JAMES LAWRENCE KING, District Judge.
THIS CAUSE comes before the Court upon Defendant Geico General Insurance Company's ("Geico") Motion for Partial Summary Judgment (DE 8), filed December 7, 2018.
This Florida statutory bad faith action arises out of Plaintiff Kook C. Do's leased 2005 silver Audi A8, reported stolen from Miami Beach, Florida on May 21, 2007 (DE 7-2), and found that same day submerged in a canal in a restricted area of the Loxahatchee National Wildlife Refuge in Palm Beach County, where two men, Marcos Franca and Douglas Capisch, were arrested at the scene (see DE 7-5, at 1-2).
In late 2016, Plaintiff brought the instant action against Geico in state court (see DE 1-1, at 2), and Geico removed it to this Court on August 10, 2017 (see DE 1). In his Complaint for Statutory Bad Faith Damages (DE 1-1, at 3-16), Plaintiff alleges that, throughout the underlying proceedings, Geico's conduct violated Fla. Stat. § 624.155(1)(b)(1) ("[n]ot attempting in good faith to settle claims when . . . it could and should have done so"); id. § 626.9541(1)(i)(3)(d) ("[d]enying claims without conducting reasonable investigations based on available information"); id. § 626.9541(1)(i)(3)(e) ("[f]ailing to affirm or deny full or partial coverage of claims"); id. § 626.9541 (1)(i)(3)(f) ("[f]ailing to promptly provide a reasonable explanation in writing to the insured of the basis in the insurance policy . . . for denial of a claim or for the offer of a compromise settlement"); id. § 626.9541 (1)(i)(3)(b) ("[m]isrepresenting pertinent facts or insurance policy provisions"); and id. § 626.9541(1)(i)(2) (material misrepresentation "with the intent of effecting settlement . . . on less favorable terms") (id. at 10-13).
As a condition precedent to bringing an action pursuant to Fla. Stat. § 624.155 (which incorporates all six of Plaintiff's claims here
Geico's instant Motion for Partial Summary Judgment (filed months before the Court's deadline for all motions of May 13, 2019 (DE 4)) argues that Plaintiff's second, third, and fourth CRNs are "invalid as a matter of law" where (a) they do not relate to the payment of contractual benefits owed under the policy, but only to the payment of attorneys' fees and costs; (b) Geico's payment of the full amount owed on the claim extinguished the plaintiff's rights to file a bad faith action; and (c) they were filed to "coerce[] Geico to abandon its legal defenses and positions in the underlying action" (see DE 8, at 8-11).
Summary judgment is appropriate where there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c) (emphasis added); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). An issue is genuine if a reasonable jury could return a verdict for the nonmoving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996). A fact is material if it may affect the outcome of the case under the applicable substantive law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). If a reasonable fact finder could draw more than one inference from the facts, creating a genuine issue of material fact, summary judgment should not be granted. Samples ex rel. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988). The moving party has the burden of establishing both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986).
Geico argues that Talat Enters. v. Aetna Co. & Sur. Co., 753 So.2d 1278 (Fla. 2000) "and its progeny" render invalid Plaintiff's Second, Third, and Fourth CRNs, where Talat holds that Florida's bad faith statute does not require payment of extra-contractual damages (see DE 8, at 5-6, 8-9). Talat, 753 So. 2d at 1282-83 (stating that the CRN provision of Fla Stat. § 624.155(3)(d) "cannot reasonably be construed to require payment of extra-contractual damages to avoid litigation");
The cases Plaintiff cites in opposition do not adequately counter Geico's stance. The Orlando Candy Co. line of cases date from 1931, decades before the enactment of Florida's civil remedy statute, Fla. Stat. § 624.155. Orlando Candy Co. v. N.H. Fire Ins. Co. of Manchester, 51 F.22d 392, 393 (S.D. Fla. 1931) (Strum, J.); Pendas v. Equitable Life Assurance Soc'y of U.S., 129 Fla. 253 (Fla. 1937); Old Republic Ins. Co. v. Monsees, 188 So.2d 893 (Fla. 4th Dist. Ct. App. 1966). Plaintiff's quote from Palmer is inapposite because that case simply dealt with the insured's entitlement to attorney's fees where the insurer paid the claim prior to an order of final judgment, and did not involve a CRN or bad faith claim. See Cincinnati Ins. Co. v. Palmer, 297 So.2d 96, 99 (Fla. 4th Dist. Ct. App. 1974). Similarly, Plaintiff's quote from Palma that "if an insurer loses such a suit but contests the insured's entitlement to attorney's fees, this is still a claim under the policy" does not in any way address Fla. Stat. § 624.155, but only the attorney's fees provision, Fla. Stat. § 627.428. See Palma v. State Farm, 629 So.2d 830, 832 (Fla. 1993). Therefore, Geico is correct that "Plaintiff provides no example[] . . . [in which a] Florida court[] [has] found a CRN based on nonpayment of statutory attorney's fees to be valid" (DE 16, at 8).
In addition, Geico argues that because its payment to the vehicle lienholder on September 25, 2008 was payment of the amount owed under the express terms of the policy, the payment extinguished Plaintiff's right to file his subsequent CRNs altogether (see DE 8, at 11-12).
In contrast, the only case Plaintiff cites in opposition to this point is Paz v. Fidelity Nat'l Ins. Co., 712 So.2d 807, 808 (Fla. 3d Dist. Ct. App. 1998). However, that decision is not relevant, where, as Geico summarizes, "the issue before the court [there] was simply whether an insurer's agreement to pay the claim prior to the expiration of the policy's 60-day cure period, rather than actual payment, was sufficient to effect a cure of the CRN" (DE 16, at 9).
Geico's contention that Plaintiff's Second, Third, and Fourth Civil Remedy Notices are invalid as a matter of law is well supported by the authority it cites from the Florida Supreme Court, which Plaintiff fails to adequately counter. Therefore, Geico has met its burden in establishing it is entitled to judgment as a matter of law on that issue. Accordingly, it is