Opinion
CASE NO. 19-cv-61611-WPD
2021-05-28
Jonathan ELLIS and Joyce Brobeck, as personal representative of Timothy Brobeck, Plaintiffs, v. GEICO GENERAL INSURANCE COMPANY, Defendant.
Joseph Sassoon Kashi, Joseph S. Kashi, P.A., Plantation, FL, for Plaintiff Jonathan Ellis. Hyram M. Montero, Hyram M. Montero, P.A., Fort Lauderdale, FL, for Plaintiff Joyce Brobeck. Adam Alexander-Speer Duke, Young Bill Fugett & Roumbos, B. Richard Young, Young Bill Roumbos & Boles PA, Pensacola, FL, Derek Lorenz Veliz, Richard Alan Weldy, Young, Bill, Roumbos, Boles, P.A., Miami, FL, for Defendant.
Joseph Sassoon Kashi, Joseph S. Kashi, P.A., Plantation, FL, for Plaintiff Jonathan Ellis.
Hyram M. Montero, Hyram M. Montero, P.A., Fort Lauderdale, FL, for Plaintiff Joyce Brobeck.
Adam Alexander-Speer Duke, Young Bill Fugett & Roumbos, B. Richard Young, Young Bill Roumbos & Boles PA, Pensacola, FL, Derek Lorenz Veliz, Richard Alan Weldy, Young, Bill, Roumbos, Boles, P.A., Miami, FL, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
WILLIAM P. DIMITROULEAS, United States District Judge
THIS CAUSE is before the Court on Defendant GEICO's December 18, 2020 Motion for Summary Judgment [DE 30] ("Motion"). The Court has carefully considered the Motion, Plaintiffs’ February 4, 2921 Response Brief [DE 36], the February 11, 2021 Reply Brief [DE 43], and the Statements of Material Fact [DE 29 and 34] , and is otherwise fully advised in the premises. For the reasons stated herein, the Court grants the Motion.
Defendant's statement of material facts, Plaintiff Jonathan Ellis's responsive statement of material facts include various citations to portions of the record. Defendant's statement of material facts [DE 29] is cited as "DSMF", Plaintiff Ellis's response [DE 34] thereto is cited as "ESMF". Any citations herein to the statements of facts should be construed as incorporating those citations to the record.
I. BACKGROUND
This matter arises out of car accident in 2014 involving Plaintiff Jonathan Ellis ("Ellis") and Timothy Brobeck ("Brobeck"), which resulted in Brobeck's death. At the time of the accident Ellis was insured by GEICO under an automobile liability insurance policy which provided bodily injury liability coverage in the amount of $10,000 per person and $20,000 per accident. DSMF ¶ 4. Subsequent to the accident, Joyce Brobeck, as personal representative of Timothy Brobeck, filed suit against Ellis. DSMF ¶ 36. Mr. Brobeck's estate ultimately received a final judgement against Ellis in that matter in the amount of $479,280.56. DSMF ¶ 39. On May 21, 20219 Ellis filed this suit against GEICO, seeking a declaration that GEICO had handled the Estate of Brobeck's claim against Ellis in such a way that violated its duty of good faith to him. Compl. [DE 1-1].
Originally, this suit was filed by Plaintiff Ellis against Joyce Brobeck as personal representative of the Estate of Brobeck and GEICO; however, the Court entered an Order on December 2, 2019 realigning the Parties. [DE 22].
A. The Car Accident and Timothy Brobeck's Death
Timothy Brobeck died on the night of September 7, 2014, DSMF Exhibit 1, after Jonathan Ellis struck the rear of his bicycle and fled. ESOF Exhibit 5. Ellis had been the victim of a vicious crime months before he left Brobeck dying in the street. ESMF ¶ 40. A convicted criminal, who was released on bond, assaulted Ellis so violently that his face had to be reconstructed with metal plates and screws. Id. The attack scarred Ellis in more ways than one. On September 7, Ellis suffered from depression, anxiety, and post-traumatic stress disorder. Id. Before Ellis struck Brobeck, he looked down to check his speedometer. ESMF ¶ 41. When Ellis looked up, his windshield came crashing down on him. Id. Ellis had no idea what happened. He stepped on the brakes, turned onto the first available street, and got out of his car to investigate. Id. When someone screamed at Ellis, he panicked, jumped back into his car, and took off, id. , because of the psychological damage he suffered as a result of the prior assault upon him. ESMF ¶ 85.
Ellis hired a lawyer on September 8, 2014. DSMF Exhibit 3, p. 16. Ellis was arrested on September 9th or 10th. DSMF Exhibit 4; ESMF Exhibit 5. He remained in jail until September 22, 2014. DSMF Exhibit 8, p. 10. When Ellis was released from jail, the police did not return his cellphone, and he obtained a new one with a different number. ESMF ¶ 8. Ellis did not have a landline. Id. Instead of returning to his apartment, Ellis sought comfort in the homes of a friend and his uncle because he did not want to be alone. ESMF ¶ 8. He was on the move, was consumed by the fear of returning to jail and was not thinking clearly enough to have his mail forwarded. Id. ; DSMF Exhibit 3, p. 52. He was advised by his criminal defense attorney, not to talk with anyone about the accident, and he believed that included his insurance company. DSMF Exhibit 3, p. 20.
Brobeck was survived by his mother, Joyce, his wife, Laura, and their sixteen (16) year old daughter, Barbara, who was afflicted with cerebral palsy. DSMF Exhibit 25, 9:11-23; 10:7-11; 22:19-20. Brobeck lived with Joyce a block away from the site of his fatal injury. DSMF Exhibit 25, 9:20-10:3; 11:7. Laura and Barbara moved to Argentina before the accident occurred so that Laura could take care of her parents after her mother had a heart attack. DSMF Exhibit 25, 10:19-11; 13:17-22. Laura hired Fort Lauderdale lawyer Hyram Montero ("Montero") to represent Timothy's estate, but Joyce served as personal representative because Laura lived in Argentina. DSMF Exhibit 25, 12: 6-18; 20:4-6. Although Montero was unable to obtain a copy of the Traffic Crash Report because the Fort Lauderdale Police Department ("FLPD") was conducting a Traffic Homicide Investigation, his team found a news article. ESMF ¶ 74. Montero went to the FLPD and was provided with the hit and run driver's name, his insurance company, and policy number. Id.
Armed with this information, on September 16, 2014, Montero instructed his receptionist, Rosemary Gomez, to send a letter of representation ("LOR") to GEICO. DSMF Exhibit 5; ESMF ¶ 7. On October 9, 2014 Montero asked Gomez to call GEICO because it had not responded to his letter. Id. Gomez complied and provided GEICO with the information in the news article. Id. GEICO's claim activity log indicates Gomez told GEICO that Brobeck was a bicyclist who died of his injuries; Ellis fled from the scene of the accident; Ellis was arrested a few days later when he went to the police department to claim his car, which had been towed and placed on police hold after Ellis abandoned it; and a document referred to as a "complain [sic., complaint] affidavit" showed when Ellis was arrested. DSMF Exhibit 9, GLC 00090, 10/9/14, 4:53 PM, GLC 00090-91, 10/9/14, 4:50 PM. Gomez told Montero that GEICO claimed it had not received his LOR, DSMF Exhibit 6, pp. 63-64; DSMF Exhibit 7, pp. 31-32, and she complied with GEICO's request to send a new one by fax, ESMF ¶ 7; DSMF Exhibit 9.
DSMF Exhibit 9 is partially redacted. See DSMF Exhibit 9, pp. 1–15, 91–296, [DE 29-9].
B. GEICO's Investigation
On October 9, 2014, GEICO assigned the case to adjuster Bobbie Harney ("Harney"). DSMF Exhibit 9, GLC 00089, 10/9/14, 4:54 PM. Harney attempted to contact Ellis and Montero on October 9 but was not able to reach either. DSMF Exhibit 9, GLC 00090–91, 10/9/14. Harney, though, did leave a voicemail for with Ellis and mailed a first contact letter and a reservation of rights letter on the same day. Id.
On October 10, Gomez told Harney that Brobeck was thrown from his bike when Ellis struck it from the rear. DSMF Exhibit 9, GLC 00088-89, 4:13 PM). When Harney was unable that day to reach Ellis by telephone, she met with her supervisor, John Smith; they decided to enlist the aid of a field adjuster to locate Ellis. DSMF Exhibit 9, GLC 00088, 10/10/14, 4:28 PM.
On October 12, Harney again tried to contact Ellis. DSMF ¶ 14.
On October 13, Ann Sholar was assigned to perform the field investigation and locate Ellis. DSMF Exhibit 9, GLC 00087, 10/13/14, 11:56 AM. Sholar performed a search on Google and found a news article about the accident. ESMF ¶ 42. On October 13, Harney again tried to contact Ellis but could not reach him. DSMF ¶ 16. He left a voicemail with Ellis and attempted to locate updated contact information for Ellis. DSMF ¶ 16. On October 15, Sholar attempted to visit Ellis's place of employment, but did not enter the building, purportedly for safety reasons. DSMF ¶ 18. Sholar also attempted to visit Ellis's residence but found the apartment and apartment building empty. DSMF ¶ 18. Sholar did leave a note at Ellis's residence requesting that he contact GEICO. DSMF ¶ 18.
On October 16, Harney again attempted to contact Ellis, this time on two separate phone numbers, to no avail. DSMF ¶ 19.
On October 17, Sholar called the FLPD and discovered that it had Ellis's citation, but Sholar did not go to the police department to pick up a copy or ask the person with whom she spoke for the VIN or tag numbers on the citation.
On October 20, Harney again tried to contact Ellis, but was unable to reach him and left voicemails. DSMF ¶ 22.
October 21, Sholar contacted the FLPD to obtain the police report but was informed that the officer responsible for the report was not in. DSMF ¶ 23. That same day GEICO received a voicemail advising that Officer Jill Hirsch was handling the investigation; GEICO returned the call and left a voicemail. DSMF ¶ 24.
On October 22, Harney attempted to ask Montero for a copy of the police report. DSMF ¶ 25. Montero did not have the police report, and Harney was told as such. ESMF ¶ 25. On that same day, GEICO again sent a reservation of rights letter to Ellis, noting that his delay in reporting the loss may prejudice GEICO's investigation of the claim. DSMF ¶ 25.
On October 23, Sholar contacted FLPD and again requested a copy of the police report. DSMF ¶ 27. Sholar was told, however, that the report was not available. DSMF ¶ 27.
On October 29, at 9:35 am, GEICO finally obtained the police report. DSMF Exhibit 9, GLC 00080-81. Within two hours, Sholar was dispatched to Montero's office with a check for the policy limits. DSMF Exhibit 21.
On November 11, 2014 GEICO received a letter from Brobeck's counsel, Montero, dated October 30, 2014 rejecting the tender of the policy limits as untimely. DSMF ¶ 30, ESMF ¶ 30.
C. Plaintiff Ellis's Criticism of GEICO's Investigation
Plaintiff first takes issue with GEICO's lack of follow-up to the new article located by Sholar on October 13. The article indicated it was based on information contained in a police report, invited readers to follow the reporter on Twitter and Facebook, and provided the reporter's Twitter address. Although Sholar was unable to obtain a copy of the police report from the Fort Lauderdale Police Department (FLPD), she never attempted to obtain a copy from the reporter. ESMF ¶ 42. The news article Sholar found on October 13, 2014 had referred to another article in the Sun Sentinel about the accident. ESMF ¶ 43. When Sholar was deposed, she could not recall whether she tried to find the Sun Sentinel article. ESMF ¶ 43. The article Sholar found stated that Ellis's car was towed, but Sholar did not attempt to contact the tow company to obtain the VIN and tag numbers of the towed vehicle to determine whether it was the insured vehicle. ESMF ¶ 44. The article provided the name and address of Ellis's place of employment, but Sholar was afraid to investigate because a different name appeared on the building and it did not have windows. Plaintiff contends that had Sholar performed an internet search, she could have determined that Ellis's place of employment was located in the building, and it did not pose a risk to her safety. ESMF ¶ 45.
Although the news article Sholar found on October 13, 2014 indicated that it was based on the police report of the accident, Harney did not instruct Sholar to ask the author of the article if she had the police report, how she got it, and whether she would be willing to share it with Sholar. ESMF ¶ 55. Although the news article Sholar found on October 13 stated that Ellis was arrested, Harney did not ask Sholar to make any effort to try to find Ellis's criminal records or the criminal complaint. ESMF ¶ 56. Although the news article Sholar found on October 13 referred to another article in the Sun Sentinel, Harney did not instruct Sholar to locate the Sun Sentinel article to see if she could find any useful information. ESMF ¶ 57.
Based on the news article that Sholar found on October 13, GEICO adjuster Bobbie Harney knew that the driver of the vehicle that struck Mr. Brobeck was arrested. With this knowledge, Harney could have gone to the public records to obtain the arrest record and the traffic citation. Had Harney taken those obvious steps, she would have discovered that Ellis and the insured vehicle were involved in the accident, the only things GEICO needed to know to tender the policy limits. ESMF ¶ 48. Further, GEICO claim supervisor John Smith acknowledged that the article contained an accurate account of the accident and indicated this was a policy limits case. Smith testified, "[i]f there's coverage, absolutely no one is questioning that." ESMF ¶ 69.
Adjuster Bobbie Harney admitted that Sholar did not do anything to get the citation after the Fort Lauderdale Police Department told her it was available on October 17. The tag number recorded in the traffic citation established that GEICO insured the accident vehicle, one of the two key facts GEICO sought to establish before tendering its policy limits. ESMF ¶¶ 10, 46, 65. The second key fact, that Ellis was involved in the accident, was established by his arrest, a fact GEICO knew from the outset. ESMF ¶ 10, 65; DSMF Exhibit 9, GLC 00090-91, 10/9/14, 4:50 PM; GLC 00086, 10/15/14, 8:15 AM). Because of other assignments, Sholar failed to follow up immediately on at least three investigative leads in the Brobeck case. Sholar never checked to see if someone else could cover for her, although GEICO Claim Supervisor John Smith testified that obtaining coverage was "certainly" something that could have been done. Sholar was never told that, and never considered whether, this could be an excess liability case. ESMF ¶ 47.
The article in the Sun Sentinel referred to a "complaint affidavit", ESMF ¶ 58, a document Rosemary Gomez previously told Geico about on October 9. DSMF Exhibit 9, GLC 00090, 10/9/14, 4:53 PM, GLC 00090-91, 10/9/14, 4:50 PM. The Complaint Affidavit charged Ellis with leaving the scene of an accident with injuries. ESMF ¶ 59. The Complaint Affidavit incorporated a Probable Cause Affidavit, which stated that at approximately 7:27 p.m. on Sunday, September 7, 2014, defendant Jonathan Ellis was operating his vehicle southbound on Southwest 4th Avenue approaching the intersection of Southwest 10th Street. Victim, Timothy Brobeck, was riding his bicycle southbound on Southwest 4th Avenue approaching the intersection of Southwest 10th Street. Defendant Ellis struck the rear of victim Brobeck's bicycle thus causing victim Brobeck to be thrown from the bicycle. Victim Brobeck was transported to Broward General Hospital with life-threatening injuries. Defendant Ellis continued southbound on Southwest 4th Avenue fleeing the scene. The Probable Cause Affidavit was signed by Officer Hirsch, and her signature was notarized.
Harney admitted that the Complaint Affidavit had sufficient information to establish liability on the part of Mr. Ellis. The Complaint Affidavit had just as much information to establish liability on the part of Mr. Ellis as the Florida Traffic Crash Report. The Florida Traffic Crash Report was not signed under oath, but the Complaint Affidavit was. The Complaint Affidavit was signed on September 11, 2014 and GEICO, by its own admission, received notice of the accident no later than October 9, 2014, so the Complaint Affidavit was available almost one month before GEICO admittedly received notice of the accident. ESMF ¶ 59.
Harney conceded that a Google search showed that Westway Towing had the towing contract with the City of Fort Lauderdale. Had this search been performed after reading the news article Sholar found on October 13, GEICO could have called Westway Towing to determine the VIN and tag numbers of the accident vehicle. ESMF ¶ 60. See also ESMF ¶ 67.
Harney conceded that the traffic citation issued to Ellis listed the date of the accident, his driver license number, and his vehicle tag number, which corresponded to the VIN of the insured vehicle. If GEICO had obtained the traffic citation, it could have tied the insured vehicle to the accident. ESMF ¶ 61.
John Smith, Harney's supervisor, testified establishing that whether insurance coverage existed was the pivotal factor in deciding to tender the policy limits. Coverage was established by determining that both Ellis and the insured vehicle were involved in the accident. The police report established that the insured vehicle was involved in the accident, and the arrest report established that Ellis was involved in the accident. ESMF ¶ 65. It did not matter that the police report failed to identify the driver of the accident vehicle. ESMF ¶ 68. As Smith succinctly testified, "[T]he day we verified that there was coverage we paid the limits." ESMF ¶ 65. See also ESMF ¶ 64.
But Harney knew that there was always a long delay in obtaining a police report when a fatality is involved, ESMF ¶ 62, and alternative and quicker means existed that GEICO could have but failed to use to establish that the insured vehicle was involved in the accident. Those means included obtaining the traffic citation and the towing records. ESMF ¶¶ 60, 61. Sholar could also have gone to the police department to ask for this information before the police report was released, the same way Montero did when he sought to determine who insured Ellis. ESMF ¶ 74. Sholar was a field investigator, but she lacked the initiative to get off the telephone and go into the field to obtain critical information.
Smith acknowledged the imperative of moving quickly on this case because of the "horrible circumstances," maintaining that GEICO wanted to do everything it could both for Mr. Ellis and Mr. Brobeck's mother, wife, and daughter, ESMF ¶ 66, but GEICO failed to take advantage of the leads it could have followed to expedite its investigation of what was virtually certain to be an excess liability case. Smith explained, "We weren't questioning negligence. We weren't questioning damages. We were questioning coverage." Smith agreed 100 percent that "if coverage is there, the limits are gone." ESMF ¶ 70.
The lawyer Harney retained to defend Ellis told Harney the verdict range for Barbara Brobeck's claim was between $250,000 to $1 million. As a result, if Ellis were only 4% at fault, the verdict would equal the policy limits under the rosiest of pictures ($250,000 × 0.04 = $10,000). As soon as Harney tied Ellis and the insured vehicle to the accident and obtained a description of the accident, she assessed liability as 100% and categorized this as an obvious policy limits case. ESMF ¶ 49. Harney admitted that GEICO has a fiduciary duty, a duty of honesty, and a duty of full disclosure to its insureds, but she never told Ellis or his criminal defense lawyer that Montero said that he rejected GEICO's tender of the policy limits because it was untimely. ESMF ¶ 51. Harney could not explain why her excess letter to Ellis said that the claims against him could exceed one or both of his coverage limits, although he was being sued by a single party, and she did not remember if a property damage claim was being made. ESMF ¶ 52. Harney admitted that GEICO has a duty to protect its insureds, but she never advised Ellis how he could avoid an excess judgment. ESMF ¶¶ 51, 53. Harney admitted that it was GEICO's job to protect Mr. Ellis from Mr. Montero ESMF ¶ 54.
After coverage was established, Harney understated the danger in her excess letter to Ellis by writing that Brobeck's claim may or could exceed the policy limits, although Smith agreed that the verdict most likely would exceed the policy limits. ESMF ¶ 71. See also ESMF ¶ 70. A significant difference exists between a possibility and a probability, but Harney failed to warn Ellis of the magnitude of the risk he faced. Although Smith maintained that GEICO "absolutely" wants to be as good as it can be and he recognized the logical possibility that GEICO could have received Montero's first letter of representation but accidentally failed to log it into GEICO's case management system, DSMF Exhibit 7, 99:2-100:8, Smith made no attempt whatsoever to explore that possibility in the interest of avoiding a similar failure in the future. Montero's representation that the letter was sent by regular mail was, in Smith's mind, insufficient justification for an inquiry. ESMF ¶ 72; see also ESMF ¶ 50.
D. Opinions of Hyman Montero, Attorney for the Estate of Timothy Brobeck
Hyram Montero is a board-certified civil trial lawyer and former insurance defense lawyer, who has been practicing personal injury law since 1980. His main insurance company client issued only $10,000 liability insurance policies, and Montero was responsible for training adjusters and avoiding extra contractual liability by making timely tenders.
Montero testified that he could not obtain the police report; it was not being released because a vehicular homicide was involved. As a result, his team went online and retrieved a news report of the accident. It can take thirty to forty-five days to obtain a police report in a vehicular homicide case. DSMF Exhibit 13, p. 45. Because of this delay, Montero believes that it is necessary to communicate directly with the investigating officer to obtain as much information as he or she is willing to provide. Montero recalls going in person to the police department in this case and being provided with the driver's name, the insurance company, and the policy number. "And oftentimes you don't even get that information .... [S]ometimes you have to plead." "You just have to go in there and explain yourself." You get better results when you go to the police department in person than when you call over the telephone. ESMF ¶ 74.
In Montero's opinion, GEICO did not act in good faith towards Ellis. GEICO did not treat this case with the urgency it required because it failed to follow up on leads that would have enabled it to make a timely tender of its policy limits. Montero faulted GEICO for failing to obtain the VIN and tag numbers from the wrecker company that towed the accident vehicle, failing to obtain the Complaint Affidavit, failing to obtain the traffic citation, failing to enter Ellis's place of employment because of the unjustified fear that it was unsafe, failing to act on leads because of scheduling conflicts, and failing to go to the police department in person. ESMF ¶ 75. The law firm that GEICO retained to defend Ellis made him feel as though he was an afterthought, advancing GEICO's interests was its primary concern, and he was merely an incidental, rather than an intended, beneficiary of the law firm's efforts on GEICO's behalf. The firm also misled him to believe that he would not be responsible for the judgment. ESMF ¶ 76. GEICO did not tell Ellis what the likely result would be if his case went to a jury. It did not tell him what the reasonable verdict range might be or how he could avoid an excess judgement ESMF ¶ 77.
II. STANDARD OF REVIEW
Under Rule 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears "the stringent burden of establishing the absence of a genuine issue of material fact." Sauve v. Lamberti , 597 F. Supp. 2d 1312, 1315 (S.D. Fla. 2008) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ).
"A fact is material for the purposes of summary judgment only if it might affect the outcome of the suit under the governing law." Kerr v. McDonald's Corp. , 427 F.3d 947, 951 (11th Cir. 2005) (internal quotations omitted). Furthermore, "[a]n issue [of material fact] is not ‘genuine’ if it is unsupported by the evidence or is created by evidence that is ‘merely colorable’ or ‘not significantly probative.’ " Flamingo S. Beach I Condo. Ass'n, Inc. v. Selective Ins. Co. of Southeast , 492 F. App'x 16, 26 (11th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "A mere scintilla of evidence in support of the nonmoving party's position is insufficient to defeat a motion for summary judgment; there must be evidence from which a jury could reasonably find for the non-moving party." Id. at 26-27 (citing Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ). Accordingly, if the moving party shows "that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the nonmoving party" then "it is entitled to summary judgment unless the nonmoving party, in response, comes forward with significant, probative evidence demonstrating the existence of a triable issue of fact." Rich v. Sec'y, Fla. Dept. of Corr. , 716 F.3d 525, 530 (11th Cir. 2013) (citation omitted).
III. DISCUSSION
Defendant moves for summary judgment on Plaintiff Ellis's claim, arguing that no reasonable jury could find that GEICO handled the Estate of Brobeck's claim against Ellis in bad faith. Plaintiff contends that GEICO failed to communicate with the insured and failed to timely investigate the claim, amounting to bad faith.
Under Florida law an insurer owes a duty of good faith to its insured. The duty of good faith obligates the insurer to handle defense claims against the insured with the care and diligence that an ordinarily prudent person would exercise in managing his own affairs. Bos. Old Colony Ins. Co. v. Gutierrez , 386 So. 2d 783, 785 (Fla. 1980). The critical analysis in evaluating a bad faith claims is "whether the insurer diligently, 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 v. GEICO Gen. Ins. Co. , 259 So. 3d 1, 7 (Fla. 2018). At its core "[b]ad faith law was designed to protect insureds who have paid their premiums and who have fulfilled their contractual obligations by cooperating fully with the insurer in the resolution of claims." Berges v. Infinity Ins. Co. , 896 So. 2d 665, 682 (Fla. 2004). Fulfilling the duty of good faith includes investigating the facts of a claim, advising an insured of "settlement opportunities, the probable outcome of the litigation, and the possibility of an excess judgment", fairly considering settlement offers, and settling matters where a reasonably prudent person would. Id. A court should not allow a claimant to manufacture a claim for bad faith for the purpose of creating insurance coverage. Cosola v. GEICO , No. 12-CV-80607, 2013 WL 4854516 * 4 (S.D. Fla. Feb. 28, 2013) ; Berges , 896 So. 2d at 686 (J. Wells dissenting).
Under the circumstances of this case, it is hard to criticize GEICO's failure to communicate with Ellis given GEICO's repeated attempted to contact Ellis, utilizing multiple different forms of communication; a much closer issue involves GEICO's timely investigation of the claim and an offer of the policy limits. Where the liability is clear and injuries are so serious that an excess judgement is likely, an insurer must do more than merely wait for a settlement offer; the insurer has an affirmative duty to initiate settlement negotiations. Powell v. Prudential Prop. & Cas. Ins. Co. , 584 So. 2d 12, 14 (Fla. 3rd DCA 1991). To determine whether an insurance company acted in bad faith by not timely offering the policy limits to the Estate of Brobeck, the Court applies a totality of circumstances test. Harvey v. GEICO , 259 So. 3d 1,9 (Fla. 2018).
Here, the Court finds that the time period between when GEICO became aware of the claim against Ellis and when it offered the policy limits to Brobeck's Estate, does not alone automatically establish bad faith on the part of GEICO. The accident giving rise to the claim against Ellis occurred on September 7, 2014. GEICO subsequently tendered the policy limits to Montero, counsel for the Estate of Brobeck in the underlying state court action, on October 29, 2014. In a letter dated October 30, 2014, Montero rejected the policy limits and claimed that the offer was as untimely. In Clauss v. Fortune Ins. Co. , 523 So. 2d 1177, 1178 (Fla 5th DCA 1988), it was held, under the facts of that case, that one month was not an excessive period of time to verify the claim. Here, the Court finds that the time it took GEICO to verify the claim and tender the policy limits was not excessive, given GEICO's repeated efforts to obtain the police report and contact its insured.
It would seem that anything after the rejection is irrelevant to this bad faith case (e.g. Mrs. Cote's advice to Ellis).
Further, given the facts of this case, GEICO offered the policy limits within a reasonable time period. See Johnson v. Geico Ins Co. , 318 Fed Appx 847, 851 (11th Cir. 2009) (finding a delay of offering policy limits was not bad faith when the policy limits were offered 33 days after the accident). Here, Ellis's liability and the plausibility of an excess judgement eventually became clear; the question is when was it, or should it have been, clear to GEICO. It was clear to Montero when he allegedly sent the LOR on September 16, 2014. DSMF Exhibit 5. If GEICO did not receive that letter, it arguably could have been clear to GEICO when the LOR was faxed to them on October 9, 2014. In Bannon v. GEICO , the Eleventh Circuit found that a bad faith judgement against an insurer was justified where the insurance company waited seventeen (17) days after they knew their insured was 100% liable in a catastrophic injury case to offer the policy limits. 743 Fed. Appx. 311 (11th Cir. 2018). In Bannon , the insurance company had the police report two days after the claim was made and had all the information needed to offer the policy limits within three days of the claim being made. Id. at 313. Here, the day that GEICO claims that they knew that there was coverage (when they got the police report), they offered to pay the policy limits. Certainly, GEICO could have used other investigative means to ascertain coverage and offer to pay the policy limits somewhat sooner. However, between September 16, 2014 when Montero first attempted to contact GEICO about the claim and October 29, 2014 when GEICO received evidence it deemed sufficient to tender the policy limits, GEICO made diligent efforts to investigate the claim.
GEICO timely responded to the second LOR. DSMF Exhibit 17, DSMF Exhibit 18, DSMF Exhibit 19.
Montero testified that it sometimes takes 30-45 days to get a police report in a vehicular homicide case. DSMF Exhibit 13, p. 45. GEICO even asked Montero for a copy of the police report on October 20, 2014. DSMF Exhibit 17.
The operative question, here, is whether GEICO was acting diligently with the same haste and precision as if they were in the insured's shoes. As the Court has explained above, based on the undisputed facts in this matter, GEICO acted diligently in investigating the claim against Ellis. GEICO's efforts were frustrated by its insured's lack of diligence, haste, and precision. Ellis didn't keep his same phone number, DSMF Exhibit 3, p. 68; he moved with no forwarding address, DSMF Exhibit 3, p. 52; he left South Florida DSMF Exhibit 3, p. 22; he did not go back to work on a regular basis Id. ; he didn't personally contact GEICO to discuss the case Id. ; and if he communicated with Montero, GEICO did not get the benefit of those communications. Certainly, GEICO could have done more and been quicker, but waiting two hours after they got the police report to tender the policy limits was not acting in bad faith under the totality of circumstances.
Further, this is not a case where the insurance company rejected an offer to settle the case without informing the insured of the possible negative ramifications. Here, the insurance company is being faulted for delaying in offering the policy limits, but they affirmatively made the offer even before they had an opportunity to confer and consult with the insured. Ellis never told anyone at GEICO that he was involved in the accident before GEICO tendered the policy limits. DSMF Exhibit 3, p. 46. No prejudice can be shown by GEICO's failure to explain the ramifications of an excess verdict when it first suggested a settlement for the policy limits and had no contact with the insured, despite several efforts, prior to the offer.
Eight voice messages, DSMF Exhibit 9 at GLC 84–89; four letters DSMF Exhibit 10, 11, 16, 20; numerous calls to the police department, DSMF Exhibit 9 at GLC 81, 84, 86–97; visited work and residence DSMF Exhibit 9 at GLC 85; and left a GEICOGRAM, DSMF Exhibit 16.
Whether GEICO's actions were reasonable or merely negligent or whether they were not acting diligently with the sufficient haste and precision such that a bad faith claim can lie, is normally a question of fact for the jury to decide. Berges v. Infinity Ins. Co. , 896 So. 2d 665 (Fla. 2004). Similarly, whether the Estate would have accepted an offer of the policy limits would seem to be a question of fact for the jury. However, given the undisputed facts of this case, the Court finds that no reasonable jury could conclude that GEICO operated in bad faith.
IV. CONCLUSION
Based on the foregoing, it is ORDERED AND ADJUDGED as follows:
1. Defendants’ Motion for Summary Judgment [DE 30] is GRANTED ;
2. Pursuant to Fed. R. Civ. P. 58(a), the Court will enter a separate final judgment;
3. The Clerk shall close this case and deny any pending motions as moot.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 28th day of May, 2021.