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Talat Enters. v. Aetna Cas. & Sur. Co.

Supreme Court of Florida

March 2, 2000, Decided

No. SC 93287

Opinion

 [*1279]  WELLS, J.

We have for consideration Talat Enterprises, Inc. v. Aetna Casualty & Surety Co., No. 97-2327 (11th Cir. June 23, 1998)  [**2]  (unpublished opinion), a case in which the United States Court of Appeals for the Eleventh Circuit certified a question of Florida law to this Court. We have jurisdiction pursuant to article V, section 3(b)(6) of the Florida Constitution.

I. Background

This case stems from an April 15, 1994, fire which caused substantial damage to Billy the Kid's Buffet, a restaurant owned by Talat Enterprises, Inc. (Talat) and insured by Aetna Casualty and Surety Company (Aetna). The federal magistrate below set forth the relevant facts:

There is no genuine issue as to any material fact. On April 15, 1994, there was a fire at Billy the Kid's Buffet, a restaurant owned by Talat. After repairs, the restaurant reopened for dinner on either April 19, 1994 or April 20, 1994. At the same time, Aetna paid Talat $ 10,000. On April 27, 1994, the Department of Health shut down the restaurant for about thirteen days for code violations. On June 9, 1994, Talat demanded an appraisal, and appointed Ron Livingstone & Associates as its  [*1280]  public adjuster. On July 29, 1994, Livingstone submitted Talat's proof of loss for $ 141,704 for damage to personal property. On August 10, 1994, Livingstone submitted Talat's [**3]  proof of loss for $ 291,111 for loss of business income.

On September 7, 1994, Talat filed for bankruptcy under Chapter 11 [Case No. 94-4638-BKC-6B1]. On October 21, 1994, Talat sued Aetna in Bankruptcy Court for business property and income loss, but did not join Talat's bad faith claim. See Fed. R. Civ. P. 18(a). On December 29, 1994, the Bankruptcy Court granted a motion to dismiss Talat's breach of contract suit, and required arbitration pursuant to the arbitration clause in the appraisal provision.

On February 3, 1995, the arbitrators returned an appraisal award in favor of Talat for $ 331,930.47--$ 119,007.47 for personal property and $ 212,923.00 for business interruption loss. On or about March 3, 1995, Aetna paid Talat $ 331,930.47--the total value of the appraisal award. On March 15, 1995, Talat issued statutory notification of intent to pursue a bad faith claim against Aetna pursuant to § Fla. Stat. Ann. 624.155. Sixty days after Talat's filing of the notice of its bad faith claim is May 16, 1995. No action lies if the "damages are paid" or "the circumstances giving rise to the violation are corrected" by May 16, 1995. See § Fla. Stat. § 624.155(2)(d).  [**4]  On May 23, 1995, Talat filed suit in state court for breach of a covenant of good faith and fair dealing to promptly negotiate and settle Talat's claim. On July 24, 1995, Aetna removed the state action to the district court. On July 27, 1995, Talat converted its Chapter 11 bankruptcy case into a Chapter 7 liquidation.

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753 So. 2d 1278 *; 2000 Fla. LEXIS 489 **; 25 Fla. L. Weekly S 172

TALAT ENTERPRISES, INC., d/b/a Billy the Kid's Buffet, Appellant, vs. AETNA CASUALTY AND SURETY CO., d/b/a Aetna Life and Casualty, Appellee.

Prior History:   [**1]  Certified Question of Law from the United States Court of Appeals for the Eleventh Circuit - Case No. 97-2327.

Disposition: Certified question answered in the affirmative and return the record to the United States Court of Appeals for the Eleventh Circuit.

CORE TERMS

notice, cure, bad-faith, sixty-day, extra-contractual, contractual, first-party, arbitration, window

Insurance Law, Liability & Performance Standards, Bad Faith & Extracontractual Liability, General Overview, Good Faith & Fair Dealing, Governments, Courts, Judicial Precedent, Types of Insurance, Business Insurance, Business Interruption Insurance, Operation & Premises, Remedies, Penalties, Payments, Common Law, Notice to Insurers, Conditions Precedent, Business & Corporate Compliance, Contracts Law, Contract Conditions & Provisions, Civil Procedure, Legislation, Statutory Remedies & Rights