                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                        FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                          ________________________   ELEVENTH CIRCUIT
                                                             AUGUST 30, 2010
                                No. 10-10417                   JOHN LEY
                            Non-Argument Calendar                CLERK
                          ________________________

                      D. C. Docket No. 1:09-cv-21400-PCH

RAFAEL ABOY,
individually and as assignee of
Christian Garcia and Jaime A. Garcia,

                                                              Plaintiff-Appellant,

                                        versus

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,

                                                             Defendant-Appellee.


                          ________________________

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

                                (August 30, 2010)

Before DUBINA, Chief Judge, CARNES and MARCUS, Circuit Judges.
PER CURIAM:

       Rafael Aboy (“Aboy”) appeals the district court’s grant of summary

judgment in favor of Appellee State Farm Automobile Insurance Co. (“State

Farm”) on his assigned third-party bad faith insurance claim. After reviewing the

record and the parties’ briefs, we affirm the district court’s grant of summary

judgment because Aboy has failed to offer any evidence from which a reasonable

jury could infer that State Farm breached its duty to its insured.

                                    I. BACKGROUND

       Aboy sustained injuries in a December 1, 2005 car accident caused by

Christian Garcia, son of State Farm policy holder Jaime Garcia. The State Farm

policy provided coverage for up to $15,000 for third-party bodily injuries. Medical

personnel airlifted Aboy to a local hospital following the accident because of

Aboy’s symptoms of paralysis. Aboy received treatment and was released from

the hospital the same day, however.

       The next day, Aboy called State Farm to inform it of his injuries and to

request a rental car. By mid-January, State Farm had sent at least one medical

authorization form to Aboy, requesting his response, so that it could verify Aboy’s

injuries.1 Aboy admits that he never provided State Farm with his medical records


1
 A State Farm manager testified that it was standard practice for State Farm to send the forms
immediately after speaking with the claimant. The actual correspondence from the first alleged

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or an authorization for their acquisition.

        In May, Aboy’s doctor informed him that neck surgery was necessary to

treat his injuries from the auto accident. Aboy admitted that, before May, he was

unaware that his injuries would require surgery. Aboy underwent neck surgery and

his medical expenses climbed over $50,000. Within about one month, after finally

verifying Aboy’s injuries through Aboy’s attorneys, State Farm offered Aboy the

policy limits to settle his claim.

        Aboy rejected State Farm’s offer, claiming it was untimely. He filed suit

against the Garcias shortly thereafter, obtained a sizeable judgment, and received

assignment of the Garcias’ bad faith claim against State Farm. The district court

granted summary judgment on Aboy’s assigned bad faith claim in favor of State

Farm.

                             II. STANDARD OF REVIEW

        We review de novo a district court’s grant of summary judgment. Fanin v.

U.S. Dep’t of Veterans Affairs, 572 F.3d 868, 871 (11th Cir. 2009).

                                     III. DISCUSSION

        Aboy claims that State Farm breached its duty to its insured by

unnecessarily delaying settlement negotiations and a settlement offer. Aboy notes


contact was not introduced into evidence here. Nevertheless, another authorization form, in
evidence here, was sent about six weeks later.

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that, under Florida law, “[w]here liability is clear, and injuries so serious that a

judgment in excess of the policy limits is likely, an insurer has an affirmative duty

to initiate settlement negotiations.” Powell v. Prudential Prop. & Cas. Ins. Co.,

584 So. 2d 12, 14 (Fla. Dist. Ct. App. 1991). Aboy contends that State Farm

should have known about the severity of his injuries long before it made its

settlement offer in June.

       Neither party disputes that State Farm’s insured was clearly liable for

Aboy’s injuries. State Farm contends, however, that for most of the time before it

made its settlement offer, it lacked the information to indicate that a judgment in

excess of the policy limits was likely. Indeed, the facts demonstrate that State

Farm did ultimately discharge its duty under Powell: when it obtained information

about both liability and damages, it initiated settlement negotiations and offered

policy limits to settle the claim.

       Aboy’s claim here then rests on his conclusion that State Farm discharged its

duty to the Garcias belatedly. “Bad faith may be inferred from a delay in

settlement negotiations which is willful and without reasonable cause.” Powell,

584 So. 2d at 14. Our task then is to determine whether Aboy has presented any

evidence from which a jury could infer bad faith in State Farm’s delay.

       Our review of the record discloses no evidence from which a material



                                            4
question of fact arises about State Farm’s diligence and prudence in managing its

insureds’ case. Aboy admits that he neither turned over nor authorized State Farm

to obtain his medical records at any time before he rejected State Farm’s settlement

offer. Furthermore, his own testimony reveals that Aboy himself lacked a full

understanding of his injuries until months after the accident. Once State Farm had

some form of verification regarding Aboy’s injuries—the word of his attorney—it

initiated settlement negotiations promptly.

      Aboy contends that State Farm’s knowledge about his initial diagnosis and

transportation to the hospital gave it an awareness that his damages would exceed

the policy limits. State Farm argues that this information is mitigated by its

context—Aboy was released from the hospital the same day and was immediately

healthy enough to request and operate a rental car. Ultimately, Aboy answers the

question about the relative weight of these facts in his Reply Brief by asserting that

“they are facts that a jury must balance.” (Appellant Reply Br. at 5.) If a genuine

issue of material fact exists about whether the evidence showed Aboy’s damages to

exceed the policy limits, then it would be illogical to simultaneously suggest “that

a judgment in excess of the policy limits is likely” in the eyes of the insurer. Cf.

Powell, 584 So. 2d at 14. Aboy implicitly concedes that this information could not

have triggered State Farm’s duty to negotiate under Powell.



                                           5
      Aboy also asserts that State Farm had a duty to seek out his medical records

and verify his injuries despite his lack of cooperation. He argues that an insurer’s

“fiduciary duty to timely and properly investigate the claim against the insured was

not relieved simply because it was waiting to receive information.” Gutierrez v.

Yochim, 23 So. 3d 1221,1225 (Fla. Dist. Ct. App. 2010). Even ignoring the factual

impossibility entailed in verifying beforehand injuries that were not fully known

until May, Aboy’s reliance on Gutierrez falls flat.

      In Gutierrez, the insurer learned that a third-party claimant had “sustained a

significant spinal cord injury” via a paralegal working on behalf of the claimant.

Id. at 1223. Despite obtaining this information within two months of the accident,

the insurer failed to offer a settlement for nearly six months. The insurer claimed

“that it was trying to verify the full extent of the claimant’s injuries and had every

right to wait for the medical information.” Id. at 1225. The court disagreed,

reasoning that record evidence demonstrated the insurer’s knowledge of the

claimant’s injuries before the medical records arrived. Id. at 1225–26.

      Here, State Farm lacked any actual knowledge of the extent of Aboy’s

injuries until its June conversation with Aboy’s attorneys. Unlike the insurer in

Gutierrez that delayed settlement negotiations pending confirmation of the oral

description of injuries, State Farm acted immediately upon receiving verbal



                                           6
information about Aboy’s injuries, offering to settle within days. The record

indicates that Aboy contacted State Farm on multiple occasions during the relevant

period, but failed to provide State Farm with his medical information or access to

it. Nothing in Florida law indicates that an insurer breaches its duty to settle by

delay when the claimant declines to reveal the scope and severity of his injuries.

                                 IV. CONCLUSION

      After reviewing the record and the parties’ briefs, we conclude that Aboy

failed to present evidence creating a genuine issue of material fact regarding State

Farm’s discharge of duty to its insured. Aboy withheld for months evidence that

was necessary for State Farm to use in assessing the scope of his injuries. Upon

learning of the likely damages through Aboy’s, State Farm acted promptly to settle.

In doing so, State Farm discharged its duty to its insured.

AFFIRMED.




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