(Black Hole. Image by NASA)
An outlier observation was made in dicta, well-intentioned dicta if not well-reasoned, but still dicta, in Lewis v. Allied World Spec. Ins. Co., No. 20-cv-20677-ALTMAN/Reid, 2023 WL 2770538 (S.D. Fla. April 4, 2023).
Citing to Florida Supreme Court decisions in which the Supreme court addressed statutory bad-faith actions under Fla. Stat. § 624.155(1)(b) for alleged bad faith failure to settle, and holding that such statutory actions will always require an underlying determination of liability regardless of whether the statutory bad-faith action has been brought for alleged first-party or third-party bad faith failure to settle, the federal judge concluded from this that all first-party bad faith actions and third-party bad faith actions are always treated the same in Florida.
Put it down to the fact that this federal judge was appointed in 2019. He has not been a judge that long. The only way that this federal judge could have honestly reached such a conclusion is by being ignorant of Florida law in the area of insurer bad faith.
Florida is a jurisdiction, for example, where first-party bad faith common law claims do not exist but third-party bad faith common law claims do exist. In Florida, first-party bad faith claims can only be pursued under the statute addressed by the Florida Supreme Court in the decisions cited by this federal judge, which was otherwise unmentioned in the Lewis opinion. Thus unburdened by the truth of Florida insurer bad faith law, the federal judge in Lewis was free to write that Florida courts have always treated "first- and third-party bad-faith claims" the same. Lewis, 2023 WL 2770538, at *5.
Not so. This judicial decision is featured in the context of overwhelming contrary authority in Florida as well as throughout history and the United States, in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 9:4, The Question of Bad Faith -- Extracontractual Liability of First-Party Insurers as Tort or Breach of Contract: Differences From Third-Party Claims Situations (West Publishing Company 3d Edition, 2023 Supplements in process).
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