Most automobile accident claims are paid by insurers, but as a general rule, the insurer is not named as a party to the action. There are laws that are intended to keep the jury from learning that insurance would pay for the damages in a case before it so that the jury will not be influenced by that fact. The Second District recently considered whether a woman could bring a direct action against a liability insurer that she alleged had gone back on an agreement to pay the policy limits in GEICO General Insurance Company v. Lepine.

This case arose from a fatal automobile accident. The deceased man’s wife pursued a claim against the other driver’s insurance. She alleged that a representative of the insurance company agreed to pay her the $100,000 policy limits in both a voicemail message and a conversation with her attorney. She further alleged that the insurance company later refused to pay. She filed suit against both the driver and his insurer. In her complaint, she stated causes of action of negligence and wrongful death against the driver. She also alleged a breach of contract claim against the insurer for its failure to pay the policy limits, as well as a breach of contract claim against the driver for the insurer’s failure to pay.

The insurer moved to dismiss the claim against it. It argued that the nonjoinder statute barred the direct action against it. The nonjoinder statute, section 627.4136, Florida Statutes, states that a person who is not insured under the liability policy cannot bring a direct action against the liability insurer for a cause of action that is covered by the policy without first obtaining a settlement or verdict against the insured. The insurer may be joined when the judgment is entered or a settlement is reached during the pendency of litigation. The nonjoinder statute is designed to prevent the availability of insurance from influencing the jury’s determination of damages.

The trial court denied the motion to dismiss, finding that the claim was essentially “a motion to enforce a settlement.” The insurer petitioned for certiorari review of that decision. The Second District compared the present case with the case cited by the trial court and found the facts similar. In Hazen v. Allstate Ins. Co., Inc., the trial court had dismissed the claim against the insurer, and the appeals court had upheld the decision. The court found that a presuit agreement between the insurer and the injured party did not meet the condition precedent requirements of settlement or verdict under the nonjoinder statute. Such an agreement is based on the insurance contract and is not an independent obligation.

The statute allows the insurer to be joined only at the time of verdict or settlement during litigation. The Second District found that allowing the claim against the insurer to proceed would allow the jury to know that insurance was available, potentially influencing the verdict in the way that the nonjoinder statute is intended to prevent. The trial court’s denial of the motion to dismiss “departed from the essential requirements of law,” and the Second District granted the petition for writ of certiorari.

Although an accident victim cannot generally bring a direct action against an insurer, the victim may still be able to recover in a claim against the at-fault party. Only the breach of contract claim against the insurer was dismissed by the Second District. The plaintiff’s negligence and wrongful death claims against the driver may still be viable.

If you have been hurt in a car accident, the South Florida automobile accident attorneys at Anidjar & Levine have the knowledge and experience to help you. Call us at (800) 747-3733, or submit an online contact form.

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