Yesterday a Florida appellate court held: "The conduct of Capelli [the injured Claimant] and her attorney would be relevant to the question of whether there was any realistic possiblity of settlement." This ground-breaking decision was unanimous and because it came from an appellate court, and in this particular case from a panel of distinguished jurists with a reputation for policyholder friendliness in Insurance cases, this decision will be carefully scrutinized and is likely to be given wide distribution. The case is Barry v. GEICO General Insurance Co., 31 Florida Law Weekly D2467 (Fla. 4th DCA Case No. 4D05-2060, Opinion Filed October 4, 2006)(subscription required), which you can access for free at Florida 4th DCA Public Site by selecting this case no.
This was a bad faith action filled by a policyholder, a Mr. Barry, against a liability insurance company for failure to settle a wrongful death case. The Claimant was the Deceased's spouse, Ms. Ann Capelli. Two of the many issues resolved in favor of the liability insurance company on this appeal from a Trial Court Judgment entered in favor of the carrier were involved in the appellate holding quoted above, that considering the totality of the circumstances in a Bad Faith case included considering the conduct of Ms. Capelli and her attorney.
First, the insurance company attorney suggested in opening statement in the Bad Faith case that Ms. Capelli's attorney, who would be a witness in that case, would be biased because he stood to earn "$500,000" from the Bad Faith case. The Trial Court sustained an objection "and gave a curative instruction that the specific fee amount was not in evidence. However, the court determined that the attorney's financial interest would be a fair inquiry."
The other ruling related to this holding came as a result of a jury question. The jury wanted to know "'why Ms. Capelli's attorney didn't make GEICO aware of their appointment as her legal representative?'" GEICO's Expert answered this question after being permitted to do so by the Trial Court. (The particular witness retained by GEICO as an Expert in that case presented other questions resulting in this appeal. They are all discussed at length in the appellate opinion.) GEICO's Expert answered this jury question with an "'opinion ... is because he [Ms. Capelli's attorney'] was trying to manufacture a bad faith claim.'"
The appellate court' held that these and other incidents were not reversible error: "None of the incidents individually are reversible, as they were either not error or were cured with instruction." This is a ground-breaking decision which will be carefully reviewed by Claimants, Policyholders, Attorneys, and Insurance Companies who may want to litigate or prevent Insurer Bad Faith.
REMINDER: THE CONTENTS OF THIS BLOG DO NOT MAKE AN ATTORNEY-CLIENT RELATIONSHIP. ALWAYS CONSULT THE CASES AND LAWS OF EACH PARTICULAR JURISDICTION AND AN ATTORNEY IN AND FAMILIAR WITH THE PARTICULAR JURISDICTION AND ITS LAWS, WHENEVER YOU TRY TO ADDRESS OR RESOLVE ANY LEGAL QUESTION.
Comments