Bad Faith Statute Not Defense to UIM Bad Faith Claim.

    In Moss v. GEICO Indemnity Co., 2012 WL 882575 (M.D. Fla. March 15, 2012), Download Moss v. GEICO Indemnity Co. (M.D. Fla. Case No. 5.10cv104, Order of USMJ Filed March 15, 2012) PUBLIC ACCESS, a dissatisfied Policyholder sued an Underinsured Motorist Insurance Company for alleged Bad Faith.

    The UIM carrier, GEICO, raised Florida's Bad Faith Statute, Fla. Stat. § 624.155, as a defense to the Bad Faith Claim.  Its Affirmative Defense on this ground already having been stricken once, GEICO re-alleged it in a half-dozen paragraphs as follows:

As its Second Affirmative Defense, GEICO states that the Plaintiff's claim is governed by § 624.155, Florida Statutes, and that GEICO is entitled to the following protections afforded to GEICO by that statute:

a. To the extent that Plaintiff's Civil Remedy Notice failed to comply with the requirements of Florida Statute § 624.155, Plaintiff failed to fulfill a condition precedent to the present action.



b. To the extent that the allegations set forth in Plaintiff's Amended Complaint are broader than the allegations set forth in Plaintiff's Civil Remedy Notice, Plaintiff fails to fulfill a condition precedent to the present action.



c. The provisions of Florida Statute § 624.155 regarding punitive damages apply to the present action. There is no basis for punitive damages to be sought or awarded.



d. To the extent that Plaintiff's allegations do not constitute bad faith as defined by Florida Statute § 624.155 and Florida law, Plaintiff's Amended Complaint fails to state a cause of action.

e. To the extent that Plaintiff alleges damages in her Amended Complaint that are not allowed by Florida Statute § 624.155, Plaintiff's Amended Complaint fails to state a cause of action.

 

Id. at *1, quoting GEICO's Second Affirmative Defense in this case.

    The Plaintiff-Policyholder again filed a motion to strike this Affirmative Defense as legally insufficient.  The United States Magistrate Judge agreed and granted the motion to strike.  The Court based its ruling on four grounds:

1. This was a legal argument, not an Affirmative Defense which must be based on allegations of fact under the Federal Rules of Civil Procedure.  In particular, "subparagraphs 'c' and 'e'" were stricken as "statements of law; [they are] not affirmative defenses."
2. It is "devoid of any factual allegations to support its legal conclusions."  As such, this alleged Affirmative Defense "fails to give Plaintiff notice of the grounds of the defense and is likely to lead to surprise and undue prejudice."
3. The Court noted that "each subpart" of this alleged Affirmative Defense begins with the words, "[t]o the extent."  "Absent specifics, which GEICO has not supplied, it is impossible to know whether any part of the second affirmative defense applies in this case."  [Emphasis added.]  To put it another way, it is not enough to know how many angels can dance on the head of a pin; the knowledge required is specific to the facts of this case, whether or not it applies to the facts in other cases pending or yet to be filed.
4. Finally, GEICO attempted to allege what once was called "a general denial" of the Plaintiff's compliance with a supposed condition precedent.  Under Federal Rule of Civil Procedure 9(b), however, and under most Rules of Civil Procedure extant in 2012, a denial of compliance with a condition precedent must be alleged with particularity.

Id. at *2.

    The Court nonetheless granted GEICO further leave to file and serve another Amended Affirmative Defense, but only "if, consistent with counsels' obligations" under Federal Rule of Civil Procedure 11, GEICO can allege "specific failures" by Plaintiff to comply with Fla. Stat. § 624.155, "which put at issue relevant legal and factual matters."  Id. at *3.  [Emphasis added.]

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