            Case: 15-12665   Date Filed: 05/09/2016   Page: 1 of 4


                                                       [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 15-12665
                        ________________________

                  D.C. Docket No. 1:11-cv-00275-MP-GRJ



JOHN DOE,

                                               Plaintiff - Appellant,

versus

ONEBEACON AMERICA INSURANCE
COMPANY,
f.k.a. Commercial Union Insurance Company,

                                               Defendant - Appellee.

                        ________________________

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

                               (May 9, 2016)
                Case: 15-12665        Date Filed: 05/09/2016       Page: 2 of 4


Before WILLIAM PRYOR, EDMONDSON, and PARKER, * Circuit Judges.



PER CURIAM:



       This appeal is one controlled by state law and deals with the insurance law

of the State of Florida. Briefly stated, the parties raise questions of law touching

on the right of an insurer to conduct the investigation and defense of a claim

against its insured, the duty of the insured to cooperate with the insurer, and the

nature of “an adequate defense” to be provided by the insurer.

       In an underlying tort case in state court, the insured -- before trial -- settled

with the tort plaintiff without the consent of the insurer. The insured (actually, the

assignee of the insured) now contends that, while the settlement might ordinarily

constitute a breach of the insured’s duty to cooperate, the failure to cooperate was

totally excused by the insurer’s failure at the time of the settlement to provide an

adequate defense to the insured against the pertinent claim. The insured advances

concepts such as inadequate defense, negligence, and bad faith on the part of the

insured.

       The district court granted summary judgment to the insurer in this case. We

see no reversible error, and we affirm that judgment. We do not resolve the legal

*
 Honorable Barrington D. Parker, Jr., United States Circuit Judge for the Second Circuit, sitting
by designation.
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questions about Florida law which the parties have asserted.1 Today, we have

instead assumed for discussion sake -- not decided, but assumed -- that the failure

of an insurer to enter into mediation and other settlement negotiations in advance

of trial can, in some circumstances under Florida law, constitute an inadequate

defense by negligence or by bad faith or by abandonment or all of them.

       We affirm the judgment on behalf of the insurer because the record in this

case contains insufficient evidence, as a matter of law, to allow a reasonable jury to

find that the insurer in this case did fail to provide an adequate defense by

negligence, by bad faith, by abandonment, or otherwise. For background, see

Boston Old Colony Ins. Co. v. Gutierrez, 386 So. 2d. 783 (Fla. 1980) (concluding

as a matter of law that record would not allow jury to determine that insurer had

failed in its obligations). Here, we find dispositive that the insurer reasonably

believed that, at the time of settlement between the insured and the claimant, it

lacked sufficient information to evaluate the claim against the insured and that it

had meritorious defenses that would preclude liability for the insured.

       As a matter of law, the insured -- at the time it settled the case in advance of

trial -- breached its duty to cooperate with its insurer in the investigation and



1
 The parties cite many Florida appellate decisions and some of ours. The cited cases are all
materially different from the case before us and do not establish clearly the state law that would
control this case.

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defense of the underlying tort claim. 2 So, the insurer has no duty to indemnify the

insured in this case.

       AFFIRMED.




2
  The district court did not err in granting summary judgment in favor of the insurer on Doe’s
claims arising out of the insurer’s refusal to defend Brown.

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