Dustin C. Brink v. Direct General Insurance Company

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11070
____________________
DUSTIN C. BRINK,
Plaintiff-Appellant,
versus
DIRECT GENERAL INSURANCE COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cv-02844-JSM-AEP
____________________
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2 Opinion of the Court 21-11070
Before JILL PRYOR, GRANT, and ANDERSON, Circuit Judges.
GRANT, Circuit Judge:
Dustin Brink was seriously injured in an automobile
accident and won over $12 million in a suit against the other driver.
To recover the judgment, Brink sued that driver’s insurance
company on the theory that it acted in bad faith toward its insureds.
The jury returned a verdict in the insurer’s favor, but Brink argues
that the district court abused its discretion by failing to give his
proposed jury instruction.
We agree. The district court instructed the jury on bad faith
resulting from the failure to settle a claim. But Florida law
provides—and Brink argued at trial—that bad faith is also present
when an insurance company fails to advise an insured about
settlement offers and likely litigation outcomes. Because the
district court’s instruction omitted the state law relevant to this
theory of liability, we reverse.
I.
Fourteen years ago, Brink was riding a motorcycle when he
collided with a car. He was airlifted to a hospital and lay in a coma
for several weeks. The other driver, Juan Ruiz Pereles, was
covered by a policy issued by Direct General Insurance. Direct
General learned about the accident three weeks later and promptly
interviewed both Pereles and his father (the policyholder). When
those interviews revealed that Brink had hired a lawyer, Direct
General immediately faxed a letter to Brink’s counsel. But from
there, communication sputtered. Despite several attempts, Direct
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21-11070 Opinion of the Court 3
General failed to reach Pereles and his father. And because Brink’s
lawyer quit representing him, it struggled to contact Brink as well.
Four months after the accident, Direct General sent letters
to the policyholder explaining its bodily injury policy—$10,000 per
person with a $20,000 cap per accident—and asking about any
other insurance coverage that might apply. But perhaps wearied
by the struggle to actually reach its insureds, Direct General
decided to simply pay the policy limit for the accident. A few days
later, it attempted to contact Brink’s new attorney, Alexander
Clem.
Clem also proved a difficult person to reach. After two
months of futile efforts, Direct General sent a pointed letter to
Clem in which it listed 11 previous attempts at contact, offered to
tender the “bodily injury policy limits of $10,000 to settle” Brink’s
claim, and enclosed a check for $10,000. The check was never
cashed, and Direct General heard nothing for seven more months.
Fourteen months after the original accident, Clem broke the
silence with a letter. He informed Direct General that he needed
more information verifying the total coverage available to Pereles
and his father. Direct General offered him an affidavit of coverage
stating that it knew of no other insurer, but this did not satisfy
Clem. Direct General continued to push for a settlement, but Clem
was not responsive.
After another eight months, on February 19, 2010, Clem
finally replied to Direct General. He again asked about other
insurance coverage and insisted that any settlement release allow
Brink to recover uninsured motorist and medical payment claims.
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4 Opinion of the Court 21-11070
But this time, Clem indicated that a final settlement was possible.
He concluded his letter with a promise: “If I receive that release
and the requested insurance disclosure documentation in the next
couple of weeks with all insurance proceeds offered by your
company, then my client will sign the release. Of course, this is an
offer for a unilateral contract, requiring that I receive these items
rather than a promise.”
The settlement opportunity that Direct General had sought
for almost two years had finally arrived—but two weeks came and
went, and Clem heard nothing. No evidence suggests that Pereles
or his father were informed of the offer during this time. After the
third week, Clem sent a letter explaining that Brink was suing
Pereles and his father because Direct General had ignored his offer.
“For some reason, I have still never received a response to my letter
of February 19, 2010, after Direct General had called and written to
me dozens of times over the history of this claim,” he wrote (with
no comment on his own responsiveness). “Now, for some reason,
when I presented a time-limited settlement offer, Direct General
did not respond at all. . . . If you feel inclined to provide an
explanation for this, I would be very interested in hearing it
sometime next week.”
Direct General finally wrote back after two more weeks,
expressing a hope that a settlement would soon be “finalized.” But
under the terms of Clem’s February 19 offer, Direct General was
too late. Clem rejected Direct General’s attempts to settle and, as
he had promised, proceeded with a lawsuit against its insureds.
Brink won $12,679,837.17 at the end of the ensuing jury trial.
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21-11070 Opinion of the Court 5
All that is prelude to the case before us. Six years after the
previous trial, Brink filed suit again—this time against Direct
General for breach of fiduciary duty (that is, bad faith) toward its
insureds. 1 Prevailing in this lawsuit would mean that Brink could
collect his $12.6 million judgment from Direct General.
At the close of discovery the district court denied summary
judgment to Direct General, explaining that Brink had offered
“sufficient evidence from which a reasonable jury may find Direct
General failed to act in good faith as required under Florida law.”
In the court’s view, the evidence supported a possible finding that
“Direct General failed to timely respond” to a settlement offer and
“failed to advise its insureds of the February 19, 2010 settlement
opportunity.” The court also believed that the evidence supported
Brink’s argument that “Direct General failed to inform its insureds
of the possibility of an excess judgment until March 2010, nearly
two years after the accident.”
Once again, the case proceeded to trial. Brink produced an
expert witness who testified that “Direct General failed to comply
with the industry custom and practice” normally followed by
insurance companies in at least two ways: by failing to settle the
claim, and by failing to communicate with and advise its insureds.
1 Under Florida law, “a judgment creditor may maintain suit directly against
[a] tortfeasor’s liability insurer for recovery of the judgment in excess of the
policy limits, based upon the alleged fraud or bad faith of the insurer in the
conduct or handling of the suit.” Thompson v. Com. Union Ins. Co. of N.Y.,
250 So. 2d 259, 264 (Fla. 1971).
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6 Opinion of the Court 21-11070
In response, Direct General argued that undisputed evidence
showed that it had “made over 50 attempts to communicate with
Mr. Clem by telephone and letter to try to settle” and that it had
fulfilled its obligation to keep Pereles and his father informed
throughout the process.
At the end of the trial, Brink requested a specific jury
instruction on the definition of bad faith that covered both theories
of liability he presented—failure to settle and failure to advise:
Juan Ruiz Pereles and Juan Ruiz De Los Santos were
insured against the claim made by Dustin Brink
arising from the April 5, 2008 accident under a policy
of insurance issued by Direct General Insurance
Company.
Direct General’s insureds surrendered to Direct
General control over the handling of the claim and
settlement decisions. Direct General owed a
fiduciary duty of good faith to act in its insureds’ best
interests and protect its insureds from judgments in
excess of their policy limits. In handling the claim
against its insureds, Direct General had 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.
The duty of good faith required Direct General to
advise its insureds 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 insureds of any steps they might take to
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21-11070 Opinion of the Court 7
avoid an excess judgment. Direct General was
further required to investigate the facts, give fair
consideration to a settlement offer that was 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.
The focus in this bad faith case is not on the actions
of Dustin Brink or his attorneys, but rather on the
actions of Direct General and its obligation to act in
good faith toward its insureds. The critical inquiry is
whether Direct General diligently, and with the same
haste and precision as if it were in its insureds’ shoes,
worked on the insureds’ behalf to avoid an excess
judgment. The absence of good faith constitutes bad
faith.
Brink argued that this instruction, which was heavily footnoted
with Florida precedents, correctly stated Florida’s law on bad faith,
as explained by the state high court in Boston Old Colony
Insurance Co. v. Gutierrez, 386 So. 2d 783 (Fla. 1980), and
subsequent cases. But the district court chose instead to give a
standard jury instruction addressing only liability for failure to
settle:
Bad faith on the part of an insurance company is
failing to settle a claim 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 their interests.
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8 Opinion of the Court 21-11070
See In re Standard Jury Instructions in Civ. Cases, 35 So. 3d 666,
720–21 (Fla. 2010).
During deliberations, the jury asked the following question:
“Is bad faith based on the full length of time from the accident or
on the time from [the] February 19, 2010 letter?” Although Brink
urged the district court to respond that the jury had already been
instructed on the law, the court instead responded, “In determining
bad faith on the part of an insurance company, you should consider
the totality of the circumstances.”
The jury returned a verdict for Direct General. Brink now
appeals.
II.
We review a district court’s refusal to give a requested jury
instruction and its response to a jury question during deliberations
for an abuse of discretion. Lamonica v. Safe Hurricane Shutters,
Inc., 711 F.3d 1299, 1309 (11th Cir. 2013); United States v. Joyner,
882 F.3d 1369, 1375 (11th Cir. 2018). In either case, we reverse only
when a court’s jury instructions leave us “with a substantial and
ineradicable doubt as to whether the jury was properly guided in
its deliberations.” Broaddus v. Florida Power Corp., 145 F.3d 1283,
1288 (11th Cir. 1998) (quotation omitted).
III.
Brink argues that the district court erred in two ways: by
failing to give his proposed jury instruction on bad faith, and by
giving a deficient answer to the jury’s question during
deliberations. The district court did not abuse its discretion in
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21-11070 Opinion of the Court 9
answering the jury’s question. But because the jury was not
instructed on a failure-to-advise theory of bad faith, the court’s
refusal to use Brink’s proposed instruction requires us to reverse.
A.
We begin with Brink’s proposed jury instruction. A refusal
to give a requested jury instruction amounts to an abuse of
discretion when “(1) the requested instruction correctly stated the
law, (2) the instruction dealt with an issue properly before the jury,
and (3) the failure to give the instruction resulted in prejudicial
harm to the requesting party.” Lamonica, 711 F.3d at 1309
(quotation omitted). Each requirement is met here.
First, Brink’s requested instruction correctly stated
applicable Florida law. Each statement of law in the proposed
instruction is supported by binding Florida precedent. 2 In Boston
Old Colony, the Florida Supreme Court explained that an insurer
“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.” 386 So. 2d at 785. The court further clarified
that the “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,
2 The dissent asserts that the district court had “no duty to parse” Brink’s
proposed instructions and “save whatever portions thereof that might be
correct.” We do not suggest otherwise. Because the complete instruction
correctly states Florida law, we need not consider whether any portion of the
instructions can be considered separately on appeal.
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10 Opinion of the Court 21-11070
and to advise the insured of any steps he might take to avoid same,”
and that 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.”
Id.; see also Harvey v. GEICO Gen. Ins. Co., 259 So. 3d 1, 6–8 (Fla.
2018). The beginning paragraphs of Brink’s proposed instruction
reproduce the Florida Supreme Court’s language in Boston Old
Colony almost verbatim.
Direct General concedes that “most of the individual
sentences in the instruction do, on a strictly technical basis,
correctly state the law.” The problem, Direct General says, is that
one sentence misstates the law: “The focus in this bad faith case is
not on the actions of Dustin Brink or his attorneys, but rather on
the actions of Direct General and its obligation to act in good faith
toward its insureds.” In Direct General’s view, that statement
invalidates the instruction because, contrary to Florida law, it does
not allow the jury to consider the responsiveness of Brink’s
attorney as part of the “totality of the circumstances.”
That argument does not hold water. The contested
sentence is also drawn directly from binding Florida precedent. As
the Florida Supreme Court has explained multiple times, the “focus
in a bad faith case is not on the actions of the claimant but rather
on those of the insurer in fulfilling its obligations to the insured.”
Harvey, 259 So. 3d at 10 (quoting Berges v. Infinity Ins. Co., 896
So. 2d 665, 677 (Fla. 2004)). And this Court recently reemphasized
that in Florida bad faith suits, the focus must remain on the actions
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21-11070 Opinion of the Court 11
of the insurer. There is a “difference,” we said, “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.” Pelaez v. GEICO, 13 F.4th 1243, 1253–54
(11th Cir. 2021). Brink’s proposed instruction carefully observed
that difference, and the dissent points to no language in the
instruction that violates the principle we explained in Pelaez.
The responsiveness (or lack thereof) of Brink’s attorney was
not exemplary, and the jury was allowed to consider his actions as
part of the totality of the circumstances. But his actions were not
the focus of the case. The proposed instruction properly kept the
focus away from the actions of Brink’s attorney while still allowing
the jury to consider them.
Second, Brink’s proposed instruction dealt with an issue
properly before the jury: bad faith for failure to advise. Under
Florida law, “it is for the jury to decide whether the insurer failed
to act in good faith with due regard for the interests of the insured.”
Harvey, 259 So. 3d at 7 (quotation omitted). And the question of
bad faith was the central issue of Brink’s lawsuit.
Furthermore, Brink’s theory of bad faith based on a failure
to advise was fully presented at each stage of the case. The
complaint asserted liability for both “failing to settle Plaintiff’s
claims against the insureds” and “failing to fully, honestly and
promptly advise the insureds.” When the district court denied
summary judgment to Direct General, it explicitly recognized that
a jury could hold Direct General liable because it failed to advise
Pereles and his father. Brink’s expert witness testified that Direct
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General failed to comply with its legal duties to “notify [its] insured
of a settlement opportunity,” to “advise him on the steps he can
take to protect himself,” to “advise him of the nature of the injuries
and likelihood of an excess verdict,” and to “correspond with him
in a meaningful way.” And at closing argument, Brink argued that
“[o]ne of the easiest ways to invite a bad faith claim is to fail to keep
the insured advised of settlement opportunities.”
Direct General does not dispute that Brink argued both
failure-to-settle and failure-to-advise bases for liability. It was
therefore proper for the jury to consider both theories.
Third, the district court’s failure to give Brink’s proposed
instruction caused prejudicial harm. Prejudice results when a
district court’s failure to give a jury instruction creates a
“misimpression that require[s] a correction”—that is, when it has
an “effect on the verdict.” Finnerty v. Stiefel Lab’ys, Inc., 756 F.3d
1310, 1324 (11th Cir. 2014). The standard bad-faith instruction
adopted by the court here created such a misimpression because it
limited the basis for bad faith to a failure to settle. Indeed, it was
designed to cover only that issue—contrary to the dissent’s
assertion that it also “fairly encompassed the Boston Old Colony
duties.” The instruction was entitled “Insurer’s Bad Faith (Failure
to Settle),” and the drafting committee warned that “[o]ther
instructions may be necessary if liability is asserted for the
insurance company’s violation of some other duty” than the duty
to settle. In re Standard Jury Instructions, 35 So. 3d at 720–21. That
warning was explicitly accompanied by a reference to Boston Old
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21-11070 Opinion of the Court 13
Colony’s “duty ‘to advise.’” Id. at 721 (quoting Boston Old Colony,
386 So. 2d at 785).
To be clear, we do not—as the dissent suggests—“believe
that the duty to advise the insured is an independent theory of
liability” separate from the duty of good faith. But Boston Old
Colony and its progeny hold that bad-faith liability may be
triggered in several distinct ways, and the jury instruction given by
the court described only one: failure to settle.
As explained above, Brink repeatedly asserted that Direct
General had violated its duty to advise its insureds. But the jury
was never instructed that it could find liability on that basis, and in
this Circuit a “jury is presumed to follow jury instructions.” Adams
v. Wainwright, 709 F.2d 1443, 1447 (11th Cir. 1983). We therefore
conclude that the district court abused its discretion when it failed
to give Brink’s requested instruction. 3
Direct General urges us to consider the district court’s error
as harmless because “the jury was informed” of an insurer’s
obligations beyond the duty to settle “and expressly told that they
constituted a basis for bad faith.” By whom? Brink’s counsel, who
“argued what he felt were the applicable obligations during closing
3 In his initial brief (but not at oral argument), Brink also argued that because
the jury was instructed “without any guidance on what it means to act with
‘due regard’ for the interests of the insured,” the jury instructions were per se
deficient. That argument goes too far. As we understand Florida law
governing bad faith, “due regard” is a commonsense standard, not a term of
art encompassing particular elements, and Brink has pointed us to no Florida
authority to the contrary.
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14 Opinion of the Court 21-11070
argument,” and his expert, who “went through an insurer’s good-
faith obligations during his testimony.” In the end, the insurer
argues, the “jury was hardly left in the dark as to what Direct
General’s good-faith obligations were,” despite the district court’s
failure to fully explain them.
This argument ignores the fundamental difference between
counsel and the court. A lawyer advocates for her client’s best
interest (and usually against the interests of adversarial parties).
The court, in contrast, is a neutral arbiter responsible for upholding
the rule of law. When the jury makes its findings, it must rely on
the law as stated by the court, not the law as construed in various—
often conflicting—ways by attorneys throughout the trial. That is
why “we look to the words of the trial court, not defense counsel,
in determining if jury instructions are adequate,” and why “we
cannot depend on defense counsel’s closing argument to save the
Judge from error.” See United States v. Wolfson, 573 F.2d 216, 221
(5th Cir. 1978); 4 Fed. R. Civ. P. 51. The dissent protests that we are
permitted to “consider what the parties’ counsel and expert
witnesses said to the jury” when reviewing jury instructions. And
so we are—to a point. The record provides vital context and
background when we review jury instructions. But an attorney’s
closing argument or an expert’s testimony, no matter how
accurate, is no substitute for an instruction issued by the court.
4In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth
Circuit handed down prior to October 1, 1981.
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21-11070 Opinion of the Court 15
While the district court’s error requires us to reverse the
verdict below, our holding is limited in scope. We are mindful that
the “obligations set forth in Boston Old Colony are not a mere
checklist” for bad-faith lawsuits and do not suggest that jury
instructions must treat them as such. Harvey, 259 So. 3d at 7. Not
every bad-faith jury instruction need be as detailed and expansive
as the one Brink proposed. And—of course—we express no view
on the merits of Brink’s argument that Direct General acted in bad
faith by failing to advise its insureds. All we hold is that when a
party properly argues a theory of liability grounded in state law, a
district court abuses its discretion if it causes prejudice by failing to
instruct the jury on that theory.
B.
Brink also argues that the district court abused its discretion
by telling the jury that it should consider the “totality of the
circumstances” when asked whether the bad faith claim
encompassed the full length of time after the accident or only the
time after Brink’s attorney Clem sent the settlement offer. The
court’s answer was no abuse of discretion; it was a correct
statement of Florida law.
As the Florida Supreme Court explained in Berges v. Infinity
Insurance Co., “the question of whether an insurer has acted in bad
faith in handling claims against the insured is determined under the
‘totality of the circumstances’ standard.” 896 So. 2d at 680 (citing
State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 63 (Fla.
1995)); see also Harvey, 259 So. 3d at 7. The insurer’s “entire
conduct in the handling of the claim” is relevant. Berges, 896 So.
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16 Opinion of the Court 21-11070
2d at 672. Brink concedes that the totality-of-the-circumstances
standard is correct. But he argues that the district court’s answer
wrongly “implie[d]” that the jury should look beyond the most
relevant time frame—the two-week period immediately after
Clem sent the February 2010 letter.
That argument does not persuade us. At bottom, Brink
suggests that the jury was misled by instructions that merely failed
to emphasize the time period most favorable to his claim. No
doubt Brink had good reason to draw the jury’s attention away
from the many months during which his attorney failed to respond
to Direct General’s inquiries. But the totality-of-the-circumstances
standard did not cease to govern the jury’s deliberations simply
because only some circumstances reflected well on Brink.
Brink offers no authority to suggest that the district court’s
answer was an incorrect statement of Florida law—and he cannot,
because it is not. The answer was thus not an abuse of discretion.
* * *
Brink’s proposed jury instruction correctly stated the legal
basis for his failure-to-advise theory of liability, and the district
court’s failure to give that instruction to the jury caused him
prejudice. We therefore REVERSE the district court’s judgment
and REMAND for a new trial.
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21-11070 ANDERSON, J., Concurring in part & dissenting in part 1
ANDERSON, Circuit Judge, concurring in part & dissenting in part:
I concur in Part III.B. of the opinion for the Court; I agree
with the majority that the district court’s answer to the jury’s ques-
tion was a correct statement of Florida law. However, I respect-
fully dissent from the majority’s decisions in Part III.A. For the rea-
sons discussed below, I respectfully submit that Brink has failed
both the first and the third prongs of our abuse of discretion stand-
ard of review applicable to an asserted failure to give a requested
jury instruction. Lamonica v. Safe Hurricane Shutters, Inc., 711
F.3d 1299, 1309 (11th Cir. 2013).
Appellant Dustin Brink (“Brink”) is appealing a jury verdict
in favor of Appellee Direct General Insurance Co. (“Direct Gen-
eral”). In September 2013, Brink obtained a final judgment against
two of Direct General’s insureds for roughly $12 million and
$600,000, respectively. In 2019, he sought to recover this judgment
from Direct General, alleging that it had acted in bad faith by
breaching fiduciary duties it owed to the insureds. His bad faith
claim proceeded to trial, where the jury found that Direct General
had not acted in bad faith in failing to settle Brink’s claims against
the insureds.
Brink has appealed that jury verdict on two grounds. First,
he argues that the trial court committed reversible error by refus-
ing to give his requested jury instruction on what constitutes “bad
faith” by an insurance company. Second, he argues that the court
gave an erroneous and misleading supplemental instruction in re-
sponse to a question from the jury during its deliberations. Our
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2 ANDERSON, J., Concurring in part & dissenting in part 21-11070
precedent dictates that this Court will only reverse a jury verdict
and order a new trial if we harbor a substantial and ineradicable
doubt as to whether the jury was properly instructed. Because I
have no such doubt, I would affirm.
I.
These are the relevant facts as I see them. On April 5, 2008,
a car driven by one of Direct General’s insureds collided with
Brink, who was riding his motorcycle. Brink sustained serious bod-
ily injuries. At that time, the driver and the owner of the car were
insured by Direct General against liability arising out of operation
of the car. This liability insurance policy had a $10,000 per person
limit for bodily injury claims and a $10,000 per accident limit for
property damage claims. Brink himself had uninsured motorist in-
surance with a separate insurance company that provided up to
$75,000 in coverage.
On April 28, 2008, Direct General learned of the accident and
took statements from the insureds. On July 3, 2008, Brink entered
a contingency fee agreement with two law firms—the firm who
represented him in the underlying action against the insureds and
the firm who represented him in this bad faith action. This fee
agreement said, “For any recovery up to $85,000.00, there is NO
fee.” For any recovery “greater than $85,000.00,” the two law firms
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21-11070 ANDERSON, J., Concurring in part & dissenting in part 3
would collectively receive 40% of the “gross recovery.” 1 On July
17, 2008, Direct General decided to cover the accident due to the
seriousness of Brink’s injuries and the sworn statements from the
insureds.
On August 4, 2008, Alexander Clem (“Clem”), Brink’s law-
yer in the underlying action, sent Direct General a letter stating
that Clem’s firm was representing Brink and requesting that Direct
General provide him insurance information as required by Florida
law. Fla. Stat. § 627.4137.
On August 18, 2008, Direct General sent the insured car
owner two letters. One letter outlined the policy’s limits and
warned him that he would be liable for any judgment in excess of
those limits if Direct General could not settle Brink’s claim. The
second letter notified him of Clem’s request for information and
asked him to provide Clem “the name and coverage of any other
known insurance” he had. This letter also warned him that “[f]ail-
ing to promptly provide [Clem] with information regarding any
other insurance . . . may affect the ability to settle this case and may
prevent a settlement.” Direct General sent both letters to the
wrong address.
That same day, Direct General responded to Clem’s initial
letter. It confirmed that it received Clem’s letter and enclosed (i) a
1 Notethat this $85,000 figure is the sum of the insureds’ $10,000 bodily injury
coverage limit and Brink’s $75,000 uninsured motorist coverage limit.
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4 ANDERSON, J., Concurring in part & dissenting in part 21-11070
copy of its letters to the insured car owner, (ii) an affidavit from its
superintendent with the requested information,2 and (iii) a copy of
the policy it issued to the insured car owner. On August 22, 2008,
it sent Clem a letter requesting that he provide medical records to
verify the severity of Brink’s injuries. Between August 22 and Oc-
tober 20, Direct General called and left voicemails for Clem 8 times
concerning Brink’s bodily injury and property damage claims.
On October 21, 2008, Direct General sent a letter to Clem
stating that it was “extending an offer to tender [its] policy limits of
$10,000.00 to [Brink] . . . as settlement of the . . . bodily injury
claim.” On October 28 and November 18, 2008, Direct General left
Clem a total of 4 voicemail messages. There was no response. On
November 18, it sent him another letter following up on its offer
to tender the policy limit. On November 20, 2008, Direct General
left another 2 voicemail messages for Clem and his paralegal. On
November 20, 2008, Direct General sent Clem another letter along
with a check for the $10,000 policy limit and a proposed release for
Clem’s consideration. There was no response to any of these ef-
forts.
2 The superintendent’s affidavit provided the information required by Florida
law. Fla. Stat. § 627.4137(1)(a)–(e). It stated the insurer’s name, the insured’s
name, and the policy limits. It answered “None” to the following prompt: “A
statement of any policy or coverage defense which such insurer reasonably
believes is available to such insurer at the time of filing such statement.” Id.§ 627.4137(1)(d). It also said that Direct General “does not know of any other
insurer for its insured.”
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21-11070 ANDERSON, J., Concurring in part & dissenting in part 5
On November 25, 2008, Direct General emailed Clem about
Brink’s property damage claim. Between December 8, 2008, and
January 6, 2009, Direct General called Clem’s office 5 times and ei-
ther left a voicemail or spoke with his paralegal. Direct General’s
adjuster for Brink’s property damage claim sent Clem 3 more let-
ters on January 29, February 16, and March 12, 2009 requesting the
location Brink’s motorcycle. Between February 9 and May 27,
2009, Direct General called and left Clem, or his paralegal, another
6 voicemail messages. There was no response to Direct General’s
letters and voicemail messages. 3
On June 26, 2009, Clem finally responded in a letter to Direct
General’s bodily injury and property damage claims adjusters. Af-
ter requesting that Direct General pay for the towing of Brink’s
motorcycle, Clem said,
[P]lease go ahead and supplement your response to
my request for the disclosure of insurance infor-
mation. It has been a long time since my letter to you
and I still do not have all the requested information in
order to verify the amount of liability coverage avail-
able to your insureds. . . .
3 Brink concedes that “[f]rom August 19, 2008, through June 25, 2009, Direct
General attempted to contact Clem regarding the bodily injury claim via
phone call and letter approximately 18 times, with no record of a response
from Clem.” Based on my count, that number jumps to 25 times if you in-
clude Direct General’s attempts to contact Clem regarding Brink’s property
damage claim.
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6 ANDERSON, J., Concurring in part & dissenting in part 21-11070
Clem did not specify what information he still needed, and he did
not mention the $10,000 check that Direct General had sent the
previous November.
On July 2, 2009, Clem sent a letter to the property damage
claims adjuster with a copy of the towing bill; he did not mention
Brink’s bodily injury claim. That adjuster responded on July 17 re-
questing the location of Brink’s motorcycle so it could inspect the
motorcycle and provide an estimate.
On July 30, 2009, Direct General responded to Clem’s letter
from June 26, 2009. Direct General attached the same information
it had provided Clem in response to his letter from August 4, 2008:
the affidavit from Direct General’s superintendent and a copy of its
policy with the insured car owner. It also offered to settle Brink’s
property damage claim, including the cost of the towing bill.
On January 18, 2010, Direct General sent Clem a re-issued
$10,000 check for Brink’s bodily injury claim and a proposed release
for that claim. It also called and left Clem voicemail messages con-
cerning that claim on January 27, February 3, and February 11.
On February 19, 2010, Clem sent a letter to Direct General
which read as follows:
Dear Ms. Moore:
Thank you for your telephone message last week. I
also received your letter dated January 18, 2010, with
the enclosed $10,000.00 check made payable to
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21-11070 ANDERSON, J., Concurring in part & dissenting in part 7
“Morgan and Morgan P.A. Trust Account on behalf
of Dustin Brink” and a proposed bodily injury release.
I have recently been in communication with Mr.
Brink’s insurance company about resolving his claims
for uninsured motorist and medical payments cover-
age benefits. As you may know, those claims for first-
party benefits are under several Mississippi policies is-
sued by an insurance company out of Missouri, so it
may take some time to work them out. Be that as it
may, my client is now ready to resolve his claims
against your insured for the amounts proposed by
your company for the claims being released if the con-
ditions for settlement are met.
Of course, we previously sent your company a re-
quest for information pursuant to 627.4137 of the
Florida Statutes, including the statement of your in-
sured or his insurance agent, in order to verify the
amount of available liability insurance. I have state-
ments from your company’s superintendent and cop-
ies of your personal auto policy and declarations
page. But even after all this time, I still have not re-
ceived the disclosure statement from your insured or
his insurance agent.
Naturally, we need a complete set of your company’s
information under 627.4137 Florida Statutes before
our client can settle, and a statement from your in-
sured, if possible, so please send that to me at your
earliest convenience. If for some reason your in-
sured’s statement is not available, please verify of [sic]
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8 ANDERSON, J., Concurring in part & dissenting in part 21-11070
all of your company’s efforts to obtain it by sending
me copies of all of your company’s letters to your in-
sured requesting that he provide the statement re-
quired under 627.4137 of the Florida Statutes.
As far as my client’s uninsured motorist and medical
payments claims, we will need to have language in
the release that preserves my client’s rights to recover
those benefits. So please just add a clause stating that
my client reserves his claims for first-party benefits to
your standard release of all claims. If I receive that
release and the requested insurance disclosure docu-
mentation in the next couple of weeks with all insur-
ance proceeds offered by your company, then my cli-
ent will sign the release. Of course, this is an offer for
a unilateral contract, requiring that I receive these
items rather than a promise.
You made the $10,000.00 check enclosed with your
last letter payable to our firm’s trust account, and that
is an acceptable manner of issuing payment.
Please let me know if you need any information re-
garding this uninsured motorist or medical payments
coverage.
Thank you for your attention to this matter.
Sincerely,
Alexander M. Clem
On March 12, 2010, Clem sent Direct General another letter
stating that he had filed a lawsuit on behalf of Brink that day. Clem
said his February 19 letter was “a time limited settlement offer” to
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21-11070 ANDERSON, J., Concurring in part & dissenting in part 9
which “Direct General did not respond at all.” He said to settle
Brink’s claim, “all [Direct General] needed to do was get [him]
three items in two weeks”:
1) a statement from an insured or his agent,
which I have asked for in writing three times
going back to August 4, 2008,
2) your company’s release of all claims simply
containing a clause preserving my client’s right
to recover first-party benefits, and
3) a draft for the $900 of property damage Direct
General had previously offered to pay.4
Clem concluded that Direct General had rejected his settlement of-
fer, and he stated that his client’s offer to settle had expired.
Direct General attempted to call both insureds but was una-
ble to reach them. On March 25, 2010, Direct General sent letters
to both insureds regarding Brink’s lawsuit. Direct General told the
insureds that “Brink and his counsel have been unwilling to accept
[the] policy limits” as settlement and that it could “reasonably be
expected” that the damages in the suit would “exceed [the] availa-
ble limits.” It also told them that Direct General would appoint
counsel for their defense and that Clem had requested that the in-
sureds confirm that they had no other insurance available. These
4Notably, the three conditions listed in the March 12 letter do not match the
conditions specified in the February 19 letter, which did not mention the $900
property damage claim.
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10 ANDERSON, J., Concurring in part & dissenting in part 21-11070
letters did not inform the insureds of Brink’s settlement offer from
the February 19 letter.
Direct General and Clem never reached a settlement.
Brink’s bodily injury claim proceeded to a jury trial in March 2013.
He won a final judgment of $12 million against the insured car
driver and $600,000 against the insured car owner. In 2019, Brink
filed his bad faith claim against Direct General in state court, and
Direct General removed the action to federal court. After the dis-
trict court denied Direct General’s motion for summary judgment,
Brink’s bad faith claim proceeded to a jury trial.
The parties filed joint proposed jury instructions, and they
agreed that the court should give Florida’s standard jury instruc-
tion on an “Insurer’s Bad Faith (Failure to Settle).” Brink proposed
a nine-sentence, special instruction on the “Duties of a Liability In-
surance Company Regarding Settlement”:
Juan Ruiz Pereles and Juan Ruiz De Los Santos were
insured against the claim made by Dustin Brink aris-
ing from the April 5, 2008 accident under a policy of
insurance issued by Direct General Insurance Com-
pany.
Direct General’s insureds surrendered to Direct Gen-
eral control over the handling of the claim and settle-
ment decisions. Direct General owed a fiduciary duty
of good faith to act in its insureds’ best interests and
protect its insureds from judgments in excess of their
policy limits. In handling the claim against its in-
sureds, Direct General had a duty to use the same
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21-11070 ANDERSON, J., Concurring in part & dissenting in part 11
degree of care and diligence as a person of ordinary
care and prudence should exercise in the manage-
ment of his own business.
The duty of good faith required Direct General to ad-
vise its insureds 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 insureds of any steps they might take to avoid an
excess judgment. Direct General was further re-
quired to investigate the facts, give fair consideration
to a settlement offer that was 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.
The focus in this bad faith case is not on the actions
of Dustin Brink or his attorneys, but rather on the ac-
tions of Direct General and its obligation to act in
good faith toward its insureds. The critical inquiry is
whether Direct General diligently, and with the same
haste and precision as if it were in its insureds’ shoes,
worked on the insureds’ behalf to avoid an excess
judgment. The absence of good faith constitutes bad
faith.
Direct General objected to this proposed special instruction as “im-
proper because [Brink] ha[d] hand-picked select statements of Flor-
ida law which either [did] not apply to this case, [were] misstated
and/or [did] not present a complete picture of Florida law on bad
faith.” Specifically, it argued that the seventh and ninth sentences
of the proposed instruction were inaccurate or misleading.
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12 ANDERSON, J., Concurring in part & dissenting in part 21-11070
Brink’s trial counsel noted to the district court that Direct
General had not specifically objected to “anything that’s contained
in the first one, two, three paragraphs of the proposed instruction”
and had objected only to two sentences in the fourth paragraph of
the proposed instruction. Defense counsel responded that the pro-
posed instruction, as a whole, “just cherry picked select statements
from various cases” and “doesn’t give an accurate reflection of”
Florida bad faith law. The district judge denied the proposed in-
struction and opted instead “to give the Florida Standard Instruc-
tions.”
At trial, Brink offered expert witness testimony from Daniel
Doucette (“Doucette”). Doucette testified that “Direct General
failed to comply with the industry custom and practice” in several
ways. First, it failed to settle Brink’s claim when it “could and
should” have done so—i.e., after Brink’s attorney offered to settle
the claim in the February 19 letter. He said the February 19 letter
“triggered” “two primary duties” that Direct General failed to sat-
isfy: (i) “[t]o try to meet the demand and resolve the case and pro-
tect their insured” and (ii) “to immediately notify the insured that
there’s an opportunity to settle in front of them.” He noted that
Direct General had failed to communicate with its insureds once it
received the February 19 letter.
During closing arguments, Brink’s counsel made several
statements about Direct General’s duty to its insureds and what
constitutes bad faith:
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21-11070 ANDERSON, J., Concurring in part & dissenting in part 13
• [Direct General has] got to treat their insured cus-
tomers the same way as if it had been them who
was exposed to this $12 million claim. In other
words, if Direct General itself had the chance to
accept the February 19, 2010 settlement offer to
save itself from a $12 million liability for only
$10,000, it’s got to use that same level of effort to
protect its insureds. That’s what good faith re-
quires.
• [W]hen we’re talking about insurance companies,
bad faith is simply failing to settle a claim when
under all the circumstances it could and should
have done so had it acted fairly and honestly and
with due regard for their insured’s interest.
• What’s our claim? Our claim is that after February
19, 2010, Direct General failed to settle when un-
der all the circumstances it could and should have
done so had it acted fairly and honestly towards its
insureds and with due regard for their interest. It’s
up to you to decide whether we met that burden
of proof.
• One cannot pay due regard to another if they pay
no attention to their situation. [The insureds]
needed attention paid to settlement offers that
might be made in their case and they simply didn't
get it from Direct General. It’s been . . . essentially
undisputed it was not responded to. It did not get
any attention.
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14 ANDERSON, J., Concurring in part & dissenting in part 21-11070
• Here they failed to pay attention to the time lim-
ited settlement offer and that’s failure of due re-
gard.
• One of the easiest ways to invite a bad faith claim
is to fail to keep the insured advised of settlement
opportunities or fail to document that such advice
was given. Documentation is key.
After closing arguments, the district court gave the follow-
ing instruction for an insurer’s bad faith failure to settle: “Bad faith
on the part of an insurance company is failing to settle a claim
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 their interests.”
During deliberations, the jury asked the court a question: “Is
bad faith based on the full length of time from the accident or on
the time from February 19, 2010 letter?” Brink wanted the court to
respond that the jury had already been instructed in the law, but
defense counsel said “the answer . . . is, ‘totality of the circum-
stances.’” Brink disagreed because his claim was that Direct Gen-
eral “acted in bad faith after February 19th. So to say that, ‘the
totality of the circumstances,’ you are telling them the answer is
something else.” Brink’s counsel worried that by giving the “total-
ity of the circumstances” answer “in isolation,” the court would be
“implying that . . . [Brink’s claim was] not based on February 19th,
but instead based on a larger time period, which is not [his] claim.”
The court noted this objection and gave the jury the following
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21-11070 ANDERSON, J., Concurring in part & dissenting in part 15
written answer: “In determining bad faith on the part of an insur-
ance company, you should consider the totality of the circum-
stances.”
The jury returned from deliberations 5 minutes after receiv-
ing the court’s answer. The verdict form asked the jury, “Did [Di-
rect General] act in bad faith in failing to settle the claims against
[the insureds]?” and the jury answered, “No.”
II.
On appeal, Brink argues that the district court committed
reversible error by (i) refusing to give his proposed special jury in-
struction on what constitutes “bad faith” by an insurance company
and (ii) giving an erroneous and misleading supplemental instruc-
tion in response to the jury’s question during its deliberations. This
Court reviews both actions by the district court for abuse of discre-
tion. United States v. Joyner, 882 F.3d 1369, 1375 (11th Cir. 2018).
A district court’s refusal to give a proposed jury instruction
is an abuse of discretion “only when (1) the requested instruction
correctly stated the law, (2) the instruction dealt with an issue
properly before the jury, and (3) the failure to give the instruction
resulted in prejudicial harm to the requesting party.” Lamonica,
711 F.3d at 1309 (quoting Burchfield v. CSX Transp., Inc., 636 F.3d
1330, 1333–34 (11th Cir. 2011)). When evaluating the first prong—
i.e., whether the instruction misstates, or misleadingly states, the
law—we review the instruction de novo. Goldsmith v. Bagby Ele-
vator Co., Inc., 513 F.3d 1261, 1276 (11th Cir. 2008).
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16 ANDERSON, J., Concurring in part & dissenting in part 21-11070
“The substance of jury instructions in diversity cases is gov-
erned by the applicable state law, but questions regarding proce-
dural aspects of jury charges are controlled by federal law and fed-
eral rules.” Pate v. Seaboard R.R., Inc., 819 F.2d 1074, 1081–82
(11th Cir. 1987). Whether a district court’s refusal to give a pro-
posed jury instruction “necessitate[s] a new trial is a procedural
matter governed by federal law.” Id. at 1082; see also Pesaplastic,
C.A. v. Cincinnati Milacron Co., 750 F.2d 1516, 1525 (11th Cir.
1985) (“The granting or denial of jury instructions in diversity cases
is controlled by federal laws and federal rules while the substance
of those instructions is governed by the applicable state law . . . .”
(citation omitted)).
Our standard of review is “deferential.” Bearint ex rel. Bear-
int v. Dorell Juv. Grp., Inc., 389 F.3d 1339, 1351 (11th Cir. 2004).
Our “role” when “reviewing a trial court’s jury instructions[] is to
assure ‘that the instructions show no tendency to confuse or to mis-
lead the jury with respect to the applicable principles of law.’”
Mosher v. Speedstar Div. of AMCA Int’l, Inc., 979 F.2d 823, 824
(11th Cir. 1992) (quoting Rohner, Gehrig & Co. v. Cap. City Bank,
655 F.2d 571, 580 (5th Cir. Unit B Sept. 1981)). Accordingly, “[i]f
the instructions accurately reflect the law, the trial judge is given
wide discretion as to the style and wording employed in the in-
struction.” Bearint, 389 F.3d at 1351. “We will reverse and order
a new trial only when we are ‘left with a substantial and ineradica-
ble doubt as to whether the jury was properly guided in its deliber-
ations.’” MidlevelU, Inc. v. ACI Info. Grp., 989 F.3d 1205, 1215
USCA11 Case: 21-11070 Date Filed: 06/28/2022 Page: 33 of 51
21-11070 ANDERSON, J., Concurring in part & dissenting in part 17
(11th Cir. 2021) (quoting Broaddus v. Fla. Power Corp., 145 F.3d
1283, 1288 (11th Cir. 1998)).
III.
I think Brink’s challenge to the district court’s failure to give
his requested jury instruction must fail at either the first or third
prong of this Court’s abuse of discretion standard of review. I first
address Lamonica’s first prong and then address the third.
A.
The first prong says a district court’s refusal to give a pro-
posed jury instruction may be an abuse of discretion only when the
proposed instruction correctly stated the law. Lamonica, 711 F.3d
at 1309. Brink’s proposed instruction, considered as a whole, mis-
leadingly stated Florida law on bad faith failure to settle.
Florida law “imposes a fiduciary obligation on an insurer to
protect its insured from a judgment that exceeds the limits of the
insured’s policy.” Harvey v. GEICO Gen. Ins. Co., 259 So. 3d 1, 3
(Fla. 2018). When an insurer breaches that duty by acting in bad
faith when handling the claim, the judgment creditor of the insured
(i.e., the tort victim) may sue the insurer directly for a recovery that
exceeds the insurance policy’s limits. Thompson v. Com. Union
Ins. Co. of N.Y., 250 So. 2d 259, 264 (Fla. 1971). Brink’s suit against
Direct General is an example of these “third-party bad faith ac-
tion[s].” State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55,
58 (Fla. 1995).
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18 ANDERSON, J., Concurring in part & dissenting in part 21-11070
The Supreme Court of Florida has authorized these bad faith
suits where the insurer has failed to settle the third party’s claim
against the insured. Bos. Old Colony Ins. Co. v. Gutierrez, 386 So.
2d 783, 784 (Fla. 1980) (per curiam). In Boston Old Colony, the
court outlined the contours of an insurer’s duty of good faith: “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.” Id. at 785. An insurer must act “in good faith
and with due regard for the interests of the insured” when handling
claims against the insured. Id. In the context of settlement negoti-
ations,
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 con-
sideration to a settlement offer that is not unreasona-
ble under the facts, and settle, if possible, where a rea-
sonably prudent person, faced with the prospect of
paying the total recovery, would do so.
Id. (citation omitted).
The Supreme Court of Florida has clarified that “[t]he obli-
gations set forth in Boston Old Colony are not a mere checklist.”
Harvey, 259 So. 3d at 7. “An insurer is not absolved of liability
simply because it” fulfills these specific obligations. Id.
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21-11070 ANDERSON, J., Concurring in part & dissenting in part 19
Conversely, violating one of these Boston Old Colony duties “does
not automatically establish bad faith; it is simply one factor for the
jury to consider in determining whether the insurer acted in bad
faith.” Berges v. Infinity Ins. Co., 896 So. 2d 665, 680 (Fla. 2004).
These duties are “subsumed within the duty of good faith owed by
an insurer to an insured.” Id. In lieu of the “checklist” approach,
“the critical inquiry in a bad faith [case] is whether the insurer dili-
gently, and with the same haste and precision as if it were in the
insured’s shoes, worked on the insured’s behalf to avoid an excess
judgment.” Harvey, 259 So. 3d at 7. “[N]egligence is relevant to
the question of good faith,” Boston Old Colony, 386 So. 2d at 785,
but it “is not the standard” for bad faith. Harvey, 259 So. 3d at 9.
Whether an insurer has acted in bad faith is for the jury to
decide based on the totality of the circumstances. Berges, 896 So.
2d at 680. While the jury must consider the totality of the circum-
stances, “the focus in a bad faith case is not on the actions of the
claimant but rather on those of the insurer in fulfilling its obliga-
tions to the insured.” Id. at 677. However, this Court recently has
held: “[W]e don’t understand that principle to mean the actions of
a claimant — or a claimant’s attorney — are irrelevant. In a bad
faith action there’s a difference between focusing on a claimant’s
actions, which would be improper, and factoring a claimant’s ac-
tions into the totality of the circumstances analysis, which is not
improper.” Pelaez v. Gov’t Emps. Ins. Co., 13 F.4th 1243, 1254
(11th Cir. 2021). Thus, the seventh sentence of Brink’s proposed
instruction was misleading. That sentence requested that the jury
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20 ANDERSON, J., Concurring in part & dissenting in part 21-11070
be instructed that the “focus in this bad faith case is not on the ac-
tions of Dustin Brink or his attorneys, but rather on the actions of
Direct General.” It is misleading in that it suggests that the actions
of Brink’s counsel are irrelevant. But we know from our Pelaez
decision that the actions of Brink’s attorney were relevant under
Florida law and could properly be factored into the totality of the
circumstances analysis.
Brink proposed a nine-sentence special instruction on the
“Duties of a Liability Insurance Company Regarding Settlement.”
But, on appeal, he is defending the accuracy of only three of the
nine sentences in his original proposed instruction. Those three
sentences, which summarize the Boston Old Colony duties, are as
follows:
[1] In handling the claim against its insureds, Direct
General had 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 busi-
ness.
[2] The duty of good faith required Direct General to
advise its insureds of settlement opportunities, to ad-
vise as to the probable outcome of the litigation, to
warn of the possibility of an excess judgment, and to
advise the insureds of any steps they might take to
avoid an excess judgment. [3] Direct General was fur-
ther required to investigate the facts, give fair consid-
eration to a settlement offer that was not unreasona-
ble under the facts, and settle, if possible, where a
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21-11070 ANDERSON, J., Concurring in part & dissenting in part 21
reasonably prudent person, faced with the prospect of
paying the total recovery, would do so.
Federal Rule of Civil Procedure 51(c)(1) requires parties
“who object[] to . . . the failure to give an instruction” to “do so on
the record, stating distinctly the matter objected to and the grounds
for the objection.” See 9C Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2554 (3d ed. April 2022 Update)
(“The grounds must be stated with sufficient clarity so that the trial
judge may follow and understand them if they are well taken.”).
Brink did not do so. His original proposed instruction was nine
sentences. On appeal, he “is only arguing the trial court committed
reversible error by refusing” to give three of those sentences.
Brink never notified the district court that it should consider
giving those three sentences on the Boston Old Colony duties sep-
arately from the rest of the proposed instruction. The closest he
came to doing so was when Brink’s counsel told the district court
that Direct General had not objected to “anything that’s contained
in the first one, two, three paragraphs of the proposed instruction.”
However, he never asked the district court to charge only those
three paragraphs. And he certainly never even suggested that the
court should consider giving these three sentences—about which
he complains for the first time on appeal—as a separate instruction.
Other circuits have held that, in these circumstances, district
courts do not have a duty to parse lengthy, proposed jury instruc-
tions and to instruct the jury solely on the accurate portions of
those proposed instructions. See 9C Wright & Miller, supra, § 2552
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22 ANDERSON, J., Concurring in part & dissenting in part 21-11070
(“[A] number of courts have said that the trial judge need not give
a requested instruction if it is inaccurate or deficient in any re-
spect.”). When a requested instruction is “defective,” these circuits
have suggested that the district court has “no independent duty to
supply a correct instruction.” Id.; see also Rogers v. Ingersoll–Rand
Co., 144 F.3d 841, 845 (D.C. Cir. 1998) (acknowledging that the de-
fendant “may have been entitled to a less sweeping instruction” but
concluding that “[t]he district court was under no obligation to
tinker with the flawed proposed instruction until it was legally ac-
ceptable”); Parker v. City of Nashua, 76 F.3d 9, 12 (1st Cir. 1996)
(“[W]hen the instruction offered by the lawyer is manifestly over-
broad, the district judge may reject without assuming the burden
of editing it down to save some small portion that may be viable.”);
Chase v. Consolidated Foods Corp., 744 F.2d 566, 570 (7th Cir.
1984) (noting that “it would be an unwelcome burden on our over-
worked district judges to obligate them to repair all defects in ten-
dered instructions” when evaluating the district judge’s duty “to
instruct correctly when the party objecting to an erroneous instruc-
tion offers an erroneous substitute”); Cherry v. Stedman, 259 F.2d
774, 777–78 (8th Cir. 1958) (“A party cannot claim error in the re-
fusal to give a requested instruction which is not entirely correct,
or which it is not possible to give without qualification, or which is
so framed as to be capable of being misunderstood.”).
I believe this Court should adopt the reasoning of our sister
circuits. Direct General objected generally to the entire requested
instruction, and specifically objected to two sentences thereof.
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21-11070 ANDERSON, J., Concurring in part & dissenting in part 23
Brink’s counsel did not defend the accuracy or relevance of those
sentences before the district court. Once the district court deter-
mined that the nine-sentence instruction was partially inaccurate,
it had no duty to “edit[] it down to save some small portion that
may be viable.” Parker, 76 F.3d at 12. In other words, even if Brink
“may have been entitled to a less sweeping instruction on” the Bos-
ton Old Colony duties, “[t]he district court was under no obligation
to tinker with the flawed proposed instruction until it was legally
acceptable.” Rogers, 144 F.3d at 845. Accordingly, the district
court did not abuse its discretion by rejecting the proposed instruc-
tion because it had no duty to parse the proposed instruction for
accurate sentences that otherwise could (or should) have been
given.
For the foregoing reasons, I would conclude that Brink has
failed to satisfy the first prong of our Lamonica test; he has failed
to show that his requested instruction correctly stated the law. For
example, he has failed even to offer an argument that the seventh
sentence of his requested instruction was not misleading. That sen-
tence—which says “[t]he focus in this bad faith case is not on the
actions of Dustin Brink or his attorneys, but rather on the actions
of Direct General”—is misleading as noted above; our Pelaez deci-
sion holds that the actions of the claimant’s attorney are not irrele-
vant, and that although the focus is on the actions of the insurance
company, the actions of the claimant’s attorney can be factored
into the totality of the circumstances analysis. Because Brink’s re-
quested instruction included misleading statements and because
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24 ANDERSON, J., Concurring in part & dissenting in part 21-11070
the district court should have no duty to parse the request and save
whatever portions thereof that might be correct, I would hold that
Brink has failed to satisfy Lamonica’s first prong. Thus, the district
court has not erred. 5
B.
I turn now to a separate and independent reason that the
district court did not commit reversible error in declining to give
Brink’s proposed instruction. Brink has also failed to satisfy the
third prong of our Lamonica test; he has not shown that the failure
to give his instruction resulted in prejudicial harm.
Even assuming arguendo (contrary to my view above) that
the proposed instruction “correctly stated the law” and “dealt with
an issue properly before the jury,” Lamonica, 711 F.3d at 1309, I
cannot conclude that the district court committed reversible error
because I am satisfied that the district court’s rejection of the pro-
posed instruction did not cause prejudicial harm to Brink; and I
5 Moreover, even the three sentences Brink defends on appeal are deficient in
part. The second of those sentences—which lists the several Boston Old Col-
ony duties—is misleading. Florida law is clear that the Boston Old Colony
duties are merely factors for the jury to consider and that violating one of
those duties “does not automatically establish bad faith.” Berges, 896 So. 2d
at 680. The second sentence that Brink urges on appeal is misleading in that
it omitted that caveat.
So, both Brink’s original nine-sentence proposed instruction, and the
three sentences thereof that he defends on appeal, are deficient in part. Ac-
cordingly, I do not think the district court erred.
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21-11070 ANDERSON, J., Concurring in part & dissenting in part 25
certainly have no “substantial and ineradicable doubt” in that re-
gard. MidlevelU, Inc., 989 F.3d at 1215 (quoting Broaddus, 145 F.3d
at 1288). Federal, rather than state, law governs this procedural
question of whether the district court committed reversible error.
Pate, 819 F.2d at 1081–82.
In Pelaez, we affirmed a grant of summary judgment in fa-
vor of an insurer in a bad faith suit under Florida law. 13 F.4th at
1254. As part of our reasoning, we acknowledged that the “focus
in a bad faith case is not on the actions of the claimant but rather
on those of the insurer in fulfilling its obligations to the insured.”
Id. (quoting Berges, 896 So. 2d at 677). But we also noted that the
Supreme Court of Florida has held that the question of bad faith is
for the jury to decide based on the totality of the circumstances,
and the jury may consider the actions of the insurer, claimant, and
the claimant’s attorney when deciding that question. Id. Im-
portantly, the Supreme Court of Florida has never held that the
jury may not consider the claimant’s (or his attorney’s) conduct
when deciding whether the insurer has acted in bad faith. We con-
cluded in Pelaez that “there’s 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.” Id.Not only are we bound by the interpretation of Florida law
in Pelaez, I think that reading of Florida law is correct. Common
sense tells us that it is not possible to evaluate whether a party has
acted in bad faith without considering the events to which that
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26 ANDERSON, J., Concurring in part & dissenting in part 21-11070
party was responding. For example, in this case, it is not possible
to evaluate whether Direct General’s delay in responding to Clem’s
February 19, 2010 letter constituted bad faith—as opposed to mere
negligence or even less—without considering the content of
Clem’s February 19, 2010 letter. Contrary to Clem’s assertion in
his March 12, 2010 letter, the February 19, 2010 letter did not say it
was a “time-limited settlement offer.” Quite contrary to a time
limit, the letter requested the other insurance “statement from
your insured, if possible, so please send that to me at your earliest
convenience.” And far from demanding a time-limited response,
the February letter requested the information “in the next couple
of weeks.” The jury would obviously be influenced in its evalua-
tion of the bad faith issue by the absence of a definite time limit and
lack of urgency evidenced in the February letter, as well as the pre-
vious year and one-half of efforts by Direct General to settle the
case and Clem’s lack of responsiveness and lack of any sense of ur-
gency or even desire to settle.
As we said in Pelaez, it is appropriate to consider the actions
of the claimant’s attorney:
[B]ecause they show how, in the totality of these cir-
cumstances, [the insurer] did fulfill its good faith duty
to [the insureds]. They show how the failure to settle
the lawsuit against the insureds did not result from
bad faith of the insurer.
13 F.4th at 1254.
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21-11070 ANDERSON, J., Concurring in part & dissenting in part 27
The Supreme Court of Florida has also held that “there must
be a causal connection between the damages claimed and the in-
surer’s bad faith.” Perera v. U.S. Fid. & Guar. Co., 35 So. 3d 893,
902 (Fla. 2010). In other words, in a bad faith failure to settle action,
a claimant must show that the insurer’s bad faith caused the failure
to settle and the resulting excess judgment. See id. at 901 (“Alt-
hough an excess judgment is not always a prerequisite to bringing
a bad-faith claim, the existence of a causal connection is a prerequi-
site—in other words, the claimed damages must be caused by the
bad faith.”). 6 When adjudicating that question, the “focus” is “on
the actions [of] the insurer” because there is no “contributory neg-
ligence defense” for insurers in bad faith cases—i.e., a claimant’s
negligence or bad faith cannot “absolve[]” an insurer of bad faith.
Harvey, 259 So. 3d at 12. That said, a jury may still consider the
actions of a claimant or his attorney when deciding whether the
insurer’s bad faith caused a failure to settle because those actions
are relevant to the causation question.
6 The Florida pattern instruction on “legal cause” is as follows:
Bad faith conduct is a legal cause of [loss] [damage] [or] [harm]
if it directly and in natural and continuous sequence produces
or contributes substantially to producing such [loss] [damage]
[or] [harm], so that it can reasonably be said that, but for the
bad faith conduct, the [loss] [damage] [or] [harm]would not
have occurred.
Harvey, 259 So. 3d at 11 (alterations in original).
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28 ANDERSON, J., Concurring in part & dissenting in part 21-11070
With that clarification of what the Florida substantive law
provides with respect to the bad faith inquiry in mind, it becomes
clear that the district court’s refusal to give a three-sentence in-
struction on the Boston Old Colony duties caused no prejudicial
harm to Brink. 7 Three reasons persuade me of this. First, the jury
likely understood that the Boston Old Colony duties were part of
the duties that Direct General owed to its insureds. In his closing
argument, Brink’s counsel repeatedly referenced Direct General’s
duty to communicate with its insureds and its duty to “treat [its]
insured customers the same way as if it had been [Direct General]
who was exposed to this $12 million claim.” These, of course, are
examples of the Boston Old Colony duties. Moreover, Brink’s ex-
pert witness emphasized these duties and argued that Direct Gen-
eral failed to comply with them. Nothing in Direct General’s clos-
ing argument, or anything else in the trial, cast doubt upon the fact
that the specific examples of the insurer’s duty referenced by
Brink’s counsel and expert were part of the insurer’s duty that the
7 Of course, federal law governs our determination of whether a district court’s
failure to give a requested jury instruction resulted in prejudicial harm, but, in
any event, there is no tension or difference between the federal law and the
Florida substantive law in that both provide for consideration of the totality of
the circumstances, including the actions of both Direct General and Brink’s
counsel. To the extent that we are trying to measure whether the absence of
a particular instruction to the jury caused prejudicial harm, Florida substantive
law is relevant in determining whether there was any deficiency in the jury
charge and the degree thereof and in evaluating whether the outcome of the
trial would have been different if the additional instruction had been given.
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21-11070 ANDERSON, J., Concurring in part & dissenting in part 29
district court charged the jury in the more general terms of the pat-
tern instruction. Because the jury likely understood that Direct
General’s communication (or lack thereof) with its insureds was
relevant to Direct General’s duty of good faith, I cannot conclude
that prejudicial harm resulted from the district court’s failure to
charge the three sentences Brink now complains about on appeal.8
Second, the general language of the pattern jury instruction
on bad faith failure to settle fairly encompassed the Boston Old Col-
ony duties. The district court instructed the jury as follows: “Bad
faith on the part of an insurance company is failing to settle a claim
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 their interests.” The Boston Old Colony duties are
merely specific examples of the duties described in the pattern in-
struction. As mentioned, Brink’s counsel argued in his closing
8 When deciding whether a failure to give a requested jury instruction is an
abuse of discretion under federal law, we may consider what the parties’ coun-
sel and expert witnesses said to the jury. See W. Air Lines, Inc. v. Criswell,
472 U.S. 400, 420, 105 S. Ct. 2743, 2755 (1985) (expressly considering the argu-
ments of counsel, the Court said: “Jury instructions . . . ‘may not be judged in
artificial isolation,’ but must be judged in the ‘context of the overall charge’
and the circumstances of the case” (quoting Cupp v. Naughten, 414 U.S. 141,
147, 94 S. Ct. 396, 400 (1973))); Booth v. Pasco Cnty., 757 F.3d 1198, 1209 (11th
Cir. 2014) (in rejecting plaintiffs’ argument that the district court erred in fail-
ing to give their requested instruction, we held: “Plaintiffs have failed to per-
suade us . . . that they suffered prejudicial harm . . . . [T]he district court per-
mitted Plaintiffs to make the same point during closing argument. . . . [That]
mitigated any prejudice that may have otherwise resulted.”).
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30 ANDERSON, J., Concurring in part & dissenting in part 21-11070
statement that Direct General did not act with due regard for the
insureds’ interests because they failed to communicate with them
and failed to pay attention to Brink’s time-limited settlement offer.
Nothing in defense counsel’s closing argument, nor anything else
at trial, suggested that the Boston Old Colony duties were not en-
compassed in the pattern instruction’s more general articulation of
the duty to “settle a claim when, under all the circumstances, it
could and should have done so, had it acted fairly and honestly to-
ward its insured and with due regard for their interests.” Because
the Boston Old Colony duties were fairly encompassed in the jury
charge that was given, Brink’s suggestion that there was a complete
absence of crucial guidance to the jury rings hollow.9
Third, overwhelming evidence indicates that no settlement
was possible in this case because Brink’s counsel clearly did not
9 Brink presented his claim to the jury as bad faith failure to settle when the
insurance company could and should have done so. As Brink’s counsel argued
to the jury in closing: “What’s our claim? Our claim is that after February 19,
2010, Direct General failed to settle when under all the circumstances it could
and should have done so had it acted fairly and honestly towards its insureds
and with due regard for their interest.” And the pattern instruction actually
given to the jury amply encompassed the gist of the Florida law with respect
to that failure-to-settle claim. The other specific Boston Old Colony duties
about which Brink complains on appeal probably did not contribute at all to
failure of a settlement in this case, but, in any event, these specific duties were
also encompassed within the general language of the pattern instruction. It is
clear to me that, even if Brink’s more specific language had been charged, the
jury would not have found bad faith or that Direct General’s actions in this
regard caused the failure to settle.
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21-11070 ANDERSON, J., Concurring in part & dissenting in part 31
want to settle. As discussed above, while the focus in a bad faith
case is on the insurer, the claimant’s attorney’s actions may be “fac-
tor[ed]” into the totality of the circumstances analysis. Pelaez, 13
F.4th at 1254. Here, the overwhelming evidence suggests that any
actions of Direct General did not cause the failure to settle and the
resulting excess judgment against the insureds. Rather, it shows
that Brink’s counsel tried to lure Direct General into making mis-
takes that he could later use to generate a bad faith claim. From
August 18, 2008 to February 19, 2010, Clem did not respond to over
two dozen attempts by Direct General to discuss Brink’s claims
against the insureds and settle them, and he rejected two checks
that tendered the $10,000 policy limit to Brink. In the February 19
letter, Clem extended what he later called a time-limited settle-
ment offer. However, the February 19 letter itself contained, at
best, ambiguous instructions on how and when to comply. The
letter requested that the insurance information from Direct Gen-
eral’s insured be sent “to me at your earliest convenience,” and said
that his client would sign the release (revised as requested) upon
receipt of the “requested insurance disclosure” information and the
insurance amounts already offered in a “couple of weeks.” More-
over, in his March 12 letter withdrawing the settlement offer, Clem
said one reason for doing so was that Direct General failed to com-
ply with a condition of settlement that was not included in the Feb-
ruary 19 letter—namely, paying Brink’s $900 property damage
claim.
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32 ANDERSON, J., Concurring in part & dissenting in part 21-11070
As Direct General’s counsel argued in his closing argument,
Clem had no incentive to settle Brink’s claim because, under the
terms of his contingency agreement with Brink, he would only be
compensated if he recovered from Direct General amounts above
the policy limits:
Part of the agreement . . . was 40 percent of the gross
recovery. Based on the contingency fee contract Mr.
Clem would get $0 if the Claimant settled for the
$10,000, but under the terms of the agreement by not
settling and claiming Direct General acted in bad
faith, Mr. Clem now stands to make approximately
$3,600,000.
....
Mr. Clem may have 3,600,000 reasons to do what he
did but settling wasn’t one of them. . . .
Moreover, Brink hired counsel for his bad faith claim against Direct
General on the same day he hired counsel for the underlying action
against Direct General’s insureds, and the above-described contin-
gency fee agreement covered both counsel. In other words, they
were planning a bad faith claim from the very beginning, even be-
fore the first communication from Brink’s counsel to Direct Gen-
eral.
Direct General acknowledged before the jury that its ad-
juster should have responded more promptly to Clem’s February
19, 2010 letter. Although Direct General in effect acknowledged
negligence and that it had reprimanded the adjuster, it argued that
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21-11070 ANDERSON, J., Concurring in part & dissenting in part 33
the error was attributable to oversight and certainly not bad faith,
especially in light of the ambiguity of the letter. 10 Although negli-
gence can be evidence of bad faith, Boston Old Colony, 386 So. 2d
at 785, it “is not the standard.” Harvey, 259 So. 3d at 9.
There is overwhelming evidence that the reason there was
no settlement in this case was that Brink’s counsel did not want to
settle. In order for Brink to receive compensation to reimburse
him for any substantial percentage of his injuries, and for his coun-
sel to receive any compensation at all for their services, the only
hope was for Clem to generate a bad faith claim.
It seems clear to me that the jury in this case found either
that Direct General’s agents did not act in bad faith or that their
failure to immediately respond to the February 19, 2010 letter did
not cause the failure to settle. It seems clear to me that the jury
would have recognized the overwhelming evidence that Brink’s
counsel had no incentive to settle with Direct General, that their
only incentive was to generate a bad faith claim that would both
create an enormous benefit for Brink and a nice attorney’s fee, and
that the failure of this case to settle was because Brink’s counsel did
not want to settle—not because of Direct General’s actions or
omissions. It is clear to me that the jury’s verdict would have been
10The same is true with respect to Brink’s argument that Direct General’s
early letters to its insured were sent to the wrong address, and his suggestion
that the insureds might never have received the letters. The jury likely would
have understood that, too, as an oversight.
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34 ANDERSON, J., Concurring in part & dissenting in part 21-11070
the same had the district court given Brink’s requested jury instruc-
tion, which contained merely more specific examples of the gen-
eral duty of the insurer already included in the pattern instruction
actually given, especially in light of the fact that such specific duties
were amply presented to the jury in Brink’s closing argument and
in the testimony of his expert and were not disputed by opposing
counsel or the court.
I have no doubt that the district court’s rejection of the pro-
posed instruction did not cause Brink prejudicial harm. Our stand-
ard of review is deferential: we will only reverse a jury verdict if we
harbor a “substantial and ineradicable doubt as to whether the jury
was properly guided.” MidlevelU, Inc., 989 F.3d at 1215 (quoting
Broaddus, 145 F.3d at 1288). And, under our caselaw, the jury was
allowed to consider the actions of the insurer, the claimant, and the
claimant’s attorney when deciding whether the insurer’s alleged
bad faith caused a failure to settle. Pelaez, 13 F.4th at 1254. Ac-
cordingly, I cannot conclude that Brink suffered prejudicial harm
from the district court’s failure to give his proposed three-sentence
instruction on the Boston Old Colony duties. 11
11Unlike the majority, I do not believe that the duty to advise the insured is
an independent theory of liability. Rather,
The duty to inform the insured of settlement opportunities is
one of the duties subsumed within the duty of good faith owed
by an insurer to an insured. The failure to inform the insured
of the settlement offer does not automatically establish bad
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21-11070 ANDERSON, J., Concurring in part & dissenting in part 35
C.
In sum, Brink’s challenge to the district court’s failure to give
his requested instruction fails because he cannot satisfy either the
first or third prong of our Lamonica test. For the foregoing rea-
sons, I cannot conclude that the district court committed reversible
error in failing to give the requested instruction.
Although I join the Court’s opinion in Part III.B., I respect-
fully dissent from the majority’s decisions in Part III.A. of the opin-
ion for the Court. I would affirm the judgment of the district court
and the verdict of the jury.
faith; it is simply one factor for the jury to consider in deter-
mining whether the insurer acted in bad faith.
Berges, 896 So. 2d at 680.
Moreover, even assuming arguendo (contrary to my belief) that this
case did involve a failure to instruct on an independent theory of liability, the
overwhelming evidence in this case is that any such deficiency did not cause
the failure to settle. And it is even clearer to me that even if the district court
had given the requested instruction about the duty to advise the insured, that
would not have changed the jury’s verdict. That possibility was extremely
remote in light of the fact that the court’s more general instruction fairly en-
compassed the more specific duty, which, in any event, was already in the
jury’s mind because of the closing arguments and expert evidence, and in light
of the overwhelming evidence that the failure to settle was caused by the fact
that Brink’s counsel was not going to settle for $10,000.