Darlene Deary v. Progressive American Insurance Company

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 25, 2022
• Docket: 21-11878
• Status: Unpublished

Opinion

USCA11 Case: 21-11878 Date Filed: 07/25/2022 Page: 1 of 10

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-11878 Non-Argument Calendar ____________________

DARLENE DEARY, individually and as assignee of Dwight Norman, Plaintiff-Appellant, versus PROGRESSIVE AMERICAN INSURANCE COMPANY,

Defendant-Appellee. ____________________

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 9:20-cv-80279-DMM ____________________ USCA11 Case: 21-11878 Date Filed: 07/25/2022 Page: 2 of 10

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Before WILSON, BRASHER, and ANDERSON, Circuit Judges. PER CURIAM: This insurance appeal turns on whether Progressive Ameri- can Insurance Company handled Darlene Deary’s personal injury claim against its insured, Dwight Norman, in bad faith. Deary, in- dividually and as Norman’s assignee, sued Progressive after it ini- tially offered to settle her claim for an amount below Norman’s policy limits. After careful consideration, we conclude that no rea- sonable jury could have found that Progressive acted in bad faith. Thus, we affirm. I. BACKGROUND

On March 17, 2017, Deary and Norman were involved in a car accident. The next day, Progressive determined that Norman was one hundred percent at fault for the accident and identified Deary’s mother Elizabeth Diente as the owner of the car that Deary was driving. The insurance adjuster assigned to the case called Diente that day and left a message. A few days later, the ad- juster spoke with Diente, who told him that she was experiencing neck pain as a result of the accident. During the call, Diente men- tioned that Deary “ha[d] pancreatic disease and now was in pain.” On March 23, another Progressive employee met with both Deary and Diente, and the latter agreed to settle Diente’s bodily injury claim against Norman for 500 dollars. Progressive’s record of this meeting makes no mention of Deary mentioning injuries resulting USCA11 Case: 21-11878 Date Filed: 07/25/2022 Page: 3 of 10

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from the accident, and Deary stated that she was answering im- portant text messages during the meeting. About three weeks later, Deary notified Progressive through counsel that she had also sustained injuries from the accident, and Progressive promptly filed a claim. Progressive informed Norman of the new claim and began to investigate, discovering that Deary had been treated at an emergency room and that she had been in- volved in a car accident fifteen years earlier. Soon after, Progressive mailed Norman two letters, one via certified mail, advising him that: (1) a claim had been filed against him; (2) the claim might ex- ceed his policy limits of $25,000 per person; and (3) Progressive would appoint him counsel if Deary filed suit. The certified letter was returned to Progressive as undelivered, but the other letter was not. About a week after mailing the letters, a Progressive ad- juster called to discuss Deary’s claim only to be told by Norman that he was unavailable to talk. On July 17, Deary’s counsel sent a letter to Progressive de- manding that it settle for the full amount of Norman’s policy limits no later than August 7. The letter included medical records docu- menting Deary’s various treatments. These records confirmed that Deary first saw a doctor twelve days after the accident and that she was diagnosed with “acute pain due to trauma” as well as degener- ative injuries. One of Deary’s doctors noted that if her condition worsened, “definitive surgical intervention may be warranted.” Af- ter receiving the demand, Progressive mailed Norman letters up- dating him on the claim, although Norman denies receiving them. USCA11 Case: 21-11878 Date Filed: 07/25/2022 Page: 4 of 10

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Progressive also requested that Deary’s counsel provide her Per- sonal Injury Protection logs and additional medical billing records to allow it to fully evaluate the claim. Ten days after Progressive’s request, Deary’s counsel furnished the relevant records. An ad- juster then reviewed them and concluded that Deary’s out of pocket expenses were just over 1,600 dollars. Using that infor- mation, Progressive’s in-house claim evaluation software, and her own experience, the adjuster determined that an appropriate set- tlement range for Deary’s claim was between 8,500 and 12,701 dol- lars. On August 3, Progressive offered to settle Deary’s claim for 8,500 dollars. The proposal included nearly 7,000 dollars in “gen- eral damages” which included pain and suffering and did not ac- count for future medical expenses. Deary’s counsel rejected the of- fer out of hand, replying that they would “not accept anything less than the [full policy] limits.” Several days later, Deary’s counsel sent Progressive a formal response that extended the demand dead- line to August 14, again demanded the full policy limits, and stated that Deary would file suit if a proffer was not made by the new extended deadline. The renewed demand contained no additional information as to Deary’s condition or medical records. Progres- sive requested another extension on August 7, which Deary de- nied. Based on its previous evaluation and the lack of any new med- ical documentation, Progressive re-offered 8,500 dollars on August 11. Deary’s counsel rejected the offer on August 15, informing Pro- gressive that Deary would be suing Norman and stating that they USCA11 Case: 21-11878 Date Filed: 07/25/2022 Page: 5 of 10

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would not negotiate any further. That day, Progressive mailed Norman an update advising that he would be sued, although he denies receiving it. Progressive continued to seek updates on Deary’s medical condition and documentation, but its efforts were rebuffed by counsel. On September 18, Deary’s counsel sent Progressive a medical record confirming for the first time that she was scheduled to undergo surgery, although the surgery was later delayed. This new record arrived alongside a statement that Deary’s “settlement demand for 25,000 dollars [was] hereby withdrawn and [that she would] proceed with filing a Complaint for Damages.” But even after her formal withdrawal, Progressive continued to inquire about Deary’s condition and the possibility of settling. Eventually, Progressive learned through discovery that Deary had been in- volved in another car accident, but it remained unsure of the exact date of her surgery. These new facts prompted a need for additional medical documentation to fully evaluate their effect on Deary’s claim. On November 21, Deary filed suit. About eight months after Deary had surgery and eleven months after she formally withdrew her offer of settlement, Pro- gressive received documentation establishing that Deary under- went surgery on November 16, 2017, and that her gross medical bills exceeded Norman’s policy limits. Progressive immediately in- structed Norman’s appointed counsel to file a proposal for settle- ment for the full amount of the policy limits, which Deary’s USCA11 Case: 21-11878 Date Filed: 07/25/2022 Page: 6 of 10

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counsel rejected. Deary would go on to win a jury verdict against Norman for 332,500 dollars. Following the verdict, Deary initiated the bad-faith action giving rise to this appeal. The district court granted summary judg- ment to Progressive and Deary timely appealed. II. STANDARD OF REVIEW

We review a district court’s grant of summary judgment de novo, viewing all facts and drawing all inferences in the light most favorable to the nonmoving party. Eres v. Progressive Am. Ins. Co., 998 F.3d 1273, 1278 n.3 (11th Cir. 2021). III. DISCUSSION

The only issue on appeal is whether the district court erred in concluding that no reasonable jury could find that Progressive acted in bad faith with respect to Deary’s claim. Deary argues that summary judgment was improper because Progressive could and should have settled for the policy limits “if [it] had acted fairly and honestly” towards Norman. We disagree. Under Florida law, which both parties agree governs the dis- pute, an insurer owes its insured a duty of good faith. Mesa v. Clar- endon Nat’l Ins. Co., 799 F.3d 1353, 1358–59 (11th Cir. 2015). Whether an insurer has fulfilled its good-faith obligations is evalu- ated using the “totality of the circumstances standard,” which con- siders whether the insurer acted with “reasonable diligence” and “ordinary care.” Id. at 1359 (quoting Campbell v. Gov’t Emps. Ins. USCA11 Case: 21-11878 Date Filed: 07/25/2022 Page: 7 of 10

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Co., 306 So. 2d 525, 530–31 (Fla. 1974)). The claimed damages from a judgment entered against the insured must also be causally con- nected to the insurer’s alleged bad faith. Id. at 1359 (quoting Perera v. U.S. Fid. & Guar. Co., 35 So. 3d 893, 903–04 (Fla. 2010)). Alt- hough bad faith is ordinarily a jury question, we have affirmed summary judgment where “there is no sufficient evidence from which any reasonable jury could have concluded that there was bad faith on the part of the insurer.” Eres, 998 F.3d 1273, 1278 (11th Cir. 2021) (quoting Boston Old Colony Ins. Co. v. Gutierrez, 386 So. 2d 783, 785 (Fla. 1980)). The undisputed facts reveal that Progressive acted with rea- sonable diligence and ordinary care for three reasons. First, the record establishes that, from the moment it learned of the accident, Progressive took reasonable steps to communicate with its insured to protect Norman from the potential of an excess judgment. Good faith requires that an insurer “advise their in- sured… [of the] probable outcome of a lawsuit and warn him of the consequences of an excess judgment.” Powell v. Prudential Prop. & Cas. Ins. Co., 584 So. 2d 12, 14 (Fla. Dist. Ct. App. 1991). Within a day of the accident, Progressive determined that Norman was one-hundred percent liable for the accident and notified him of that determination. And when Deary later retained counsel, Pro- gressive attempted to inform Norman by at least three methods of communication that: (1) her claim could potentially exceed the lim- its of his policy; and (2) it would appoint him counsel should a suit be filed. When told that Deary would be filing suit, Progressive USCA11 Case: 21-11878 Date Filed: 07/25/2022 Page: 8 of 10

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again immediately notified Norman. In sum, throughout the pro- cess Progressive attempted to keep Norman apprised of the chang- ing circumstances of Deary’s claim and his potential legal exposure. Deary’s contention that several certified letters were returned as undeliverable does not compel a different conclusion, especially in the light of undisputed evidence that Progressive consistently at- tempted to reach Norman using multiple methods of communica- tion. Second, a reasonable jury could not find that Progressive’s actions in making an offer to settle Deary’s claim were evidence of bad faith simply because the initial offer failed to reach the policy limits. Under Florida law, disagreement over the valuation of a claim resulting in an insurance company’s refusal to pay the de- manded amount does not equate to per se bad faith. See Cruz v. American United Ins. Co., 580 So. 2d 311, 312 (Fla. Dist. Ct. App. 1991) (affirming summary judgment to an insurer where the claim failed to settle because “[t]he legal standard governing an insurer’s settlement conduct is one of reasonableness”). Instead, an insurer must only “give fair consideration to a settlement offer that is not unreasonable under the facts.” Boston Old Colony, 386 So. 2d at 783. Here, we agree with the district court that the “undisputed facts of this case . . . reflect that Progressive simply disagreed about the value of [Deary]’s claim . . . ” From the outset, Deary made clear she would accept nothing less than the limits of Norman’s policy. But after an examination of the only medical documenta- tion provided by Deary’s counsel at the time of the settlement USCA11 Case: 21-11878 Date Filed: 07/25/2022 Page: 9 of 10

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offer, Progressive determined the value of her claim to be 8,500 dollars, including roughly 7,000 dollars in “general damages” that included non-economic damages such as pain and suffering. Pro- gressive’s offer was more than five times Deary’s out-of-pocket ex- penses that were documented at the time. By contrast, Deary’s de- mand for the full policy limits was equal to approximately sixteen times those same expenses. Of course, after Deary provided docu- ments that substantiated a higher settlement demand, Progressive attempted to settle for an amount equal to the policy limits. But it was immediately rebuffed by Deary’s counsel—conduct that fac- tors into our analysis. Pelaez v. Gov’t Emps. Ins. Co., 13 F.4th 1243, 1254 (11th Cir. 2021) (There is a “difference between focusing on a claimant’s actions, which would be improper, and factoring a claimant’s actions into the totality of the circumstances analysis, which is not improper.”). Finally, Progressive’s delay in tendering the policy limits un- til June 2018 is not evidence of bad faith. Deary, through counsel, had expressly disclaimed any willingness to settle as of September 18, 2017. In Florida, “[o]nce it [is] clear that [a claimant] [is] unwill- ing to settle with [one insured] and give him a complete release, [the insurance company] ha[s] no further opportunity to give fair consideration to a reasonable settlement offer” for that insured. Contreras v. U.S. Sec. Ins. Co., 977 So. 2d. 16, 21 (Fla. Dist. Ct. App. 2006). Deary’s September 18 communication formally withdraw- ing her settlement offer expressed just such an intention, and Pro- gressive was not bound to try and overcome it once expressed. The USCA11 Case: 21-11878 Date Filed: 07/25/2022 Page: 10 of 10

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mere suggestion by Deary’s expert that a claim settling after an ex- press withdrawal “has happened” in other cases provides no grounds for a reasonable jury to conclude otherwise contra Deary’s undisputed conduct in this case: expressly withdrawing a settle- ment offer for the policy limits in writing and through counsel. IV. CONCLUSION

For the foregoing reasons, the district court’s order granting summary judgment is AFFIRMED.