          Case: 15-14485   Date Filed: 08/08/2016   Page: 1 of 18


                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 15-14485
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 3:13-cv-00394-MCR-EMT


CHARLES R. HINSON,

                                                           Plaintiff-Appellant,

                                 versus

TITAN INSURANCE COMPANY,
TITAN INDEMNITY COMPANY,

                                                        Defendants-Appellees,

W I OF FLORIDA INC.,

                                                                    Defendant.

                       ________________________

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

                            (August 8, 2016)
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Before WILLIAM PRYOR, ROSENBAUM, and FAY, Circuit Judges.

PER CURIAM:

       This is a diversity-of-citizenship suit, governed by Florida law, brought by

Plaintiff-Appellant Charles Hinson alleging bad faith on the part of his insurer,

Defendants-Appellees Titan Insurance Company and Titan Indemnity Company

(collectively, “Titan”) 1, in failing to settle a claim against Hinson and to advise

him of the settlement offer. The district court granted summary judgment in favor

of Titan. After careful review, we vacate and remand for further proceedings.

                                    I. BACKGROUND

       This case arises out of a motor-vehicle accident on September 27, 2007.

Hinson was driving in Pensacola, Florida, when he failed to yield the right of way

in an intersection and struck a motorcycle operated by Martin Almand. Almand’s

left leg was crushed in the accident, and his motorcycle was a total loss. As a

result of the accident, Almand had emergency surgery that night and was still in

intensive care the following day.

       At the time of the accident, Hinson was insured under a Titan automobile

insurance policy, which provided bodily-injury liability limits of $10,000 per

person and $20,000 per accident and identical property-damage liability limits.


       1
         As the district court noted, the record is not clear regarding “which company issued the
policy or the relationship between the Defendants.” In any case, this lack of clarity has no
bearing on our opinion or the district court’s summary-judgment order.
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Hinson promptly reported the accident to Titan. The next day, a Titan insurance

adjuster investigated the incident, determined Hinson was at fault, and quickly

realized that Hinson’s liability could exceed the $10,000-per-person bodily-injury

limit. Titan sent Hinson a letter on September 28 stating that Almand’s claim

could exceed the policy limits, that the matter could proceed to litigation, and that

Hinson could be personally liable for a judgment in excess of the policy limits.

      By October 1, four days after the accident, Almand’s hospital bill had

exceeded $69,000. That same day, Titan offered Almand the full $10,000 bodily-

injury limits in exchange for an executed Release of All Claims. On October 8,

Almand informed Titan that he had retained the law firm of Green & Bradford,

P.A. (James Green and Bobby Bradford), to represent him in the matter. Titan

promptly repeated the October 1 offer to Green & Bradford.

      On October 16, Attorney Green, on behalf of Almand, sent Titan a letter

stating that they were “currently investigating this matter and [were] not in a

position to settle at this time,” and that they would send a settlement offer once

they were ready. Titan again offered the bodily-injury limits on November 7, and,

on November 19, tendered a $10,000 check payable to the Almands, Green &

Bradford, and the hospital at which Almand had received treatment. A Titan




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claims note2 reflects that Titan attempted to call Hinson on December 5 but was

told that he would be home after 5 p.m.

       On December 26, Titan received a demand letter from Attorney Bradford,

who stated that Almand was willing to settle if eight material terms were met

within twenty days of December 21, the date of the letter. In other words, Titan

and Hinson had until January 10, 2008, to comply with the terms of the offer. The

terms included the following: (1) tender of the bodily-injury policy limits, with the

check made payable to the Almands and the law firm only, not the hospital; (2) a

statement under oath from Hinson setting forth the existence of any additional

insurance; and (3) payment of the replacement cost of the motorcycle plus various

specified upgrades. The letter concluded, “This is an offer to enter into a unilateral

contract that can only be accepted by strict performance of all of its material

terms.”

       Though the offer letter was received by Titan on December 26, the Titan

adjuster with primary responsibility for handling Almand’s claim against Hinson

did not review it until January 2, 2008. On that date, the adjuster attempted to call

Hinson at his landline home phone. Hinson was not at home, but, according to the




       2
          In support of its motion for summary judgment, Titan submitted evidence of its internal
notes detailing its actions and other information relating to Almand’s claim against Hinson. We
refer to these notes as “claims notes.”
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adjuster, she reached Alice Kilpatrick, Hinson’s then-fiancée who lived with him. 3

The adjuster advised Kilpatrick of the settlement offer and the need for Hinson to

execute a sworn statement regarding additional insurance coverage. The adjuster

attempted to call again on January 3 and 4 in the afternoon, but the calls would not

go through. A claims note entered on January 3 states, “Attempted to call [policy

holder]. Number would not go through, states I should try my call again later?”

The adjuster never spoke with Hinson, and Hinson testified that he was not told by

Kilpatrick that Titan had called.

       On January 4, Titan sent Hinson a letter by regular mail regarding Almand’s

settlement offer. The letter notes that the demand letter and a proposed affidavit

were enclosed. The letter advises of the policy limits and of the possibility of an

excess judgment, and it suggests that Hinson may wish to consult an attorney, who

“will advise you of your legal rights and the possible steps to take to avoid an

excess judgment.” The letter also states, “As part of the attorney’s demand in this

case, he is requesting an affidavit of no other insurance be completed by you and

forwarded to his attention. . . . It is very important that you have this completed

immediately.” Hinson testified that he did not remember seeing this letter and that,

during the time the settlement offer was open, he did not know of the offer or his

need to provide an affidavit.

       3
         According to the district court, Kilpatrick died shortly after this lawsuit was filed. As a
result, we do not have the benefit of Kilpatrick’s testimony.
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      Also on January 4, Titan asked Jeffrey Neu, a claims manager in Pensacola,

to hand deliver the affidavit to Hinson at his home. Hinson was not at home when

Neu arrived on the afternoon of January 4, but Neu spoke with a woman who was

at the home, believed by Titan to be Kilpatrick. According to Neu, he gave the

woman the affidavit and told her it needed to be signed and notarized. Neu did not

know the purpose for which the affidavit was sought or that there was a specific

due date by which the affidavit needed to be returned. Hinson testified that he did

not receive an affidavit from Titan on January 4 or any other day, and that he was

not even aware that someone from Titan had come to his home on January 4. He

further testified that he would have promptly returned the completed affidavit had

he known he needed to do so.

      Titan did not make any further attempts to contact Hinson before January 10,

the settlement-offer deadline. Hinson did not return a notarized affidavit by the

deadline. On January 10, Neu delivered the settlement package to Almand’s

attorneys without the affidavit of additional insurance from Hinson. In a cover

letter to the package, Titan explained that it had unsuccessfully attempted to secure

the affidavit from Hinson, stating, “His phone has been disconnected and he has

not responded to our many attempts [to contact him].” According to a January 14

memorandum dictated by Attorney Bradford, he had his staff conduct a records

search of Hinson and obtained two phone numbers, one of which he called. He


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was told that Hinson was not available but that he would be home after 5:00 p.m.

In other words, Hinson’s phone was not disconnected.

      On January 16, Bradford sent Titan a letter returning the checks and stating

that Almand had rejected Titan’s attempt to settle. A short while later, Almand

filed suit against Hinson in Florida state court. Ultimately, the case proceeded to a

jury trial, resulting in a nearly $2 million judgment against Hinson.          In his

deposition for this case, Bradford testified that the matter would have settled if not

for the failure to timely submit the affidavit from Hinson.

      Hinson filed this bad-faith action against Titan in June 2013. Titan timely

removed the case to the United States District Court for the Northern District of

Florida, and later moved for summary judgment. Upon consideration of Titan’s

motion for summary judgment and Hinson’s response in opposition, the district

court determined that there was no genuine issue of material act as to whether

Titan acted in bad faith in handling the claim against Hinson. Accordingly, the

district court granted summary judgment to Titan. This is Hinson’s appeal.

                             II. APPLICABLE LAW

      A. Standard of Review

      We review de novo a district court’s grant of summary judgment, applying

the same legal standards that governed the district court. Bradley v. Franklin

Collection Serv., Inc., 739 F.3d 606, 608 (11th Cir. 2014). Summary judgment is


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appropriate when “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).

      At the summary-judgment stage, the court’s function is simply to determine

if there is a “genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249, 106 S. Ct. 2505, 2511 (1986). To do so, the court must accept the non-

moving party’s version of the facts and draw all reasonable inferences in his favor.

Bradley, 739 F.3d at 608.       The court may not weigh the evidence or make

credibility determinations. Carter v. Butts Cty., Ga., 821 F.3d 1310, 1318 (11th

Cir. 2016). “[T]here is no issue for trial unless there is sufficient evidence favoring

the nonmoving party for a jury to return a verdict for that party.” Anderson, 477

U.S. at 249, 106 S. Ct. at 2511. Therefore, summary judgment may be granted

“[i]f the evidence is merely colorable or is not significantly probative.” Id. at 249–

50, 106 S. Ct. at 2511 (citations omitted).

      B. The Law of Bad Faith in Florida

      Under Florida law, which governs this diversity case, an insurer has a duty

to handle claims against its insured in good faith. Berges v. Infinity Ins. Co., 896

So. 2d 665, 672 (Fla. 2004); see id. at 682-83 (“In exchange for [the insured’s]

relinquishment of control over settlement and the conduct of the litigation, the

insurer obligates itself to act in good faith in the investigation, handling, and

settling of claims brought against the insured.”). An insurer that breaches the duty


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to act in good faith, thereby exposing an insured to an excess judgment, may be

held liable in a bad-faith action. See Rosen v. Fla. Ins. Guar. Ass’n, 802 So. 2d

291, 294 (Fla. 2001) (“[T]he essence of a bad-faith cause of action is to remedy a

situation in which an insured is exposed to an excess judgment because of the

insurer’s failure to properly or promptly defend the claim.”). A plaintiff must

show “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).

      “Good faith” generally means that an insurer must reasonably act in the best

interests of its insured. Berges, 896 So. 2d at 677. “The standard of care that an

insurer must exercise in handling claims against its insured is the same degree of

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

management of his own business.” Mesa v. Clarendon Nat’l Ins. Co., 799 F.3d

1353, 1359 (11th Cir. 2015) (internal quotation marks omitted).          Whether an

insurer acted in good faith is judged by the “totality of the circumstances.” Berges,

896 So. 2d at 680. Further, the focus in bad-faith actions is “not on the actions of

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

insured.” Id. at 677.

      An insurer’s duty of good faith, according to the Florida Supreme Court,

includes the obligations to “advise the insured of settlement opportunities, to

advise as to the probable outcome of the litigation, to warn of the possibility of an


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excess judgment, and to advise the insured of any steps he might take to avoid [an

excess judgment].” Boston Old Colony Ins. Co. v. Gutierrez, 386 So. 2d 783, 785

(Fla. 1980) (emphasis added). The duty also requires the insurer to “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. In addition, “[b]ecause

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.” Id.

      Finally, while summary judgment may be appropriate in certain cases,

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.”), the question of bad faith is, as a general matter, one

reserved for the jury due to the flexible and expansive nature of the bad-faith

inquiry. Id. at 672–73; see id. at 677 (“We conclude that the issue as to whether

[the insurer] could have met the deadlines if it had acted with due regard for the

interests of its insured was properly submitted to the jury and resolved as a

material issue of fact.”); Gutierrez, 386 So. 2d at 785 (“The question of failure to

act in good faith with due regard for the interests of the insured is for the jury.”).




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                                III. DISCUSSION

      Hinson contends that sufficient evidence exists that Titan acted in bad faith,

precluding summary judgment. He asserts that Titan failed to act with due regard

for his interests when it omitted property damage from its attempts to settle the

claim in October and November 2007, despite knowing that Almand’s motorcycle

was totaled, and also conditioned those early settlement offers on a release of the

property-damage claim. Further, Hinson argues, Titan failed to properly advise

him about Almand’s settlement offer and the steps he needed to take to avoid an

excess judgment. Specifically, Hinson asserts, Titan failed to take adequate steps

to inform him about the need for and significance of the affidavit of other

insurance requested as part of the settlement offer.

      After reviewing the “totality of the circumstances” in this case in the light

most favorable to Hinson, we agree with Hinson that genuine issues of material

fact preclude entry of summary judgment in favor of Titan on Hinson’s bad-faith

claim, particularly as it relates to Titan’s conduct upon receiving the time-limited

settlement offer from Almand on December 26. Accordingly, the question of

whether Almand’s claim against Hinson could have settled had Titan acted with

due regard for the interests of its insured should be submitted to the jury and

resolved as a material issue of fact. See Berges, 896 So. 2d at 677.




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      For starters, a possibility for settlement existed in January 2008 following

Almand’s proposal of the time-limited settlement offer. The settlement offer listed

eight material terms that needed to be met by January 10, twenty days from the

date of the letter. One of the terms was a notarized affidavit from Hinson listing

any other additional insurance coverage.        According to Almand’s attorney

Bradford, the central reason the matter ultimately did not settle was because Titan

did not submit the affidavit from Hinson along with the rest of the settlement

package. Hinson testified that he would have promptly completed the requested

affidavit had he known about it. We therefore focus our inquiry on Titan’s efforts,

upon receiving the settlement offer from Almand, to advise Hinson of the offer and

of the steps he might take to avoid an excess judgment. See Gutierrez, 386 So. 2d

at 785.

      As the district court recognized, substantial evidence supports Titan’s

contention that it acted in good faith. Titan ultimately complied with all seven

settlement terms that were within its direct control. And it is undisputed that Titan

attempted to contact Hinson several times about the settlement offer and his need

to complete the affidavit. Specifically, Titan called his home three times, sent him

a letter, and had someone personally deliver the affidavit to his home. Despite

these efforts, and given the short period of time in which to act, Titan was unable

to get in touch with Hinson or to obtain the affidavit from him by the deadline.


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The district court concluded that, given Titan’s undisputed efforts to contact

Hinson about the affidavit, any failure to settle was not attributable to Titan’s bad

faith, but rather was “attributable to Hinson.”

      Nevertheless, other evidence supports Hinson’s contention that Titan failed

to act with diligence and care in advising him of the settlement offer and of the

steps he needed to take to avoid an excess judgment. See Campbell v. Gov’t Emps.

Ins. Co., 306 So. 2d 525, 530–31 (Fla. 1974) (“[R]easonable diligence and

ordinary care [are] material in determining bad faith.”). Well before receiving

Almand’s settlement offer, Titan knew that Hinson was liable and that he

potentially faced a personal judgment far in excess of the policy limits. Almand’s

settlement offer presented an opportunity for settlement nearly within policy limits,

but time was of the essence due to the time limit imposed by the offer. However,

Titan waited nearly a week to attempt to contact Hinson about the offer. Granted,

some of the delay was attributable to the holidays, as the letter was sent on

December 21 and not received until December 26, but Titan’s claims notes reflect

that Almand’s offer letter was first reviewed on December 31, a Monday. Titan

did not attempt to contact Hinson until January 2. By that point, more than half the

time on the offer had expired.

      While Titan made several attempts to contact Hinson between January 2 and

January 4, the evidence of these efforts can reasonably be construed as showing a


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lack of care and diligence in advising Hinson of the settlement opportunity and of

any steps he might take to avoid excess liability. See Gutierrez, 386 So. 2d at 785.

First, Titan called Hinson during times in which it had notice that he would be

working and not at home. The same goes for the hand delivery of the affidavit

during the afternoon of January 4, when, as Titan knew from the earlier

conversation with Kilpatrick, Hinson was likely to be working. Second, the letter

Titan sent to Hinson did not identify the deadline by which the affidavit needed to

be returned, nor did it clearly explain the significance of the affidavit. Titan

acknowledges that it “failed to specifically detail what would happen if Hinson

failed to comply with the demand requirement.” Third, Neu, the person who hand-

delivered the affidavit to Hinson’s home, did not know the purpose for which the

affidavit was needed or that there was a specific due date by which the affidavit

needed to be returned. Finally, Hinson testified that he had no knowledge of

Titan’s efforts to contact him and that Kilpatrick would have told him had Titan

informed her about the settlement offer and the need for the notarized affidavit.

This evidence suggests that Titan failed to contact Hinson during a time and in a

manner adequate to timely advise him of the offer and of what he needed to do to

avoid an excess judgment.

      We also find it significant that, following January 4, Titan made no further

attempts to contact Hinson until after the January 10 deadline had passed, despite


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never speaking with Hinson personally or ensuring that he had notice of the offer.

Titan’s efforts to contact Hinson were limited to the three-day period from January

2 to January 4. Moreover, Titan never inquired of Almand’s attorney whether it

could get an extension of time based on its difficulties in contacting Hinson.

      The district court dismissed this evidence as insufficient to create a genuine

issue of fact because it showed “negligence, at best,” but negligence is relevant to

the question of bad faith. See Gutierrez, 386 So. 2d at 785; Campbell, 306 So. 2d

at 530–31. Specifically, this evidence suggests that Titan did not handle Hinson’s

case with the same degree of care and diligence Titan would have used to handle

its own affairs. See Mesa, 799 F.3d at 1359. Overall, we conclude that Hinson has

presented sufficient evidence to create a genuine issue of material fact regarding

whether Titan handled the claim against Hinson in good faith. See Gutierrez, 386

So. 2d at 785.

      Titan complains that the short deadline of the offer was a deliberate attempt

by Almand’s attorney to fabricate a bad-faith claim. That may be a reasonable

inference from the events, and one a jury may very well believe, but it is not the

only reasonable inference, nor is it directly relevant to the question before us. See

Berges, 896 So. 2d at 677 (the bad-faith inquiry focuses on the actions of the

insurer, not on the actions of the claimant). Almand’s attorney testified that the

claim would have settled if the requested affidavit had been provided, and a Titan


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adjuster testified that the claim could and should have settled. In other words, a

reasonable jury could find that the settlement offer was legitimate and made in

good faith. Because this appeal is from a summary-judgment motion, we draw this

inference in Hinson’s favor. See Bradley, 739 F.3d at 608.

      Titan also argues that it provided adequate notice to Hinson under Florida

law by sending him a letter regarding the settlement offer, even if Hinson did not

receive the letter. Yet the caselaw Titan cites for this proposition, concerning

notice of cancellation of a policy under the terms of the policy, has little to no

relevance to the law of bad faith, set out above. See Burgos v. Indep. Fire Ins. Co.,

371 So. 2d 539, 541 (Fla. Dist. Ct. App. 1979) (“The well established principle of

law with regard to the issue of notice of cancellation is that proof of mailing a

notice of cancellation to a named insured at the address stated in the policy is

sufficient compliance with the policy provision requiring notice to the insured.”);

see also Best Meridian Ins. Co. v. Tuaty, 752 So. 2d 733, 735–36 (Fla. Dist. Ct.

App. 2000) (addressing a similar notice provision in an insurance policy).

      Finally, Titan faults Hinson for failing to provide adequate contact

information or to respond to Titan’s requests for information.        However, the

evidence reflects that Titan had accurate contact information for Hinson, and

Hinson testified that he did not know about Titan’s efforts to contact him.




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      As for Hinson’s contention that Titan acted in bad faith by effectively

excluding property damage from earlier settlement offers, the facts do not show a

reasonable possibility for settlement at the time of those offers in October and

November 2007. As a result, this evidence cannot on its own support a bad-faith

claim because it does not establish “a causal connection between the damages

claimed and the insurer’s bad faith.”         See Perera, 35 So. 3d at 903–04.

Nonetheless, the evidence may be relevant to the “totality of the circumstances”

regarding Titan’s handling of Almand’s claim against its insured. See Berges, 896

So. 2d at 680. Because we find other genuine issues of material fact that preclude

summary judgment, we leave any questions about the relevance of this evidence to

be addressed upon remand.

      In sum, although substantial evidence shows that Titan handled the claim

against Hinson in good faith, other evidence supports Hinson’s claim that Titan

failed to act with due regard for his interests. As a result, the issue of whether

Titan could have fully complied with the terms of the settlement offer by the

deadline if it had acted with due regard for Hinson’s interests is one that should be

resolved by a jury as a question of fact. See id. at 677. For these reasons, we

vacate the grant of summary judgment in favor of Titan and remand for further

proceedings.




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                                     IV. CONCLUSION

       For the reasons stated, we VACATE the judgment of the district court and

REMAND this case for further proceedings consistent with this opinion.4




4
        We do not consider Hinson’s contention, raised for the first time in his reply brief, that
the district court failed to consider or address expert testimony he submitted in opposition to
Titan’s motion for summary judgment. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678,
682–83 (11th Cir. 2014) (declining to address arguments raised for the first time in a reply brief).
We therefore DENY AS MOOT Titan’s Motion for Leave to File a Supplemental Brief, or in the
Alternative, a Motion to Strike Reply Brief, relating to that issue.
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