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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-14995
Non-Argument Calendar
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D.C. Docket No. 8:17-cv-00040-JSM-TGW
DAVID DUNCAN,
Plaintiff - Appellant,
versus
GEICO GENERAL INSURANCE COMPANY,
Defendant - Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 1, 2018)
Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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In 2013, David Duncan got in a car accident with an uninsured motorist.
Duncan, who had uninsured motorist (UM) coverage through defendant GEICO,
filed a claim with GEICO seeking noneconomic damages for a brachial plexus
injury, tremors in his right hand, and loss of grip strength. GEICO offered to settle
the UM claim, but Duncan filed suit in the Tenth Judicial Circuit in Polk County,
Florida instead, eventually winning a jury verdict of $300,000, which was reduced
to $10,000, the amount of the UM policy limit. After the trial, Duncan sued
GEICO for bad faith, alleging that GEICO handled his UM damages claim in
violation of Fla. Stat. § 624.155(1)(b)(1). GEICO transferred the case to the
Middle District of Florida and moved for summary judgment. The district court
granted the motion. Duncan appeals. We affirm.
We review a grant of summary judgment de novo and construe all evidence
in the light most favorable to the non-moving party. Baby Buddies, Inc. v. Toys R
Us, Inc.,
611 F.3d 1308, 1314 (11th Cir. 2010). Summary judgment is appropriate
when “there is no genuine issue as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). In diversity cases, we apply
the substantive law of the forum state. Bravo v. United States,
577 F.3d 1324,
1325 (11th Cir. 2009) (per curiam).
On appeal, Duncan argues that there are genuine issues of material fact as to
whether GEICO acted in bad faith during the claims process, such as evidence that
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it neglected to account for his brachial plexus injury, tremors in his right hand, and
loss of grip strength, in assessing his claim. Duncan also argues that the district
court’s ruling violated his Seventh Amendment right to a trial by jury.
Under Florida law, a person may assert a claim for first-party bad faith
against his insurer for “[n]ot 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). Prior to filing a bad faith claim, the insured must give the
insurer sixty days’ written notice of the violation in order to afford the insurer an
opportunity “to comply with their claim-handling obligations when a good-faith
decision by the insurer would indicate the contractual benefits are owed.” Cadle v.
GEICO General Insurance Company,
838 F.3d 1113, 1124 (11th Cir. 2016).
Under Florida law, which was incorporated into Duncan’s policy with GEICO,
“[n]oneconomic 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.”
Id. at 1126
(quoting Fla. Stat. § 627.737(2)(b)). “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 arbitration that the insurer’s denial was mistaken, there is no cause of
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action if the denial was in good faith.” Vest v. Travelers Ins. Co.,
753 So. 2d 1270,
1275 (Fla. 2000).
Here, even viewing the evidence in the light most favorable to Duncan, we
find that no reasonable jury could conclude that GEICO acted in bad faith in
processing Duncan’s UM claim. None of the medical records included in
Duncan’s demand letter indicated that Duncan suffered a permanent injury within a
reasonable degree of medical probability, as required by Florida law. Fla. Stat.
§ 627.737(2)(b). Duncan’s X-rays and MRI taken after the accident came back
negative, and he did not provide any medical evidence regarding the permanency
of his other alleged injuries, such as the need for surgery or future treatment. The
neurologist who stated that Duncan “may have a brachial plexus stretch injury”
suggested a follow-up appointment in five months and recommended stretch
exercises in the meantime. Duncan provided no other medical testimony
suggesting that he suffered permanent injuries.
Over the course of the sixty day cure period, multiple GEICO examiners
reviewed Duncan’s medical records, concluded that his injuries were soft tissue in
nature, and communicated this to him along with three separate settlement offers of
$1,500. Duncan refused these offers, claiming that his injuries were “worth well
more than $10,000,” but failed to provide any additional medical evidence of why
this was so. Given the lack of evidence presented to GEICO during the sixty day
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cure period indicating that Duncan suffered a permanent injury within a reasonable
degree of medical probability, GEICO was not unreasonable in offering him
$1,500 to settle his UM claim, especially in light of the fact that Duncan’s personal
injury policy had already paid all of his medical expenses and left him with more
than $6,400 for any future expenses he may incur. GEICO is entitled to judgment
as a matter of law, and, accordingly, Duncan has no right to present his claim to a
jury under the Seventh Amendment.
AFFIRMED.
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