In Alber v. GEICO General Ins. Co., No: 6:17-cv-160-Orl-31KRS, 2017 WL 1045504 (M.D. Fla. March 20, 2017) (Presnell, J.), a U.S. District Court denied a plaintiff's motion to remand because the plaintiff had filed a bad faith claim in addition to his claim for uninsured motorist (UM) coverage.
Under the UM contract claim, the plaintiff in this case conceded that he was seeking recovery of $40,000.00 in UM benefits. That left $35,000.00 in order to reach the $75,000.00 federal jurisdictional limit in this case.
Under the bad faith claim, "[a]ssuming," said the Court, that the bad faith claim "ripens," the plaintiff could theoretically seek to recover all the damages he incurred as a result of the UM carrier's coverage denial. In this case, those damages, the Court said, include:
- “'[B]odily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, loss of earnings, loss of ability to earn money, and aggravation of a previously existing condition'”;
- "[H]e also asserts that these injuries are continuing and that he expects to suffer more in the future."
- The plaintiff also "asserts that he suffers from serious pain in his back and neck, that he has undergone $15,000 in spinal injections and that he intends to have more in the future."
- The plaintiff's "orthopedic surgeon opined that if Alber's pain continues, he may be required to undergo a discogram to his spine for surgical planning."
In the Court's eyes, "[t]hose alleged damages, combined with the attorney's fees incurred in pursuing the instant case, could easily exceed $35,000, taking the amount in controversy beyond the jurisdictional minimum." Alber v. GEICO General Ins. Co., No: 6:17-cv-160-Orl-31KRS, 2017 WL 1045504, at *2 (M.D. Fla. March 20, 2017).
However, consider that this same District Court has held that a bad faith claim in a UM case in Florida should be abated, because it will not be actionable unless UM coverage is determined in favor of the plaintiff in the first place. See "FLORIDA UM BAD FAITH CLAIM ABATED UNDER SECTION 624.155," posted on Insurance Claims and Bad Faith Law Blog on March 24, 2016. See in addition "REMOVAL DOES NOT REMOVE VALUE," posted here on March 1, 2017 (federal jurisdictional limit of $75,000.00 was met where record established that policyholder demanded $100,000.00 UM policy limit before removal). That would seem to make the bad faith claim speculative at best, and so perhaps an uncertain ground on which to assert federal jurisdiction.
Further, the mention of attorney's fees being available under the bad faith claim ignores the fact that in Florida an insured prevailing on coverage can recover his attorney's fees anyway, even without the bad faith claim. See Fla. Stat. § 627.428.
Using theoretically recoverable damages to ignore whether a bad faith claim is viable in the first place. That is how this motion to remand came to an end. Now, having retained federal jurisdiction over this UM case, the federal court will be in a position potentially to award $40,000.00 in contract damages and grant a future motion to dismiss or for summary judgment on the bad faith claim, thereby removing the bad faith claim from this case and simultaneously adjudicating the absence of federal jurisdiction. In such an event, attorney's fees alone would most likely not make up all of the $35,000.00 shortfall in order to reach the $75,000.00 federal jurisdictional threshold in this particular case.
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