Mary Bottini v. GEICO

Case: 15-12266 Date Filed: 06/15/2017 Page: 1 of 20
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12266
Argument Calendar
________________________
D.C. Docket No. 8:13-cv-00365-EAK-AEP
MARY BOTTINI,
as Personal Representative of the
Estate of Gerard Bottini,
Plaintiff - Appellee,
versus
GEICO,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 15, 2017)
Case: 15-12266 Date Filed: 06/15/2017 Page: 2 of 20
Before TJOFLAT and MARCUS, Circuit Judges, and STEELE, * District Judge.
TJOFLAT, Circuit Judge:
In this § 1292(b) interlocutory appeal, we consider a narrow issue
concerning claims against uninsured/underinsured motorist (“UM”) insurance1
providers under Florida law. Florida, by statute, imposes a duty on insurers to
settle their policyholders’ claims in good faith. Fla. Stat. § 624.155. If a UM
insurer fails to settle a legitimate claim within the statutory time limit, its
policyholder may obtain, through two lawsuits, two sets of damages: one for
breach of contract up to the policy maximum and another for bad faith for the full
amount of the policyholder’s injury (“statutory damages”). 2 Here, the parties
disagree about whether the Court in this bad-faith case is bound by the state court
jury’s determination of damages in the underlying UM breach-of-contract action.
During the pendency of this appeal—but prior to oral argument—the Florida
Supreme Court held that the determination of damages in a UM contract case is
binding in a subsequent bad-faith case. Fridman v. Safeco Ins. Co. of Ill., 185 So.
*
Honorable John E. Steele, United States District Judge for the Middle District of
Florida, sitting by designation.
1
UM insurance protects policyholders against losses caused by UMs—drivers who lack
sufficient insurance to cover the damages they cause to others.
2
Statutory damages “include the total amount of the claimant’s damages, including the
amount in excess of the policy limits . . . and any damages caused by a violation of a law of
[Florida].” Fla. Stat. § 627.727(10). Pursuant to the statute, after a claimant’s damages are
determined, a court would also assess “interest on unpaid benefits, reasonable attorney’s fees and
costs.” Id. “The total amount of the claimant's damages is recoverable whether caused by an
insurer or by a third-party tortfeasor.” Id.
2
Case: 15-12266 Date Filed: 06/15/2017 Page: 3 of 20
3d 1214, 1216 (Fla. 2016). Critical to this appeal, however, Fridman contained a
caveat that the parties have a right to appellate review of the statutory-damages
determination before it becomes binding in the subsequent bad-faith case. Id. at
1226. We conclude that the defendant, GEICO, did not receive appellate review of
the statutory-damages determination in the parties’ underlying breach-of-contract
case. Therefore, that damages determination does not bind the parties in this bad-
faith case. We thus reverse the District Court’s order granting partial summary
judgment on the binding effect of the verdict in the Circuit Court’s breach-of-
contract case, and hold that the parties must again litigate statutory damages.
I.
This case began tragically. On March 3, 2007 at around 12:10 AM, Gerard
Bottini was traveling on I-75 in Hillsborough County, Florida. A car ahead of him
caught fire and began emitting smoke, obscuring his view of the road. As a result,
he lost control of his vehicle, which left the roadway, rolled over, and ejected him.
He died later that day from his injuries.
The vehicle Mr. Bottini was driving was insured by a GEICO policy that
provided $50,000 of UM coverage. The car that caught fire was underinsured for
purposes of Fla. Stat. § 627.727. After Mr. Bottini’s death, Mary Bottini, his wife,
became the personal representative of Mr. Bottini’s estate. In the months
following the crash, Ms. Bottini’s lawyer sent two letters to GEICO demanding
3
Case: 15-12266 Date Filed: 06/15/2017 Page: 4 of 20
payment of the policy maximum because Mr. Bottini was not at fault, and GEICO
had possession of crash reports supporting that conclusion. GEICO denied the
requests, stating that it was still conducting its own investigation to determine
whether Mr. Bottini was at fault for the accident, which would render the coverage
inapplicable.
On August 8, 2007, 104 days after Ms. Bottini’s lawyer sent her first letter to
GEICO and 158 days after the crash, she filed a Civil Remedy Notice of Insurer
Violation (“CRN”) with the Florida Department of Financial Services. Filing the
CRN is a statutory prerequisite to filing a bad-faith claim against an insurer. Fla.
Stat. § 624.155(3). As required by § 624.155(3)(b)(1), Ms. Botini’s CRN listed the
statutory provisions that she alleged GEICO was violating by failing to honor her
claim. 3 GEICO responded to Ms. Botini’s CRN on October 5, 2007, stating that its
3
The CRN specified that GEICO was allegedly violating Fla. Stat. §§ 624.155(1)(a)(1)
and 624.155(1)(b)(1). Section 624.155(1)(a)(1) provides, in relevant part, that “[a]ny person
may bring a civil action against an insurer when such person is damaged [b]y a violation of . . .
Section 626.9541(1)(i).” Section 626.9541(1)(i) prohibits
[c]ommitting or performing with such frequency as to indicate a general business
practice any of the following:
a. Failing to adopt and implement standards for the proper investigation of
claims;
...
c. Failing to acknowledge and act promptly upon communications with respect to
claims;
...
e. Failing to affirm or deny full or partial coverage of claims . . . .
4
Case: 15-12266 Date Filed: 06/15/2017 Page: 5 of 20
investigation had led it to conclude that smoke from the vehicle in front of Gerard
Bottini did not cause him to lose control of his vehicle, it had not acted in bad faith,
and it would “continue to make every attempt to resolve this claim amicably.”
About two weeks later, in an apparent change of heart, GEICO sent Ms. Bottini’s
lawyer a check for the full $50,000, including with it a complete release of liability
for any related claims. 4 Ms. Bottini rejected the release of liability and returned
the check.
In April 2008, Ms. Bottini sued GEICO in the Circuit Court for
Hillsborough County, Florida seeking benefits under the UM policy. GEICO
defended on the basis that Mr. Bottini was negligent in driving his vehicle and such
negligence was either the sole or contributing cause of the accident. Ms. Bottini
countered that the vehicle that caught fire ahead of Mr. Bottini was maintained and
operated negligently, and that negligence caused the crash, not any breach of duty
committed by Mr. Bottini.
The case was tried to a jury, and the jury found for Ms. Bottini. It decided
that Mr. Bottini was not negligent, that both the operator and owner of the smoking
Section 624.155(1)(b)(1) provides a civil action against an insurer who fails to “attempt[] 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.”
4
GEICO’s tender of the $50,000 took place 76 days after the initial filing of the CRN,
which meant it could not avail itself of Fla. Stat. § 624.155(3)(d), which provides, “No [bad-
faith] action shall lie if, within 60 days after filing [the CRN], the damages are paid or the
circumstances giving rise to the violation are corrected.”
5
Case: 15-12266 Date Filed: 06/15/2017 Page: 6 of 20
vehicle were negligent, and that GEICO was therefore liable. The jury also
decided the full extent of damages arising from the accident—$103,552 to the
estate; $14,522,478 to Ms. Bottini for loss of support, services, companionship,
and pain and suffering; and around $5,400,000 to each of Mr. Bottini’s three
children for loss of support and services, parental companionship, instruction and
guidance, and pain and suffering. In total, the jury found damages amounting to
$30,872,266.
Following the verdict, GEICO filed motions for new trial and remittitur, but
those were denied. It then filed a motion in the Circuit Court to limit the judgment
to the $50,000 policy maximum, and that motion was granted. Thus, after reciting
the jury’s $30,872,266 damages verdict and assessing setoffs,5 the Court entered a
final judgment for $50,000.
GEICO appealed the judgment to the Second District Court of Appeal. It
sought a new trial on several grounds, three of which were pertinent to the
computation of damages. It argued that Ms. Bottini’s counsel impermissibly
attacked the character of the driver of the vehicle that caught fire, that Ms.
5
The setoffs resulted from settlements the Bottinis received from two other insurance
policies. One was a $25,000 settlement tendered to the Plaintiff by the insurer of the vehicle that
caught fire, and the other was a $1,000,000 settlement from Transcontinental Insurance
Company. Transcontinental also insured the Bottini vehicle and provided UM benefits.
Transcontinental tendered its $1,000,000 policy limit after receiving the same CRN that GEICO
received. It, however, tendered its policy maximum within the sixty-day limit set forth in Fla.
Stat. § 624.155(3)(d) and therefore relieved itself of liability under §624.155. See supra note 4.
6
Case: 15-12266 Date Filed: 06/15/2017 Page: 7 of 20
Bottini’s counsel made a highly inflammatory closing argument, and that
$30,000,000 in damages was excessive and against the “manifest weight of the
evidence.” GEICO also contended that the judgment clearly reflected a “punitive
component” as a result of “prejudicial and improperly admitted evidence and
argument.”
The Second District affirmed the judgment in a short per curiam opinion that
reads in its entirety as follows:
Geico General Insurance Company raised five issues in this appeal. We
conclude that none of the issues warrants reversal. We note that Geico’s
arguments include claims of error that impacted the amount of damages
determined by the jury. The jury verdict found that the Estate's damages
were $30,872,266. But the judgment amount entered by the trial court
against Geico is $50,000, based on the applicable insurance policy limits.
Based on the evidence presented, we are satisfied that even if Geico were
correct that errors may have affected the jury's computation of damages, in
the context of this case and the amount of the judgment, any such errors
were harmless. Thus, we do not address further Geico’s claims of error.
Geico Gen. Ins. Co. v. Bottini, 93 So. 3d 476, 477 (Fla. Dist. Ct. App. 2012).
Judge Altenbernd wrote separately to address the elephant in the room—the
effect of the jury’s calculation of damages in the UM suit on the inevitable,
forthcoming bad-faith lawsuit:
This appeal is motivated by the lawsuit that both parties know will follow.
The Estate will sue GEICO under section 624.155, Florida Statutes (2006),
for failure to settle this claim at an earlier time . . .
The statute does not explain how the finder of fact in the next lawsuit
determines the “total amount” of the claimant's damages. Not unreasonably,
both sides in this appeal anticipate that the Estate will attempt to use the
7
Case: 15-12266 Date Filed: 06/15/2017 Page: 8 of 20
verdict in this case as evidence of the total amount of damages in the next
lawsuit.
Constitutionally, this court is given power to review final judgments
for reversible error. We can also write an opinion affirming a judgment as to
issues that, if we were to reach an opposite result, would lead to a reversal of
the judgment. But I am unconvinced that we have a scope of review that
allows us to rule on issues that do not and cannot affect the judgment on
appeal. In this case, given that we decided to affirm on the issues relating to
liability, GEICO essentially wants this court to write an opinion that affirms
the judgment, but “reverses” the verdict as to elements of damage not
included within the judgment. I simply conclude that this court does not
have the power to issue such an opinion. The fact that such an opinion
might be convenient for purposes of the next lawsuit or facilitate its
settlement does not change the authority given to me under the Florida
Constitution.
Accordingly, this concurrence permits both sides to know that at least
one judge on this panel has not decided that the verdict is correct or
incorrect. . . . If I am refusing to do that which the law requires me to do, I
would assume that by writ of mandamus the supreme court could order me
to conduct such a review. If so ordered, I would perform that review.
Id. at 478 (Altenbernd, J., concurring) (footnote omitted). GEICO did not seek
discretionary postjudgment review in the Second District or in the Supreme Court
of Florida.
Ms. Bottini brought this action in the District Court on February 8, 2013,
invoking the Court’s diversity jurisdiction under 28 U.S.C. § 1332. She alleged
that GEICO acted in bad faith, violating several provisions of Fla. Stat. § 624.155.
She contended that she was therefore entitled, in accordance with Fla. Stat. §
627.727(10), to the full amount of damages designated by the jury in the UM
breach-of-contract lawsuit. Ms. Bottini then moved the District Court for summary
judgment on the issue of damages, arguing that the Circuit Court jury verdict fixed
8
Case: 15-12266 Date Filed: 06/15/2017 Page: 9 of 20
the damages at $30,872,266. GEICO countered, arguing that it never received
appellate review of that damages verdict; therefore, giving effect to the verdict in
the bad-faith lawsuit would violate its right to procedural due process.
The District Court granted Ms. Bottini’s motion, holding that the verdict was
binding as the measure of damages in the bad-faith suit. GEICO subsequently
filed a motion for reconsideration of the District Court’s order, or alternatively, to
certify the order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).6 The
District Court denied reconsideration but certified the order for interlocutory
appeal. This Court agreed to hear the appeal.
II.
In this Part, we explain the mechanics of an insurer-bad-faith suit under
Florida law. Part II.A details the history of Florida’s bad-faith cause of action.
Part II.B explains the requirements for a plaintiff to prevail on a bad-faith claim
against a UM insurer, including the Florida Supreme Court’s recent clarification in
6
28 U.S.C. § 1292(b) provides, in full,
When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order involves a
controlling question of law as to which there is substantial ground for difference
of opinion and that an immediate appeal from the order may materially advance
the ultimate termination of the litigation, he shall so state in writing in such order.
The Court of Appeals which would have jurisdiction of an appeal of such action
may thereupon, in its discretion, permit an appeal to be taken from such order, if
application is made to it within ten days after the entry of the order: Provided,
however, That application for an appeal hereunder shall not stay proceedings in
the district court unless the district judge or the Court of Appeals or a judge
thereof shall so order.
9
Case: 15-12266 Date Filed: 06/15/2017 Page: 10 of 20
Fridman that the underlying UM breach-of-contract suit determines forward-
looking damages.
A.
In 1982, the Florida legislature enacted § 624.155, which imposed on
insurers a duty to administer policyholders’ claims in good faith and equipped
policyholders with a cause of action against insurers that failed to do so. Fla. Stat.
§ 624.155(1)(b)(1); Fridman, 185 So. 3d at 1220. Accordingly, an insurer that
fails to settle a legitimate claim in good faith is subject to liability both for
breaching its contract with the policyholder—the insurance policy—and for
violating Florida’s bad-faith statute.
Before a policyholder can bring a bad-faith claim under § 624.155, he must
first give notice to the insurance company. Fla. Stat. § 624.155(3)(a). The
policyholder’s notice, the CRN, must allege specific statutory violations and detail
the facts giving rise to, and the policy language relevant to, the claim. 7 Fla. Stat. §
7
Specifically, the statute requires that:
(b) The notice shall be on a form provided by the department and shall state with
specificity the following information, and such other information as the
department may require:
1. The statutory provision, including the specific language of the statute, which
the authorized insurer allegedly violated.
2. The facts and circumstances giving rise to the violation.
3. The name of any individual involved in the violation.
4. Reference to specific policy language that is relevant to the violation, if any. If
the person bringing the civil action is a third party claimant, she or he shall not be
required to reference the specific policy language if the authorized insurer has not
10
Case: 15-12266 Date Filed: 06/15/2017 Page: 11 of 20
624.155(3)(b)(1)–(5). After the insurer receives the CRN, it has sixty days to
either pay the policyholder or “correct[]” “the circumstances giving rise to the
violation.” Fla. Stat. § 624.155(3)(d). If the insurer pays or corrects the
circumstances giving rise to the violation, the policyholder’s bad-faith cause of
action is extinguished. Id. If the insurer does neither, like GEICO here, the
policyholder may proceed with his suit.
For several years after the statute was enacted, Florida courts struggled to
understand how to calculate damages in UM bad-faith suits. The Florida Supreme
Court initially interpreted the statute to allow damages in excess of the UM policy
only when the damages were “the natural, proximate, probable, or direct
consequence of the insurer’s bad faith actions.” McLeod v. Cont’l Ins. Co., 591
So. 2d 621, 626 (Fla. 1992). In other words, if an insurer’s bad-faith conduct
amounted to a simple delay in settling a legitimate claim, a policyholder ordinarily
could not recover damages beyond the policy maximum and the costs associated
provided a copy of the policy to the third party claimant pursuant to written
request.
5. A statement that the notice is given in order to perfect the right to pursue the
civil remedy authorized by this section.
Fla. Stat. § 624.155(3)(b)(1)–(5).
11
Case: 15-12266 Date Filed: 06/15/2017 Page: 12 of 20
with litigation. Fridman, 185 So. 3d at 1221. The legislature rebuked the McLeod
interpretation, enacting § 627.627(10), which reads as follows:
The damages recoverable from an uninsured motorist carrier in an
action brought under s. 624.155 shall include the total amount of the
claimant's damages, including the amount in excess of the policy
limits, any interest on unpaid benefits, reasonable attorney’s fees and
costs, and any damages caused by a violation of a law of this state.
The total amount of the claimant’s damages is recoverable whether
caused by an insurer or by a third-party tortfeasor.
Fla. Stat. § 627.627(10) (emphasis added). Florida courts thereafter acknowledged
that § 627.727(10) “clearly and unambiguously reflects the legislative intent that
the damages in section 624.155 bad faith actions shall include any amount in
excess of the policy limits.” Fridman, 185 So. 3d at 1221 (emphasis in original).
B.
Before a policyholder may file a bad-faith lawsuit in which she alleges that
her UM insurer failed to settle a meritorious claim in good faith, she must first
establish that her claim was, indeed, meritorious. Blanchard v. State Farm Mut.
Auto. Ins. Co., 575 So. 2d 1289, 1291 (Fla. 1991). She does so by obtaining a
determination that her insurer is contractually liable under her UM insurance
policy. Id; Fridman, 185 So. 3d at 1224. In addition to establishing contractual
liability, the policyholder must also obtain a full determination of damages arising
12
Case: 15-12266 Date Filed: 06/15/2017 Page: 13 of 20
out of the event giving rise to the UM claim. 8 As the Florida Supreme Court put it,
“the determination of the existence of liability on the part of the uninsured
tortfeasor and the extent of the [insured’s] damages are elements of a cause of
action for bad faith.” Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1275 (Fla. 2000)
(quoting Blanchard, 575 So. 2d at 1291) (quotation marks omitted) (alteration in
original).
But how is the damages element established in a bad-faith action? Is the
initial statutory damages determination binding in the subsequent bad-faith action?
Previous courts had reached conflicting conclusions.9 The Florida Supreme Court
recently clarified in Fridman that the damages determination in the underlying UM
judgment does in fact bind the court in the subsequent bad-faith action:
[I]t is obvious that the UM verdict to which the insured is entitled
must be binding in the bad faith action. Because a determination of
the full extent of the insured's damages is one of the prerequisites to a
bad faith cause of action, to preclude a UM verdict in excess of the
policy limits from being used in the bad faith case would force the
parties to relitigate the issue of damages a second time prior to the bad
8
As the Florida Supreme Court noted in Fridman, however, contractual liability and
damages need not be determined by a jury—“an agreed settlement, arbitration, or stipulation
before initiating a bad faith cause of action” would work as well. 185 So. 3d at 1224.
9
Compare King v. Gov't Emps Ins. Co., No. 8:10-CV-977-T-30AEP, 2012 WL 4052271
(M.D. Fla. Sept. 13, 2012) (noting that the jury verdict in the UM suit was not binding on the
subsequent bad-faith suit); Harris v. Geico Gen. Ins. Co., 961 F. Supp. 2d 1223 (S.D. Fla. 2013),
aff'd, 619 F. App'x 896 (11th Cir. 2015) (same) with Wiggins v. Allstate Prop. & Cas. Ins. Co.,
No. 13-23354-CIV, 2015 WL 1396583, at *4 (S.D. Fla. Mar. 6, 2015), report and
recommendation adopted sub nom. Wiggins v. Allstate Prop. & Cas. Ins. Co., No. 13-CV-23354,
2015 WL 1402970 (S.D. Fla. Mar. 18, 2015) (finding that the UM jury verdict was binding as a
measure of damages in the bad-faith suit); Cadle v. Geico Gen. Ins. Co., No. 6:13-CV-1591-
ORL-31GJK, 2014 WL 4983791, at *2 (M.D. Fla. Oct. 6, 2014) (same).
13
Case: 15-12266 Date Filed: 06/15/2017 Page: 14 of 20
faith trial. This would be an obvious waste of judicial and litigant
resources. It would also result in serious, unintended consequences,
such as “running the almost-certain risk of inconsistent verdicts;
potentially raising comity issues between state and federal courts;
creating a discrepancy . . . between first- and third-party bad faith
claims; placing an inexplicable burden on plaintiffs to prove their
cases twice; and causing a great deal of judicial inefficiency.”
185 So. 3d at 1224–25 (citation omitted).
Given the significance of the initial statutory-damages determination, the
Court held that parties have a right to appeal it. The Court rejected the argument
that appellate courts lack jurisdiction to review damages in excess of the policy
maximum and additionally rejected the Second District’s reasoning in Bottini that
errors in calculating damages are subject to mere harmless-error review:
[W]e do not agree . . . that the appellate court is without jurisdiction
to review the UM verdict.
District courts of appeal have appellate jurisdiction under
article V, section 4(b)(1), of the Florida Constitution. While district
courts do not have jurisdiction over all non-final orders, in this case,
the final judgment including the determination of the full extent of
damages was properly within the jurisdiction of the [District Court
of Appeal]. Further, once the trial court denied Safeco's motion for a
new trial, rejecting a claim of an excessive verdict, that order also
became subject to appellate review—as Safeco evidently understood
when it filed its appeal in this case.
We therefore respectfully disagree with the view that a district
court lacks jurisdiction to review an excess verdict, if the amount of
damages was not included within the final judgment.
...
We also disagree with the view taken by the Second District
Court of Appeal in Bottini, in which it held that “even if Geico were
correct that errors may have affected the jury’s computation of
damages,” any errors in the jury’s computation of damages were
“harmless” . . . . [T]he damages reflected in the UM verdict are
14
Case: 15-12266 Date Filed: 06/15/2017 Page: 15 of 20
significant relative to the UM policy limits because the damages will
eventually become part of the subsequent bad faith case.
Id. at 1226–28. Denying the parties a right to appeal the binding damages
determination, the Court reasoned, could give rise to procedural due process
problems. Id. at 1226. To prevent such problems, the Court concluded that
damages determinations in this context are not binding unless both parties are
afforded an “opportunity . . . to obtain appellate review of any timely raised claims
of error in the determination of damages obtained in the UM trial.” Id.
Fridman therefore provides the framework we must apply in determining
whether the UM verdict in the case underlying this appeal is binding in the bad-
faith action in the District Court.
III.
To determine whether the UM verdict now binds GEICO, we must resolve
two questions. First, did GEICO actually receive appellate review of the Circuit
Court’s determination of statutory damages? Second, if GEICO did not receive
appellate review, did its failure to pursue further review of the Second District’s
decision waive any objection it might have had to using that determination in the
bad-faith suit? We address each question in turn.
15
Case: 15-12266 Date Filed: 06/15/2017 Page: 16 of 20
A.
To determine whether GEICO received appellate review of the Circuit Court
jury’s damages calculation, we must examine the Second District’s decision. As
noted above, the decision offers little to parse:
Geico General Insurance Company raised five issues in this appeal.
We conclude that none of the issues warrants reversal. We note that
Geico’s arguments include claims of error that impacted the amount
of damages determined by the jury. The jury verdict found that the
Estate’s damages were $30,872,266. But the judgment amount
entered by the trial court against Geico is $50,000, based on the
applicable insurance policy limits. Based on the evidence presented,
we are satisfied that even if Geico were correct that errors may have
affected the jury’s computation of damages, in the context of this case
and the amount of the judgment, any such errors were harmless.
Thus, we do not address further Geico’s claims of error.
Bottini, 93 So. 3d at 477. Though it is short, the opinion reveals that the Second
District did not review the errors GEICO alleged to the extent such errors may
have impacted damages beyond the $50,000 policy maximum. The Court refused
to do so because it believed that “any such errors were harmless.” Id. Because the
Second District chose not to address GEICO’s alleged errors, we hold that it failed
to provide the appellate review to which GEICO was entitled under Florida law.
Our interpretation of the Second District’s opinion is not shaken by the
Court’s statement that “none of the issues [raised by GEICO] warrants reversal.”
Id. As explained above, the Court reached this conclusion not because it found
that errors had not tainted the jury’s computation of damages, but because it
16
Case: 15-12266 Date Filed: 06/15/2017 Page: 17 of 20
mistakenly believed that the alleged errors, “even if” they had occurred, would not
warrant reversal. Nowhere does the Court say that the jury did not commit errors,
and to nevertheless interpret its opinion in that way would render superfluous its
discussion of harmlessness.
We are not the only Court to interpret the Second District’s opinion in this
way. In Fridman, the Florida Supreme Court repudiated the Second District’s
harmless-error approach. 185 So. 3d at 1228. If the Second District had actually
reviewed the errors alleged by GEICO, then the Florida Supreme Court would
have nothing to repudiate. But the Florida Supreme Court did repudiate because it,
like us, read the Second District’s opinion as demonstrating the Second District’s
failure to review for errors due to a mistaken belief that such a review would be
inconsequential “in the context of [the] case.” Bottini, 93 So. 3d at 477.
Because the Second District did not review the errors alleged by GEICO, we
conclude that GEICO has been denied its “right to appellate review of properly
preserved claims of error in the determination of damages.” Fridman, 185 So. 3d
at 1224. We now turn to whether GEICO waived its right to appellate review by
failing to take any additional actions after the Second District issued its opinion.
B.
As Ms. Bottini observes, GEICO had several options available to it to seek
review of the Second District’s decision. It could have sought review in the
17
Case: 15-12266 Date Filed: 06/15/2017 Page: 18 of 20
Second District by moving the Court to clarify or rehear its decision under Fla. R.
App. P. 9.330(a); it could have moved the Second District to rehear the case en
banc under Fla. R. App. P. 9.331; it could have sought review in the Florida
Supreme Court under Fla. R. App. P. 9.330(a) or 9.120; and it could have taken
Judge Altenbernd’s suggestion to file a writ of mandamus in the Florida Supreme
Court. Did its failure to take any of these steps deprive it of the right to object to
using the damages verdict in the District Court?
We think not. Had GEICO failed to appeal the verdict to the Second
District, the answer may be different. However, the key difference between an
appeal to a district court of appeal and all of the alternative procedures listed above
is that the alternative procedures are all discretionary. None guarantees that
GEICO would have had its argument considered. By contrast, a litigant can appeal
to a district court of appeal as a matter of right. Fla. Const. art. V, § 4. When, in
Fridman, the Florida Supreme Court characterized appellate review as a right
afforded to the parties, we think it must have been referring to appellate review in a
district court of appeal, the only court in which the litigants have a right to
appellate review. Fridman, 185 So. 3d at 1224. This is why the Second District
erred for failing to review GEICO’s alleged errors—it did not vindicate that right.
Moreover, it is not self-evident how a waiver rule other than failing to
appeal to a district court of appeal would work in this case. Because GEICO had
18
Case: 15-12266 Date Filed: 06/15/2017 Page: 19 of 20
several options available to it, which options would have satisfied a waiver rule?
Would GEICO have to exhaust its remedies and pursue all of them? Would it have
to pursue only one, and, if so, which one? Perhaps Ms. Bottini might argue that
GEICO had to do something. But GEICO did do something: it appealed to the
Second District, the only court in which it was guaranteed to have its argument
heard. We do not read in to Fridman a mandate to pursue additional discretionary
review after a district court of appeal issues its judgment.
True, the Florida Supreme Court in Fridman discussed the District Court’s
order in this case in which the District Court seems to acknowledge the existence
of some form of waiver to appellate review. In doing so the Court does not
explicitly disapprove of the District Court’s reasoning:
When the Bottini litigants proceeded with the bad faith case, Judge
Kovachevich came to the conclusion that the amount of damages is
necessarily determined in the underlying UM action and also
determined that the insurer failed to pursue further relief to review the
Second District’s decision. See Bottini v. Geico Gen. Ins. Co., No.
8:13–CV–365–T–17AEP, 2014 WL 4749054, at *12 (M.D.Fla. Sept.
23, 2014).
Fridman, 185 So. 3d at 1228. Nevertheless, even if we interpret the Florida
Supreme Court as implicitly endorsing some sort of waiver rule by referring to the
District Court’s statement that “the insurer failed to pursue further relief to review
the Second District’s decision,” such a waiver must jibe with the rest of the
opinion, which characterizes appellate review as a “right.” Id. at 1224, 1227. We
19
Case: 15-12266 Date Filed: 06/15/2017 Page: 20 of 20
do not think the Florida Supreme Court was referring to a right to file a piece of
paper with a court that had no obligation to consider the contents of the paper.
Because GEICO did, in fact, raise its objection in the Second District—the only
Court required to consider its argument—we do not add a gloss onto Fridman
requiring a litigant to pursue further, discretionary review after a district court of
appeal renders its decision.
IV.
We therefore conclude that the measure of damages determined by the jury
in Bottini’s underlying UM suit does not bind the parties in the present bad-faith
action in the District Court. GEICO is entitled to a new damages determination.
Accordingly, we REVERSE the grant of partial summary judgment and REMAND
for further proceedings consistent with this opinion.
SO ORDERED.
20