In Allstate Indemnity Insurance Company v. Nelson, ____ So.3d ____ (Fla. 2nd DCA May 22 2009), Nelson was seriously injured in a car accident. She and Allstate, her UM carrier, agreed to settle the case for her UM policy limits of $250,000. Allstate tendered the $250,000, but under separate cover, Allstate requested that Nelson execute a release which released all claims, including any claims for bad faith.
Nelson then filed a three count complaint against Allstate. In Count I, she sought to enforce the settlement agreement, claiming that she had not agreed to waive any bad faith claims; in Count II Nelson sought additional damages against Allstate over and above the $250,000; and in Count III Nelson sought damages for bad faith. Nelson also sought discovery of Allstate’s claim’s file.
The trial court granted summary judgment to Nelson enforcing the settlement for $250,000, finding that the parties did not contemplate a release of bad faith claims as part of that settlement. The trial court allowed Counts II (setting the damages for the car accident) and III (bad faith) to continue against Allstate, and granted Nelson’s request to produce the claims file.
Allstate sought certiorari review of the discovery order to produce its claims file. The 2nd DCA ruled that Count III (bad faith) was "premature," and consequently quashed the discovery as to the claims file. As this appeal only dealt with the discovery issue, the court could not address whether Count III (bad faith) should have been dismissed. However, given the court’s order, I suspect that the bad faith count will be abated pending resolution of the claim setting the amount of damages.
(The opinion states that this request for the claims file was made as part of the bad faith case. I query whether some of that same discovery would have been allowed as part of the claim in Count I to enforce the settlement agreement).