Florida appellate court holds that uninsured motorist insurer may not appeal excess damages award where judgment capped at liability limit

GEICO General Ins. Co. v. Bottini, ___ So. 3d ___, 37 Fla. L. Weekly D1731a (Fla. 2d DCA Jul 20, 2012) is a UM case in which the jury placed 100% liability on the tortfeasor and awarded damages in the amount of over $30,000,000 (before setoffs). The tortfeasor had settled for its approximate policy limit of $1,000,000. GEICO’s UM limits were $50,000. The trial court properly limited judgment against GEICO to the $50,000 policy limit and GEICO appealed. GEICO argued comparative negligence, but its primary attack centered on the massive damages verdict on the basis that it was excessive and the product of improper arguments of counsel. However, the court concluded that any such errors were harmless, because GEICO admitted that the jury could have properly awarded $1,050,000 (the tortfeasor’s liability limit plus GEICO’s UM limit) “even in the fairest of trials.”

Judge Altenbernd, in a concurring opinion, acknowledged that the Issues raised by GEICO on appeal anticipated that in an ensuing first-party bad faith action, the amount of the verdict would be used as evidence of the claimant’s “total damages” under section627.727(10); however, in view of the limited amount of the judgment, the consideration of those issues was not within the permissible scope of review.

This case highlights an anomaly in the first-party bad faith scheme that Judge Altenbernd acknowledged was unique to UM cases under section 627.727(10) – the insurer does not have the ability to appeal the amount of the excess damages in the liability and damages trial, because the judgment against it must be capped at policy limits; but it is likely to be bound by the same damages amount in a subsequent action for violation of section 624.155.