             Case: 17-14184    Date Filed: 07/20/2018     Page: 1 of 6


                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 17-14184
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:15-cv-22524-KMW



THOMAS ARCHER BANNON,
individually and as husband and wife,
MARGARET JOAN RANDALL,
individually and as husband and wife,

                                                   Plaintiffs - Appellees,

versus

GEICO GENERAL INSURANCE COMPANY,

                                                   Defendant - Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                                 (July 20, 2018)

Before TJOFLAT, WILSON, and NEWSOM, Circuit Judges.

PER CURIAM:
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      GEICO General Insurance Company (GEICO) appeals the district court’s

order denying its renewed motion for judgment as a matter of law and its motion

for a new trial after a jury verdict in favor of Thomas Bannon and Margaret

Randall. The case stems from GEICO’s handling of Randall’s bodily injury claim

after she was seriously injured in a vehicle collision with a GEICO-insured driver.

On appeal, GEICO argues that there was not sufficient evidence presented at trial

for a reasonable jury to find that it acted in bad faith. Further, GEICO argues that

the district court abused its discretion during the trial by admitting irrelevant

evidence, testimony, and argument. After a thorough review of the parties’ briefs

and the record, we affirm.

                                           I.

      We review de novo a renewed motion for judgment as a matter of law.

Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1246 (11th Cir. 2001).

Judgment is properly entered in the defendant’s favor as a matter of law when no

reasonable jury could have found for the plaintiff, or in other words, when there is

insufficient evidence to prove an element of the plaintiff’s claim. Collado v.

United Parcel Service, Co., 419 F.3d 1143, 1149 (11th Cir. 2005).

      We review for abuse of discretion a district court’s denial of a motion for a

new trial. Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir. 2006). A district court

abused its discretion if it applied an erroneous legal standard or committed a clear


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error of judgment. Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1238

(11th Cir. 2007). A new trial is warranted if a ruling the district court made during

trial was inconsistent with substantial justice. Christopher v. Florida, 449 F.3d

1360, 1366–67 (11th Cir. 2006).

                                           II.

                                          A.

      A reasonable jury could have found for the plaintiff based on the evidence

presented at trial. Under Florida law, the insurer’s good faith is examined under

the totality of the circumstances. Berges v. Infinity Ins. Co., 896 So. 2d 665, 680

(Fla. 2004). Our focus is on the insurer’s actions in fulfilling its obligations to the

insured. Id. at 677. “For when the insured has surrendered to the insurer all

control over the handling of the claim, . . . the insurer must assume a duty to

exercise such control and make such decisions in good faith and with due regard

for the interests of the insured.” Id. at 668–69.

      Here, the evidence presented was more than enough for a jury to find that

GEICO acted in bad faith. The evidence showed that the vehicle collision

occurred on October 27, 2010, GEICO was notified of the collision on November

2, 2010, and that GEICO did not tender an offer to settle at the policy limit of

$250,000 until November 22, 2010. By November 4, GEICO knew that Randall

was airlifted from Key West to Miami with a severe brain injury and that the police


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report indicated that the driver of the car that hit Randall, Melissa Servold, whom

GEICO insured, failed to yield the right-of-way. It also knew at that time that

Bannon and Randall had the same address. By November 5 GEICO knew that

Randall had been in a coma for ten days. GEICO made a determination on

November 5 that Servold was 100% at fault. With this evidence, a reasonable jury

could have concluded that by November 5 the cost of the medical expenses and

non-economic damages merited a tender of the $250,000 policy limit.

      Further, GEICO’s own expert said that by November 10 GEICO had

expected that it would offer the $250,000 policy limit to resolve the case. By

November 11 GEICO knew that Randall was still in a coma, had a catastrophic

face injury, was undergoing brain surgery, and that she had a feeding tube and

could not breathe on her own, but it still did not offer to tender the $250,000 policy

limit. GEICO knew that Bannon was Randall’s husband, but did not offer the

$250,000 at that time. Randall and Bannon’s expert testified that Randall’s face

injury alone would cost more than $250,000 to remedy. Then, on November 15,

GEICO interviewed eyewitness Becky Klapil who said that Servold did not have

her car lights on, that she came out of nowhere, and that Servold was attempting to

make an illegal left-hand turn. On November 18, Bannon told a GEICO field

representative that he was meeting with an attorney, and on November 22, GEICO

offered the $250,000 policy limit.


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      A reasonable jury had enough evidence to conclude that GEICO acted in bad

faith. Thus, we will not disturb the district court’s denial of GEICO’s renewed

motion for judgment as a matter of law.

                                            B.

      The district court also did not abuse its discretion in denying GEICO’s

motion for a new trial. GEICO argues that the district court should not have

admitted evidence, testimony, and argument pertaining to the consent judgment

that was ultimately agreed to between the parties. However, GEICO’s counsel

invited testimony about the consent judgment when he asked plaintiffs’ counsel to

testify about GEICO’s settlement conduct. Further, the plaintiffs never argued that

information admitted about the consent judgment was enough on its own to satisfy

their burden of proof. Rather, this information was only used to give the jury the

big picture, or all of the circumstances involved in this case. See Berges, 896 So.

2d at 680. Therefore, the consent judgment information was inherent in the totality

of the circumstances inquiry, which is how a jury must decide whether or not a

party acted in bad faith. See id.

      The district court did not abuse its discretion in admitting GEICO’s Claims

Manual for the same reason. Namely, evidence about the violation of a party’s

internal policies is appropriate to include in the totality of the circumstances

inquiry as one indicator of possible bad faith. See 50 State Sec. Serv., Inc. v.


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Giangrandi, 132 So. 3d 1128, 1134 (Fla. Dist. Ct. App. 2013). Indeed, the district

court made clear in its jury instructions that GEICO’s policies and procedures

could not alone constitute bad faith and were only one factor in the analysis under

Florida law.

      It was also not an abuse of discretion for the district court to admit

statements made by the plaintiffs’ expert that GEICO acted in bad faith. The

expert did not instruct the jury how to decide the case or give testimony that caused

substantial prejudice to GEICO. See Hall v. United Ins. Co. of Am., 367 F.3d

1255, 1258 (11th Cir. 2004). The expert merely addressed the ultimate issue of

bad faith, which was permissible under our circuit’s caselaw and the Federal Rules

of Evidence. See Fed. R. Evid. 704; Hanson v. Waller, 888 F.2d 806, 812 (11th

Cir. 1989).

      Thus, there was no abuse of discretion.

                                         III.

      For the foregoing reasons, there is no basis upon which to grant GEICO’s

renewed motion for judgment as a matter of law or motion for a new trial.

      AFFIRMED.




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