Alessio v. Florida Insurance Guaranty Association, ___ So. 3d ___, 37 Fla. L. Weekly D1614 (Fla. 2d DCA July 6, 2012)

A six year old boy was struck and killed by a taxi cab while he was with his parents.  The taxi cab company had coverage of $125,000 per person, and $250,000 per occurrence.  The parents demanded $125,000 for the wrongful death of their son and $125,000 for their own injuries.  The insurance company tendered two checks in settlement of these claims.  The check in payment of the parents’ claims was negotiated, but the check in payment of the wrongful death claim was not because of a delay in setting up the son’s estate.  By the time the estate was established, the settlement check was stale, the insurance company had been declared insolvent, and FIGA refused to reissue the check because it considered $125,000 to be a satisfactory settlement of all claims.  The estate sued FIGA for breach of the settlement agreement, but the trial court entered summary judgment in favor of FIGA.  The appellate court reversed.  Section 631.54(3), Florida Statutes, provides “a claim is a ‘covered claim’ if it arises out of the insurance policy and ‘is within the coverage, and not in excess of’ the policy limits. . . .  In this case, the Estate’s claim meets these criteria.  The arguably questionable payment of the [parents’] individual claims does not serve to defeat or offset the legitimate claim of the Estate that remains unpaid.”  “Thus, FIGA’s contention that the [parents] had only derivate claims is irrelevant.  In its eagerness to resolve all claims relating to this tragedy for the total payment of $250,000, [the insurer] was apparently willing to tender payment to the [parents] and forego additional discovery because of its desire [quickly to procure] global releases on behalf of its insured, a strategy that certainly appears reasonable under the circumstances.”