                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                        FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                          ________________________   ELEVENTH CIRCUIT
                                                             AUGUST 24, 2010
                                 No. 10-10769                  JOHN LEY
                             Non-Argument Calendar               CLERK
                           ________________________

                       D. C. Docket No. 1:08-cv-22117-JLK

MIRNA M. VALLE,
as Personal Representative of the Estate
of Maria E. Valle, deceased, and
Assignee of Marvin Hood, Assignor,

                                                              Plaintiff-Appellant,

                                      versus

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, an Illinois
corporation,

                                                             Defendant-Appellee.


                           ________________________

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

                                 (August 24, 2010)
Before DUBINA, Chief Judge, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:

          Mirna M. Valle (“Valle”) appeals the district court’s grant of summary

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

Farm”) on her 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 Valle has failed to offer any evidence from which a reasonable

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

                                       I. BACKGROUND

          Maria E. Valle sustained fatal injuries as a result an automobile accident

caused by Marvin Hood.1 The accident additionally inflicted injuries on seven

others, though none of those injuries were fatal. State Farm insured Marvin Hood

at the time of the accident under a policy providing $20,000 in coverage per

accident, with a $10,000 limit on amounts paid to any one person.

          Shortly after being informed of the accident, State Farm contacted all of the

potentially aggrieved parties in an effort to resolve its liability. After receiving

responses from all except Maria E. Valle’s family, State Farm indicated to all

parties its willingness to settle for the policy’s limits. It conditioned its offer on the



1
    Mirna M. Valle, the Appellant, serves as the personal representative of Maria E. Valle’s estate.

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parties’ agreement to a collective settlement. State Farm sent its notification a little

more than one month after the accident, and the settlement conference occurred

approximately two-and-a-half months later.

      Valle failed to make a formal settlement demand, and State Farm made no

formal settlement offer, before the conference. Valle never informed State Farm

that she felt any temporal urgency to resolve her claims. At the settlement

conference, the parties agreed that Valle should receive the per-person limit of

$10,000 from the insurance fund and that the other parties would split the

remainder. During these negotiations, Valle’s counsel learned that the other

injured parties had expressed a willingness to share the remainder of the policy

proceeds before the settlement conference convened. As a result, Valle’s counsel

advised her to reject the policy-limits settlement offer because she “may wish to

reserve any bad-faith claim against State Farm because of the delay in paying [her]

claim.”

      After rejecting the settlement offer, Valle sued Hood directly in state court

and received a judgment of nearly $4 million. Hood assigned his rights in any bad

faith insurance claim to Valle. Valle now asserts those rights in an attempt to

recover the excess of the judgment over the insurance coverage.




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                          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

      Under Florida law, indemnity insurers have a common law duty to exercise

ordinary care and prudence in resolving their insured’s liability. Berges v. Infinity

Ins. Co., 896 So. 2d 665, 668–69 (Fla. 2004). An insurer breaches that duty when

it acts in a way that unreasonably fails to mitigate or unreasonably exacerbates the

insured’s exposure to liability. See Perera v. U.S. Fidelity & Guar. Co., 35 So. 3d

893, 904 (Fla. 2010). That failure must also result in damage to the insured via a

judgment against him in excess of the insurance policy limits. See id.

      Valle maintains the burden of producing evidence from which a jury could

infer that State Farm’s conduct in this case unreasonably exposed Hood, the

insured, to excess liability. Our review of the evidence in this case, and the

primary arguments Valle mounts from this evidence, discloses no conduct on the

part of State Farm detrimental to Hood’s interests.

      Valle’s primary argument is that State Farm should have, and could have,

resolved Hood’s liability to Valle sooner by tendering to her the per-person policy

limit before the settlement conference. We acknowledge that, in limited



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circumstances, an insurer’s delay in settling claims on behalf of an insured can

contribute to a bad faith claim. See Powell v. Prudential Prop. & Cas. Ins. Co.,

584 So. 2d 12, 14 (Fla. Dist. Ct. App. 1991) (“Bad faith may be inferred from a

delay in settlement negotiations which is willful and without reasonable cause.”).

But such a willful and unreasonable delay must also increase the risk of the

insured’s exposure to excess liability—in other words, it must be unreasonable

from the perspective of the insured, not unreasonable from the perspective of the

third-party claimant. Valle has offered no evidence to demonstrate that State Farm

knew or should have known that its four-and-a-half month resolution of a policy

proceeds distribution in a fatal car accident case involving eight potential claimants

increased Hood’s exposure to excess liability.

      Valle made neither a formal settlement demand to State Farm nor indicated

in any way a unique urgency in the resolution of her claim. Though Florida law

requires no formal settlement demand in a bad faith action, Powell, 584 So. 2d at

14, either a demand or an indication that extraordinarily prompt resolution was

requested would indicate to State Farm that its efforts at obtaining a global

settlement might increase Hood’s exposure to liability. In this case, Valle conduct

indicated the opposite—she agreed to participate and did participate in the

collective settlement negotiations right up until the moment she rejected State



                                           5
Farm’s policy-limits offer.

      Valle’s counsel has concisely explained that he advised rejecting State

Farm’s offer in an effort to create grounds for a bad faith claim. We can find no

Florida case law permitting a third-party claimant to participate in settlement

negotiations, reject a policy-limits settlement offer, claim post-hoc that the offer

was untimely, and prevail in a bad faith action against the insurer. If any fiduciary

in this case acted to the detriment of its client’s interests, it was not State Farm.

                                  IV. CONCLUSION

      Valle has offered no evidence in this case to indicate that State Farm’s

conduct unreasonably exposed Hood to a judgment in excess of his insurance

coverage. As a result, Valle’s claim, via assignment from Hood, must fail as a

matter of law. Accordingly, we affirm the district court’s grant of summary

judgment in favor of State Farm.

      AFFIRMED.




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