Insurance Law Hawaii

Hawaii Court Tackles Amount Due Under Stacking Provision for UIM Coverage

    The Hawaii Intermediate Court of Appeals (ICA) ruled in favor of the insurer in deciphering the policy's UIM coverage. Kohatsu v. State Farm Mut. Auto. Ins. Co., 2017 Haw. App. LEXIS 388 (Sept. 29, 2017).

    The insureds were in an automobile accident, which resulted in a $300,000 settlement with the other driver's insurance company. The insureds requested UIM coverage from their insurer, State Farm, for the remaining damages from the accident. The parties entered arbitration and an Arbitration Award of $2,304,652.12 was granted in the insureds' favor.

    The parties disputed the amount of coverage available under the policy and the insureds sued State Farm. In cross motions for summary judgment, the insureds argued that each policy for their four vehicles provided stacked UIM coverage of $400,000. Thus, the four policies together provided stacked UIM coverage totaling $1.6 million. State Farm argued that each policy for the four vehicles provided $100,000 in UIM coverage and the four policies together provided stacked UIM coverage totaling $400,000. The circuit court granted partial summary judgment in favor of State Farm. Judgment was entered on the UIM coverage issue and an appeal was filed.

    The Declarations Page for the Mercury Tracer, the car involved in the accident, provided a stacking option for UIM coverage with limits of $100,000 per person and $300,000 per accident. Renewal documents for the other three vehicles owned by the insureds also provided stacked UIM coverage for each vehicle in the amount of $100,000 per person and $300,000 per accident.

    The policy offered Non-Stacking Coverage or Stacking Coverage. Non-Stacking Coverage was defined as the limits carried on one vehicle. The Stacking Coverage, which was a more expensive option, consisted of the total of the limits on all the vehicles insured. The parties agreed that the insureds had four vehicles under four separate policies, and that they elected the UIM stacking option for each offer of UIM coverage. 

    An example of stacking was given in the policy. When two vehicles were insured under two separate policies, a UIM limit of $50,000/$100,000 would result in double limits, i.e., $100,000/$200,000 of stacked UIM benefits. Therefore, the per person UIM coverage limit of $100,000 multiplies by four vehicles resulted in a total of $400,000 of stacked UIM coverage for the claim at issue. The circuit court's judgment was affirmed. 

    Thanks to my Damon Key colleague, Mark Murakami [www.hawaiioceanlaw.com], for flagging this case. 

Ninth Circuit Confirms $14 Million Award for Bad Faith

    The Ninth Circuit affirmed the jury’s award of $14 million in damages after finding Allstate was in bad faith in refusing to settle the matter.  Madrigal v. Allstate Indem Co., 2017 U.S. App. LEXIS 10643 (9^th Cir. June 15, 2017).

    Madrigal was injured in an auto accident with Tang, Allstate’s Insured. Allstate refused Madrigal’s settlement offer although it was within policy limits.  Madrigal and Tang eventually sued Allstate for bad faith.  The jury determined Allstate had refused to settle in bad faith.  Allstate moved for judgment as a matter of law (JMOL) and a new trial.  Both motions were denied by the district court and Allstate appealed.

   Allstate also argued it was entitled to JMOL on the bad faith claim because it tendered the $100,000 policy limits twice to settle Madrigal’s demand in a timely fashion.  Whether an insurer acted unreasonably and thus in a bad faith, in rejecting a settlement demand, however, was a question of fact for the jury.  Here, the jury had substantial evidence from which it could reasonably find that Allstate’s initial response, a rejection and a counter-offer, was unreasonable because, by that date, Allstate’s claims adjuster had: (1) found a previously-unidentified witness who contradicted Mr. Tang’s version of events and placed responsibility for the accident on Mr. Tang; (2) received medical bills and information about Madrigal’s uninsured status that led the adjuster to believe Tang’s exposure could be well above the policy limits; and (3) declined to discuss or clarify potential compliance issues, even in writing as the demand letter allowed, with Madrigal’s attorney.

  Therefore, it was reasonable for the jury to conclude that when Allstate responded to Madrigal’s offer with a rejection and counter-offer, Allstate breached the implied covenant of good faith and fair dealing by refusing an offered settlement where the most reasonable manner of disposing of the claim was by accepting the settlement.

   Lastly, Allstate challenged the special verdict form which asked whether: (1) Madrigal made a reasonable settlement demand for an amount within policy limits; and (2) Allstate’s failure to accept Madrigal’s settlement demand was unreasonable.  These were the elements of bad faith refusal to settle liability under California law.  Therefore, the special verdict form, coupled with the jury instructions, fully and fairly presented to the jury the issues it was called upon to decide regarding Allstate’s bad faith liability.

Ninth Circuit Affirms $14 Million Award for Bad Faith

    The Ninth Circuit affirmed the jury's award of $14 million in damages after finding Allstate was in bad faith in refusing to settle the matter. Madrigal v. Allstate Indem. Co., 2017 U.S. App. LEXIS 10643 (9th Cir. June 15, 2017).

    Madrigal was injured in an auto accident with Tang, Allstate's insured. Allstate refused Madrigal's settlement offer although it was within policy limits. Madrigal and Tang eventually sued Allstate for bad faith. The jury determined Allstate had refused to settle in bad faith. Allstate moved for judgment as a matter of law (JMOL) and a new trial. Both motions were denied by the district court and Allstate appealed.

    Allstate also argued it was entitled to JMOL on the bad faith claim because it tendered the $100,000 policy limits twice to settle Madrigal's demand in a timely fashion. Whether an insurer has acted unreasonably and thus in bad faith in rejecting a settlement demand, however, was a question of fact for the jury. Here, the jury had substantial evidence from which it could reasonably find that Allstate's initial response, a rejection and counter-offer, was unreasonable because, by that date, Allstate's claims adjuster had: (1) found a previously-unidentified witness who contradicted Mr. Tang's version of events and placed responsibility for the accident on Mr. Tang; (2) received medical bills and information about Madrigal's uninsured status that led the adjuster to believe Tang's exposure could be well above the policy limits; and (3) declined to discuss or clarify potential compliance issues - even in writing as the demand letter allowed with Madrigal's attorney. 

    Therefore, it was reasonable for the jury to conclude that when Allstate responded to Madrigal's offer with a rejection and counter-offer, Allstate breached the implied covenant of good faith and fair dealing by refusing an offered settlement where the most reasonable manner of disposing of the claim was by accepting the settlement.

    Lastly, Allstate challenged the special verdict form which asked: (1) whether Madrigal made a reasonable settlement demand for an amount within policy limits; and (2) whether Allstate's failure to accept Madrigal's settlement demand was unreasonable. These were the elements of bad faith refusal to settle liability under California law. Therefore, the special verdict form, coupled with the jury instructions, fully presented to the jury the issues it was called upon to decide regarding Allstate's bad faith liability.

 

Hawaii Appeals Court Reverses Summary Judgment Determintion Of No Duty To Defend

    The Hawaii Intermediate Court of Appeals (ICA) vacated the circuit court's granting of summary judgment to the insurer after determining there was no duty to defend. National Interstate Ins. Co., Inc. v. Cornelio, 2017 Haw. Ct. App. LEXIS 128 (Haw. Ct. App. March 31, 2017).

     Tiare Franco was killed when a truck driven by Savio Reinhardt went over a cliff. The truck was insured by National Interstate Insurance Company (NIIC) under a policy issued to William Cornelio. The truck was owned by Cornelio's ex-wife, Reinette Kama. Reinhardt was Kama's boyfriend.

    "Insured" was defined in the policy as follows: "1. You are an insured for any covered auto.  2. Anyone else is an insured while using a covered auto you own, hire or borrow with a reasonable belief that such insured is entitled to do so . . ."  Reinhardt typically used the car more than Kama.

    In her deposition, Kama testified that she allowed Reinhardt to use the truck on the night of the accident to run some errands. He phoned about midnight, stating he was going to stop at his family land to check on another car and then would be right back. She responded, "Whatever," and went back to sleep. The accident occurred later the evening.

    The family of Franco (Franco Parties) filed suit against Reinhardt for negligence, gross negligence, and/or recklessness. NIIC assigned a lawyer to defend Reinhardt. Ten months later, NIIC filed an action for declaratory judgment that it had no duty to defend Reinhardt in the wrongful death case. The Franco parties were allowed to intervene.

    NIIC moved for summary judgment, arguing that its policy restricted coverage to "permitted drivers who had a 'reasonable belief' they were entitled to use the insured vehicle." NIIC asserted that at the time of the accident, Reinhardt could not have had a reasonable belief that he was entitled to use the truck because Kama had authorized only limited use that evening. The circuit court granted NIIC's motion.

    The ICA reversed. In seeking summary judgment on its duty to defend, NIIC had the burden of proving that there was no genuine issue of material fact with respect to whether a possibility of coverage existed. In other words, NIIC had the burden of proving that there was no genuine issue of material fact as to whether it was entitled to operate the truck when the accident occurred.

    Reinhardt was the primary user of the truck. Viewed in the light most favorable to the Franco Parties, this evidence supported the inference that prior to the accident, Reinhardt generally had Kama's implied permission to use the truck for his own personal purposes. The Franco Parties presented evidence that Kama and Reinhardt were in a romantic relationship. Prior to the accident, Kama had given Reinhardt implied permission to routinely use the truck for his own personal needs. On the night of the accident, Kama gave Reinhardt permission to use the truck for particular purposes, and then subsequently responded "Whatever" when Reinhardt said he would make further use of the car before returning the truck. Therefore, the Franco parties presented sufficient evidence to raise genuine issues of material fact regarding whether Reinhardt reasonably believed he was entitled to operate the truck at the time of the fatal accident.

    The circuit court's decision was vacated and the matter remanded for further proceedings.

    Thanks to Damon Key blogging colleague Mark Murakami, www.hawaiioceanlaw.com, for flagging this case.

Bad Faith Jury Verdict Upheld After Insurer's Failure to Settle Within Policy Limits

   The Eighth Circuit affirmed the jury verdict which determined that the insurer acted in bad faith for failing to settle within policy limits. Bamford, Inc. v. Regent Ins. Co., 2016 U.S. App. LEXIS 8787 (8th Cir. May 13, 2016).

   In May 2009, an employee of Bamford caused a vehicular accident resulting in the death of the employee and a serious injury to the other driver, Bobby Davis. A steel pipe stored on the roof of the Bamford truck became dislodged and penetrated Davis' left thigh, went through his abdomen and pelvis, and out his right buttock, pinning him inside his vehicle for thirty to sixty minutes before help arrived. 

     Bamford held a commercial auto liability policy with Regent with a policy limit of $6 million. Regent began investigating. Bamford hired coverage counsel, Daniel Placzek. The Davis family retained attorney Tom Fee. On August 5, 2010, Fee sent Regent a settlement packet offering to settle the claim for policy limit of $6 million. Placzek followed up, informing Regent that the Davises' claims presented an exposure risk above Bamford's $6 million policy limits and demanded a settlement within policy limits.

    Regent retained attorney Brian Nolan as coverage counsel. Nolan thought the claims were worth less than $1 million. He informed Regent that he was investigating a possible loss-of-consciousness defense, based on the possibility that the Bamford driver had lost consciousness before the accident. Nolan believed that such a defense would be a complete bar to liability.

   Mediation was attempted in December 2010. Regent came up to $774,000, and Fee came down to $4,995,000. Thereafter, the Davises filed suit against Bamford.

   In September 2011, Regent retained attorney Steve Ahl to provide a second valuation opinion. Ahl valued the claims between $1.75 and $2.25 million, and felt the value of the claims would not approach policy limits.

   Communications in Regent's files noted that Regent felt no case was worth more than $2 million in Nebraska. Nolan and Ahl both felt that Nebraska was a conservative jurisdiction in terms of jury verdicts.

   By May 2012, Regent placed reserves on the case at $2.25 million. The Davises prevailed on partial summary judgment in June 2012. The court not only granted the Davises' request to strike the loss-of-consciousness defense, it also found Bamford liable as a matter of law. Therefore, the only issue at trial would be the amount of damages.

   Settlement was attempted again shortly before trial. On the day before trial, the Davises offered to settle for $3.9 million. Regent countered for $2.05 million.

   The trial lasted seven days and the jury returned a verdict of $10.6 million for the Davises. Bamford appealed, and the case then settled for $8 million. Bamford was responsible for the excess judgment.

    Bamford then sued Regent for its bad faith in refusing to settle. Following a five-day trial, the jury returned a verdict for Bamford, awarding it damages of over $2 million for the amount it paid for the excess judgment. The trial court denied Regent's renewed motion for judgment as a matter of law and for a new trial.

    On appeal, the Eighth Circuit noted the issue was whether, drawing all reasonable inferences in Bamford's favor, a reasonable jury would find that Regent acted in bad faith. The court held there was not sufficient evidence to support such a conclusion.

   Regent's failure to adjust its valuation following the district court's grant of partial summary judgment strongly supported the conclusion that Regent acted in bad faith. Knowing that the jury would be instructed that Bamford was negligent as a matter of law and liable for Davises' injuries, Regent's valuations of the case were unreasonable.

   Therefore, Bamford presented sufficient evidence from which a reasonable jury could conclude that Regent acted in bad faith in failing to settle the Davises' claims within the policy limits.

Assignment of Policies Barred by Anti-Assignment Provision

   The Minnesota Court of Appeals enforced the policy's anti-assignment provisions for the assignment of no-fault insurance claims to a medical provider. Stand Up Multipositional Advantage MRI, P.A. v. Family Ins. Co., 2016 Minn. App. LEXIS 24 (Minn. Ct. App. April 25, 2016).

     Stand Up Multipositional Advantage MRI (SUMA) operated a clinic that performed MRIs. Before the MRI was done, SUMA had its patients sign a one-page assignment and lien agreement. The agreement stated, in part, 

I hereby assign to SUMA . . . all of my claims to, rights to, and interests in, proceeds, whether resolved or unresolved, including without limit ownership rights, which I may have now or in the future relating directly or indirectly to my charges, condition, or causes of my condition . . . including remedies that I might have against or with respect to any payer now or in the future . . . . consistent with these terms, I hereby direct any and all Payers, to pay the proceeds directly to, immediately to, and exclusively in the name of SUMA to the full extent of my charges.

    American Family Insurance Company issued auto policies, which included an anti-assignment provision: "Interest in this policy may be assigned only with our written consent." 

    In July 2013, SUMA filed suit against various insurers, including American Family, for alleged failure to make payment directly to SUMA pursuant to the assignments its patients signed. The patients were injured in an auto accident and sought an MRI from SUMA. Each signed an assignment. 

    SUMA filed suit, alleging that American Family refused to make payment pursuant to the assignments. Cross-motions for summary judgment were filed. The trial court granted SUMA's motion and denied the motion filed by American Family. 

    On appeal, American Family argued that the assignments to SUMA were invalid because the patients executed their assignments before they incurred a loss for purposes of the Minnesota No-Fault Act. The court noted that an anti-assignment provision in a policy was unenforceable under Minnesota law with respect to a post-loss assignment, thereby making a post-loss assignment valid and enforceable.

    Under the No-Fault Act, the patient's loss accrued when the medical expense was incurred. Therefore, a patient's assignment of a no-fault insurance claim to a medical provider was invalid and unenforceable if the applicable policy forbade such an assignment and if the patient made the assignment before the medical provider billed the patient for the medical services. Here, the patients were billed by SUMA after they assigned their respective no-fault claims to SUMA. Therefore, the assignments were pre-loss assignments and invalid under the policy language. 

Improperly Installed Flanges Are Impaired Property

    Answering certified questions from the Fifth Circuit, the Texas Supreme Court found there was no coverage for flanges that leaked after installation. U. S. Metals, Inc. v. Liberty Mutual Group, Inc., 2015 Texas LEXIS 1081 (Dec. 4, 2015).

    U. S. Metals sold Exxon 350 custom-made, stainless steel, weld-neck flanges for use in refineries. Testing after installation showed the flanges leaked and did not meet industry standards. Exxon decided to replace the flanges to avoid risk of fire and explosion. For each flange, this involved stripping the temperature coating and insulation, cutting the flange out of the pipe, removing the gaskets, grinding the pipe surfaces smooth for re-welding, replacing the flange and gaskets, welding the new flange to the pipes, and replacing the temperature coating and insulation. The replacement process delayed operation of the diesel units for several weeks.

   Exxon sued U.S. Metal for over $6 million as the cost of replacing the flanges and $16 million as damages for lost use of the diesel units during the process. U.S. Metals settled with Exxon for $2.2 million and then sought indemnification from its liability insurer, Liberty Mutual.

   Liberty Mutual contended there was no coverage under Exclusion M, the impaired property exclusion. Exclusion M barred coverage for damages to property, or for the loss of its use, if the property was not physically injured or if it was restored to use by replacement of the flanges. After suit was filed in federal court, the district court granted summary judgment to Liberty Mutual.

   On appeal, the Fifth Circuit certified questions to the Texas Supreme Court. The questions boiled down to: (1) is property physically injured simply by the incorporation of a faulty component with no tangible manifestation of injury?; and (2) is property restored to use by replacing a faulty component when the property must be altered, damaged, and repaired in the process?

   Looking at cases that had interpreted the impaired property exclusion, the court noted that physical injury, for purposes of the impaired property exclusion, resulted not from the installation, but from the leak. Leaks from the flanges never caused injury because Exxon replaced them to avoid any risk of injury.

   The court decided that physical injury required tangible, manifest harm which did not not result merely upon the installation of a defective component in a product or system. 

    The units were physically injured, however, in the process of replacing the faulty flanges. Because the flanges were welded to pipes rather than being screwed on, the faulty flanges had to be cut out, the pipe edges resurfaced, and new flanges had to be welded in. The original welds, coating, insulation, and gaskets were destroyed in the process and had to be replaced. The fix necessitated injury to tangible property, and the injury was unquestionably physical.

   Therefore, the repair costs and damages for the downtime were "property damages" covered by the policy unless Exclusion M applied. Exclusion M denied coverage of damages to impaired property - defined as property that could be "restored to use by the . . . replacement" of the faulty flanges.

   Here, the diesel units were restored to use by replacing the flanges and were therefore impaired property to which Exclusion M applied. Thus, their loss of use was not covered by the policy. But the insulation and gaskets destroyed in the process were not restored to use; they were replaced. They were therefore not impaired property to which Exclusion M applied, and the cost of replacing them was therefore covered by the policy. 

Nevada Provides Independant Counsel When Conflict Arises Between Insurer and Insured

   The Nevada Supreme Court, responding to certified questions, determined that an insurer must provide independent counsel for its insured when a conflict of interest arises between the insurer and insured. State Farm Mut. Auto. Ins. Co. v. Hansen, 2015 Nev. LEXIS 86 (Nev. Sept. 24, 2015). 

   The insured struck the vehicle of another driver, Hansen. Hansen sued the insured alleging both negligence and various intentional torts. State Farm agreed to defend under a reservation of rights. The reservation of rights letter reserved the right to deny coverage for liabiltiy resulting from intentional acts and punitive damages.  

   The insured admitted to negligently striking the other vehicle, and summary judgment was granted in Hansen's favor on the negligence claim. A settlement was reached and the insured assigned its rights against State Farm to Hansen. Hansen then sued State Farm in federal court, alleging that State Farm had breached its contract, breached the implied covenant of good faith and fair dealing, and violated the Nevada Unfair Claims Practices Act.

   The federal district court certified questions to the Nevada Supreme Court. 

    The Nevada Supreme Court first considered the right to insurer-provided independent counsel. It noted that courts rejecting the Cumis rule had not recognized the existence of a conflict of interest in such cases. The court cited the Hawaii Supreme Court's decision in Finley v. Home Ins. Co., 975 P.2d 1145 (Haw. 1998), as one court which reasoned that the sole client is the insured, and therefore, counsel only owes a duty to the insured.

    Nevada, however, was a dual-representation state where the insurer-appointed counsel represented both the insurer and the insured. Therefore, counsel could not represent both the insurer and the insured when their interests conflict and no special exception applies. Where the clients' interest conflicted, the rules of professional conduct prevented the same lawyer from representing both clients. Therefore, Nevada law required the insurer to satisfy its contractual duty to provide representation by permitting the insured to select independent counsel and by paying the reasonable costs of such counsel. 

   The second certified question asked whether a reservation of rights created a per se conflict of interest. The Nevada court followed the California approach and held that a reservation of rights did not create a per se conflict. Courts would have to inquire, on a case-by-case basis, whether there was an actual conflict of interest. 

No Bad Faith In Filing Interpleader

   The Eighth Circuit determined that filing an interpleader action in the face of multiple claims against the policy holder did not constitute bad faith. Purscell v. Tico Ins. Co., 2015 U.S. App. LEXIS 10438 (8th Cir. June 22, 2015).

   Ben Purscell's vehicle collided with another vehicle, in which Tim and Amy Carr were riding. The Carrs were injured, and Purscell's passenger, Amy Priesendorf, was killed. Before the accident, Priesendorf had stretched her leg over and put her foot on the accelerator, on top of Purscell's foot. As the other car approached, Purscell swerved to avoid an accident, but the two vehicles collided. 

   Purscell had a policy with Infinity Assurance Insurance Company. The policy limited liability to $25,000 per person and $50,000 per accident for bodily injury. Infinity put the full $50,000 per accident limits on reserve, with $25,000 designated to Priesendorf's fatality and $25,000 designated to the Carrs.

   The Carrs demanded policy limits. Infinity wrote that it needed to complete its investigation to determine whether there was coverage due to Priesendorf's conduct. The Carrs then withdrew their settlement offer before the investigation could be completed. Infinity then learned that Priesendorf's parents intended to pursue a wrongful death claim against Purscell.

   Purscell requested Infinity to settle the Carrs' claims within policy limits. The letter from Purscell's attorney did not reference the wrongful death claim by Priesendorf. Infinity responded by explaining that Priesendorf's parents were also asserting a claim, and the claimants were in negotiations over dividing the full policy limits. Purscell's attorney did not respond. The Priesendorfs subsequently made a formal settlement offer.

   Less than a month later, Infinity filed a petition for interpleader. Meanwhile, the Carrs' suit proceeded to trial and the jury found Purscell and Priesendorf were equally guilty, assessing fifty percent responsibility to each. The jury awarded Tim Carr $830,000 in damages and Amy Carr $75,000 in damages.

   In the interpleader action, the court approved settlement of the Priesendorf wrongful death claim for $7,764.50 in exchange for a full release. The court then apportioned Infinity's $50,000 limits among the parties as follows: $7,764.50 for Priesendorf's parents, $25,000 to Tim Carr, and $17,235.50 to Amy Carr. This left a substantial judgment against Purscell and in favor of the Carrs in excess of his policy limits.

   Purscell sued Infinity for bad faith. The district court granted summary judgment against Purscell, concluding that Infinity did not act in bad faith when it failed to accept the Carrs' early settlement offer for a number of reasons, including: (1) knowing of the fatality and Purscell's potential liability in the wrongful death suit independent of the Carrs' claims for policy limits; (2) Infinity's need to complete a full investigation on coverage issues; and (3) lack of a specific deadline from the Carrs for when the offer would be withdrawn if not accepted.

   The Eighth Circuit affirmed. Infinity's focus on settling all three claims was not evidence of bad faith. It was in Purscell's interest to have all three claims against him settled within the policy limits. When a global settlement could not be reached, Infinity appropriately filed an interpleader action. Further, Infinity did not have a reasonable opportunity to settle Tim Carr's individual claim within policy limits. The Carrs unexpectedly withdrew their only settlement offer shortly after making it, without giving Infinity a reasonable opportunity to investigate and evaluate their claims. 

Damages in First Trial Establishing Liability of Tortfeasor Binding in Bad Faith Trial Against Insurer

   The court considered whether, in a second trial for bad faith, the insured was required to again prove her damages, instead of relying on the jury's damage determination in the first trial where the tortfeasor's liability was established. Geico Gen. Ins. Co. v. Paton, 2014 Fla. Ct. App. LEXIS 14362 (Fla. Ct. App. Sept. 17, 2014).

   The insured was injured in a car accident caused by the negligence of the underinsured driver. Geico paid the insured the $10,000 policy limit under her policy. The insured's mother also had uninsured/underinsured coverage with Geico, with policy limits of $100,000. When the insured demanded the $100,000 policy limits from her mother's policy, Geico offered $1,000. Later, Geico offered $5,000, but returned to the $1,000 offer after the insured refused to settle. When the insured reduced her demand to $22,500, Geico did not respond. 

   The insured sued and the case went to trial. The jury awarded $10,000 for past pain and suffering, and $350,000 for future pain and suffering. The verdict set the insured's total damages at $469,247. Geico did not file a motion for new trial nor did it appeal. Judgment was entered in favor of the insured, but was limited to the $100,000 UM policy limits.

   The insured then amended her complaint to add a claim of bad faith under Florida statutes. Before the second trial on bad faith, the court granted the insured's motion in limine to exclude evidence of damages because the excess verdict returned in the UM trial established the damages she could recover under her bad faith claim. 

   The jury found for the insured. The court entered a final judgment in the amount of the excess verdict from the UM trial, $369,247, plus prejudgment interest. 

   Geico appealed. Under Florida law, damages in a first-party bad faith case included the total amount of the insured's damages that were caused by the original third-party tortfeasor, even if the damages were in excess of policy limits, without regard to whether the damages were caused by the insurance company. Forcing retrial of an insured's damages at the first-party bad faith trial, as Geico urged, was bad policy. By failing to move for a new trial after the first trial or to appeal, Geico did not preserve its right to challenge the total amount of the jury's damage award from the first trial.