                                                      [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                             APRIL 20, 2010
                               No. 09-12782
                                                              JOHN LEY
                                                                CLERK

                 D. C. Docket No. 06-01529-CV-T-27-EAJ

RICHARD S. GALLINA,
HORNE BROTHERS CONSTRUCTION, INC.,

                                                Plaintiffs-Appellants,

                                  versus

COMMERCE AND INDUSTRY INSURANCE,

                                                Defendant-Appellee,

COMMERCIAL UNION INSURANCE COMPANY,
n.k.a. Onebeacon America Insurance Company,

                                                Defendant.



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


                             (April 20, 2010)

Before DUBINA, Chief Judge, MARTIN and HILL, Circuit Judges.
PER CURIAM:

      Plaintiffs/Appellants Richard S. Gallina and Horne Brothers Construction,

Inc., (“Horne”), appeal the district court’s grant of summary judgment in favor of

Defendant/Appellee, Commerce and Industry Insurance (“C&I”), in this insurance

bad faith case.

      This court reviews de novo a district court’s grant of summary judgment,

and will construe all the facts and inferences in the light most favorable to the non-

moving party. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007).

      After reviewing the record, reading the parties’ briefs, and having the

benefit of oral argument, we affirm the district court’s grant of summary judgment

in favor of C&I. Horne’s bad faith claims fail as a matter of law for two separate

but equally persuasive reasons:

      (1) Horne breached the cooperation clause of the policy thereby foreclosing

Plaintiffs’ bad faith claim. See Continental Cas. Co. v. City of Jacksonville, 283 F.

App’x 686, 691-92 (11th Cir. 2008); and

      (2) Horne has not suffered a verdict exposing it to damages in excess of the

policy’s limits, nor has it been damaged in any way, and there is no reason, under

these facts, to stray from the Florida rule that an insured under a standard-liability

policy must suffer damages before pursing a bad faith claim against its insurer.

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See Cunningham v. Standard Guar. Ins. Co., 630 So. 2d 179, 181 (Fla. 1994).

Practically, Horne’s act of prematurely settling the case in violation of the

insurance policy prevents this court from knowing whether Horne would have

suffered damages in excess of the policy limits. The facts in this case are

undisputed that C&I at all times defended Horne, Horne at all times accepted the

defense, yet Horne breached its contract with C&I by settling its case with the

injured party, without C&I’s consent, and rejecting C&I’s unconditional defense.

For these reasons, we affirm the district court’s grant of summary judgment.

      AFFIRMED.




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