DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
PATRICIA GUY MOULTROP, individually, and PATRICIA GUY
MOULTROP, as personal representative of ESTATE OF GUY
MOULTROP,
Appellant,
v.
GEICO GENERAL INSURANCE COMPANY,
Appellee.
Nos. 4D19-225 and 4D19-1580
[September 9, 2020]
Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Cymonie S. Rowe, Judge; L.T. Case No.
502009CA042658.
Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach,
Todd S. Stewart of Law Office of Todd S. Stewart, P.A., Jupiter, and
Richard M. Benrubi of Law Office of Richard M. Benrubi, P.A., West Palm
Beach, for appellant.
B. Richard Young, Adam A. Duke, Brentt E. Palmer and Christopher R.
Machado of Young, Bill, Boles, Palmer & Duke, P.A., Miami, for appellee.
MAY, J.
Plaintiffs 1 appeal the dismissal of the wife’s consortium claim, and an
adverse final judgment in a bad-faith case against their uninsured
motorist’s carrier (“UM carrier”). They argue a new trial is warranted
because the trial court erred in: (1) dismissing the wife’s loss of
consortium claim; (2) excluding testimony that the UM carrier needed to
adjust the wife’s claim; (3) admitting the UM carrier’s activity log note
memorializing the plaintiffs’ settlement offer of $500,000 at mediation; and
(4) allowing the UM carrier to inform the jury that the husband cancelled
1 These appeals include the wife’s direct appeal from the dismissal of her
consortium claim and a direct appeal by the personal representative of the
husband’s estate (the wife) from an adverse verdict in a bad faith trial. We
consolidated the appeals in a June 25, 2019 order.
scheduled surgeries after the underlying negligence trial. They also argue
the cumulative effect of these errors warrants a new trial. We agree with
the plaintiffs on issues three and four. We therefore reverse and remand
the case for a new trial.
The Accident
The case arose from a sequential three-car collision. The driver of the
first car made an abrupt lane change and stepped on the brakes, causing
the second car to rear-end the first car. The third car, driven by the
husband, collided with the second car. The driver of the first car was cited
and blamed for the accident.
Between the Accident and the Negligence Trial
Soon after the accident, on September 11, 2009, the plaintiffs sent a
demand letter to their UM carrier for the full policy limits, but did not
include the husband’s medical records. Those records were sent a few
days later. The UM carrier responded and requested additional
information.
The plaintiffs again sent a letter demanding the policy limits, this time
including the husband’s medical records, the accident report, and other
documentation. The UM carrier again denied the demand. The UM carrier
also requested: (1) confirmation of coverage for the host vehicle, a tender
of the available coverage or a denial of coverage; and (2) the husband’s
additional medical and hospital records. The UM carrier followed up and
again requested confirmation of the host vehicle’s coverage and the status
of the husband’s injuries and medical records.
The plaintiffs sent the UM carrier the requested documents and a third
demand letter requesting the policy limits. On December 16, 2009, the
UM carrier responded and requested the complete hospital records,
billings, and treatment records from Atlantis Orthopedics. It also
suggested that the husband had been at fault and it considered him to be
from 75-100% responsible for the accident.
That same day, the plaintiffs sent the UM carrier a copy of the Delray
Medical Center bill and medical records from Atlantis Orthopedics and
Delray Medical Center. The accompanying letter advised the UM carrier
the husband would sue if the policy limits were not paid on or before
December 23, 2009.
2
On December 17, 2009, the husband filed a Civil Remedy Notice
(“CRN”) with the Department of Financial Services. The wife did not file a
CRN. On December 22, 2009, the plaintiffs filed a complaint against the
driver of the first vehicle and their UM carrier, alleging: 1) the driver
caused the accident; 2) the UM carrier failed to pay the plaintiffs’
uninsured motorist policy limits; and 3) the UM carrier and the driver must
pay for the wife’s loss of consortium.
The following day, the UM carrier offered the plaintiffs $5,000 to settle
the case. The offer letter reiterated the husband was anywhere between
75% and 100% responsible and requested the complete billing for Atlantis
Orthopedics to properly evaluate the claim. The UM carrier also requested
an update on the husband’s condition, any further treatment undertaken,
and medical bills.
The plaintiffs sent the UM carrier a copy of the explanation of benefits
from One Source EPO Health Plan reflecting medical bills totaling $37,040
and an outstanding medical lien of $12,705. A few days later, the UM
carrier increased its settlement offer to $7,000. That same day, the
plaintiffs explained they previously sent the updated medical records
together with the medical bills and outstanding lien. The plaintiffs’ letter
challenged the UM carrier’s assessment of liability percentages, arguing
the accident investigator determined the driver of the first car was
responsible for the accident, was cited for it, and an independent
eyewitness confirmed the driver of the first car caused the accident.
The husband began physical therapy in February and forwarded the
new records to the UM carrier. On February 24, 2010, the CRN expired.
That same day, the UM carrier increased its offer to $30,000. In April, the
husband was again treated for continuing knee and right foot pain; the
medical records were forwarded to the UM carrier.
On May 7, 2010, the UM carrier sent a memo to its adjuster
recommending a full tender of policy limits “in light of recent discovery,
specifically [the independent eyewitness]’s testimony. . . and Dr. Norris’
comments that [the husband] may need an additional excision/surgery.”
But, the UM carrier did not tender the policy limits.
On May 24, 2010, the plaintiffs sent a letter to the UM carrier
demanding it pay all their damages because it failed to tender the policy
limits before the CRN expired. The plaintiffs then demanded $500,000 to
settle the case, explaining the husband incurred medical specials of
approximately $25,000 and anticipated additional medical bills of
approximately $75,000–$100,000. The plaintiffs demanded $500,000.
3
On June 2, 2010, the UM carrier offered the full policy limits of $50,000
in exchange for a dismissal with prejudice of the uninsured motorists’ suit.
At mediation two days later, the UM carrier reiterated its offer to tender
the full policy limits; the plaintiffs rejected the offer. The rejection was
recorded in the UM carrier’s activity log as: “[l]ast [f]ormal [d]emand [w]as
$500,000.”
The negligence trial commenced. The jury returned a verdict of
$362,704.50 in favor of the plaintiffs. 2 It placed 90% of the fault on the
driver of the first car and 10% on the husband. The court reserved
jurisdiction to conduct the bad faith trial.
The First Bad Faith Trial
The bad faith complaint alleged both the husband and wife provided
the UM carrier with a CRN. 3 The UM carrier answered and asserted
affirmative defenses. Those defenses included: (1) the husband’s claim
was premature because the plaintiffs had not provided enough information
to evaluate the claim; and (2) the plaintiffs’ claim included violations not
specified in the CRN.
The parties stipulated the jury would determine whether the UM carrier
acted in bad faith by failing to settle the uninsured motorists claim and
failed to settle the claim when it could and should have done so had it
acted fairly and honestly.
The UM carrier moved for a judgment on the pleadings, asserting the
wife could not bring a claim for statutory bad-faith pursuant to section
624.155, Florida Statutes (2009), because she did not serve a CRN. 4 The
trial court denied the motion because the pretrial stipulation included the
wife as a claimant. The UM carrier then moved for directed verdict, which
was denied. But when the UM carrier’s expert improperly testified on the
issue of permanency, the plaintiffs moved for a mistrial, which the court
2 The UM carrier later moved to conform the judgment to the policy limits, which
the trial court granted.
3 The plaintiffs amended their negligence complaint to add a bad faith claim
against the UM carrier for its failure to tender policy limits within 60 days of the
CRN’s expiration. They later amended the complaint to allege the plaintiffs both
provided the statutory CRN.
4 At a pretrial hearing, the UM carrier’s counsel conceded, “I will candidly admit
that we did not spot on this issue . . . I mean, the reason that [the wife]’s in [the
pretrial stipulation] and the reason this wasn’t raised earlier is because, very
frankly, we didn’t spot it. . . .”
4
granted.
Following the mistrial, the UM carrier moved for summary judgment,
on the wife’s consortium claim because she had not filed a CRN. The trial
court granted the motion and dismissed the wife’s bad faith consortium
claim.
The Second Bad Faith Trial
Prior to the second bad faith trial, the plaintiffs filed three motions in
limine to preclude the admission of: (1) the bad faith mediation summary
letter; (2) evidence of comparative bad faith or that impugned the integrity
of the underlying negligence verdict and/or plaintiffs’ counsel; and (3)
evidence of matters previously litigated in the negligence trial. The trial
court granted all three motions, but permitted the UM carrier to introduce
evidence of good faith.
The UM carrier also moved in limine to admit its activity log
summarizing the mediation. The parties were directed to go through the
activity log and mark their objections. The plaintiffs marked an “x” next
to all entries they objected to as irrelevant or hearsay within hearsay,
including the activity log note memorializing their $500,000 settlement
offer. The entire activity log was introduced, subject to the parties’
objections.
At the completion of the evidence, the plaintiffs moved to exclude the
activity log note of the plaintiffs’ mediation settlement offer of $500,000.
The plaintiffs argued the note was inadmissible because it was: (1) a
settlement offer; (2) irrelevant; and (3) more prejudicial than probative.
The UM carrier responded the objection was untimely and the log was
relevant to show that: (1) two days after the UM carrier tendered policy
limits, the plaintiffs wanted ten times as much; and (2) to counter the
husband’s argument that he would have accepted policy limits until April
or early May. The trial court overruled the objection.
In closing, the UM carrier argued:
They offer the full $50,000 to the [p]laintiffs – to [the husband]
and what do we see happens next? They go to mediation, they
offer the $50,000 again and now the [p]laintiffs want
$500,000, fifty times the policy limits and that’s what this
case is about. They want ten times as much.
5
The jury found in favor of the UM carrier. The plaintiffs moved for new
trial, which the court denied. The plaintiffs now appeal. 5
The wife appeals individually concerning the dismissal of her
consortium claim. We affirm the dismissal because of her failure to file a
CRN.
In the husband’s appeal, he argues the trial court erred in overruling
his motion to exclude the activity log note containing the $500,000
mediation settlement offer because it: (1) was inadmissible as part of
settlement negotiations and confidential as part of the mediation process;
(2) was irrelevant to the bad faith trial; (3) violated the trial court’s orders
on the motions in limine; 6 and (4) inflamed the jury. He argues the UM
carrier’s discussion of the settlement offer during closing argument
compounded the error.
The UM carrier responds: (1) the activity log note was not a privileged
mediation communication; (2) the settlement offer was relevant to the bad
faith proceedings; and (3) the plaintiffs were not prejudiced by its
admission.
“A trial court’s ruling on the admissibility of evidence is subject to an
abuse of discretion standard of review, but the court’s decision is limited
by rules of evidence and the applicable case law.” Horowitz v. State,
189
So. 3d 800, 802 (Fla. 4th DCA 2015).
As a preliminary matter, the UM carrier argues the husband’s
arguments were waived or unpreserved because they were not raised until
his motion for new trial. We disagree and address the merits.
• Relevance
Bad faith claims center around whether the insurer has “investigate[d]
the facts, give[n] fair consideration to a settlement offer that is not
unreasonable under the facts, and settle, if possible, where a reasonably
prudent person, faced with the prospect of paying the total recovery, would
do so.” Harvey v. Geico Gen. Ins. Co.,
259 So. 3d 1, 7 (Fla. 2018) (quoting
Boston Old Colony Ins. Co. v. Gutierrez,
386 So. 2d 783, 785 (Fla. 1980)).
5 The husband died after the appeal was filed; his wife was substituted as
personal representative of his estate.
6 Because the plaintiffs failed to raise this argument in the trial court, it is not
preserved for appeal. See Franklin v. Patterson-Franklin,
98 So. 3d 732, 738 (Fla.
2d DCA 2012).
6
“[T]he question of whether an insurer has acted in bad faith in handling
claims against the insured is determined under the ‘totality of the
circumstances standard.’”
Id. (quoting Berges v. Infinity Ins. Co.,
896 So.
2d 665, 680 (Fla. 2004)) (alteration in original).
Here, the husband argued the UM carrier failed to tender the full policy
limits in a timely manner. On February 24, 2010, the CRN expired without
the UM carrier tendering its policy limits. The UM carrier did not offer the
full policy limits until June 2, 2010. At mediation two days later, the UM
carrier reiterated its offer to tender the full policy limits. The plaintiffs
rejected the offer as noted in the activity log note.
It is well established that “the focus in a bad faith case is not on the
actions of the claimant, but rather on those of the insurer in fulfilling its
obligations to the insured.” Harvey, 259 So. 3d at 7 (quoting Berges,
896
So. 2d at 677). The introduction of the plaintiffs’ offer had nothing to do
with whether the UM carrier acted in bad faith when it failed to tender its
policy limits until June 2, more than three months after the CRN expired.
The UM carrier’s introduction of the plaintiffs’ settlement offer was
solely to demonstrate that the plaintiffs, not the UM carrier, acted in bad
faith. Because the activity log note was irrelevant, the court erred in
admitting it into evidence. § 90.401, Fla. Stat. (2019).
• Settlement Offer
The husband next argues the settlement offer was inadmissible,
pursuant to section 90.408, Florida Statutes (2019). That section
provides:
Evidence of an offer to compromise a claim which was
disputed as to validity or amount, as well as any relevant
conduct or statements made in negotiations concerning a
compromise, is inadmissible to prove liability or absence of
liability for the claim or its value.
§ 90.408, Fla. Stat. (2019).
“A fundamental premise for the application of this rule is that the offer
to compromise must relate to the claim disputed in the lawsuit.” Rease v.
Anheuser-Busch, Inc.,
644 So. 2d 1383, 1388 (Fla. 1st DCA 1994). “The
purpose of the statute is to allow counsel to communicate freely in an effort
to settle litigation without the risk that any statement made will be used
against his clients.” Rubrecht v. Cone Distributing, Inc.,
95 So. 3d 950, 956
7
(Fla. 5th DCA 2012).
The note reflected settlement negotiations between the same parties
involved in the bad faith trial. For this additional reason, the activity log
note should not have been admitted.
• Mediation Communications
The husband last argues the activity log note was inadmissible because
it was a privileged mediation communication pursuant to section 44.405,
Florida Statutes (2019). The statute provides, “all mediation
communications shall be confidential. A mediation participant shall not
disclose a mediation communication to a person other than another
mediation participant or a participant’s counsel.”
Id. The statute defines
a mediation communication as “an oral or written statement, or nonverbal
conduct intended to make an assertion, by or to a mediation participant
made during the course of a meditation, or prior to mediation if made in
furtherance of a mediation.” § 44.403(1), Fla. Stat. (2019).
The UM carrier responds the activity log note could not be a mediation
communication because both the plaintiffs and the UM carrier were
parties to the mediation. It relies on Bowdler v. State Farm Mutual
Automobile Insurance Co., 2:13-cv-539-FtM-38CM,
2014 WL 2700672
(M.D. Fla. Jun. 13, 2014) (holding activity logs containing summaries and
analyses of communications in underlying mediation fell outside privilege
because both parties participated in the mediation). The UM carrier’s
reliance on Bowdler however is misplaced. There, the court addressed
whether the summaries were discoverable, not their admissibility.
A mediation party is defined as “a person participating directly, or
through a designated representative, in a mediation and a person who: (a)
is a named party; [or] (b) is a real party in interest. . . .” § 44.403(3), Fla.
Stat. (2019). “Thus, the mediation privilege . . . protects disclosure of
communications that were made during mediation from those who were
not participants in the mediation process.” Strong v. GEICO Gen. Ins. Co.,
8:16-cv-1757-T-36JSS,
2017 WL 1006457, at *3 (M.D. Fla. Mar. 15, 2017).
Where the parties in the litigation were participants to the mediation in
the underlying action, a party is precluded from asserting the mediation
privilege. Id.; see also Bowdler,
2014 WL 2700672, at *3.
Here, the activity log note was introduced into evidence and published
to a third party not in attendance at mediation—the jury. In so doing, the
activity log was published to a party outside the ambit of those privileged
to see it under the statute. Drummond v. Zimmerman, 19-81532-CIV, 2020
8
WL 1845003, at *1 (S.D. Fla. April 13, 2020) (“Inclusion of mediation
statements in public court filings is a violation of [the Florida Mediation]
Act.”). For this third reason, the activity log note should not have been
admitted.
Because the activity log note was irrelevant and ran afoul of the rules
of evidence concerning settlement negotiations and the mediation
privilege, the trial court erred in overruling the husband’s objection to its
admission. We therefore reverse and remand the case for a new trial.
Reversed and Remanded.
WARNER, J., and HILAL, JENNIFER, Associate Judge, concur.
* * *
Not final until disposition of timely filed motion for rehearing.
9
