United States District Court, E.D. Louisiana
ORDER & REASONS
J. BARBIER, UNITED STA[TES DISTRICT JUDGE.
the Court is a Motion for Partial Summary Judgment
(Rec. Doc. 11) filed by Defendant, USAA
Casualty Insurance Company (“USAA”), an
opposition thereto (Rec. Doc. 14) by Plaintiff, George
Ruckman (“Plaintiff”), and a reply by USAA (Rec.
Doc. 17). Additionally, before the Court is a Motion to
Bifurcate Pursuant to Fed.R.Civ.P. 42(b) (Rec.
Doc. 13) filed by Plaintiff, and an opposition
thereto filed by USAA (Rec. Doc. 18). As the outcome of both
motions hinge on the same determination, the Court will
consider them together. Having considered the motions and
legal memoranda, the record, and the applicable law, the
Court finds that USAA's Motion for Partial Summary
Judgment is GRANTED and Plaintiff's
Motion to Bifurcate is DENIED.
AND PROCEDURAL BACKGROUND
instant litigation derives from a car accident that occurred
on May 1, 2018. Plaintiff was driving in his 2015 GMC Yukon
on Esplanade Avenue when he was rear ended by Nilda Spencer.
Ms. Spencer was insured with State Farm Insurance Company,
whereas Plaintiff was insured by USAA. State Farm, on behalf
of Ms. Spencer, tendered to Plaintiff the extent of Ms.
Spencer's policy limit shortly after the accident.
Unfortunately, Ms. Spencer's policy limit was
insufficient to cover Plaintiff's damages.
such, Plaintiff sought to recover additional insurance
proceeds from USAA, with whom he had uninsured motorist
coverage (“UM”). USAA refused to tender
Plaintiff's requested insurance proceeds, disputing both
the nature of the accident and Plaintiff's subsequent
injuries. Thereafter, Plaintiff filed the instant suit in
Orleans Parish Civil District Court on November 16, 2018
seeking to compel USAA to disburse the funds Plaintiff
believes he is entitled to under his UM policy with
USAA. Plaintiff also sought penalties and
attorneys' fees under La. R.S. 22:1892, which provides
for such if an insurance carrier acts in bad
faith. On February 11, 2019 Plaintiff filed a
First Supplemental and Amended Petition for Damages averring
that the damages he sustained exceeded $75, 000. On February
12, 2019, on the basis of the amended complaint, USAA timely
removed the case to this Court pursuant 28 U.S.C. 1446(b).
motion for partial summary judgment, USAA asks the Court to
dismiss Plaintiff's claim under La. R.S. 22:1892 on the
grounds that Louisiana law does not govern this case. Rather,
it is Florida law that controls because it is a Florida
insurance policy issued to a vehicle registered in Florida to
be garaged at a Florida address. Specifically, USAA posits
that Plaintiff's bad faith claim under La. R.S. 22:1892
should have been brought as a claim under Fla. Stat. §
624.155. Plaintiff, in his opposition to USAA's motion
for partial summary judgment, agrees. Thus, it is undisputed
that Plaintiff's claim under 22:1982 is untenable. The
sole remaining dispute presently before the Court is how to
properly handle Plaintiff's bad faith claim in light of
the new stipulated choice of law.
primary difference between bad faith claims against an
insurer in Louisiana versus Florida is the timing of said
claims. In Louisiana, a claim for bad faith against an
insurer must be brought in the same suit as the underlying UM
claim. La. R.S. 13:4231. An attempt by a plaintiff to file
suit on a bad faith claim after an adjudication of the
underlying UM claim would be subject to dismissal under the
doctrine of res judicata. See Spear Prudential
Prop. And Cas. Ins. Co., 727 So.2d 640 (La.App. 4th.
Cir. 1999). Thus, Plaintiff was following proper procedure in
bringing his 22:1892 claim alongside his UM claim.
Florida, however, a claim for bad faith against an insurer
cannot be brought until after there has been an adjudication
of the underlying UM claim. “Absent a determination of
the existence of liability on the part of the uninsured
tortfeasor and the extent of the plaintiff's damages, a
cause of action cannot exist for a bad faith failure to
settle.” Blanchard v. State Farm Mut. Auto. Ins.
Co., 575 So.2d 1289, (Fla. 1991). A bad faith complaint
made before adjudication of the full extent of insured's
damages should be dismissed without prejudice as premature.
Imhof v. Nationwide Mut. Ins. Co., 643 So.2d. 617
light of the foregoing, both parties agree that the Court
cannot currently consider Plaintiff's claim, as the full
extent of Plaintiff's damages and amount owed on his UM
policy has yet to be determined. It is with this current
posture that Plaintiff submits his Motion to Bifurcate
pursuant to Rule 42(b) and asks the Court to abate his bad
faith claim until a determination has been reached on the
issues of liability and damages. USAA counters by arguing
that the proper action is to dismiss Plaintiff's claim
with prejudice, because it is explicitly brought under
Louisiana law. In the event the Court construes
Plaintiffs' complaint broadly enough to be a properly
plead bad faith complaint under Florida law, USAA urges the
Court to dismiss Plaintiff's claim without prejudice as
opposed to abating the claim.
Court finds that it need not address the issue of how broadly
to construe Plaintiff's complaint, because in either case
the ideal disposition is a dismissal without prejudice. In
instances where “an action is premature because one of
its essential elements is contingent upon the occurrence of
an event that may or may not occur…. abatement is not
an appropriate disposition., and a dismissal is
required.” Shuck v. Bank of Am., NA.,
862 So.2d. 20 24-25 (Fla. 2nd DCA 2003). The prematurity of
Plaintiff's claim cannot be cured by the mere passage of
time, but rather is dependent on an uncertain event-a
determination that Plaintiff is entitled to the damages he
seeks. Although support for either abatement or dismissal may
be found in Florida state courts, federal district courts
located in Florida consistently choose dismissal over
abatement. District courts in Florida are “cognizant
that, because federal courts are courts of limited
jurisdiction, they are prevented from adjudicating cases that
are unripe or rest upon future events that may not occur as
anticipated, or indeed may not occur at all.”
Frantz v. Century-Nat'l Ins. Co., No.
19-969-T-33SPF, 2019 WL 4394083 (M.D. Fla. Sept. 13, 2019)
(citing Ralston v. LM Gen. Ins. Co., No.
6:16-cv-1723-Orl-37DCI, 2016 WL 6623728, at *2-3 (M.D. Fla.
Nov. 9, 2016)); see also Bele v. 21st Century
Centennial Ins. Co., 126 F.Supp.3d 1203, 1296 (M.D. Fla.
not binding on the Court, it is nonetheless persuasive that
courts within the Eleventh Circuit have largely followed the
rule that prematurity due to dependence on a separate action
is best cured by dismissal. See Great American Assur. Co.
v. Sanchuk, LLC, no. 10-2568-T-33AEP, 2012 WL 195526 *7
(“Courts within the Eleventh Circuit have largely
followed the reasoning of Blumberg and
Shuck” in preferring dismissal to abatement.)
The Court finds the “large body of case law” by
federal courts even more ...