In a small number of cases, Complaints containing legally inadequate claims of Insurer Bad Faith can be attacked and dismissed on Appellate Review based on Petitions for Certiorari or discretionary review.
One of the first such challenges came in the case of Safeco Insurance Company of America v. Campbell, 433 So. 2d 25 (Fla. 2d DCA 1983). In that case, the Trial Court denied the Motion to Dismiss I filed on behalf of Safeco and ordered discovery on the Bad Faith Claim alleged in the Complaint. While another lawyer drove, I began writing a Petition for Certiorari by the light of the glove compartment in my car on the return trip from the Judge's Hearing Room in Clearwater to my office in Orlando, a trip of about 2 1/2 hours or so. The Petition was a request for Certiorari Review of the Discovery Order on the ground that the Complaint failed to state a cause of action for First-Party Bad Faith as a matter of Florida law.
I finished writing the Petition in the wee hours of the next morning. A few hours later it was filed with the Clerk of the Second District Court of Appeal in Lakeland. In this case, hard work paid off as it may or may not pay off in other cases and in other circumstances.
When the Second District ruled on the Petition, they granted Certiorari Review and ruled that the Complaint in that case should be dismissed for failure to state a cause of action for First-Party Bad Faith as a matter of Florida law. Safeco Insurance Company of America v. Campbell, 433 So. 2d 25, 26-27 (Fla. 2d DCA 1983).
An increasing number of recent decisions has followed that rule. Similarly, Florida's Third District Court of Appeal allowed Certiorari Review of a discovery order compelling "discovery of materials concerning its business practices and policies" under Commercial Property Insurance Policies, in the case of General Star Indemnity Co. v. Atlantic Hospitality of Fla., LLC, 93 So. 3d 501, 502 (Fla. 3d DCA 2012), The Appellate Court granted the review and quashed the Discovery Order. One of the alternative grounds for this ruling was that the Complaint failed to state a Common Law cause of action for alleged Breach of the Implied Covenant of Good Faith and Fair Dealing. General Star Indemnity Co. v. Atlantic Hospitality of Fla., LLC, 93 So. 3d 501, 503 (Fla. 3d DCA 2012),
Cf. General Insurance Co. v. Harvey, 2013 WL 238162 *1 (Fla. 4th DCA January 23, 2013), in which Florida's Fourth District Court of Appeal granted Certiorari to review "a trial court order that denied [the Insurance Company's] motion to dismiss defendant's post-verdict cross claim against it." A verdict was entered against the Defendant-Insured in that case for $8 Million. After the verdict, the Trial Court permitted the Insured to add the Insurance Company as another defendant in that same tort case. Immediately after that, the Defendant Insured's Estate filed a crossclaim against the Decedent's own Insurance Company for alleged Bad Faith. After the Insurance Company's attempted removal to Federal Court was remanded, the Insurance Company unsuccessfully pursued a motion to dismiss the crossclaim but successfully requested Certiorari Review and dismissal of the crossclaim Complaint against it for alleged Bad Faith. General Insurance Co. v. Harvey, 2013 WL 238162 *1-*2 (Fla. 4th DCA January 23, 2013).
Three cases, three Writs of Certiorari Review granted, and three alleged "Bad Faith" Complaints dismissed. As was said at the beginning, in a small number of cases, Complaints containing legally inadequate claims of Insurer Bad Faith can be attacked and dismissed on Appellate Review based on Petitions for Certiorari.
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