Opinion
CASE NO. 5:08-cv-083-RS/AK.
December 9, 2008
ORDER
Defendants move to strike ¶ IV of the complaint which appears to assert a bad faith claim against Defendants' insurer, not a named defendant in this cause, and adds a claim for attorneys fees. Plaintiff has not responded or otherwise objected to the motion. Consequently, the Court is of the opinion that the motion (doc. 14) should be GRANTED.
Jurisdiction in this cause is based on diversity and concerns an incident on March 29, 2005, when Plaintiff was renting a condominium at Panama City Beach from Defendant Horizon South Condominium Association and fell on stairs he claims were poorly designed or negligently maintained. (Doc. 1). Plaintiff is proceeding pro se, he has paid the filing fee, and served his complaint.
In ¶ IV of the complaint, Plaintiff mentions Defendants' insurer and contends that the company failed to settle his claims in "bad faith" for which he seeks "the maximum award, penalties, attorney's fees and any and all other appropriate remedies here." As an initial matter, pro se litigants are not entitled to attorneys fees, even in circumstances where such fees may be awarded, since they are not attorneys. Kay v. Ehrler, 499 U.S. 432, 435 n. 5, 111 S. Ct. 1435, 113 L. Ed. 2d 486 (1991). Further, as Defendants note in their motion, supported by statute and case law, a bad faith cause of action may not be brought by someone not an insured until after a verdict or settlement is obtained from the insured, and it is prejudicial to the insured to mention insurance to the jury prior to a determination of liability. Consequently, Defendants' motion (doc. 14) should be GRANTED, and the Clerk is hereby directed to redact ¶ 4 of the original complaint and re-file it in the redacted form as an amended complaint. Defendants need not respond to the amended pleading.
DONE AND ORDERED.