On January 22, 2016, Judge Gregory Presnell of the Middle District of Florida entered an order denying Plaintiff’s Motion to Remand an uninsured/underinsured motorist (“UIM”) case to state court. See Johnson v. State Farm Mut. Auto. Ins. Co., 2016 WL 277768 (M.D. Fla. Jan. 22, 2016). Johnson is one more in a long line of decisions which hold that a bad faith claim following a favorable UIM verdict, constitutes a “separate and independent” action from the underlying UIM claim. As such, it is removable notwithstanding the one-year limitation on removal contained in the federal removal statute.
This line of cases stands in stark contrast to other decisions which hold that, if the Plaintiff includes a bad faith claim in his or her initial complaint (which is generally abated), revival of the bad faith claim following a favorable outcome on the UIM case relates back to the date of the original filing such that after one year, the case is not removable.
Judge Presnell agreed with those decisions holding that the case is removable if removed within thirty days of the date the bad faith claim is added by amendment, or “unabated.” His decision is in line with Florida Supreme Court precedent holding that a bad faith claim is “grounded upon the legal duty to act in good faith, and is thus separate and independent of the claim arising from the contractual obligation to perform.” Judge Presnell’s reasoning is unassailable:
A Florida statutory bad faith claim is a separate and independent action regardless of whether it is asserted in a subsequent lawsuit or is simply tacked-on to the original UM case. Thus, this Court continues to agree with the Lahey line of cases holding that the amended bad faith complaint is an “initial pleading” to which the 1 year limitation of 1446(c) does not apply.
Unfortunately, while this ruling adds another stick to the “separate and independent” line of cases, it is not likely that the Eleventh Circuit will ever have occasion to address the District Court split, since an order denying remand is not immediately reviewable. Neither is it an issue sufficient for reversal after the conclusion of the bad faith claim. The Eleventh Circuit Court of Appeals had the opportunity to decide the issue several years ago, but held that, since untimeliness of removal is a procedural defect, not a jurisdictional defect, it would not supply a legal justification for vacating a final judgment in the bad faith case.
Because the removal issue can only be addressed upon completion of the bad faith claim, it can never serve as a basis for reversal. Therefore, for all intents and purposes, Florida’s District Courts will remain the final arbiters of whether a bad faith claim is “separate and independent” of the UIM claim.
Judge Presnell applied the correct rule in line with decades of Florida Supreme Court precedent. Hopefully, his ruling signals a trend toward the proper approach to this issue by Florida’s federal courts.