Robin Baxley v. Geico General Insurance Company

448 F. App'x 940
CourtCourt of Appeals for the Eleventh Circuit
DecidedDecember 9, 2011
Docket11-12851
StatusUnpublished
Cited by9 cases

This text of 448 F. App'x 940 (Robin Baxley v. Geico General Insurance Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robin Baxley v. Geico General Insurance Company, 448 F. App'x 940 (11th Cir. 2011).

Opinion

PER CURIAM:

Appellant Robin Baxley appeals the district court’s grant of summary judgment in favor of Geico General Insurance Company. The dispute arises out of a single-vehicle accident that resulted in the death of passenger Michael Jesse Scarberry. Baxley contends that summary judgment was inappropriate because genuine issues of material fact exist that preclude entry of judgment as a matter of law. After thorough review, we affirm.

I.

The relevant facts are largely undisputed. On January 7, 2005, Layura Sellers, the daughter of Geico policyholders Winnie *942 and Raymond Paulk, was driving the Paulks’ vehicle when she was involved in a car accident. The crash resulted in the death of Scarberry, the son of plaintiff Baxley. Winnie Paulk reported the accident to insurer Geico the following day. On January 19, 2005, eleven days after being informed of the accident, Geico tendered a check for the full policy limits made out to the personal representative of Scarberry’s estate and Baxley’s lawyer, Hosam Zawahry. Accompanying this check was a release of further liability, which included the names of Winnie Paulk and Layura Sellers. On February 18, Gei-co sent a letter to the Paulks advising them of their policy limits, of the possibility that they could face liability in excess of their policy limit, and of their right to retain an attorney to represent their interests.

Over the next six months, Geico attempted to follow up with Zawahry on at least sixteen occasions via telephone, fax, mail, and in-person visits, but Zawahry never responded to Geico’s correspondences. On July 18, 2005, a Geico representative hand delivered an unsolicited replacement check, along with a second proposed release, to Zawahry’s office because the first check had expired.

On August 5, 2005, Zawahry responded for the first time to Geico’s tendering of the policy limits and release. In his response, he made numerous requests of Geico and stated that if Geico complied within thirty days, then Baxley would release her claims. Specifically, Zawahry asked that Geico (1) either waive the creation of an estate for Scarberry or pay $2500 so Zawahry could arrange its creation; (2) verify that there was no other insurance policy covering the vehicle; (3) submit certain disclosures specified by statute; and (4) re-draft the release to include language stating that any future court-ordered restitution remains unaffected by the release. Geico shortly thereafter contacted Winnie Paulk to verify that no other insurance policy was in effect for the vehicle. On August 29 and 31, Geico attempted to contact Zawahry but, again, could not get in touch with him. Meanwhile, Geico contacted another lawyer about the creation of an estate for Scar-berry, and that lawyer unsuccessfully attempted to contact Zawahry to discuss creating that estate.

On September 8, 2005, Geico responded to Zawahry’s August 5 communication, informing him that no other policy existed and asking for clarification. 1 On September 19, Zawahry responded to Geico’s letter. In this communication, Zawahry accused Geico of intentionally misdating its September 8 communication and explained that Geico failed to meet the demands of the August 5 letter.

On September 21, 2005, Winnie Paulk advised Geico that she had received a complaint filed by Baxley in state court. The result of that suit was a consent judgment in favor of Baxley in the amount of $2.5 million. On September 18, 2009, Baxley filed this third-party bad faith action against Geico in state court, and on October 14, 2009, Geico removed it to federal district court. On May 25, 2011, the district court entered summary judgment in favor of Geico, and this appeal followed.

II.

We review the district court’s grant of summary judgment de novo and apply the same legal standard as the district court. Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 911 (11th Cir.2007). Summary judgment is appropriate where the moving party shows *943 that “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).

III.

Florida law 2 requires that insurers act in good faith when attempting to negotiate or settle a claim against the insured. See Clauss v. Fortune Ins. Co., 523 So.2d 1177, 1178 (Fla.Dist.Ct.App.1988). “[T]he essence of a third-party 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.” Macola v. Gov’t Emps. Ins. Co., 953 So.2d 451, 458 (Fla.2006) (quotation omitted). Bad faith is determined based on the “totality of the circumstances” standard. Berges v. Infinity Ins. Co., 896 So.2d 665, 680 (Fla.2004). In Florida, the standard for good faith is as follows:

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.... This good faith duty obligates the insurer to advise the insured of settlement opportunities, to advise as to the probable outcome of the litigation, to warn of the possibility of an excess judgment, and to advise the insured of any steps he might take to avoid same. 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.

Bos. Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980) (per curiam) (citations omitted).

Bad faith causes of action generally raise issues of fact for determination by the jury. See Campbell v. Gov’t Emps. Ins. Co., 306 So.2d 525, 530-31 (Fla.1974). However, Florida courts have endorsed judgment as a matter of law in cases where the undisputed facts would not support the conclusion that the insurer acted in bad faith. See, e.g., Gutierrez, 386 So.2d at 785-86; RLI Ins. Co. v. Scottsdale Ins. Co., 691 So.2d 1095, 1096 (Fla.Dist.Ct.App.1997); Clauss, 523 So.2d at 1178; Caldwell v. Allstate Ins. Co., 453 So.2d 1187, 1190 (Fla.Dist.Ct.App.1984). Our focus in a bad faith case is on the actions of the insurer “in fulfilling its obligations to the insured.” Berges, 896 So.2d at 677.

Here, Geico tendered a check for the policy limits and a proposed release just eleven days after the occurrence of the accident. It then attempted to contact Zawahry on at least sixteen separate occasions to discuss the status of its release and tender of the policy limits. Without being prompted, Geico issued another check for the policy limits and a proposed release when the first check expired.

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Bluebook (online)
448 F. App'x 940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robin-baxley-v-geico-general-insurance-company-ca11-2011.