Most automobile accident claims are paid by insurers, but as a general rule, the insurer is not named as a party to the action. There are laws that are intended to keep the jury from learning that insurance would pay for the damages in a case before it so that the jury will not be influenced by that fact. The Second District recently considered whether a woman could bring a direct action against a liability insurer that she alleged had gone back on an agreement to pay the policy limits in GEICO General Insurance Company v. Lepine.
This case arose from a fatal automobile accident. The deceased man's wife pursued a claim against the other driver's insurance. She alleged that a representative of the insurance company agreed to pay her the $100,000 policy limits in both a voicemail message and a conversation with her attorney. She further alleged that the insurance company later refused to pay. She filed suit against both the driver and his insurer. In her complaint, she stated causes of action of negligence and wrongful death against the driver. She also alleged a breach of contract claim against the insurer for its failure to pay the policy limits, as well as a breach of contract claim against the driver for the insurer's failure to pay.
The insurer moved to dismiss the claim against it. It argued that the nonjoinder statute barred the direct action against it. The nonjoinder statute, section 627.4136, Florida Statutes, states that a person who is not insured under the liability policy cannot bring a direct action against the liability insurer for a cause of action that is covered by the policy without first obtaining a settlement or verdict against the insured. The insurer may be joined when the judgment is entered or a settlement is reached during the pendency of litigation. The nonjoinder statute is designed to prevent the availability of insurance from influencing the jury's determination of damages.