KENILWORTH INSURANCE COMPANY, APPELLANT,
v.
TANIA PIZARRO, APPELLEE

Fla. 3d DCA | 1979-04-17
No. 78-1401
Before BARKDULL, HUBBART and SCHWARTZ, JJ.
369 So. 2d 995 Florida District Court of Appeal, Third District (1979) Positive Treatment
Cited by 4 cases

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Holding

The court held that a timely filed motion to limit judgment tolls the final judgment, allowing for appeal of the order denying that motion.


Headnotes

[1] A timely filed motion under Florida Rule of Civil Procedure 1.530(g) tolls the finality of a judgment for purposes of appeal.

[2] A direct action against a tortfeasor's liability insurer for recovery in excess of policy limits based on bad faith requires more than a mere allegation in a motion to li…

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Facts & Procedural History

Plaintiff sued for damages from an auto accident, obtaining a judgment exceeding the defendant insurer's policy limits. The insurer moved post-trial t…

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Opinion of the Court
BARKDULL, Judge.

BARKDULL, Judge.

Kenilworth Insurance Company, defendant in the trial court, takes this appeal from an order denying its post-trial motion to limit judgment to the amount of the policy coverage.

Tania Pizarro sued Jose Genova and his insurer (Kenilworth) for damages resulting from an automobile accident. Kenilworth claimed, during the discovery period, the policy limits ($20,000/$10,000/$5,000) were repeatedly made a matter of record and acknowledged by Pizarro. Kenilworth does admit that it received a letter from Pizarro’s counsel, wherein the attorney expressed the opinion that Section 324.021(7), Florida Statutes (1973) was applicable, thus making the policy limits $15,000/$30,000. Kenil-worth claimed that the statute was not applicable; that the issue .was never raised again. On the other hand, Pizarro points out that she made a demand of $45,000.00 against Kenilworth and Dade County (co-defendant in the trial court); that this demand resulted in nothing other than an offer of a judgment of $3,000.00. Pizarro acknowledges the fact that Kenilworth, by answers to interrogatories, claimed limits of $10,000/$20,000 but shows the court that after receipt of this information Pizarro claimed the applicability of Section 627.-733(3)(a), Florida Statutes (1973), and demanded $15,000.00 in settlement from Ken-ilworth. Pizarro also notes that the accident in question occurred in January of 1975, well before the statutory limits were reduced to flO.OOO.OO.1

The case went to trial and Pizarro received a verdict and judgment of $25,000.00 against Kenilworth and its insured. Kenil-worth filed a motion for new trial, which did not mention the problem of policy limits. Final judgment was entered on January 5, 1978; eight days later Kenilworth filed a motion to limit judgment, which was denied on June 26th and Kenilworth filed a notice of appeal from same on July 13th. The appellee notes that the notice of appeal does not refer to the final judgment, just the order on the motion.

The motion to amend was timely filed. See: Florida Rule of Civil Procedure 1.530(g). Therefore, being a timely filed motion, the final judgment was not rendered under Florida Appellate Rules until it was disposed of. See: Florida Appellate Rule 9.020(g).

Counsel for the appellee says that this case is controlled by the opinion in Williams v. Banning, 259 So. 2d 725 (Fla.2d DCA 1972). We agree. Not only does the instant case present a question of coverage, there is also an allegation of bad faith negotiations on the part of the appellant in attempting to settle the appellee’s claim. Inasmuch as appellee is entitled to bring an action directly against the tortfeasor’s liability insurer for recovery in excess of the policy limits, based on a claim of bad faith [Thompson v. Commercial Union Insurance Company of New York, 250 So. 2d 259 (Fla. 1971); Boston Old Colony Insurance Company v. Gutierrez, 360 So. 2d 464 (Fla.3d DCA 1978)], something more than a mere allegation in a motion to limit judgment is necessary to afford either the appellant’s insured or the appellee their day in court.

The order under review is therefore affirmed, without prejudice to the parties proceeding in the trial court in the manner set forth in Williams v. Banning, supra.

Affirmed.

. It was a $10,000.00 policy, but there was some dispute that the actual amount should have been $15,000.00 because of the provisions of § 324.021(7), Florida Statutes (1973), which was in effect between the dates of 1973 and October 1, 1976, the accident in question having occurred on January 5, 1975 which falls within the effective date of this statute.


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Citator

Cited By

  • Ward W. Kelly v. Williams, 411 So. 2d 902 (Fla. 5th DCA 1982)
    …the Third District Court has required the insurance company to file a Williams cross-claim, and thus has impliedly allowed the issue of bad faith settlement negotiations to be raised in the original negligence action. Kenilworth Ins. Co. v. Pizarro, 369 So. 2d 995 (Fla.3d DCA 1979). Although in State ex rel. American Home Ins. Co. v. Sealy, 355 So. 2d 822 (Fla. 4th DCA), cert, denied, 361 So. 2d 835 (Fla.1978), the Fourth District issued a writ of prohibition prohibiting the trial court from proceeding on the…
  • Fire & Cas. Ins. Co. of Conn. v. Sealey, 810 So. 2d 988 (Fla. 1st DCA 2002)
    …an Illustration of this point, if the trial court enters a judgment in excess of the legal limit of the defendant’s liability, the defendant can correct the error by filing a motion to alter or amend the judgment. See Kenilworth Ins. Co. v. Pizarra, 369 So. 2d 995, 996 (Fla. 3d DCA 1979); cf. Florida Patient’s Comp. Fund v. Scherer, 558 So. 2d 411, 415 (Fla.1990). The common feature of these cases is that the motion to alter or amend was used in each case to correct an error in the judgment itself, and not a…

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