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Florida First DCA affirms jury verdict and judgment for defendants in consolidated bad faith/professional negligence actions by doctor against professional liability insurer and law firm which represented him in medical negligence case

On August 7, 2020, in Samiian v. First Professional Insurance Company, Inc., No. 1D19-120, the Florida First DCA affirmed a final judgment in favor of the defendants, a professional liability insurance carrier (“FPIC”) and a law firm that had represented the carrier’s insured doctor in a medical negligence action.  The underlying medical negligence case was resolved in binding arbitration for $35,415.789, with only $250,000 of the judgment covered by insurance.  The doctor then filed this bad faith action against FPIC and a legal malpractice action against the law firm that represented him in the medical negligence case.   The doctor alleged that FPIC acted in bad faith and the law firm acted negligently by extending an offer of arbitration rather than simply waiting to see if the plaintiff would accept the $250,000 insurance limits. The two actions were consolidated for trial at the plaintiff’s request.  A trial jury returned a verdict in favor of both defendants and the trial court subsequently granted the law firm’s motion for attorney’s fees pursuant to Fla. Stat. § 768.79.  On appeal, the plaintiff argued, inter alia, that the trial court erred in allowing the jury to determine causation and damages in the bad faith action against FPIC, citing Swamy v. Caduceus Self Insurance Fund, Inc., 648 So. 2d 758, 759 (Fla. 1st DCA 1994) (“[i]t is true that in most bad faith cases the excess judgment constitutes the extent of the provable damages”).  The First DCA rejected this argument, noting that this was not a typical failure-to-settle case. Instead, the issue of what caused the plaintiff’s damages was in dispute, with the plaintiff claiming that the excess damages over the policy limits resulted from the offer of arbitration and the defendant countering that the plaintiff’s refusal to turn over his financial records in pre-suit is what led to arbitration being offered. The First DCA acknowledged that had the bad faith action proceeded separately from the legal malpractice action, it would have been proper for the trial court rather than the jury to determine the issue of damages in the bad faith case.