                                                   [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                    ________________________              FILED
                                                 U.S. COURT OF APPEALS
                           No. 08-11973            ELEVENTH CIRCUIT
                                                       NOV 20, 2008
                       Non-Argument Calendar
                                                    THOMAS K. KAHN
                     ________________________
                                                         CLERK

                D. C. Docket No. 05-00073-CV-T-17MAP


GEICO GENERAL INSURANCE COMPANY,

                                                Plaintiff-Counter-
                                                Defendant-Appellant,

                               versus

JACK A. MCDONALD,
PENNY MCDONALD,
BRANDI MCDONALD,

                                               Defendants-Counter-
                                               Claimants-Appellees.
__________________________________________________________________
                               05-00164-CV-T-1
JACK MCDONALD,
PENNY MCDONALD,
BRANDI MCDONALD,

                                                Plaintiffs-Appellees,

GEICO GENERAL INSURANCE COMPANY,

                                                Defendant-Appellant.
                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                         _________________________

                                (November 20, 2008)

Before BIRCH, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

      GEICO General Insurance Company (GEICO) appeals the final judgment

following a jury verdict in favor of Jack A. McDonald, Penny McDonald, and

Brandi McDonald (the McDonalds). GEICO asserts two issues on appeal: (1) the

district court erred in giving a jury instruction that required the jury to resolve all

disputes in the evidence in favor of the plaintiffs, and (2) the district court erred in

denying GEICO’s Rule 50 motion for judgment as a matter of law because there

was no evidence of bad faith conduct on the part of the GEICO adjusters.

      This case is a consolidation of two declaratory actions, each seeking a

determination of whether GEICO acted in bad faith in failing to settle a claim

brought by Tracy Giovo against the McDonalds for a motor vehicle accident that

occurred on August 21, 1998. Following a five-day trial, the jury determined

GEICO had acted in bad faith, and entered a judgment against GEICO for the

amount of the underlying judgment that exceeded the McDonalds’ policy limits.

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                                          I.

      GEICO objected to the following jury instruction:

      In your determination of whether GEICO General Insurance
      Company acted in bad faith in the handling of the Giovo claim
      against Jack McDonald, Penny McDonald, and Brandi McDonald,
      any question about the possible outcome of a settlement effort should
      be resolved in favor of Jack McDonald, Penny McDonald, and Brandi
      McDonald. GEICO General Insurance Company has the burden to
      show that there was no realistic possibility of settlement within policy
      limits.

      GEICO asserts the district court erred in instructing the jury to resolve any

questions regarding the outcome of settlement efforts in favor of the McDonalds.

GEICO asserts this was not an accurate statement of Florida law and misled the

jury. GEICO asserts the instruction was tantamount to giving the McDonalds a

directed verdict.

      “We review jury instructions de novo to determine whether they misstate the

law or mislead the jury to the prejudice of the party who objects to them.” United

States v. Campa, 529 F.3d 980, 992 (11th Cir. 2008). As long as the instructions

adequately reflect the law, the district court has wide discretion as to the style and

wording used in the instructions. Id.

      The district court’s basis for this instruction was Powell v. Prudential

Property and Casualty Insurance Co., 584 So. 2d 12, 14 (Fla. 3d DCA 1991). In



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Powell, the trial court entered a directed verdict for the insurer at the conclusion of

the plaintiff’s case in an action for bad faith failure to settle an insurance claim.

Id. at 13. Florida’s Third District Court of Appeal reversed the trial court. Id.

Included in its reasoning was the following:

       Any question about the possible outcome of a settlement effort should
       be resolved in favor of the insured; the insurer has the burden to show
       not only that there was no realistic possibility of settlement within
       policy limits, but also that the insured was without the ability to
       contribute to whatever settlement figure that the parties could have
       reached.

Id. at 14.

       The district court’s jury instruction was not an inaccurate statement of

Florida law that misled the jury as it was taken directly from Powell. Additionally,

we reject GEICO’s contention the instruction was tantamount to giving the

McDonalds a directed verdict, as the district court correctly instructed that GEICO

had the burden of showing there was no possibility of settlement within policy

limits. If GEICO had met that burden at trial, the jury could have reasonably

found GEICO did not act in bad faith.

                                           II.

       GEICO asserts the district judge erred in failing to grant its Rule 50 motion

for judgment as a matter of law because the McDonalds presented absolutely no



                                           4
evidence of bad faith conduct on the part of the GEICO adjusters and thus, as a

matter of law, the evidence was insufficient to create a question of fact. GEICO

asserts the evidence, at most, established mere negligence in the handling of the

Giovo claim, and mere negligence does not support a finding of bad faith under

Florida law.

      “We review a district court’s ruling on a motion for judgment as a matter of

law under Rule 50 de novo, examining the evidence in the light most favorable to

the non-moving party . . . .” Optimum Techs., Inc. v. Henkel Consumer Adhesives,

Inc., 496 F.3d 1231, 1251 (11th Cir. 2007). “The question before the district court

regarding a motion for judgment as a matter of law remains whether the evidence

is legally sufficient to find for the party on that issue.” Id. at 1252 (alteration and

internal quotations omitted).

      The focus of a bad faith case is on the actions of the insurer in fulfilling its

obligations to the insured. Berges v. Infinity Ins. Co., 896 So. 2d 665, 677 (Fla.

2004). The insurance company owes the insured a fiduciary duty to act in the

insured’s best interest. Id. “The legal standard governing an insurer’s settlement

conduct is one of reasonableness.” Cruz v. Am. United Ins. Co., 580 So. 2d 311,

312 (Fla. 3d DCA 1991). “Bad faith may be inferred from a delay in settlement

negotiations which is willful and without reasonable cause.” Powell, 584 So. 2d at

                                           5
14. “Where liability is clear, and injuries so serious that a judgment in excess of

the policy limits is likely, an insurer has an affirmative duty to initiate settlement

negotiations.” Id.

      GEICO’s argument fails. Viewing the evidence in the light most favorable

to the McDonalds, the evidence was sufficient to create a question of fact

regarding whether GEICO’s actions were reasonable. The evidence showed that

although GEICO identified this claim as one that would far exceed policy limits,

GEICO never sent the McDonalds the letter it had prepared advising them of the

potential for excess liability. During GEICO’s settlement negotiations with

Giovo, Giovo tendered a settlement offer, but GEICO counteroffered less than

Giovo requested for loss of use of her vehicle. GEICO then sent the McDonalds a

letter advising GEICO had complied with Giovo’s demands and detailing its offer

of settlement. Giovo then rejected GEICO’s counteroffer and proceeded to

litigation. GEICO did not send the McDonalds an excess letter until after

settlement negotiations failed and Giovo had filed suit. After a jury trial,

judgment was entered in favor of Giovo and a final judgment of $1,117,475.65

was entered against the McDonalds. After collateral source setoffs were

calculated, an amended final judgment of $1,088,041.51 was entered against the

McDonalds.

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      The evidence showed that although GEICO attempted to settle with Giovo,

it did not keep the McDonalds informed of the settlement negotiations. GEICO

exposed the McDonalds to a significant excess judgment without the McDonalds’

knowledge. GEICO made a counteroffer on Giovo’s offer, but represented to the

McDonalds it had complied with Giovo’s demands. Regardless of whether mere

negligence is enough to find bad faith under Florida law, the evidence was legally

sufficient to find that GEICO’s conduct was more than mere negligence and that

GEICO acted in bad faith.

      AFFIRMED.




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