In Progressive Select Ins. Co. v. Bigney, 44 Fla. L. Weekly D62a (Fla. 5th DCA Dec. 21, 2018), the Fifth District Court of Appeal addressed whether claims brought by a third party against an insurer were independent of an insurance contract such that the claims could be brought despite the nonjoinder statute, section 627.4136(1), Florida Statutes. The nonjoinder statutes prohibits injured third parties from filing a direct action against a liability insurer unless the third party has satisfied one of the following condition precedents: “(1) obtaining a settlement against the insured or (2) obtaining a verdict against the insured.” Bigney, 44 Fla. L. Weekly D62a (quoting Hazen v. Allstate Ins. Co., 952 So. 2d 531, 534 (Fla. 2d DCA 2007)). The nonjoinder statute does not prohibit direct actions by a third party against an insurer where the claims are independent of the insurance contract.
In Bigney, an injured third party brought claims of civil conspiracy and aiding and abetting a breach of fiduciary duties against Progressive, the insurer of the defendant in the related auto negligence claim. Because the claims brought against Progressive were “explicitly based on ‘fiduciary duties,’ ‘legal obligations,’ ‘Med Pay benefits,’ and ‘liability limits’ established in” an insurance contract and the third party had not satisfied either condition precedent in the nonjoinder statute, the Court held that the counts against Progressive were not independent of the insurance contract and therefore, were in violation of the non-joinder statute. The Court held the counts were premature, noting that forcing the insurer to litigate those unripe claims would result in irreparable harm.
Usually, when dealing with this statute, there is no doubt that the claims are not independent and the statute applies to preclude the claims. For instance, the Plaintiff will bring a bad faith claim before filing a tort suit against the insured. However, we have seen several cases where Plaintiffs are attempting to plead around the statute. Be cognizant of this statute when deciding whether to answer the complaint or move to dismiss.
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