                Case: 15-14947    Date Filed: 02/01/2017   Page: 1 of 8


                                                              [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 15-14947
                              Non-Argument Calendar
                            ________________________

                        D.C. Docket No. 1:14-cv-24659-KMM

NORMA INES FEIJOO,
f.k.a. Norma Borroto,

                                                   Plaintiff - Appellant,

versus

GEICO GENERAL INSURANCE COMPANY,

                                                   Defendant - Appellee.

                            ________________________

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

                                 (February 1, 2017)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

         Norma Ines Feijoo (“Feijoo”) appeals from the district court’s final order

granting summary judgment in favor of Geico General Insurance Company

(“GEICO”), in her action, brought on behalf of Jose Garcia (“Garcia”), the
              Case: 15-14947     Date Filed: 02/01/2017   Page: 2 of 8


GEICO-insured driver of a car that injured her. In her complaint, Feijoo alleged

that GEICO acted in bad faith in failing to settle her bodily injury claim against

Garcia. The district court concluded that no reasonable juror could find that

GEICO acted in bad faith because it was evident from the undisputed record that

“at all times GEICO was attempting to settle the claims against Garcia quickly and

completely while undergoing a reasonable investigation of Feijoo’s claim.” On

appeal, Feijoo argues that the district court erred in granting summary judgment to

GEICO because GEICO could and should have settled Feijoo’s claim instead of

choosing to go to trial, and GEICO failed to uphold its duty to communicate with

its insured by failing to disclose to Garcia the counteroffers GEICO made in

response to Feijoo’s offers of settlement. After careful review, we affirm.

      We review a grant of summary judgment de novo, viewing all of the

evidence in a light most favorable to the nonmoving party and drawing all

reasonable inferences in that party’s favor. Nat’l Parks Conservation Ass’n v.

Norton, 324 F.3d 1229, 1236 (11th Cir. 2003). Summary judgment is appropriate

where “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant bears

the burden of presenting “pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any[,] that establish the absence

of any genuine, material factual dispute.”       Focus on the Family v. Pinellas


                                          2
               Case: 15-14947    Date Filed: 02/01/2017   Page: 3 of 8


Suncoast Transit Auth., 344 F.3d 1263, 1272 (11th Cir. 2003) (quotation omitted).

Speculation or conjecture cannot create a genuine issue of material fact. Cordoba

v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). “The mere existence of a

scintilla of evidence in support of the [non-moving party’s] position will be

insufficient; there must be evidence on which the jury could reasonably find for the

[non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

      A federal court sitting in diversity applies the substantive law of the forum

state. Admiral Ins. Co. v. Feit Mgmt. Co., 321 F.3d 1326, 1328 (11th Cir. 2003).

Under Florida law an insurer owes a duty of good faith to its insured, which

requires the insurer to handle claims against its insured with “the same degree of

care and diligence as a person of ordinary care and prudence should exercise in the

management of his own business.” Boston Old Colony Ins. Co. v. Gutierrez, 386

So.2d 783, 785 (Fla. 1980) (citations omitted).

      This good faith duty obligates the insurer to advise the insured of
      settlement opportunities, to advise as to the probable outcome of the
      litigation, to warn of the possibility of an excess judgment, and to
      advise the insured of any steps he might take to avoid same. 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 785 (citation omitted).

      Florida law is clear that bad faith requires more than mere negligence.

Campbell v. Gov’t Emps. Ins. Co., 306 So. 2d 525, 530 (Fla. 1974). To recover, a
                                         3
               Case: 15-14947    Date Filed: 02/01/2017   Page: 4 of 8


plaintiff must demonstrate “a causal connection between the damages claimed and

the insurer’s bad faith.” Perera v. U.S. Fid. & Guar. Co., 35 So. 3d 893, 903–04

(Fla. 2010). Bad faith is evaluated on a totality of the circumstances. Berges v.

Infinity Ins. Co., 896 So. 2d 665, 680 (Fla. 2004). Ordinarily, this is a question for

the jury, but summary judgment in bad faith actions is appropriate where the

undisputed facts would not allow a reasonable jury to conclude the defendant acted

in bad faith. Id.

      On the undisputed facts before us, we agree with the district court that no

reasonable jury could have concluded that GEICO acted in bad faith. As the

record shows, from the time the accident occurred -- January 6, 2008 -- to the time

it was notified that Feijoo had retained counsel -- June 12, 2008 -- GEICO made

numerous attempts to obtain Feijoo’s treatment information. Then, between its

first contact with Feijoo’s attorney and Feijoo’s initial demand over a year later,

GEICO made six calls and sent five letters seeking Feijoo’s treatment information.

The only response GEICO received was that Feijoo’s counsel was still collecting

medical records.

      On August 31, 2009, GEICO received its first settlement offer. One week

later, GEICO informed Garcia of the offer, provided him with a copy, informed

him of the limits of his policy and the possibility of an excess judgment, advised

him that he would be responsible for any excess, and notified him of his right to


                                          4
              Case: 15-14947     Date Filed: 02/01/2017   Page: 5 of 8


retain counsel. The demand packet included medical records that purported to

establish that Feijoo had a permanent impairment rating to her total body of

between five and ten percent, and had accumulated $17,710 of medical expenses,

of which $13,073 were attributed to a three-month stretch of chiropractic care.

GEICO allowed the offer to expire and responded with a counter offer of $3,484

because its claims adjuster concluded on the basis of her experience that the

medical bills seemed excessive. She was also doubtful that Feijoo’s spinal injuries

were caused by the accident given the minimal damage to Feijoo’s vehicle and the

fifteen-month delay between the conclusion of the chiropractic treatment and

Feijoo’s decision to seek orthopedic treatment.

      GEICO received a second settlement offer in November of 2010. This time

Feijoo offered to settle the claim for $12,500.       GEICO again forwarded the

settlement offer to Garcia. By this point, GEICO had deposed Feijoo and learned

that she had not felt any pain immediately after the accident, that she did not intend

to pursue future medical treatment, and that she “absolutely” would not have

surgery. It also learned that her chiropractic treatment had consisted entirely of

massages and hot and cold packs. GEICO again allowed the offer to expire and

submitted a counteroffer, this time for $5,125, which Feijoo rejected.

      By the time of the final settlement offer, GEICO had retained an expert

radiologist to review Feijoo’s MRIs and an independent medical examiner to


                                          5
               Case: 15-14947       Date Filed: 02/01/2017     Page: 6 of 8


evaluate Feijoo. Both had concluded that Feijoo’s injuries were degenerative in

nature and the independent medical examiner had opined that he did not believe

Feijoo’s injuries were related to the accident.1 Feijoo, nonetheless, demanded the

full $25,000 policy limit.       Again, GEICO informed Garcia of the offer, and

rejected Feijoo’s demand. Only during trial did Feijoo change her testimony to say

that she intended to have surgery -- this was a significant reversal, since $60,300 of

the ultimate $105,300 jury verdict was assigned to future medical expenses.

       In short, GEICO met its obligation to its insured at each step of the way.

GEICO informed Garcia of each settlement offer, warned him of the potential for

an excess judgment, and told him that he could hire his own counsel to protect him

from an excess judgment if he so desired. These communications complied with

GEICO’s duty to communicate with its insured. See Boston, 386 So.2d at 785. In

addition, contrary to Feijoo’s assertion, there is no authority for finding bad faith

where an insurer discloses the plaintiff’s settlement offer but not its own

counteroffer. In the two cases Feijoo cites for this proposition, the insurer had also

failed to disclose the plaintiff’s settlement offer -- a clear violation of Boston. See,

e.g., Taylor v. GEICO Indem. Co., No. 8:12-CV-2448-T-AEP, 2015 WL 6750821,

at *4 (M.D. Fla. Nov. 5, 2015); Odom v. Canal Ins. Co., 582 So. 2d 1203, 1205

(Fla. Dist. Ct. App. 1991).

1
  Although the radiologist did not see any “acute post-traumatic abnormalit[ies],” he did not
expressly state that he thought the injuries were unrelated to the accident.
                                             6
                 Case: 15-14947        Date Filed: 02/01/2017        Page: 7 of 8


       Moreover, there is nothing in the record to suggest that GEICO’s other

conduct was inconsistent with its duty of good faith to its insured. As we’ve

detailed already, GEICO repeatedly attempted to obtain medical records from

Feijoo for well over a year, and, when it finally did, it learned about Feijoo’s delay

in treatment. GEICO immediately provided counsel to Garcia once Feijoo filed the

underlying action against him state court.                 And all along the way, GEICO

considered Feijoo’s settlement offers, while investigating the claim and making

counteroffers of its own. It sought an independent review of Feijoo’s medical

records, retaining two different physicians who confirmed that Feijoo’s condition

was degenerative and one of whom expressly opined that the injuries were

unrelated to the accident.2 Notably, GEICO made its decisions based on Feijoo’s

unequivocal pretrial position that she would not incur any future medical costs

because she did not plan to have future treatment or surgery. On this record, we

cannot say that GEICO’s decisions to reject Feijoo’s pretrial settlement offers were

unreasonable.

       As for Feijoo’s generalized evidence that GEICO employees receive profit-

sharing bonuses, these bonuses are not linked to any particular employee or

decision. Thus, Feijoo has failed to show how there was a causal connection
2
  Feijoo argues that GEICO should have had medical evidence like this before deciding, based on
its claims adjuster’s conclusion, to reject Feijoo’s first settlement offer. But even if she is right,
she cannot establish the requisite causal link between this alleged deficiency and the excess
judgment because both GEICO’s medical professionals ultimately agreed with the adjuster’s
conclusions. See Perera, 35 So. 3d at 903–904.
                                                  7
              Case: 15-14947     Date Filed: 02/01/2017   Page: 8 of 8


between these bonuses and the excess judgment, as required by Florida law. See

Perera, 35 So. 3d at 903–904. Similarly, Feijoo’s evidence that GEICO documents

its average loss payments -- which it must do in order to fulfill its requirements

under Florida law -- also fails to draw any connection between this documentation

and the decisions made in her case. As for a pretrial comment by the GEICO-

retained attorney that the case was a “slam dunk,” it may have been overly

optimistic, but, again, no evidence causally links that assessment to the excess

judgment.

      Finally, Feijoo cannot survive summary judgment based merely on the fact

of an excess judgment. This is especially true where, as here, over half the

judgment -- $60,300 in future medical expenses -- is based on Feijoo’s midtrial

change in position on whether she would seek additional treatment. We simply see

no way how her decision, newly announced at trial, to seek surgery could have

affected GEICO’s pretrial decision concerning settlement.        Thus, because the

totality of circumstances demonstrates that GEICO diligently pursued a reasonable

settlement and upheld its duty to communicate with Garcia, we agree with the

district court that no reasonable jury could find that GEICO acted in bad faith.

      AFFIRMED.




                                          8
