No punitive damages for client who never signed UM coverage waiver
A South Florida appeals court reversed a trial court ruling involving a crash case stemming from an accident that occurred 18 years ago.
A South Florida appeals court reversed a trial court ruling involving a crash case stemming from an accident that occurred 18 years ago and remains in active litigation.
The long-running saga involves Janelle Ober, a Broward County motorist who was insured by Progressive Select Insurance Co. In this latest appeals ruling, Florida’s Fourth District Court of Appeal reversed an award of punitive damages to the driver who sought additional compensation at trial based on denial of coverage for not signing an insurance waiver.
After a 2005 collision with an uninsured motorist, Ober filed a claim with her insurer that was denied because Progressive said she did not select uninsured motorist coverage in her policy.
“We first went to trial on what’s known as a declaratory judgment. And we won that, stating that she did not sign the uninsured motorist coverage [form]. So she had the coverage,” said Kenneth Donald Cooper, a Fort Lauderdale attorney representing Ober.
His client went on to win a $400,000 judgment and was awarded punitive damage by a Broward County jury on a bad-faith claim based on what Cooper argued was Progressive’s admitted repeat pattern of this type of action, denying coverage based on verbally saying “no” to the additional UM coverage instead of getting it in writing.
“Judge Carlos Rodriguez granted the punitive damages based on Progressive’s statement that they have 3,000 policies with no signatures for uninsured motorist coverage,” he said,
Progressive appealed and the courts reversed the judge’s ruling this week.
In the appellate ruling, Fourth DCA Judge Melanie G. May wrote, “Here, the insured may have ‘alleged’ a bad faith claim. But the insurer argues, and we agree, the insured failed to proffer sufficient evidence as to provide a reasonable basis for recovery of punitive damages.”
The ruling also pointed out that Progressive argued that the trial court erred in allowing Ober to plead a punitive damage claim because she and her attorney failed to provide a reasonable basis to find the insurer’s acts “‘occur[red] with such frequency as to indicate a general business practice’ and were willful, wanton, and malicious and in reckless disregard of the insured’s rights. We agree and reverse.”
Cooper said his client obtained car insurance over the phone and by law, needed to sign an uninsured motorist coverage waiver. Before that could happen, the Broward County resident was involved in a collision resulting in extensive injuries.
The appeal ruling explained that to allow a punitive damage claim to be pleaded, the insured must also provide a reasonable basis for recovery of such damages by showing that the violation occurred with such frequency as to indicate a general business practice and these acts are willful, wanton, and malicious; in reckless disregard for the rights of any insured; or in reckless disregard for the rights of a beneficiary under a life insurance contract.
“What they [appeals court judges] are saying is I didn’t prove these elements for punitive damages,” Cooper lamented.
Judges Dorian K. Damoorgian and Jonathan D. Gerber concurred with May on the decision.
Representing Progressive in the appeal were Kristen M. Fiore, Antonio D. Morin and Gary J. Guzzi of Akerman. The appeal was based on a nonfinal order from the Broward Circuit Court Case No. CACE09-003236.
In conclusion, May wrote, “Specifically, the insured did not demonstrate the insurer violated Florida law in accepting verbal rejections at the time the policy was issued. In fact, the insurer’s position was that Florida law permitted verbal rejections. We, therefore, reverse and remand the case to the trial court to strike the punitive damage claim.”
To date, Cooper said his client, although she was insured, still has not received payment of any kind from the insurance company.
The matter now goes back to the trial court without punitive damages attached in hopes of Ober collecting on the $400,000 judgment, which has already been secured on appeal.