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[DO NOT PUBLISH]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
2 Opinion of the Court 21-11878
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
21-11878 Opinion of the Court 3
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
4 Opinion of the Court 21-11878
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
21-11878 Opinion of the Court 5
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
6 Opinion of the Court 21-11878
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
21-11878 Opinion of the Court 7
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
8 Opinion of the Court 21-11878
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
21-11878 Opinion of the Court 9
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
10 Opinion of the Court 21-11878
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.
