[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 12 2000
THOMAS K. KAHN
No. 97-2327 CLERK
________________________
D. C. Docket No. 95-00760-CIV-ORL-22
TALAT ENTERPRISES, INC.,
d.b.a Billy the Kid’s Buffet,
Plaintiff-Appellant,
versus
AETNA CASUALTY AND SURETY COMPANY,
d.b.a. Aetna Life and Casualty,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 12, 2000)
Before COX and BLACK, and RONEY, Circuit Judges.
PER CURIAM:
This is an appeal from a decision of the district court in Talat Enterprises, Inc.,
v. Aetna Cas. & Sur. Co., 952 F.Supp. 773 (M.D. Fla. 1996), which adequately sets
forth the facts and the issues. The case involved the proper amount of damages that
defendant Aetna Casualty and Surety Company, a fire insurance company, should pay
upon receiving notice of a bad-faith claim asserted under a Florida statute by plaintiff
Talat Enterprises, Inc. for a fire at its restaurant. In an unpublished opinion, we
certified the controlling issue of Florida law to the Florida Supreme Court. Talat
Enterprises, Inc. v. Aetna Cas. & Sur. Co., No. 97-2327 (11th Cir. June 23, 1998).
Magistrate Judge James G. Glazebrook, sitting as the district court by consent
of the parties, had granted summary judgment to the defendant Aetna on the ground
that when it paid all of the amounts that were owed under the terms of the insurance
policy within 60 days of receiving a notice of a bad faith claim, it had corrected “the
circumstances giving rise to the” bad faith claim, so that no action lay for bad-faith
non-contractual damages. We certified the question as to whether, in addition to
contractual damages, an insurance company had to pay “bad faith” damages in order
to escape liability under the policy under § 624.155(2)(a)&(d), Fla. Stat.(1995)(as a
condition precedent to suit, claimant must give sixty days written notice of the good
faith violation to the insurer and the Department of Insurance. “No action shall lie if,
within 60 days after filing notice, the damages are paid or the circumstances giving
rise to the violation are corrected.”)
We certified the following question to the Supreme Court of Florida:
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If an insured suffered extra-contractual damages prior to
giving its insurer written notice of a bad faith violation and
the insurer paid all contractual damages, but none of the
extra-contractual damages, within sixty days after the
written notice was filed, has the insurer paid “the damages”
or corrected “the circumstances giving rise to the
violation,” as those terms are contemplated by Florida
Statute § 624.155(2)(d), thereby precluding the insured’s
first-party bad faith action to recover the extra-contractual
damages.
The Florida Supreme Court has now answered the certified question in the
affirmative, concluding that the “statutory cause of action for extra-contractual
damages simply never comes into existence until expiration of the sixty-day window
without the payment of the damages owed under the contract.” Talat Enterprises,
Inc., v. Aetna Cas. & Sur. Co., _ So. 2d _, 25 Fla. L. Weekly S172 (No. SC 93287)
(Fla. Mar. 2, 2000). The court stated that the only remedy for Talat was the Florida
statute and that there “is no remedy until notice is sent by the insured and the insurer
has the opportunity to ‘cure’ the violation. If the insurer pays the damages during the
cure period, then there is no remedy.”
In an extensive opinion, the Court said: “We find United States Magistrate
Judge Glazebrook’s analysis of this issue to be correct.” Thus, the summary judgment
for Aetna, based on that analysis, is
AFFIRMED.
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