               Case: 15-11283       Date Filed: 09/30/2016       Page: 1 of 27


                                                                                 [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 15-11283
                              ________________________

                       D.C. Docket No. 6:13-cv-01591-GAP-GJK



CATHERINE S. CADLE,

                                                         Plaintiff - Appellant,
                              versus

GEICO GENERAL INSURANCE COMPANY,

                                                         Defendant - Appellee.

                              ________________________

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

                                   (September 30, 2016)

Before WILLIAM PRYOR and FAY, Circuit Judges, and ROBRENO,∗ District
Judge.

FAY, Circuit Judge:


∗
 Honorable Eduardo C. Robreno, United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
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       Catherine S. Cadle appeals judgment as a matter of law granted to GEICO

General Insurance Company (“GEICO”) in her bad-faith diversity action,

controlled by Florida law. We affirm.

               I. FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Facts

       On July 27, 2007, Cadle was injured in an automobile accident on I-95,

when she was rear-ended by Derek S. Friend. Cadle was insured by GEICO under

a stacked uninsured motorist (“UM”) 1 policy with a $75,000 limit. Friend was

insured by Allstate under a policy with a $25,000 limit.

       Following the accident, Cadle consulted her primary-care physician, who

prescribed three weeks of physical therapy, which did not alleviate Cadle’s pain.

In August 2007, she was referred for an MRI of her cervical spine and a

neurosurgical consultation. This resulted in pain management, including epidural

injections. Between August 2007 and June 2008, Cadle had ten facet or nerve

blocks, which required anesthesia. None effectively managed her pain. Cadle had



1
 Under Florida law and applicable in this case, “uninsured motorist” encompasses “underinsured
motorist.” Fla. Stat. § 627.727(3)(b) (“[T]he term ‘uninsured motor vehicle’ shall . . . be deemed
to include an insured motor vehicle when the liability insurer thereof [h]as provided limits of
bodily injury liability for its insured which are less than the total damages sustained by the
person legally entitled to recover damages.”). Section 627.727(3) “sets forth the circumstances
where an insured motor vehicle will be considered ‘uninsured,’ such as when the vehicle is
underinsured because the ‘liability insurer’ provided limits of liability lower than the damages
sustained.” Young v. Progressive Se. Ins. Co., 753 So. 2d 80, 85 (Fla. 2000) (citing Fla. Stat. §
627.727(3)(b)).
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a pre-existing-neck injury that had required surgery in France in 1989, 2 but she had

been doing well prior to the July 27, 2007, automobile accident.

       After evaluating Cadle’s medical records, GEICO offered $500 to settle her

UM claim on June 3, 2008. Cadle’s attorney responded by demanding the $75,000

UM limit on June 11, 2008, and including all her medical records. On July 11,

2008, GEICO offered $1,000 to settle Cadle’s claim and noted “[t]here was no

final evaluation provided in your demand giving any permanency to your client,

which leaves a question regarding threshold breach [of Florida Statutes §

627.727(7)].” Pl.’s Tr. Ex. 8A. Cadle rejected GEICO’s offer.

       On September 17, 2008, Cadle filed her first Civil Remedy Notice (“CRN”)

under Florida Statutes § 624.155 against GEICO. Almost fourteen months after

Cadle’s accident, the CRN advised she was still under the care of her treating

physician and a neurosurgeon with whom she had discussed surgical intervention;

she continued to require pain management. Her medical bills were “in excess of

fifty thousand dollars ($50,000.00) and . . . continually increasing.” Pl.’s Tr. Ex.

9A at 2.

       During the 60-day, safe-harbor or cure period, all GEICO requested were

Cadle’s medical records from her 1989 surgery in France. It did not increase its

2
 Cadle had cervical spine surgery to stabilize her neck in 1989. The surgery occurred in Paris
and resulted in the placement of a metal plate in the front of Cadle’s neck. The injury that is the
subject of this bad-faith claim occurred in the same physical location as her previous surgery.


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settlement offer. In a letter dated November 17, 2008, the GEICO adjuster again

noted “there was no final evaluation report submitted in the [June 11, 2008,

$75,000] demand giving any permanency for Ms. Cadle, which leaves a

questionable threshold breach [of § 627.727(7)].” Pl.’s Tr. Ex.10A at 1.

      In March 2009, Cadle sued GEICO and filed a second CRN on April 2,

2009. This CRN noted continuing treatment and possible surgical intervention.

Pl.’s Tr. Ex. 11A. Because this CRN was approaching expiration, the GEICO

adjuster faxed Cadle’s attorney a May 29, 2009, letter stating inability to reach

him. The attorney left a voicemail for the adjuster that day and claims he had not

received any GEICO attempts to communicate with him. The adjuster returned the

attorney’s call during which the attorney explained Cadle was going to have

surgery during the 2009 holiday season, because conservative measures had failed.

The adjuster denies this call occurred.

      On December 15, 2009, Cadle had surgery, because of the pain she had

continued to experience. The surgery consisted of opening the front of her neck,

removing the twenty-year-old facet from her prior surgery, and replacing it with a

larger facet to stabilize her neck. Cadle returned to work on January 4, 2010, with

a neck collar and bone stimulator.

      GEICO contended Cadle did not treat for approximately ten months before

her surgery. During that period, Cadle’s primary-care physician prescribed


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Oxycodone, and she did rehabilitation exercises at home. She used the time to

save money and vacation days so she could have the surgery and recover during

the holidays, while providing care for her three daughters and two stepsons.

      On January 6, 2010, Cadle’s attorney sent her operative report to the GEICO

staff counsel assigned to her UM case. On January 13, 2010, the staff counsel

requested additional information regarding Cadle’s treatment and medical bills.

Her attorney responded “the total medical bills . . . are now $123,132.49, which is

the amount that will be given to a jury for consideration . . . . There are still

$51,155.35 of the previous amount that remains unpaid.” Def.’s Tr. Ex. 22A.

Instead of tendering its policy limits, GEICO served Cadle with a proposal for

settlement in February 2010.

B. State UM Trial

      In March 2013, Cadle’s UM claim was tried to a jury in the Circuit Court of

Brevard County. At that time, none of Cadle’s doctors had assigned her a

permanency rating, although she had not reached maximum medical improvement.

On March 8, 2013, the jury found Cadle had sustained a permanent injury within a

reasonable degree of medical probability as a result of the July 27, 2007, accident

and awarded her a verdict of $900,000. In his Partial Final Judgment, the state trial

judge reduced the verdict amount to $816,636.31, after applying “set-offs for

collateral sources and the prior bodily injury settlement.” Cadle v. GEICO Gen.


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Ins. Co., No. 05-2009-CA-013025 (Fla. Cir. Ct. June 20, 2013). The judge further

stated:

                     GEICO GENERAL INSURANCE COMPANY
              elects to reduce the amount of the gross verdict to the
              underinsured motorist (UM) policy limits. However, this
              limitation shall not prejudice or limit in any manner
              whatsoever, the Plaintiff’s ability to seek and recover
              additional damages, remedies, and causes of action,
              including, but not limited to an insurance company bad
              faith cause of action. Partial Final Judgment is therefore
              entered against Defendant, GEICO GENERAL
              INSURANCE COMPANY, and in favor of the Plaintiff,
              CATHERINE S. CADLE, in the sum of SEVENTY-
              FIVE THOUSAND ($75,000.00) DOLLARS [UM
              policy limit], together with interest thereon . . . .

Id. GEICO did not appeal this state judgment.

C. Federal Bad-Faith Trial

       On October 15, 2013, Cadle filed this first-party, bad-faith diversity case in

the Middle District of Florida against GEICO for failure to settle her claim, when it

could and should have done so.3 GEICO moved for partial summary judgment and

sought a determination the jury $900,000 verdict in the underlying state UM case

was not binding as a measure of the damages in the federal bad-faith case. Cadle

disagreed and maintained, if she proved bad faith, her damages were fixed at

$900,000, less appropriate set-offs, from the state UM trial. In denying the GEICO

motion for partial summary judgment, the district judge commented: “Florida law

3
 GEICO eventually authorized settlement up to $19,575.26 but did not tender this amount to
Cadle, because they were “not in the same ball park.” Pl.’s Tr. Ex. 15A at GLC 004611.
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provides a statutory remedy for first party bad faith, but unfortunately does not

establish a procedure for determining damages; and the law in this regard is in a

state of flux.” Cadle v. GEICO Gen. Ins. Co., No. 6:13-cv-1591-Orl-31GJK, 2014

WL 4983791, at *1 (M.D. Fla. Oct. 6, 2014).

      The three-day trial was conducted December 1-3, 2014. On cross

examination of Cadle’s bad-faith expert, Paul Dolbow, GEICO’s attorney

questioned him concerning whether GEICO would have had any indication that

Cadle had sustained a permanent injury in the subject accident:

             Q. In this case, when GEICO received the demand
             package dated June 11, 2008, there was not a single
             medical record stating that Mrs. Cadle had suffered a
             permanent injury from the accident, was there?

             A. Not that I saw.

Trial Tr. vol. II at 236 (Dec. 2, 2014) (emphasis added). On redirect, Cadle’s

attorney’s attempt to rehabilitate his expert’s testimony was unavailing:

             Q. Prior to the surgery, were there any medical records in
             Mrs. Cadle’s file from which you could infer a
             permanent injury?

             A. No.

Id. at 241 (emphasis added).

      At the close of Cadle’s case, GEICO moved for a directed verdict:

                   Your honor, the defense moves for a directed
             verdict on the basis that the plaintiff has failed in their
             burden of proof. Specifically, the claim is that GEICO
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            acted in bad faith because GEICO did not accept a
            demand for $75,000 in underinsured motorist benefits.
                    And to make my motion brief, I will simply assert
            that the plaintiffs just presented an expert witness who
            testified that at no time prior to the surgery was there any
            record indicating a permanent injury to Ms. Cadle nor
            was there any evidence presented to GEICO from which
            permanent injury could be inferred.
                    Under those circumstances, she would be entitled
            to recover only her out-of-pocket expenses; and there has
            been no evidence put on in this trial as to what, if any,
            out-of-pocket expenses she sustained. So we move for a
            directed verdict.

Id. at 245 (emphasis added). Cadle’s counsel then addressed the lack of additional

medical records:

                    On the one hand, GEICO argues [Cadle] didn’t
            treat for almost a year. On the other hand, during that
            period of time they say, “You didn’t give us any more
            medical records.”
                   Well, you can’t have it both ways. You can’t have
            her not have more medical records and then complain she
            didn’t give you more medical records.

            JUDGE: She didn’t have any more medical records.

            CADLE’S COUNSEL: Right, and she explained why,
            because she knew she had to have surgery.
                   There isn’t—we know what the records are. There
            isn’t a note that says—

            JUDGE: There is nothing in that record that says GEICO
            was on notice that she had to have surgery. It’s just not
            there.

Id. at 249 (emphasis added).



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      Following the argument by Cadle’s counsel that there was a reasonable

inference from her medical records she needed surgery, the judge specifically

noted the testimony of Cadle’s expert witness:

             That’s your own expert. I’m sorry, but when you call an
             expert, you’re kind of stuck with what that expert says;
             and he pretty much pulled the rug out from under your
             claim. . . . [The expert] also said there was no evidence
             of a threshold breach at the time. So, you know, I mean,
             that’s what he said.

Id. at 252 (emphasis added). The judge, however, decided to reserve ruling on

GEICO’s motion for judgment as a matter of law. GEICO rested without calling

any witnesses, because its witnesses had testified in Cadle’s case.

      GEICO had requested a jury instruction on an insured’s burden of proof to

recover noneconomic damages in a UM claim under § 627.727(7). Following

closing arguments and the jury’s retiring to deliberate, GEICO renewed its motion

for judgment as a matter of law. The judge again reserved deciding the motion.

On December 3, 2014, the jury found Cadle had proved by a preponderance of the

evidence GEICO had acted in bad faith by failing to settle her underinsured

motorist claim. The judge gave GEICO fourteen days to file a written motion to

substantiate its motion for judgment as a matter of law with the opportunity for

Cadle to respond.

      GEICO based its renewed motion for judgment as a matter of law on Cadle’s

“fail[ure] to present any evidence that [she] had sustained a permanent injury
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which would have entitled [her] to non-economic damages and thus no reasonable

jury could conclude that GEICO acted in bad faith in its handling of [her] UM

claim.” GEICO’s Renewed Mot. for J. as a Matter of Law at 1. Specifically,

GEICO argued Cadle’s expert “testified that when GEICO received [Cadle’s]

demand for the $75,000 policy limits and the two Civil Remedy Notices, there

were no medical records which indicated that [Cadle] had suffered a permanent

injury.” Id. at 10. Even Cadle’s attorney in the state UM case “testified that there

was nothing in the documents that he provided to GEICO which indicated that

[Cadle] suffered a permanent injury as a result of the [automobile] accident.” Id. at

11. Consequently, Cadle “was only entitled to economic damages, which

[i]ndisputably were not $75,000 and therefore [Cadle] was not entitled[] to, as a

matter of law, the UM policy limits.” 4 Id. at 12. “[B]ased on the information

provided to GEICO, [Cadle] did not have any out-of-pocket expenses,” because

she “had recovered $25,000 from the torfeasor’s bodily injury policy and $10,000

in PIP [personal injury protection] coverage and had health insurance to cover her

medical expenses.” Id. at 12-13. In opposition, Cadle argued a totality-of-the-

circumstances analysis and concluded whether GEICO showed bad faith in failing

to settle her UM claim remained a question for the jury, not the judge.


4
 GEICO noted, when it became aware Cadle “underwent a surgery, [it] tendered the $75,000
policy limits, which were rejected,” so “GEICO had no opportunity to settle [Cadle’s] UM claim
after she underwent surgery.” GEICO’s Renewed M. for J. as a Matter of Law at 12 n.3.
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      In determining whether judgment as a matter of law was the correct

resolution of Cadle’s bad-faith action, the district judge noted Cadle had filed a

CRN on September 17, 2008, which alleged “GEICO [had] acted in bad faith by

failing to settle . . . Cadle’s claim in violation of Florida Statutes § 624.155,” and

an amended CRN “was filed on April 2, 2009, shortly after Cadle had filed suit

against GEICO in the Brevard County Circuit Court. The sixty day cure period

under Florida law expired on June 1, 2009.” Order at 3, Cadle v. GEICO Ins. Co.,

No. 6:13-cv-1591-Orl-31GJK (M.D. Fla. Feb. 24, 2015) (granting GEICO’s

renewed motion for judgment as a matter of law) (emphasis added). The state

jury’s UM verdict for Cadle of $900,000 on March 8, 2013, was reduced to the

$75,000 policy limit; consequently, Cadle sought “the balance of that verdict, less

setoffs, $741,636.31, plus attorney’s fees and costs” in the bad-faith case. Id.

      Because Cadle may recover only economic damages (medical expenses and

wages) if her injuries do not meet the threshold requirement of permanent injury

under Florida Statutes § 627.737(2), the judge reasoned “the vitality of her $75,000

demand and GEICO’s good faith obligation to pay it depends entirely on whether

GEICO had reason to believe, prior to June 2009, that . . . Cadle had suffered a

permanent injury.” Id. at 4 (emphasis added). After review of all the evidence

presented at trial, the judge concluded no evidence supported Cadle’s claim

“GEICO was aware or should have known that she had a permanent injury prior


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[to] January 2010 when [Cadle’s attorney] informed GEICO of [her] December

2009 surgery,” including her expert witness. Id. at 5. Although Cadle contends

GEICO should not have relied on her production of medical records “and instead

should have obtained its own set of medical records and requested an independent

medical examination of . . . Cadle,” the judge concluded “the insurer’s duty does

not go this far.” Id.

         The judge commented:

                Reliance on the documents provided by and
                representations made by [Cadle’s] lawyer cannot amount
                to bad faith, and [Cadle] has cited no authority to the
                contrary. Rather, the insurer is entitled to rely on the
                documents provided by [Cadle’s] counsel, and the
                representations made by him concerning his client’s
                claim.

    Id. The judge additionally noted: “Moreover, there is no evidence that such

additional investigations would have produced a different result.” 5 Id. The judge

granted GEICO’s renewed motion for judgment as a matter of law. Judgment was

entered on February 26, 2015; Cadle timely appealed. We review whether

judgment as a matter of law correctly was entered for GEICO, when Cadle failed

to establish permanent injury under § 627.727(7) for noneconomic damages within

the cure period.
5
 GEICO did engage a radiologist, Dr. Michael J. Foley, to review all of Cadle’s cervical-spine-
radiology tests, including MRIs. Dr. Foley’s February 2, 2010, report for GEICO concluded:
“The findings discussed above appear chronic and degenerative in nature. I see nothing acute to
suggest the findings noted are related to the date of [the] accident of 7/27/07.” Def.’s Tr. Ex. 23
at 7.
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                                   II. ANALYSIS

       On appeal, Cadle first argues there was sufficient evidence presented at trial

for the jury to have concluded her injury was permanent at the time of her

settlement demand. Second, Cadle contends her burden of proof under the totality-

of-the-circumstances analysis does not require her to prove a permanent injury at

the time of her settlement demand. For these reasons, Cadle requests our court “to

reverse the district court’s judgment and restore the jury’s verdict, or alternatively,

certify this question of first impression to the Florida Supreme Court.” Appellant’s

Initial Br. at 15.

A. Review Standards

       In diversity cases, we apply the substantive law of the forum state. Bravo v.

United States, 577 F.3d 1324, 1325 (11th Cir. 2009). We review de novo a district

judge’s granting judgment as a matter of law under Federal Rule of Civil

Procedure 50(b) and apply the same standard as the trial judge. Collado v. United

Parcel Serv., Co., 419 F.3d 1143, 1149 (11th Cir. 2005). In reviewing the record

evidence, we draw all inferences in favor of the nonmoving party. Id. “[W]e

compare the grounds originally argued by the movant in its Rule 50(a) motion with

those cited by the trial court in granting a renewed motion for judgment as a matter

of law.” Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1289 (11th Cir. 1998). “If

the grounds argued in a motion under Rule 50(a) are closely related to those argued


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in a Rule 50(b) motion, then setting aside a jury’s verdict is no surprise to the non-

movant. No Seventh Amendment right is ambushed.” Id. (citation and internal

quotation marks omitted). Great variance between the old and new grounds

precludes a judge from relying “on the new grounds to set aside the jury’s verdict.”

Id.

      In considering a Rule 50(b) motion after the jury verdict, “only the

sufficiency of the evidence matters. The jury’s findings are irrelevant.” Connelly

v. Metro. Atlanta Rapid Transit Auth., 764 F.3d 1358, 1363 (11th Cir. 2014)

(citation and internal quotation marks omitted). “‘[T]hat Rule 50(b) uses the word

“renewed” makes clear that a Rule 50(b) motion should be decided in the same

way it would have been decided prior to the jury’s verdict, and that the jury’s

particular findings are not germane to the legal analysis.’” Id. (quoting Chaney v.

City of Orlando, 483 F.3d 1221, 1228 (11th Cir. 2007)). Judgment as a matter of

law for a defendant is appropriate, “when there is insufficient evidence to prove an

element of the claim, which means that no jury reasonably could have reached a

verdict for the plaintiff on that claim.” Collado, 419 F.3d at 1149; see Munoz v.

Oceanside Resorts, Inc., 223 F.3d 1340, 1344-45 (11th Cir. 2000) (“A Rule 50(b)

motion should only be granted where reasonable jurors could not arrive at a

contrary verdict.” (citation, internal quotation marks, and alteration omitted)).




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B. Interrelationship Between UM and Bad-Faith Trials: Binding Effect of
  Damages Determination in First-Party UM Trial

       Since this case was argued in our court, the Florida Supreme Court has

issued a definitive opinion clarifying the interrelationship between UM and bad-

faith trials. Fridman v. Safeco Ins. Co. of Ill., 185 So. 3d 1214 (Fla. 2016).6

Because resolution of this case is governed by Fridman and the Florida law it

explains, we review the applicable instruction of Fridman. In Fridman, the Florida

Supreme Court made clear “that the insured is entitled to a jury determination of

the amount of damages in the UM action.” Id. at 1222. “‘[A]bsent a determination

of the existence of liability on the part of the uninsured tortfeasor and the extent of

the plaintiff’s damages, a cause of action cannot exist for a bad faith failure to

settle.’” Id. (quoting Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So. 2d

1289, 1291 (Fla. 1991) (answering Eleventh Circuit certified question whether

bad-faith claim had to be asserted in the UM action against the insurer for UM

benefits)). Consequently, “the insured is entitled to a determination of liability and

the full extent of damages before litigating the bad faith cause of action.” Id. at

1223 (emphasis added).

       “Because we have concluded that the insured is entitled to a determination

of the full extent of damages in the UM action, it follows that such a determination


6
 We note neither party has filed supplemental authority concerning the directly applicable, post-
oral-argument issuance of Fridman by the Florida Supreme Court.
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is binding in the subsequent bad faith action against the same insurer.” Id. at 1225.

“If the amount of the UM verdict is not binding as an element of damages in the

bad faith litigation, it would allow the insurer—or the insured, if the verdict were

less than anticipated—a second bite at the proverbial apple.” Id. That would result

in “serious, unintended consequences,” including relitigating the damages again in

a bad-faith trial, “inconsistent verdicts,” and “comity issues between state and

federal courts,” which would be a “waste of judicial and litigant resources.” Id.

(citation and internal quotation marks omitted). Consequently, “there must be an

opportunity for both parties to obtain appellate review of any timely raised claims

of error in the determination of damages obtained in the UM trial, for the very

reason that it becomes binding as an element of damages in the subsequent bad

faith case.” Id. at 1226 (emphasis added).

      The “‘damages in first-party bad faith actions are to include the total amount

of a claimant’s damages, including any amount in excess of the claimant’s policy

limits without regard to whether the damages were caused by the insurance

company’—damages that are, in substance, a penalty.” Id. at 1223 (quoting State

Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 60 (Fla. 1995)) (emphasis

added). “Nothing in our precedent suggests that the eventual tendering of the

policy limits renders the UM case moot.” Id. The Fridman court “conclude[ed]

that an insured is entitled to a determination of liability and the full extent of his or


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her damages in the UM case prior to filing a first-party bad faith action.” Id. at

1224. That court “reject[ed] the suggestion that errors in the computation of the

UM verdict are necessarily harmless where the damages reflected in the UM

verdict are significant relative to the UM policy limits because the damages will

eventually become part of the subsequent bad faith case.” Id. at 1228 (emphasis

added). 7 Consequently, the Florida Supreme Court “conclude[d] that the

determination of damages obtained in the UM action becomes a binding element of

damages in the subsequent bad faith litigation against the same insurer.” Id.

C. Procedural Requirements for Bad-Faith Case Against an Insurer

       1. Insurer’s Good-Faith Duty to Insured

        The Fridman court recognized “the Florida Legislature created a statutory

first-party bad faith cause of action” by enacting § 624.155 in 1982. 185 So. 3d at
7
 In an extensive footnote, the Fridman court notes Florida federal-district-court cases, including
Cadle (regarding the summary judgment order, denying GEICO’s partial-summary-judgment
motion arguing the $900,000 jury verdict in the UM case was not binding), where the “issue of
the binding effect of the underlying verdict for damages in excess of the policy limits and the
ability to appeal the verdict for errors appears to have created concerns for Federal District Court
judges in Florida.” 185 So. 3d at 1227 n.5. The court also addresses two such district-court
cases our court has affirmed. Harris v. Geico Gen. Ins. Co., 961 F. Supp. 2d 1223 (S.D. Fla.
2013), aff’d, 619 F. App’x 896 (11th Cir. 2015); King v. Gov’t Emps. Gen. Ins. Co., No. 8:10-cv-
977-T-30AEP, 2012 WL 4052271 (M.D. Fla. Sept. 13, 2012), aff’d, 579 F. App’x 796, 801-03
(11th Cir. 2014). The Florida Supreme Court states:

               In both cases, on appeal, the Eleventh Circuit Court of Appeals
               declined to address the issue of whether the excess verdict in the
               underlying UM action was binding as to damages in the
               subsequent first-party bad faith action because it affirmed the
               decision that the insurer was found by the jury not to have acted in
               bad faith.

Fridman, 185 So. 3d at 1227 n.5.
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1220 (citing Fla. Stat. § 624.155(1)(b)1). 8 “This provision extended the duty of an

insurer to act in good faith in handling claims brought by its own insured under a

UM policy and exposed the insurer to the consequences of failing to do so.” Id.

The Florida Supreme Court has delineated the duty of good faith an insurer owes

its insured:

         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. 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.

    Berges v. Infinity Ins. Co., 896 So. 2d 665, 668-69 (Fla. 2004) (quoting Boston

Old Colony Ins. Co. v. Gutierrez, 386 So. 2d 783, 785 (Fla. 1980)) (ellipsis in

original) (emphasis added).

         While the determination of whether an insurer acted in bad faith in handling

an insured’s claims generally is decided under the totality of the circumstances,
8
 “Any person may bring a civil action against an insurer when such person is damaged [b]y the
commission of any of the following acts by the insurer: Not attempting in good faith to settle
claims when, under all the circumstances, it could and should have done so, had it acted fairly
and honestly toward its insured and with due regard for her or his interests . . . .” Fla. Stat. §
624.155(1)(b)1.
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each case is decided on its facts. Id. at 680. “Although the issue of bad faith is

ordinarily a question for the jury, [the Florida Supreme Court] and the district

courts [of appeal] have, in certain circumstances, concluded as a matter of law that

an insurance company could not be liable for bad faith.” Id. (emphasis added).

Where a judge concludes as a matter of law a plaintiff has not established her bad-

faith case against an insurer, he must remove the case from the jury for decision.

      2. Civil Remedy Notice and Sixty-Day Cure Period

      “As a condition precedent to filing a civil action [for bad faith] under section

624.155, ‘the Florida Department of Financial Services and the authorized insurer

must have been given 60 days’ written notice of the violation.’” Fridman, 185 So.

3d at 1220 (quoting Fla. Stat. § 624.155(3)(a)) (alteration omitted). “This notice is

commonly referred to as the ‘civil remedy notice.’” Id. Under the statute: “No

action shall lie if, within 60 days after filing notice, the damages are paid or the

circumstances giving rise to the violation are corrected.” Id. (quoting Fla. Stat. §

624.155(3)(d)).

      “The sixty-day window is designed to be a cure period that will encourage

payment of the underlying claim, and avoid unnecessary bad faith litigation.”

Talat Enters., Inc. v. Aetna Cas. & Sur. Co., 753 So. 2d 1278, 1282 (Fla. 2000)

(citation and internal quotation marks omitted). This cure period “provides

insurers with a final opportunity ‘to comply with the claim-handling obligations


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when a good-faith decision by the insurer would indicate the contractual benefits

are owed.’” Fridman, 185 So. 3d at 1220 (quoting Talat Enters., 753 So. 2d at

1284). “[I]f an insurer fails to respond to a civil remedy notice within the sixty-

day window, there is a presumption of bad faith sufficient to shift the burden to the

insurer to show why it did not respond.” Id. (citation and internal quotation marks

omitted). “Importantly, in both first- and third-party bad faith actions, an element

of damages includes any amount in excess of the policy limits.” Id. at 1221 (citing

Fla. Stat. § 627.727(10)). But, “[t]he statutory cause of action for extra-contractual

damages simply never comes into existence until expiration of the sixty-day

window without the payment of the damages owed under the contract.” Talat

Enters., 753 So. 2d at 1284.

      The Florida Supreme Court has held expressly “a claim for bad faith

pursuant to section 624.155(1)(b)1 is founded upon the obligation of the insurer to

pay when all conditions under the policy would require an insurer exercising good

faith and fair dealing towards its insured to pay.” Vest v. Travelers Ins. Co., 753

So. 2d 1270, 1275 (Fla. 2000). This obligation requires timely evaluation and

payment of “benefits owed on the insurance policy.” Id. But the Florida Supreme

Court noted

              the denial of payment does not mean an insurer is guilty
              of bad faith as a matter of law. The insurer has a right to
              deny claims that it in good faith believes are not owed on
              a policy. Even when it is later determined by a court or
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                 arbitration that the insurer’s denial was mistaken, there is
                 no cause of action if the denial was in good faith.

Id.

          3. Permanent-Injury Requirement for Noneconomic Damages

          The Fridman court recognized § 627.727(10) “clearly and unambiguously

reflects the legislative intent that the damages in section 624.155 bad faith actions

shall include any amount in excess of the policy limits.” 9 185 So. 3d at 1221. In

contrast to this expansive coverage, the Florida Supreme Court has explained the

requirement of a permanent injury for recovery of noneconomic damages:

                        Section 627.737(2)(b) provides that a plaintiff may
                 recover damages in tort for pain, suffering, mental
                 anguish, and inconvenience (noneconomic damages)
                 because of a bodily injury arising out of the use of a
                 motor vehicle only in the event that the injury “consists
                 in whole or in part of . . . [p]ermanent injury within a
                 reasonable degree of medical probability.” Thus, as long
                 as part of the bodily injury arising out of the motor
                 vehicle accident involves a permanent injury “within a
                 reasonable degree of medical probability,” the plaintiff
                 can recover noneconomic damages related to his pain,
                 suffering, mental anguish, and inconvenience for all of

9
    Section 627.727(10) provides:

                 The damages recoverable from an uninsured motorist carrier in an
                 action brought under s. 624.155 shall include the total amount of the
                 claimant’s damages, including the amount in excess of the policy
                 limits, any interest on unpaid benefits, reasonable attorney’s fees and
                 costs, and any damages caused by a violation of a law of this state.
                 The total amount of the claimant’s damages is recoverable whether
                 caused by an insurer or by a third-party tortfeasor.

Fridman, 185 So. 3d at 1221 (quoting Fla. Stat. § 627.727(10)).
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               the injuries related to the accident. Additionally, pain is
               only one of the noneconomic damages provided in the
               statute. Suffering, mental anguish and inconvenience are
               also compensable noneconomic damages.

Wald v. Grainger, 64 So. 3d 1201, 1207 (Fla. 2011) (alteration in original)

(emphasis added).10 Consequently, insureds seeking noneconomic benefits from

their uninsured-motorist carrier, first must meet the permanent-injury requirement

of § 627.737(2)(a)-(d). 11 “In view of section 627.727(7), it is clear that the statute


10
  The interrelated Florida Statutes § 627.727(7) and § 627.737(2) state and define the
permanency requirements for noneconomic damages:

               The legal liability of an uninsured motorist coverage insurer does
               not include damages in tort for pain, suffering, mental anguish, and
               inconvenience unless the injury or disease is described in one or
               more of paragraphs (a)-(d) of s. 627.737(2).

Fla. Stat. § 627.727(7).

               In any action of tort brought against the owner, registrant, operator,
               or occupant of a motor vehicle with respect to which security has
               been provided as required by ss. 627.730-627.7405, or against any
               person or organization legally responsible for her or his acts or
               omissions, a plaintiff may recover damages in tort for pain,
               suffering, mental anguish, and inconvenience because of bodily
               injury, sickness, or disease arising out of the ownership,
               maintenance, operation, or use of such motor vehicle only in the
               event that the injury or disease consists in whole or in part of:
                   (a) Significant and permanent loss of an important bodily
                   function.
                   (b) Permanent injury within a reasonable degree of medical
                   probability, other than scarring or disfigurement.
                   (c) Significant and permanent scarring or disfigurement.
                   (d) Death.

Fla. Stat. § 627.737(2)(a)-(d).

11
  The district judge instructed the jury on the permanent-injury requirement of § 627.727(7) for
recovery of noneconomic damages:
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does not require an insurance carrier to provide uninsured motorist coverage for

pain, suffering, mental anguish, and inconvenience unless the threshold

requirements of section 627.737(2) have been met.” Dauksis v. State Farm Mut.

Auto. Ins. Co., 623 So. 2d 455, 456 (Fla. 1993).12

       The Florida Supreme Court has explained the interrelationship of §

627.727(7) and § 627.737(2) regarding the medical proof required for a permanent

injury resulting from an automobile accident:

               [T]he statute[s] require[] that the plaintiff establish the
               existence of a physical injury and prove that this injury is
               permanent. Both elements must be proven “within a
               reasonable degree of medical probability.” We find that
               the statute[s] do[] not limit the evidence to objective
               findings to establish the existence or permanency of a
               physical injury. . . .



                       Florida law provides in pertinent part that a claimant may
               recover damages in tort for, quote, “pain, suffering, mental
               anguish, and inconvenience because of bodily injury arising out
               of” an automobile accident “only in the event that the injury
               consists in whole or in part of:
                   “(a) significant and permanent loss of an important bodily
                   function;
                   “(b) permanent injury within a reasonable degree of medical
                   probability;
                   “(c) significant and permanent scarring or disfigurement; and,
                   “(d) death.”

Trial Tr. vol. III at 24-25 (Dec. 3, 2014) (quoting Fla. Stat. § 627.737(2)(a)-(d)); see Fla.
Standard Jury Instruction 501.3.
12
  “It is axiomatic that all parts of a statute must be read together in order to achieve a consistent
whole. Where possible, courts must give full effect to all statutory provisions and construe
related statutory provisions in harmony with one another.” Forsythe v. Longboat Key Beach
Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992) (citations omitted).
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                   However, the statute[s] do[] provide a check on the
             evidence with [their] requirement that the existence and
             permanency of the injury be established “within a
             reasonable degree of medical probability.” By the terms
             of the statute[s], a mere recitation of the plaintiff’s
             subjective complaints of pain is insufficient to prove a
             permanent injury—the plaintiff must also present expert
             medical testimony to establish the existence and
             permanency of the alleged injury.

City of Tampa v. Long, 638 So. 2d 35, 37-38 (Fla. 1994) (quoting Fla. Stat. §

627.737(2)(b)) (emphasis added). To recover noneconomic damages against an

insurance carrier, a plaintiff must establish both the existence and permanency of

the alleged injury resulting from the subject automobile accident.

D. Application

      On appeal, Cadle argues the district judge erred by granting GEICO’s Rule

50(b) motion, which overruled the jury determination of bad faith and thereby

precluded her obtaining the monetary remainder of her recovery found by the jury

in the UM trial. She further contends there was sufficient evidence in the record to

support the jury verdict that GEICO acted in bad faith in failing to pay her claim.

Generally, judgment as a matter of law under Rule 50 of the Federal Rules of Civil

Procedure is appropriate when a party has been heard fully on its claim during a

jury trial, and the district judge finds that a reasonable jury would not have a

legally sufficient evidentiary basis to find for the party. Fed. R. Civ. P. 50(a)(1).

While the question of bad faith by the insurer in processing an insured’s claim is


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usually for the jury, the verdict must be supported by legally sufficient evidence.

Boston Old Colony, 386 So. 2d at 785.

      For Cadle to recover noneconomic damages, she had to show the existence

and permanency of her injury from the July 27, 2007, accident within the sixty-day

cure period after making her claim to GEICO. The testimony at her bad-faith trial

by both her medical expert and UM attorney confirmed that at no time during the

cure period did Cadle produce to GEICO medical evidence of the permanency of

her injury. Noneconomic damages are available under an insurance policy only if

the plaintiff incurs a “permanent injury,” which must be established “within a

reasonable degree of medical probability” within the cure period. Fla. Stat. §

627.737(2)(b).

      While witness credibility determinations traditionally are a jury function,

             the court should review the record as a whole[;] it must
             disregard all evidence favorable to the moving party that
             the jury is not required to believe. That is, the court
             should give credence to the evidence favoring the
             nonmovant as well as that evidence supporting the
             moving party that is uncontradicted and unimpeached, at
             least to the extent that that evidence comes from
             disinterested witnesses.

Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 151, 120 S. Ct. 2097,

2110 (2000) (citations omitted) (emphasis added). By reserving ruling on

GEICO’s summary judgment motion and Rule 50(a) motion, the district judge



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clearly found the testimony of Cadle’s expert at the bad-faith trial was

determinative. The former Fifth Circuit has explained:

             [T]he trier of fact would not be at liberty to disregard
             arbitrarily the unequivocal, uncontradicted and
             unimpeached testimony of an expert witness, where, as
             here, the testimony bears on technical questions of
             medical causation beyond the competence of lay
             determination. Indeed, such opinion testimony may form
             the basis for a directed verdict.

Webster v. Offshore Food Serv., 434 F.2d 1191, 1193 (5th Cir. 1970) (citations

omitted) (emphasis added).

      In granting GEICO’s renewed motion for judgment as a matter of law, the

judge explained:

                    [D]espite numerous opportunities, [Cadle’s
             attorney] never provided any evidence of a permanent
             injury and never even attempted to address the threshold
             issue [of permanent injury], except to note that his client
             was considering surgical intervention. This possibility of
             surgical intervention is not, however, notice of permanent
             injury.
                    Absent evidence of a permanent injury, there was
             no basis for GEICO to value [Cadle’s] UM claim at or
             above $75,000. Accordingly, there was no credible
             evidence presented to the jury to support a finding of bad
             faith.

Order at 6, Cadle v. GEICO Ins. Co., No. 6:13-cv-1591-Orl-31GJK (footnote

omitted) (emphasis added).

      In an analogous case, involving an automobile accident, a UM trial in state

court, and a bad-faith trial in federal court, our court affirmed the district judge’s
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granting an insurer’s Rule 50(b) motion, because the plaintiff-appellant “did not

provide expert medical evidence of permanency during the safe-harbor period.”

Harris v. GEICO Gen. Ins. Co., 619 F. App’x 896, 899 (11th Cir. 2015)

(unpublished but recognized for persuasive authority). We noted Harris “fail[ed]

to cite any evidence that expert medical testimony as to permanency was presented

at the UM trial. Therefore, no reasonable juror could find GEICO denied Harris

non-economic damages in bad faith.” Id. at 899-900.

      “If an uninsured motorist is not liable to the insured for damages arising

from an accident, then the insurer has not acted in bad faith in refusing to settle the

claim.” Blanchard, 575 So. 2d at 1291. Under the clear language of Florida law

regarding noneconomic damages in an insurance bad-faith case, the district judge

was correct to conclude the jury had no evidence from which it reasonably could

have found GEICO had acted in bad faith. There was no evidence of permanency

during the cure period, which is required under Florida law. The district judge’s

granting GEICO’s Rule 50(b) motion is AFFIRMED.




                                          27
