PLANTE v. USFG SPECIALTY INSURANCE COMPANY

ALAN GOLD, District Judge

THIS CAUSE is before the Court upon Defendant's Motion for Partial Reconsideration of Order Denying Motion to Dismiss [DE 29], filed January 23, 2004, Defendant's Motion to Certify Question for Immediate Appellate Review [DE 32], filed March 15, 2004, Defendant's Motion to Stay Discovery [DE 34], and Defendant's Motions to Stay Time for Responding to Amended Complaint [DE 56, 60], filed April 23, 2004 and May 4, 2004.

I issued an Order granting in part and denying in part Defendant's Motion to Dismiss [DE 21] after holding oral argument on February 20, 2004. Defendant subsequently filed the aforementioned motions, which were opposed by the Plaintiff [DE 44, 45, 46]. Having considered the parties' arguments and relevant case law and statutes, I conclude that Defendant's motions for reconsideration and certification should be denied. I will first address Defendant's Motion for Reconsideration and second address Defendant's Motion to Certify Question for Immediate Appellate Review. Since I am denying both Motions, Defendant's Motion to Stay is denied since it is predicated upon the Court certifying the case for appeal.

DEFENDANT'S MOTION FOR RECONSIDERATION

A. Standard of Review

A motion for reconsideration may be brought pursuant to Rule 59(e) or Rule 60(b). See Sussman v. Salem, Saxon Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994) ( quoting Lewis v. United States Postal Service, 840 F.2d 712, 713 n. 1 (9th Cir. 1988)). Here, no judgment was rendered since the motion to dismiss was denied in part and granted in part. Accordingly, the motion for reconsideration shall be analyzed as though it were brought pursuant to Rule 60(b).

Federal Rule of Civil Procedure 60(b) provides that upon motion, the court may relieve a party from an order for (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) any other reason justifying relief from the operation of the judgment. Fed.R.Civ.P. 60(b).

District court decisions on motions for reconsideration are reviewed for abuse of discretion, thus affording the courts with substantial discretion in their rulings. See id.; see also Mackin v. City of Boston, 969 F.2d 1273, 1279 (1st Cir. 1992). A district court abuses its discretion when a "relevant factor deserving a significant weight is overlooked, when an improper factor deserving of significant weight is overlooked, or when the court considers the appropriate mix of factors, but commits a palpable error of judgment in calibrating the decisional scales." See id. ( citing United States v. Hastings, 847 F.2d 920, 924 (1st Cir. 1992)). Furthermore, reconsideration of a previous order is "an extraordinary remedy, to be employed sparingly." See Mannings v. School Board of Hillsborough County, 149 F.R.D. 235, 235 (M.D. Fla. 1993).

B. Analysis

USFG seeks reconsideration of my Order insofar as it denied USFG's Motion to Dismiss Count One of the Complaint. Count One alleges violation of Fla. Stat. § 624.155, the Florida bad faith statute. Section 624.155(1)(b)1 provides a civil remedy against an insurer for "[n]ot attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests." In its Motion to Dismiss, USFG argued that Count One is not ripe because there has not been a sufficient determination of liability and extent of damages owed on the insurance contract. I denied USFG's Motion since Plante sufficiently alleged in her Complaint that USFG had made payment on Plante's insurance claim, thus waiving any coverage defenses and conceding the company's liability under Plante's insurance policy.

In my Order, I cited Fla. Stat. § 627.426(2) for the proposition that USFG waived its coverage defenses by paying Plante for her claims. While this provision is not applicable to Plante's claims per se, it remains true that the common law doctrines of waiver and estoppel would apply to bar USFG from raising coverage defenses when it had already paid money on Plante's claims.

In its Motion for Reconsideration, USFG argues that my Order denying in part USFG's Motion to Dismiss contains clear error and constitutes manifest injustice. USFG argues that there must be a determination of both liability and extent of damages owed on a first-party insurance contract before a bad faith claim may be ripe; according to USFG, there has been no determination of the extent of damages, so Plante's bad faith claim is not yet ripe. The sole basis for USFG's contention is a single sentence from the Court's opinion in Vest v. Travelers Ins. Co., 753 So.2d 1270, 1276 (Fla. 2000) ("[B]ringing a cause of action in court for violation of section 624.155(1)(b)1 is premature until there is a determination of liability and extent of damages owed on the first-party insurance contract.").

The Vest case did not in any way extrapolate upon the meaning of the "determination" of the "extent of damages." The only Florida Supreme Court case which discusses the instant situation — where the amount of damages is in dispute — is Imhof v. Nationwide Mut. Ins. Co., 643 So.2d 617 (Fla. 1994). In Imhof, the Florida Supreme Court held that an insured's breach of contract claim has been resolved sufficiently to bring a bad faith claim as long as the insurer has conceded liability on the claim, even when the insurer disputes the amount for which it is liable. Id. at 618. The Court required the plaintiff to allege that there had been a final determination as to extent of damages, but did not define "extent of damages" to require the plaintiff to plead a precise amount. Id. ("Neither Blanchard nor section 624.155(2)(b) requires the allegation of a specific amount of damages.").

In this case, the Plaintiff has plead that USFG sent her a letter denying responsibility "for any additional monies beyond that which has already been paid." (Cmpt. ¶ 40). According to the Complaint, USFG has paid a fixed and final sum certain under all coverage applicable to Plante's loss. Accordingly, Plante has done what is required by Imhof — she has plead a final determination of liability and extent of damages.

USFG suggests that this "final determination" must take place in a courtroom. Florida law does not require so much. See Brookins v. Goodson, 640 So.2d 110, 112-14 (Fla. 4th DCA 1994), rev. denied, 648 So.2d 724 (Fla. 1994). In Brookins, a case quoted extensively in Vest, the court stated:

[E]ngrafting a judicial requirement that a determination of damages by litigation must precede a first party bad faith claim would foster no stated legislative purpose, would lend to an absurd result and would needlessly increase the cost of litigation to both sides by requiring the insured to litigate the underlying action to conclusion. The result would foster litigation rather than promote settlement — it would promote form over substance.

Id. Brookins therefore suggests that when an insurer makes payment upon an insured's claim and refuses to pay any more, a "final determination" of liability and extent of damages has occurred for purposes of the bad faith statute.

The remainder of USFG's argumentation in its Motion for Reconsideration is merely restatement of the claims made in USFG's Motion to Dismiss. Accordingly, I conclude that I did not commit clear error or work a manifest injustice in my Order denying in part USFG's Motion to Dismiss. USFG's Motion for Reconsideration is DENIED.

DEFENDANT'S MOTION TO CERTIFY QUESTION FOR IMMEDIATE APPELLATE REVIEW

A. Standard of Review

In order for a trial judge to certify an interlocutory order for appeal under 28 U.S.C. § 1292(b), three requirements must be satisfied. First, the order must involve a controlling question of law. Second, there must exist substantial grounds for difference of opinion. Third, an immediate appeal from the order must possibly materially advance the ultimate termination of the litigation. Resort to relief under § 1292(b) should be the rare exception, not the rule. See Sussman v. Salem, Saxon and Nielsen, P.A., 826 F. Supp. 1416, 1418 (M.D.Fla. 1993) (stating that § 1292(b) ought to be used "sparingly and only in exceptional cases where a speedy appeal would avoid protracted litigation"). The Court has wide discretion in determining whether to certify an interlocutory order for appeal pursuant to § 1292(b). Sigma Financial Corp. v. American Int'l Spec. Lines Ins. Co., 200 F. Supp.2d 710, 723 (E.D. Mich. 2002).

B. Analysis

USFG seeks interlocutory review of my Order denying in part and granting in part its Motion to Dismiss. However, I conclude that this Order does not meet the test for interlocutory appeal. First, I conclude that my Order does not involve a controlling question of law. "[A] question of law is `controlling' if reversal of the district court's order would terminate the action." Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 24 (2d Cir. 1990). In this case, the result of a reversal of my Order is that Plante's Complaint would be dismissal without prejudice with leave to amend. See Imhof, 643 So.2d at 618. Plante could still proceed with her fraud claim and potentially with a breach of contract claim regarding USFG's conduct. Second, my Order does not involve issues upon which there are "substantial grounds for difference of opinion." The question raised by USFG's motion is not one upon which courts have disagreed. In fact, the only court to have ruled upon the same exact question concurred with my Order. See Martin v. Cigna Property Casualty Co., Case No. 96-2358-CIV-LENARD (S.D. Fla. 1996). The cases cited by USFG are, at best, persuasive authorities, but are not binding opinions on the question presented. Finally, reversal of my Order will not materially advance the ultimate termination of the litigation. In fact, it would prolong the litigation by theoretically requiring the parties first to litigate a fraud and/or breach of contract suit and subsequently to litigate a bad faith suit. Accordingly, Defendant's Motion to Certify Question for Immediate Appellate Review is DENIED.

It is hereby ORDERED AND ADJUDGED that:

1. Defendant's Motion for Partial Reconsideration [DE 29] is DENIED.

2. Defendant's Motion to Certify Question for Immediate Appellate Review [DE 32] is DENIED.

3. Defendant's Motion to Stay Discovery [DE 34] is DENIED.

4. Defendant's MotionS to Extend Time to Respond to Amended Complaint [DE 56, 60] are GRANTED.

4. Defendant shall file its answer to the Plaintiff's Amended Complaint on or before June 16, 2004.

DONE AND ORDERED.