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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15087
Non-Argument Calendar
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D.C. Docket Nos. 0:15-cv-60212-RLR,
0:15-cv-61648-RLR
DENNIS LEE KEMP,
Plaintiff-Appellant,
versus
USAA CASUALTY INSURANCE COMPANY,
Defendant-Appellee.
________________________
No. 16-15169
Non-Argument Calendar
________________________
D.C. Docket Nos. 0:15-cv-60212-RLR,
0:15-cv-61648-RLR
ANDREW BOOTH BUCKMAN,
Plaintiff-Appellant,
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versus
USAA CASUALTY INSURANCE COMPANY,
Defendant-Appellee.
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Appeals from the United States District Court
for the Southern District of Florida
________________________
(October 10, 2017)
Before JULIE CARNES, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Dennis Kemp brought suit against USAA alleging that USAA acted in bad
faith in representing their insured, Andrew Buckman. Andrew Buckman also sued
USAA, and the two lawsuits were joined. The district court granted summary
judgment to USAA, holding no reasonable jury could conclude that USAA acted in
bad faith. Kemp and Buckman timely appealed.
“We review the district court's grant of summary judgment de novo,
applying the same legal standards as the district court.” Mesa v. Clarendon Nat’l
Ins. Co., 799 F.3d 1353, 1358 (11th Cir. 2015). We “view the evidence in the light
most favorable to the non-moving party and will affirm only if the movant shows
that no genuine issues of material fact exist.” Id. Because we are sitting in diversity
jurisdiction, we apply the law of the forum state, Florida. Bravo v. United States,
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577 F.3d 1324, 1325 (11th Cir. 2009). Under Florida law, “[a]n 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.” Boston Old Colony Ins. Co. v.
Gutierrez, 386 So. 2d 783, 785 (Fla. 1980). In exercising this duty, an insurer has
the obligation to act in good faith. Id. The question of good faith in handling a
claim is determined under the totality of the circumstances. See Berges v. Infinity
Ins. Co., 896 So. 2d 665, 680 (Fla. 2004). Because no reasonable jury could
conclude that the alleged negligence on the part of USAA caused the failure to
settle, and because no reasonable jury could conclude that USAA acted in bad
faith, we affirm the judgment of the district court.
I. Background
We assume the parties are familiar with the facts, so we will limit our
discussion to the facts relevant to USAA’s handling of the claim. Buckman
informed USAA of the accident on November 12, 2010. He told USAA he was not
under the influence of alcohol, and he did not mention that Mrs. Kemp had died in
the accident. On November 15, claims adjuster Mr. Culver had the bodily injury
reserves for the claim set at the full amount of the policy limits, $100,000. Culver
contacted Buckman and learned he had a lawyer, at which point he ceased contact
with Buckman and sent a message to his lawyer.
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On November 16, Cindy Goldstein, Kemp’s lawyer, sent a letter to USAA.
The letter set conditions for settlement of the case and requested compliance within
30 days. Goldstein later testified that she would have settled the case if a check had
been tendered within seven to ten business days. Between November 15 and
November 23 USAA made multiple unsuccessful attempts to contact Buckman’s
counsel. On November 23, USAA forwarded the November 16 letter to Buckman’s
counsel and stated that if they failed to reach a settlement within Buckman’s policy
limits he would be personally liable for any excess damages over his policy limit.
On November 30, fourteen days after the original letter, Goldstein sent a second
letter to Culver withdrawing the settlement offer. Subsequently, Kemp brought suit
against Buckman.
On December 3, after speaking to Buckman’s counsel for the first time,
USAA authorized an offer for the policy limit of $100,000. On December 7,
USAA sent a letter to Goldstein offering to settle the case for $100,000 and stating
that a check had been sent. The letter included a proposed release of liability that
contained inappropriate property damage language. On December 20, USAA
learned that the check had not been received by Goldstein and sent a second check.
Goldstein received the check on or before December 30, 2010.
On January 3, Goldstein sent a letter stating her client was reconsidering the
settlement for $100,000 but included a list of requests. This list included a request
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that Buckman inform her, if he consumed alcohol prior to the crash, who provided
him with the alcohol. On January 4, USAA forwarded this letter to Buckman’s
counsel, informing him to provide the information and affidavit directly to
Goldstein prior to the deadline in Goldstein’s letter. USAA also informed
Buckman that the decision to provide the requested information rested solely with
him, but that his lawyer should discuss with him the legal ramifications of failing
to provide the information requested by Goldstein. Buckman’s counsel timely sent
a response to Goldstein providing all of the information requested except for the
question about the consumption of alcohol. In response to that question, Buckman
invoked his Fifth Amendment rights.
After this exchange, Kemp went forward with the suit against Buckman and
was awarded a verdict in the amount of $10,000,000. Kemp then brought suit
against USAA, alleging that they breached their duty of good faith to Buckman by
not settling the claim and avoiding the excess judgment. Buckman also brought
suit against USAA, and the suits were consolidated. The district court granted
summary judgment for USAA, and Kemp and Buckman timely appealed.
II. Discussion
Kemp argues that genuine issues of material fact exist as to whether USAA
breached its duty of good faith to its insured. Under Florida law, an insurer has an
obligation “to advise the insured of settlement opportunities, to advise as to the
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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.”
Gutierrez, 386 So. 2d at 785. Although “reasonable diligence and ordinary care”
are relevant in determining good faith, the standard for determining liability “is bad
faith rather than negligence.” Campbell v. Gov. Emps. Ins. Co., 306 So. 2d 525,
530–31 (Fla. 1974).
Specifically, Kemp argues that USAA sent a settlement check to the wrong
address which caused the check to be received after the deadline set by Kemp,
USAA sent a release with improper language, and USAA did not notice that Kemp
had requested permission to take a statement from Buckman until after the
deadline set by Kemp had passed. Viewed in the light most favorable to the non-
moving party, Kemp argues that these factors raise a genuine issue of material fact
as to USAA’s negligence in handling the claim, and therefore to USAA’s potential
bad faith.
A. USAA’s Alleged Negligence Did Not Cause the Failure to Settle
Viewed in the light most favorable to Kemp, the evidence does raise a
question as to some negligence on the part of USAA in handling the claim. 1
However, there is no evidence that USAA’s negligence was in any way a cause of
the excess judgment. See Mesa, 799 F.3d at 1360. First, Kemp withdrew his
1
However, while negligence is relevant to the issue of bad faith, it is not sufficient on its own to
show bad faith. See discussion below.
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settlement offer on November 30, only two weeks after sending the offer and well
before the 30 day deadline. All of USAA’s potentially negligent actions relating to
this offer occurred after the offer had been withdrawn. Although Kemp’s counsel
said that a settlement would have been accepted if the check had been sent within
seven to ten business days, there was no reason for USAA to think that they
needed to respond within that time period when Kemp explicitly gave USAA a
deadline of 30 days. Even viewing the evidence in the light most favorable to
Kemp, there is no reason to believe that a settlement would have been achieved if
USAA had not been negligent as alleged in handling the claim before December
30. These facts demonstrate at best “a need for [USAA] to augment its claims
practices, not that [USAA]’s actions rose to the level of bad faith.” Mesa, 799 F.3d
at 1360.
Moreover, Kemp reopened settlement talks on January 3, four days after
receiving the $100,000 check from USAA. Even drawing all inferences in Kemp’s
favor, USAA’s alleged negligence did not cause a failure to settle because Kemp
reopened settlement negotiations (after withdrawing his settlement offer a month
earlier) after all of the incidents whereby USAA was allegedly negligent.
B. USAA’s Alleged Negligence in Not Offering the Full Limits Within
Seven to Ten Days Did Not Rise to the Level of Bad Faith
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In addition to concluding that USAA’s alleged negligence was not a cause of
the failure to settle the case, we also conclude that no reasonable jury could find
that USAA acted in bad faith by failing to offer the full limits within seven to ten
days. We agree with the district court in this regard. The district court concluded:
[U]nder the totality of the circumstances, no reasonable jury
could conclude that USAA acted in bad faith. It is undisputed that
USAA attempted to offer the full amount of the policy limits 26 days
after the accident occurred and 25 [sic] days after Kemp’s initial
demand. It is also undisputed that USAA’s adjuster took immediate
action to investigate the claim and kept Buckman and his counsel
apprised of the settlement offers and demands made by Kemp’s
counsel.
Plaintiffs raise several points that they argue establish bad faith.
Initially, they argue that USAA should have immediately settled on
November 16, when Kemp made his initial demand for the policy
limits. See DE 93 at 12 (Plaintiff’s Response). They point to
testimony from Kemp’s counsel that, if USAA had tendered the
policy limits within ten days, Kemp likely would have settled. See DE
93-1 at 3 (Goldstein Deposition at 111:12-25). On the date of the
demand, based on the claim notes, USAA’s adjuster had reviewed a
newspaper article stating that Kemp’s wife had died as a result of the
accident and that Buckman’s car had rear-ended her car when she was
pulled over on the side of the Florida Turnpike. See DE 82-4 at 5
(Claim Notes). However, the article also stated that no charges had
been filed and the Florida Highway Patrol was continuing to
investigate the accident. Id. Buckman had given a statement to USAA
in which he denied that drugs or alcohol were involved in the crash
and stated that no citations had been issued. See DE 82-6 at 3, 5.
USAA’s adjuster immediately attempted to obtain a copy of the police
report regarding the accident and speak with Buckman, but was
unable to either obtain the report or speak to Buckman’s counsel until
December 2 and 3, respectively.
When considering all of the undisputed facts in this case,
USAA’s delay while it investigated the accident is not evidence of
bad faith. Kemp’s November 16 demand for the policy limits gave
USAA thirty days to respond. At the time the demand was made, there
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was no indication that Kemp would withdraw the offer if USAA
failed to respond within seven to ten days, even though Kemp’s
counsel later testified that she expected a response from USAA in that
time frame.
District Court Order at 11–12.
C. USAA’s Alleged Negligence in Failing to More Forcefully Urge
Buckman to Comply with Kemp’s January 3 Request for Alcohol Use Information
Neither Caused the Failure to Settle nor Rose to the level of Bad Faith.
In addition to their alleged negligence in responding to Kemp’s initial
settlement offer, Kemp argues that USAA failed to sufficiently advise Buckman to
cooperate in order to avoid an excess judgment and that this failure raises a
genuine question of material fact as to USAA’s good faith in handling the claim.
USAA responds that they informed Buckman of the possibility of an excess
judgment in their letter on November 23, when they told him that he would be
“personally liable for any excess amount” if a settlement was not reached within
his policy limits.
In Mesa, the insurer “did not mention” that their insured “could be exposed
to an excess judgment.” 799 F.3d at 1357. However, we held that there was
insufficient evidence to demonstrate that the insurer acted in bad faith because the
failure to notify “was not the cause of the excess judgment.” Id. at 1360.
Specifically, Kemp claims that USAA did not sufficiently urge Buckman to
comply with all the conditions listed by Kemp’s counsel in her January 3 letter,
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including in particular the condition relating to Buckman’s alcohol use. However,
USAA did notify Buckman of the possibility of an excess judgment. Additionally,
Buckman had a criminal case pending against him and USAA made prompt and
repeated attempts to contact his criminal defense attorney, Mr. Salnick. Also,
USAA had assigned an attorney to defend Buckman in the tort action by Kemp,
and USAA requested that Buckman discuss with his lawyers the legal
ramifications of failing to provide the alcohol information requested in Kemp’s
January 3 letter reopening the possibility of settlement. However, Mr. Salnick
stated that he would never let a client give such a statement. Viewed in the light
most favorable to Kemp, we cannot conclude that a reasonable jury could find that
USAA’s failure to more forcefully urge Buckman to comply with this request was
a cause of the failure to settle; nor could a reasonable jury conclude that USAA’s
conduct in that regard rose to the level of bad faith.
IV. Conclusion
For the foregoing reasons, the district court’s grant of summary judgment is
AFFIRMED.
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