                Case: 14-12011       Date Filed: 08/13/2015       Page: 1 of 4




                                                                       [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 14-12011
                               ________________________

                       D.C. Docket No. 6:12-cv-00687-CEH-KRS



DANIEL J. DIPERNA,

                                                          Plaintiff - Appellee,

versus

GEICO GENERAL INSURANCE
COMPANY,

                                                          Defendant - Appellant.

                               ________________________

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

                                      (August 13, 2015)

Before WILSON and MARTIN, Circuit Judges, and VINSON, * District Judge.

         *
          Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
               Case: 14-12011     Date Filed: 08/13/2015    Page: 2 of 4


PER CURIAM:


      Defendant-Appellant GEICO General Insurance Co. (GEICO) appeals the

district court’s denial of its Rule 50(b) motion for judgment as a matter of law after

a jury returned a verdict in favor of Plaintiff-Appellee Daniel Diperna, as assignee

of non-party Joseph Umberger, GEICO’s insured, on a claim for bad faith. See

Fed. R. Civ. P. 50(b). GEICO claims that the evidence at trial did not establish an

essential element of Diperna’s claim for bad faith.

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

Gowski v. Peake, 682 F.3d 1299, 1310 (11th Cir. 2012) (per curiam). A court

should render judgment as a matter of law when “a reasonable jury would not have

a legally sufficient evidentiary basis to find for the party on that issue.” Fed. R.

Civ. P. 50(a). The court should review the entire record, but “must draw all

reasonable inferences in favor of the nonmoving party, and it may not make

credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 2110 (2000). Thus, the court

“must disregard all evidence favorable to the moving party that the jury is not

required to believe,” while giving credence to evidence favoring the movant that is

“uncontradicted and unimpeached, at least to the extent that that evidence comes

from disinterested witnesses.” Id. at 151, 120 S. Ct. at 2110 (internal quotation

marks omitted).

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              Case: 14-12011     Date Filed: 08/13/2015      Page: 3 of 4


      Taking the evidence in the light most favorable to Diperna, that evidence

was sufficient to support the jury’s verdict finding bad faith on GEICO’s part. For

that reason, we affirm the judgment of the district court.

      AFFIRMED.




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               Case: 14-12011      Date Filed: 08/13/2015     Page: 4 of 4


VINSON, District Judge, dissenting:

       I can agree that, viewed in the light most favorable to the jury verdict, there

was ample evidence that GEICO may have been negligent in processing Diperna’s

claim. However, negligence is not bad faith under Florida law. See Campbell v.

GEICO, 306 So.2d 525, 530 (Fla. 1974) (recognizing that Florida has “aligned . . .

with those states whose standards for determining liability in an excess judgment

case is bad faith rather than negligence”); accord DeLaune v. Liberty Mut. Ins. Co.,

314 So.2d 601, 603 (Fla. 4th DCA 1975) (concluding that “evidence of negligence

may be considered by the jury as it may bear on the question of bad faith, [but] a

cause of action based solely on negligence which does not rise to the level of bad

faith does not lie”). Ultimately, “[t]he essence of an insurance bad faith claim is

that the insurer acted in its own best interests to the detriment of the insured . . . .”

See, e.g., Johnson v. GEICO, 318 F. App’x 847, 849 (11th Cir. 2009) (per curiam)

(citing Macola v. GEICO, 953 So.2d 451, 458 (Fla. 2006)). Because there is no

evidence in the record that GEICO was acting in its own best interests in handling

Diperna’s claim --- it is undisputed that GEICO tendered full policy limits within

the short time frame set by plaintiff’s counsel --- this case should never have gone

to the jury in the first place.

       I respectfully dissent.




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