[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 11, 2007
No. 04-10436
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-01675 CV-T-26-MAP
MICHELLE MACOLA,
Plaintiff-Appellant,
INGE QUIGLEY,
Consolidated Plaintiff-Appellant,
versus
GOVERNMENT EMPLOYEES INSURANCE COMPANY,
Defendant-Appellee.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(April 11, 2007)
Before ANDERSON and WILSON, Circuit Judges, and OWENS,* District Judge.
PER CURIAM:
*
Honorable Wilbur D. Owens, Jr., United States District Judge for the Middle District of
Georgia, sitting by designation.
Plaintiffs Michelle Macola and Inge Quigley brought this consolidated bad
faith action against Government Employee Insurance Company (“GEICO”) after it
failed to settle with Macola within the policy limits when it had the opportunity to
do so. The district court held that GEICO’s offer of the policy limits to Macola
before the verdict was entered in Macola’s suit against GEICO’s insured, Quigley,
cured the bad faith. The district court thus dismissed the action. On appeal, we
certified two questions to the Florida Supreme Court:
(1) IN THE CONTEXT OF A THIRD PARTY BAD FAITH CLAIM
WHERE THERE IS A POSSIBILITY OF AN EXCESS JUDGMENT,
DOES AN INSURER "CURE" ANY BAD FAITH UNDER § 624.155
WHEN, IN RESPONSE TO A CIVIL REMEDY NOTICE, IT TIMELY
TENDERS THE POLICY LIMITS AFTER THE INITIATION OF A
LAWSUIT AGAINST ITS INSURED BUT BEFORE THE ENTRY
OF AN EXCESS JUDGMENT?
(2) IF SO, DOES SUCH A CURE OF THE STATUTORY BAD
FAITH CLAIM CONSTITUTE A FULL SATISFACTION OF THE
JUDGMENT SUCH THAT THE INSURED AND DERIVATIVE
INJURED THIRD PARTIES ARE BARRED FROM BRINGING A
COMMON LAW BAD FAITH CLAIM TO RECOVER THE
DIFFERENCE BETWEEN THE POLICY LIMITS AND THE EXCESS
JUDGMENT?
Macola v. Government Employees Ins. Co., 410 F.3d 1359, 1365 (11th Cir. 2005).
The Florida Supreme Court rephrased the questions as a single question:
DOES THE TENDERING OF THE POLICY LIMITS BY AN
2
INSURER IN RESPONSE TO THE FILING OF A CIVIL REMEDY
NOTICE UNDER SECTION 624.155, FLORIDA STATUTES (2005),
BY THE INSURED AFTER THE INITIATION OF A LAWSUIT
AGAINST THE INSURED BUT BEFORE ENTRY OF AN EXCESS
JUDGMENT PRECLUDE A COMMON LAW BAD FAITH CAUSE
OF ACTION BY THE INSURED AND INJURED THIRD PARTIES?
Macola v. Government Employees Ins. Co., __ So.2d __, 2006 WL 3025757
(Fla. 2006). The court analyzed the Florida statute relied upon by the district court,
Fla. Stat. § 624.155(3)(d), and the common law regarding bad faith actions. The
court concluded that the statute’s provision of a cure for bad faith did not apply to
third party actions like the one before us and held “that an insurer’s tender of the
policy limits to an insured in response to the filing of a civil remedy notice under
section 624.155 by the insured, after the initiation of a lawsuit against the insured
but before entry of an excess judgment, does not preclude a common law cause of
action against the insurer for third-party bad faith.” Id. at ___.
Therefore, because the Florida Supreme Court has answered this question in
the negative, we reverse the district court’s order granting summary judgment to
GEICO and remand for further proceedings consistent with the Florida Supreme
Court’s decision.
REVERSED AND REMANDED.
3