In Download Ross v. First Liberty Insurance Corp. (M.D. Fla. Case No. 8.11cv.983, Order Filed July 15, 2011) PUBLIC ACCESS, also published as 2011 WL 2784321 *1 (M.D. Fla. July 15, 2011)(authorized password required to access Westlaw), a Federal Judge granted a unique joint motion: "the parties' Joint Stipulation and Motion to Stay Bad Faith and Bifurcate Damages Determination from Bad Faith Liability Determination".
The parties' Joint Stipulation and Motion presented the parties' request to the Court in this Underinsured Motorist Insurance Bad Faith Case "to stay the liability portion of Plaintiff's bad faith claim until the actual damages Plaintiff suffered have been determined." Id.
The Federal Judge granted this stipulated Motion. The Court offered two grounds: (1) Under Florida Statutory First-Party Bad Faith Law, the Insured's underlying damages first have to be determined before any Bad Faith Claim will lie, and (2) simultaneous discovery on Coverage and Bad Faith issues, the parties in this case stipulated, could cause "'improper production of the claim file and other work product discovery before the determination of damages.'" Id. at *2.
Although this ruling came in response to a Stipulated Joint Motion, the concepts it offers are very much worthwhile putting before the Courts for their consideration, i.e., presenting these arguments, certainly from the Defendant Insurance Companies' point of view in all Bad Faith cases. This is particularly true where the Damages to be determined are not simply underlying Damages but the extracontractual or Bad Faith Damages, the determination of which may prejudice the simultaneous determination of Bad Faith Liability.
In cases in which a damages determination of underlying damages as distinct from extracontractual or Bad Faith Damages is a condition precedent to a Bad Faith Claim, and in which discovery is likely to be stayed anyway as a result until underlying damages are determined, Policyholders too have an interest in saving time and expense through a vehicle such as the Stipulated Joint Motion in this case.
Mark S. Shapiro, Esquire is listed on Pacer, the Federal Courts' Online Docket, as a Counsel of Record for the Defendant in the Ross case. Together, the author of this post and Mr. Shapiro will present the Florida Workshop at the American Conference Institute on Bad Faith Litigation in Orlando, Florida which will be held November 30 - December 1, 2011.
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