                 Case: 14-13356         Date Filed: 01/12/2016   Page: 1 of 15


                                                                     [DO NOT PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                 ________________________

                                        No. 14-13356
                                  ________________________

                         D.C. Docket No. 8:13-cv-01569-SCB-AEP

JOSHUA MOORE,

llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant,

versus

GEICO GENERAL INSURANCE COMPANY,

llllllllllllllllllllllllllllllllllllllllDefendant-Appellee.
                                       ________________________

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

                                         (January 12, 2016)




Before WILSON, WILLIAM PRYOR, and GILMAN, ∗ Circuit Judges.


       ∗ Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting
by designation.
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GILMAN, Circuit Judge:

      This diversity-of-citizenship case raises the question of whether GEICO

General Insurance Company acted in bad faith when it failed to settle an insurance

claim within the applicable policy limits. Because the parties are familiar with the

underlying circumstances and because this opinion is unpublished, we will set

forth only a brief summary of the key facts.



                                 I. BACKGROUND

      In May 2010, Joshua Moore was driving in Florida when he became

engaged in an exchange of offensive hand gestures with another motorist. As part

of this incident, the other motorist intentionally swerved into the side of Moore’s

pickup truck. This caused Moore to lose control of his truck, which then crossed

the centerline and crashed into a car driven by Amy Krupp. Moore, Krupp, and

Krupp’s minor son AO each sustained injuries, with Krupp later dying as a result

of the crash.

      At the time of the accident, Moore was insured under a GEICO insurance

policy issued to Moore’s parents. GEICO investigated the accident and quickly

realized that Moore’s liability could easily exceed the policy’s $20,000 personal-

injury limit.    It thus offered to settle the potential claims against Moore by




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promptly tendering a $20,000 check to Lance Holden, the lawyer who had been

retained to represent the Krupp estate and AO.

      The resulting settlement negotiations did not go smoothly.          Holden

responded that his clients would accept the $20,000 only if GEICO provided

(1) affidavits from the Moores establishing that they had no other applicable

insurance policies, and (2) a precisely worded release-of-claims document for

Holden’s clients to sign.     Neither the affidavits nor the release that GEICO

subsequently transmitted to Holden complied with Holden’s demands. Holden

thus treated GEICO’s submission as (1) a rejection of his settlement offer, and

(2) a counteroffer for settlement on new terms.          He then rejected the new

settlement offer and stated that he would pursue bodily-injury claims on behalf of

Krupp’s estate and AO. Holden followed through by filing suit against the Moores

in August of 2010.

      The suit resulted in a $4 million verdict in favor of Krupp’s estate and AO.

In response, Moore filed a bad-faith claim against GEICO in the United States

District Court for the Middle District of Florida. He alleged that GEICO had acted

in bad faith by failing to settle the claims of the Krupp estate and AO within the

applicable policy limits when GEICO had the opportunity to do so. Among other

failings, he noted that GEICO had not complied with Holden’s demands for the

affidavits and the proposed release.


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       The district court granted summary judgment in favor of GEICO. Although

the court noted that GEICO’s conduct was “sloppy” and “bordering on negligent,”

the court determined that this conduct did not rise to the level of bad faith.   In

addition, the court extensively discussed Holden’s conduct. It concluded that

Holden had attempted to manufacture an artificial bad-faith claim by creating

unnecessary obstacles to GEICO’s settlement of the claims against the Moores.

The court thus attributed the failure to settle to Holden, thereby absolving GEICO

of liability.

       Moore now appeals. He maintains that the district court erred by failing to

construe the factual record in the light most favorable to the nonmovant, i.e., to

Moore himself, and he asserts that the court applied an erroneous understanding of

the law governing Moore’s bad-faith claim.



                                  II. ANALYSIS

A.     Standard of review

       A district court’s grant of summary judgment is reviewed de novo.

Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012). Summary

judgment is appropriate if there is no genuine dispute regarding any material fact

and if the moving party is entitled to judgment as a matter of law. Id. We must

view all the evidence and draw all reasonable factual inferences in favor of the


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nonmovant. Id. “It is not the court’s role to weigh conflicting evidence or to make

credibility determinations; the non-movant’s evidence is to be accepted for

purposes of summary judgment.” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739,

742 (11th Cir. 1996); see also, e.g., Strickland, 692 F.3d at 1154 (“Credibility

determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge . . . .” (internal

quotation marks omitted)).

B.    The law of bad-faith claims in Florida

       The Florida Supreme Court explained the basis of bad-faith claims in

Berges v. Infinity Insurance Co., 896 So. 2d 665 (Fla. 2004):

      An insurer, in handling the defense of claims against its insured, has a
      duty to use the same degree of care and diligence as a person of
      ordinary care and prudence should exercise in the management of his
      own business. For when the insured has surrendered to the insurer all
      control over the handling of the claim, including all decisions with
      regard to litigation and settlement, then 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. The insurer must
      investigate the facts, give fair consideration to a settlement offer that
      is not unreasonable under the facts, and settle, if possible, where a
      reasonably prudent person, faced with the prospect of paying the total
      recovery, would do so.

Id. at 668-69 (alteration omitted) (quoting Boston Old Colony Ins. Co. v. Gutierrez,

386 So. 2d 783, 785 (Fla. 1980)). GEICO in the present case thus had a duty to act

“with due regard for the interests of [Moore]” and to manage the claims against



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Moore with “the same degree of care and diligence” that GEICO would have used

in managing its own business. See id.

      To assess whether GEICO fulfilled this duty, we must review the “totality of

the circumstances.” Id. at 680 (“In Florida, the question of whether an insurer has

acted in bad faith in handling claims against the insured is determined under the

‘totality of the circumstances’ standard.”). Our focus, however, must remain on

the actions of the insurer. Id. at 677 (“[T]he focus in a bad faith case is not on the

actions of the claimant but rather on those of the insurer in fulfilling its obligations

to the insured.”).

      One of the circumstances relevant to the bad-faith inquiry is the insurer’s

overall level of competence.      True enough, simple negligence in handling an

insured’s case has been held to be insufficient in and of itself to establish bad faith.

See King v. Nat’l Sec. Fire & Cas. Co., 656 So. 2d 1338, 1339 (Fla. Dist. Ct. App.

1995) (“[Appellant’s argument] is contrary to the well-established law in Florida

that only allows an insured to sue an insurer for bad faith and not simple

negligence.” (citing Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783 (Fla.

1980); Thomas v. Lumbermens Mut. Cas. Co., 424 So. 2d 36 (Fla. Dist. Ct. App.

1982))). Nevertheless, an insurer’s negligence is a relevant consideration that

affects the overall assessment of the insurer’s conduct. Boston Old Colony, 386

So. 2d at 785 (“Because the duty of good faith involves diligence and care in the


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investigation and evaluation of the claim against the insured, negligence is relevant

to the question of good faith.”); Berges, 896 So. 2d at 669 (same).

        A court assessing a bad-faith claim may in some instances resolve the claim

on summary judgment. Berges, 896 So. 2d at 680 (“[T]his Court and the district

courts have, in certain circumstances, concluded as a matter of law that an

insurance company could not be liable for bad faith.”). In most cases, however,

the inherently flexible nature of the “totality of the circumstances” standard renders

a bad-faith claim unsuitable for summary disposition. Id. (“[T]he issue of bad faith

is ordinarily a question for the jury . . . .”); see also id. at 672 (“[I]nsurance bad

faith law . . . generally reserves the question of bad faith for the jury.”).

C.      Disputed factual issues preclude a grant of summary judgment in this
        case

        After reviewing the “totality of the circumstances” in this case, see id. at

680, we conclude that the record contains factors both contradicting and supporting

Moore’s allegation that GEICO acted in bad faith. This case—like most bad-faith

cases, see id.—therefore presents a genuine dispute that requires resolution by a

jury.

        1. Factors contradicting a conclusion that GEICO acted in bad
           faith

        As noted above, GEICO quickly realized that Moore’s potential liability in

this case would likely exceed his policy limits. GEICO thereafter promptly sought


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to settle the claims against Moore.       This conduct included (1) informing the

Moores that Holden had made a settlement demand, (2) tendering to Holden a

check for the full amount of Moore’s policy limits within days of the accident,

(3) advising the Moores that certain affidavits and a release-of-claims document

would need to be submitted to Holden, and (4) reiterating that GEICO remained

open to settlement even after Holden had rejected the affidavits and proposed

release of claims.

      These efforts to reach a settlement have been previously identified by the

Florida courts as relevant to the bad-faith analysis. See, e.g., Berges, 896 So. 2d at

669 (analyzing whether the insurer “[gave] fair consideration to a settlement offer”

(citation omitted)); Boston Old Colony, 386 So. 2d at 785 (listing as relevant

whether the insurer “advise[d] the insured of settlement opportunities” and

“advise[d] the insured of any steps he might take to avoid [excess liability]”).

GEICO’s activities in this case thus involved a substantial amount of conduct that

supports the proposition that it acted in good faith to settle the claims against

Moore within the policy limits.

      2. Factors supporting a conclusion that GEICO acted in bad faith

      On the other hand, GEICO’s conduct in this case could be viewed as proof

that GEICO did not act in good faith. In particular, GEICO (1) failed to provide

the Moores with a copy of Holden’s demand letter, (2) did not ensure that the


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affidavits that it prepared for the Moores met the requirements of Holden’s demand

letter, and (3) did not heed Holden’s demand for a precisely worded release of his

clients’ claims. Indeed, the district court itself concluded that GEICO’s handling

of these aspects of the claims against Moore was “sloppy” and “bordering on

negligent.”

      These failures thus suggest that GEICO did not handle Moore’s case with

the same degree of care and diligence that GEICO would have used to handle its

own affairs, and these failures accordingly could support a conclusion that GEICO

acted in bad faith. See, e.g., Boston Old Colony, 386 So. 2d at 785 (“An insurer, in

handling the defense of claims against its insured, has a duty to use the same

degree of care and diligence as a person of ordinary care and prudence should

exercise in the management of his own business”); see also id. (“Because the duty

of good faith involves diligence and care in the investigation and evaluation of the

claim against the insured, negligence is relevant to the question of good faith.”).

D.    The district court’s errors

      Despite the above-identified evidentiary conflict, the district court granted

summary judgment in favor of GEICO. We conclude that the court committed two

errors in doing so. First, the court made credibility determinations and weighed the

evidence in ways that are improper at the summary-judgment stage of the case.




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Second, the court erroneously focused on the conduct of the Krupp estate’s

attorney, Holden, rather than on the conduct of GEICO.

        1. Credibility determinations and the weighing of the
           evidence

        The district court discounted the probative force of GEICO’s failure to

comply with the terms of Holden’s settlement demands. It did so because the court

perceived those terms as a calculated attempt by Holden to manufacture an

artificial bad-faith claim rather than as a legitimate attempt to settle his clients’

case.

        During Holden’s deposition, however, he explained the basis for his

demands. He stated that the affidavits establishing that no other insurance existed

were “very important” because he had previously been involved in cases in which

insurance companies had misrepresented the amount of available coverage.

Holden then explained that the precise language with regard to the release of

claims was important because he did not want to unintentionally release a

previously unknown claim that might exist against a party such as GEICO itself.

        Finally, Holden testified that his intention in sending the demand letter was

in fact to effectuate a settlement. He explained that he had his clients’ authority

and permission to send it out, and that if GEICO had “compl[ied] with what is in

the letter, . . . then [there would have been] an opportunity to resolve the case.”

Holden further noted that he had settled his clients’ claims against the other
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motorist involved in the accident when that motorist’s insurance carrier complied

with the same demands as those made on GEICO.

      The district court discounted this testimony. It concluded that—despite

Holden’s statements to the contrary—Holden’s demand was “based more on the

creation of a bad faith claim against GEICO than on truly attempting to settle [the

Krupp estate’s and AO’s] claims.”

      This conclusion contravenes the role of the court in ruling on a motion for

summary judgment. A court ruling on such a motion must “view all evidence and

draw all reasonable factual inferences in favor of the nonmoving party.”

Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012). The

district court in this case thus should have credited Holden’s testimony and

accepted—for the purposes of GEICO’s motion for summary judgment—that

Holden legitimately tried to settle the case. See id.; accord, e.g., Mize v. Jefferson

City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (“[T]he non-movant’s

evidence is to be accepted for purposes of summary judgment.”). Viewed in this

light, GEICO’s failure to meet the demands of Holden’s settlement offer impeded

the parties’ ability to settle the case against Moore. This evidence should therefore

have been considered by a jury in assessing whether the totality of GEICO’s

conduct amounted to a good-faith effort to settle the case.




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         The district court also improperly weighed the value of other evidence. In

particular, Moore opposed GEICO’s motion for summary judgment in part by

submitting expert testimony that evaluated GEICO’s conduct in this case. Moore’s

expert testified that GEICO’s handling of the claims against Moore deviated from

industry standards in several key respects and that GEICO had indeed acted in bad

faith.

         Although the district court acknowledged that GEICO’s conduct was

careless, it made no mention whatsoever of the expert’s testimony or the expert’s

ultimate conclusion. This means that the court either (1) ignored the testimony

altogether, or (2) implicitly determined that the testimony was not credible. In

either case, the court erred. See Strickland, 692 F.3d at 1154 (“[A district court]

must consider all evidence in the record when reviewing a motion for summary

judgment . . . and can only grant summary judgment if everything in the record

demonstrates that no genuine issue of material fact exists” (emphasis added)

(brackets and internal quotation marks omitted)); Moorman v. UnumProvident

Corp., 464 F.3d 1260, 1266 n.1 (11th Cir. 2006) (“Credibility determinations at the

summary judgment stage are impermissible.”).

         GEICO maintains on appeal that the failure to credit the expert testimony

was irrelevant because the expert “provided nothing more than opinions,” which,

according to GEICO, cannot create a genuine dispute of material fact.         This


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proposition is simply incorrect. See, e.g., Newmann v. United States, 938 F.2d

1258, 1262 (11th Cir. 1991) (“[W]e have expert testimony here that concludes that

Dr. Lawrence’s treatment was not an acceptable and customary method, and in fact

was a violation of the standard of care. In other words, the evidence does create a

genuine issue of material fact . . . .” (alterations and internal quotation marks

omitted)); Childers v. Morgan Cnty. Bd. of Educ., 817 F.2d 1556, 1559 (11th Cir.

1987) (“This recitation of the expert testimony is only meant to illuminate the fact

that there is a genuine issue of material fact regarding the merits of this dispute,

regardless of what inexpert intuition may be.”); Allison v. W. Union Tel. Co., 680

F.2d 1318, 1322 (11th Cir. 1982) (“[The plaintiff’s evidence] was rebutted by

Western Union’s expert witness, Dr. Phillip Carlson. . . . This rebuttal raised a

genuine issue of fact . . . .”). The expert testimony in this case therefore did create

a genuine dispute of material fact, and the district court should not have ignored

such testimony in granting GEICO’s motion for summary judgment.

      2. The district court’s focus on Holden

      As previously noted, the law of bad faith in Florida requires that a court

“focus . . . not on the actions of the claimant but rather on those of the insurer in

fulfilling its obligations to the insured.” Berges v. Infinity Ins. Co., 896 So. 2d 665,

677 (Fla. 2004). Hence, the district court in the present case should have focused

principally on GEICO’s handling of the claims against Moore.


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      The district court did not do so. Instead, the court throughout its opinion

faulted Holden—rather than GEICO—for allegedly impeding the settlement

negotiations. It noted on several occasions that GEICO’s conduct was careless, but

it then repeatedly stated that any harm done could have been repaired if Holden

had “simply picked up the phone and addressed the deficiencies.”

      The court also focused on Holden’s purported motives. It concluded that

Holden was more interested in the “creation of a bad faith claim against GEICO”

than he was in settling the case and, as noted above, it looked beyond Holden’s

deposition testimony to infer that Holden’s rejection of the affidavits and the

proposed release of claims was not based on legitimate reasons.

      In sum, the district court’s analysis focused primarily on Holden. The court

thus absolved GEICO of liability by faulting Holden’s conduct and Holden’s

motives. This contravenes the law of bad faith in Florida, see Berges, 896 So. 2d

at 677, and the court accordingly erred.

      That error and the other errors identified above ultimately require us to

reverse the judgment of the district court and remand this case for a jury trial. In

the end, Moore might not prevail on his bad-faith claim. There are, after all,

numerous aspects of the record that support the conclusion that GEICO acted in

good faith. See Part II.C.1. But there are also aspects of the record that contradict

that conclusion, see Part II.C.2, and this is precisely the sort of situation in which


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Florida law makes clear that a jury trial is necessary. See, e.g., Berges, 896 So. 2d

at 672 (“[I]nsurance bad faith law . . . generally reserves the question of bad faith

for the jury.”).

                               III. CONCLUSION

       For all of the reasons set forth above, we REVERSE the judgment of the

district court and REMAND the case for further proceedings consistent with this

opinion.




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