When it comes to filing a claim against another’s liability insurer, injured parties sometimes try to improperly put the proverbial cart before the horse.
You CANNOT sue another’s liability insurer (a policy you are not insured under) until you get a verdict / judgment or enter into a settlement against the insured. This is statutory and embodied in what is commonly known as Florida’s nonjoinder statute. This applies to third-party claims which are claims where you, an injured party, are suing another perhaps for purposes of their liability insurance coverage but you are not an insured under the policy.
For instance, in an automobile negligence action, an injured party moved to amend his complaint to assert a claim against the defendant tortfeasor’s automobile liability insurer. The injured party wanted to assert a third-party bad faith claim against the insurer. Although the trial court surprisingly allowed this to occur, the appellate court granted a petition for writ of certiorari and quashed the trial court’s order:
By its terms, the nonjoinder statute, and its mandatory condition precedent, is inapplicable to first-party bad-faith claims; it is instead limited to cases, such as this, which involve a third party (such as Martinez [the plaintiff], who is not an insured under the policy) seeking to join an insurer in the underlying action before Martinez “first obtain[s] a settlement or verdict against a person [such as Guevara] who is an insured under the terms of the policy. . . .” … Unlike first-party claims, premature and unaccrued third-party claims must be evaluated in light of the legislative mandate established by the plain language of the nonjoinder statute. That legislative mandate precludes Martinez from maintaining any cause of action against GEICO — indeed, precludes even the accrual of such a cause of action — until Martinez satisfies the compulsory condition precedent of obtaining a settlement or verdict against Guevara.
Geico General Ins. Co. v. Martinez, 43 Fla.L.Weekly D86a (Fla.3d DCA 2018).
Stated simply, the injured party could NOT sue the tortfeasor’s (party that caused the automobile accident) liability insurer without first obtaining a verdict / judgment or entering into a settlement with the tortfeasor. The injured party was not an insured under the tortfeasor’s liability policy and, thus, had to comply with Florida’s nonjoinder statute.
As an injured party, you always, and I mean always, want to consider applicable, available liability insurance. In doing so, however, this does not mean you get to put the proverbial cart before the horse and sue the tortfeasor’s liability insurance carrier right off the bat.
Please contact David Adelstein at firstname.lastname@example.org or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.i