TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN ABATING PLAINTIFF’S THIRD-PARTY BAD FAITH CLAIM INSTEAD OF DISMISSING IT.
Geico v. Martinez, 43 Fla. L. Weekly D86 (Fla. 3rd DCA January 3, 2018):
The plaintiff in this case sued the defendant driver and Geico insured when Geico refused to pay its $10,000 policy limits in the case. While the case was pending, the plaintiff filed a motion to amend her complaint to add Geico as a party defendant to the action, and to add a third-party bad faith claim against Geico. When Geico moved to dismiss, the plaintiff conceded that the bad faith claim was premature pursuant to the non-joinder statute, but asked the trial court to abate the action awaiting resolution of the underlying case, which it did.
The appellate court reversed. Pursuant to the non-joinder statute (section 627.4136), there must be a verdict or a settlement against the insured before the insurer may be added to the case. Thus, abatement was improper and the trial court should have dismissed the claim altogether