farm Florida Insurance Co. v. Seville Place Condominium Association, Inc., 74 So. 3d 105 (Fla. 3d DCA 2011) and Citizens Property Insurance Corp. v. San Perdido Association, Inc., 104 So. 3d 344 (Fla. 2012) in support of her position, but the Third DCA distinguished both cases because they involved first-party bad faith claims and therefore did not implicate the nonjoinder statute.