Whether an insurance bad faith claim, joined by amendment to an underlying insurance coverage action, may be removed more than a year after the original action was begun has divided federal judges in the state of Florida but has not yet been considered by the Eleventh Circuit. Now, a new opinion out of the Middle District of Florida (Jacksonville Division) has added to the debate.
Jennifer Ann Hawkinson was a passenger in a car when it was hit by an uninsured motorist driving under the influence. Ms. Hawkinson then claimed coverage under two insurance policies, her own and her parents’ policy, both issued by State Farm Mutual Automobile Insurance Company. After State Farm denied her claim, Ms. Hawkinson brought an action against the uninsured motorist, a Florida citizen, and State Farm, on November 19, 2013. Ms. Hawkinson also served a civil remedy notice on State Farm, which State Farm failed to cure within 60 days, thereby establishing the prerequisite for a bad faith claim.
The court found in favor of Ms. Hawkinson after a bench trial and also allowed Ms. Hawkinson to file an amended complaint, which included a claim for punitive damages against the uninsured driver and a claim of bad faith against State Farm. The amended complaint was filed on April 25, 2016. The bad faith claim against State Farm was abated pursuant to a court order. After resolving the other claims, Ms. Hawkinson moved to lift abatement of the bad faith claim in state court. State Farm removed the bad faith claim, invoking the district court’s diversity jurisdiction. Ms. Hawkinson moved to remand, taking the position that removal was untimely.
In its decision, the district court found that because the case was not initially removable due to diversity, the case was subject to the one-year removability restriction in 28 U.S.C. § 1446. Though State Farm had removed the case within 30 days of the appellate court affirming the trial court’s ruling on the uninsured motorist claim, the case was “not removed within one year of the commencement of the action.” The district court disagreed that the post-verdict accrual of a bad faith claim should be treated as the commencement of a new action, reasoning that an action is deemed commenced when the complaint is filed. As such, the court held that because the original complaint was filed in November 2013 and State Farm did not file a notice of removal until April 2018, removal was untimely.
The decision highlights the split among district courts, as it relates to what appears to be a simple issue. It should serve as a reminder that even the most simplistic of issues should be scrutinized by counsel of all experience. Attorneys must be mindful of inconsistent decisions when strategizing on behalf of their clients.