# Pratt v. Government Employees Insurance Company

> District Court, M.D. Florida · March 31, 2023

URL: https://www.frixlaw.com/law-library/cases/10112571

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 31, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

AMBAR PRATT,

Plaintiff,

v. Case No: 8:18-cv-1607-CEH-AEP

GOVERNMENT EMPLOYEES
INSURANCE COMPANY,

Defendant.

ORDER
This cause comes before the Court upon Defendant’s Motion for Final
Summary Judgment (Doc. 35), Plaintiff’s Motion for Partial Summary Judgment
(Doc. 36), Responses to these motions (Docs. 40, 41), Replies in support of the
motions (Docs. 43, 44), Defendant’s Supplement to the Briefing (Doc. 117), and
Plaintiff’s Response (Doc. 119). Both motions are ripe for the Court’s review.1 Having
considered the parties’ submissions and being fully advised in the premises, the Court
will deny Defendant’s Motion for Summary Judgment and deny Plaintiff’s Motion for
Partial Summary Judgment.

1 The Court previously granted summary judgment in favor of Defendant on the threshold
issue of causation. Doc. 93. The Eleventh Circuit subsequently vacated the Court’s order and
remanded this case for further consideration in light of McNamara v. GEICO, 30 F.4th 1055
(11th Cir. 2022).
I. BACKGROUND
A. Undisputed Facts2

This lawsuit stems from a multiple-vehicle accident that caused several serious
injuries and a death. Doc. 39. On November 10, 2006, Marise S. Eason rear-ended a
vehicle driven by Josh Hajipour, in which Ambar Pratt (f/k/a Ambar Torres), Jessica
Hajipour, and Jaclynne McCrary were passengers. Id. ¶1. The force of the collision
propelled the vehicle forward into a third car driven by Michael Zapolski. Id. This

accident caused numerous injuries—including to Pratt, Zapolski, Josh Hajipour,
Jessica Hajipour, Jason Ortiz, and Shane Richardson. Id. Tragically, it also resulted in
McCrary’s death. Id. Ambar Pratt, as assignee of Marise S. Eason (“Plaintiff”), now
brings this third-party bad faith insurance claim against Government Employees
Insurance Company (“Defendant”).

At the time of the accident, Defendant insured Eason and his wife under an
automobile liability insurance policy (the “Policy”), which provided bodily injury
liability coverage with limits of $25,000 per person and $50,000 per occurrence. Id. ¶2.
Eason reported the accident to Defendant about a month after it happened, because
he was not initially aware that the Policy would cover an accident in his employer’s

vehicle. Id. ¶3. Defendant opened an investigation the day it learned of the accident
and assigned Leslie Sinclair, a claims examiner, to handle the claim. Id. ¶4.

2 The Court has determined the facts, which are undisputed unless otherwise noted, based on
the parties’ submissions, including the Joint Stipulation of Agreed Material Facts (Doc. 39),
deposition transcripts and other evidence in the record.
On December 8, 2006, Sinclair obtained a recorded statement from Eason as
part of the investigation. Id. ¶5. Eason explained that he was driving a vehicle for his
employer Atlantic Tower Services (“ATS”) at the time of the accident. Id. Sinclair

learned that ATS’s insurer Hartford Fire Insurance Company (“Hartford”) had
retained an attorney, Teresa Jones, to represent Eason and ATS. Id. ¶6. Sinclair
contacted Jones, who reported that the accident had resulted in one fatality and
injuries to several parties. Id. Jones specifically noted that Plaintiff had suffered facial

fractures, was in a coma, could potentially lose an eye, and anticipated further surgery.
Doc. 26-1 at 7–8. She also reported that Hartford had received a policy limits demand
for $1 million on behalf of the deceased party. Doc. 39 ¶6.
Defendant decided to provide coverage for the accident on December 14. Id. ¶8.
It sent a certified letter to Eason that day, which: (1) set forth the available limits under

the Policy; (2) advised that the claims arising from the accident would exceed the
Policy’s limits; (3) informed him of his right to seek legal counsel regarding any
personal liability that may arise from the claims, as well as his right to contribute any
personal funds to the settlement of the claims; (4) informed him of the various claims
being presented; and (5) advised that the claims against him could exceed Hartford’s

$1 million policy limits. Id. ¶9. Also on December 14, 2006, attorney Joseph Kissane
(‘Kissane”) notified Defendant that Hartford had received a second demand for the
Hartford policy’s limits from attorney Dominic Fariello (“Fariello”), who represented
Plaintiff, Josh Hajipour, and Jessica Hajipour. Id. ¶ 10. When Kissane advised Sinclair
that he intended to schedule a global settlement conference to resolve the claims
against ATS and Eason, Sinclair advised him of her desire for a representative of
Defendant to be involved in any global settlement conference. Id. On December 15,
Defendant authorized settlement authority for the entire $50,000 bodily injury liability

per occurrence limit and advised Hartford’s attorney, Jones, that it was offering this
amount to contribute towards the settlement of all claims. Id. ¶¶11–12.
On December 20, Plaintiff’s attorney, Fariello, sent a time-sensitive demand
letter to Defendant on behalf of Plaintiff and the Hajipours. Id. ¶13. The letter

described the injuries suffered by each of his clients and provided estimated future
medical bills. Doc. 26-2. Plaintiff’s injuries were described as severe. The letter
explained that she had suffered “injuries to [her] skull, face, right eye and possible loss
of hearing,” and would need plastic surgery, eye surgery, and (possibly) facial surgery.
Id. at 3. She was estimated to have incurred $98,449 worth of medical costs, and

Fariello anticipated that her medical costs would total more than $150,000. Id. at 2–3.
Fariello demanded that the $50,000 per occurrence policy limit be paid within fifteen
days of the date of the letter, January 4, 2007, to settle the injury claims of Plaintiff,
Josh Hajipour, and Jessica Hajipour. Id. He emphasized that the demand was directed
to Defendant and its “insured Marise S. Eason alone and no other party.” Id. at 1.

On December 21, Defendant’s regional claims manager, Mark Sugden,
recommended that the case be referred to staff counsel who would represent Eason
and coordinate a global settlement conference to resolve the claims. Doc. 39 ¶14.
Hartford’s attorney, Jones, advised Defendant on that day that Hartford had tendered
its $1 million policy limits to McCrary’s estate in exchange for a release of ATS and
Eason, thereby exhausting Hartford’s available policy limits. Id. On December 26,
Defendant wrote to Eason, enclosing a copy of Fariello’s demand letter and advising
him that it had retained the Law Office of James Pratt on Eason’s behalf, and that

ATS had settled with McCrary’s estate for the Hartford policy’s $1 million limit,
thereby exhausting Hartford’s available policy limits. Id. ¶16.
Defendant next asked its retained counsel to schedule a global settlement
conference to try to settle all claims. Id. Cosmo Bloom, of the Law Office of James

Pratt, sent a letter to Fariello, on which Eason was copied, stating in relevant part that:
On behalf of its insured, Mr. Eason, GEICO believes that
the most fair and equitable way of resolving the claims
herein is to coordinate a global settlement conference. Due
to the number of individual claimants and the law firms
involved, and the coincidence of the holiday period, it
would be greatly appreciated if the deadline presented by
your clients could be extended in order to permit the
scheduling of the global settlement conference.
Id. ¶17.
Fariello agreed to a six-day extension, extending the deadline for Defendant to respond
to his demand on behalf of Plaintiff, Josh Hajipour, and Jessica Hajipour from January
4, 2007, to January 10, 2007. Id. ¶18. Sinclair advised Eason of this extension and
Defendant’s plan for a global settlement conference on December 27, 2006. Id.
On December 29, 2006, Plaintiff terminated Fariello as her attorney. Id. ¶19.
Fariello informed Defendant of this development on January 3, 2007. Id. ¶¶19–20. He
withdrew Plaintiff’s demand and, “based on the change in circumstances,” now
requested Defendant to “tender[] its policy limit liability coverage of
$25,000.00/$50,000.00” for the Hajipours, collectively, at $25,000.00 per claimant. Id.
¶20 (internal quotation marks omitted).
On January 4, 2007, attorney Dee Setchel (“Setchel”), an attorney with the Law

Office of James Pratt, sent a letter on behalf of Defendant to all claimants, advising
that a global settlement conference had been scheduled for January 8, 2007. Id. ¶21.
She explained that Defendant had authorized her to “tender the aggregate policy limits
of $25/50 in full and complete settlement of all claims against Marise S. Eason arising
from the 11/10/2006 accident.” Id. She added that, “[b]ecause that total amount may

not be sufficient to fully compensate the parties,” the settlement conference would aim
to “equitably distribute the settlement proceeds.” Id. Eason was copied on this letter.
Id.
Plaintiff’s newly retained attorney, Ken Whalen (“Whalen”), responded to the

letter. Id. ¶22. He objected to the scheduled settlement conference date and asked that
Defendant postpone the conference until he was able to obtain information regarding
the available insurance coverages and the injuries and damages of the other parties. Id.
Whalen asked for statutory insurance disclosures, insurance coverage information,
and an outline of the injuries sustained by the parties. Id. Setchel responded that the

global settlement conference would proceed as scheduled, and that Whalen could join
telephonically if unable to attend in person. Id. ¶23. Setchel also explained the known
insurance coverages to Whalen and provided him with an outline of the alleged
injuries to the other parties. Id. The global settlement conference was held on January
8, 2007. Id. ¶24. Whalen attended on behalf of Plaintiff; Fariello attended on behalf of
Josh Hajipour and Jessica Hajipour; attorney Dick Greco attended on behalf of
Zapolski; Jones attended on behalf of ATS and Eason; and Joseph Kissane attended
on behalf of Hartford. Id. Defendant’s staff counsel attended on behalf of both Eason

and ATS. Id.
On January 9, Defendant sent Whalen a check for $25,000—the amount of the
per person policy limits—along with a proposed release of Eason, Eason’s wife, and
ATS. Id. ¶25. The check was offered for “full and final settlement of [Plaintiff’s]

claim,” and was “conditioned upon [Plaintiff] executing a mutually acceptable release
of all claims and demands.” Id. (internal quotation marks omitted). Setchel’s letter
advised, “A proposed release is attached.” Id. A second global settlement conference
was held on January 24, 2007, which Setchel attended on Eason’s behalf. Id. at ¶ 24 n.
3. Plaintiff did not accept the January 9 offer, and the settlement check was re-issued

numerous times in the following years. Doc. 35-33.
More than three years passed, and in January 2010, Plaintiff filed a negligence
action against Eason (the “Underlying Action”). Doc. 39 ¶26. Defendant retained
attorney James Thompson to defend Eason in the Underlying Action. Id. On
September 15, 2016, Plaintiff and Eason agreed to a “Stipulated Final Judgment” in

the amount of $1 million, which the state court entered. Id. ¶27. Subsequently, on April
5, 2018, Plaintiff and Eason entered into a “Joint Stipulation and Agreement,” to
which Defendant was not a party. Id. As part of the Joint Stipulation and Agreement,
Eason assigned Plaintiff all rights, claims, actions, or causes of action he had against
Defendant arising out of the accident or Underlying Action. Doc. 1-6 at 4–5.
B. Procedural History
Plaintiff filed this lawsuit in state court on May 31, 2018, alleging common law

bad faith against Defendant and Hartford. Doc. 1-1 ¶¶22–39. Defendant removed the
action to this Court on the basis of diversity jurisdiction. Doc. 1 at 2–6. Plaintiff later
filed an amended complaint which dropped Hartford from the suit. Doc. 31 ¶¶22–30.
The Complaint alleges that Defendant breached its fiduciary duties to Eason in
numerous ways, including by failing to evaluate the claims in a timely and appropriate

manner, failing to take timely and appropriate actions to minimize the risk of his
exposure to an excess judgment, and failing to accept the offer from Plaintiff and the
Hajipours when it knew, or should have known, that their injury claims would
substantially exceed the Policy limits. Id. ¶28. Plaintiff asserts that Defendant’s bad
faith caused Eason to be exposed to excess liability in the Underlying Action and that

it must now satisfy the judgment, in full, to cure the damage it caused Eason. Id. ¶30.
Defendant moves for summary judgment, arguing that no reasonable jury could
find in Plaintiff’s favor. Doc. 35 at 1–2. Plaintiff opposes and itself moves for partial
summary judgment, requesting that the Court find that: (1) ATS was not insured under
the Policy; (2) Defendant’s January 9, 2007, settlement offer required ATS to be

released; (3) a potential indemnification claim was not a basis for Defendant to attempt
to settle the claims against ATS; and (4) the consent judgment is reasonable and
enforceable against Defendant. Doc. 36 at 2; Doc. 41.
The Court previously entered an order granting summary judgment for
Defendant on the threshold issue of causation and denying Plaintiff’s Motion for
Partial Summary Judgment as moot. Doc. 93. The Court found that Plaintiff failed to
raise a genuine issue of material fact as to whether Defendant’s alleged bad faith
resulted in an excess judgment or a functional equivalent—which is necessary to prove

causation. Id. at 27. Although Plaintiff and Eason agreed to a Stipulated Final
Judgment in excess of the policy limits, the Eleventh Circuit had previously stated
(albeit in an unpublished opinion) that a consent judgment did not qualify as an excess
judgment or a functional equivalent for the purposes of a bad faith action. Id. at 17–
24. The Court thus found that Plaintiff’s claim failed on causation and declined to

decide whether a genuine dispute of material fact existed as to the bad faith claim. Id.
at 27.
Plaintiff appealed. Docs. 97, 108. On June 14, 2022, the Eleventh Circuit issued
a per curiam decision vacating the Court’s summary judgment order and remanding it

for further consideration in light of McNamara v. GEICO, 30 F.4th 1055 (11th Cir.
2022). See Pratt v. Gov’t Emps. Ins. Co., No. 20-12718, 2022 WL 2125532 (11th Cir. June
14, 2022). In McNamara, the Eleventh Circuit rejected its prior ruling that a stipulated
judgment cannot serve as an excess judgment in a bad faith lawsuit. 30 F.4th at 1061–
62 (quoting Pelaez v. Gov't Emps. Ins. Co., 13 F.4th 1243, 1248 (11th Cir. 2021), cert.

denied, 142 S. Ct. 1672 (2022)). It found that the previous decision misinterpreted
Florida law and held that, “under Florida law, ‘[a] stipulated judgment . . . would be
a way to obtain an excess judgment that could be used in a bad faith lawsuit’ against
an insurer.” Id. Subsequently, as instructed by the Court, the parties filed supplemental
briefing as to their cross-motions. Docs. 117, 119.
II. LEGAL STANDARD
Summary judgment is appropriate when the pleadings, depositions, answers to

interrogatories, and admissions on file, along with any affidavits, show there is no
genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The moving party bears the initial burden of stating the basis for its motion and
identifying those portions of the record demonstrating the absence of genuine issues of

material fact. Celotex, 477 U.S. at 323; Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,
1259–60 (11th Cir. 2004). That burden is discharged if the moving party can show the
court that there is “an absence of evidence to support the nonmoving party’s
case.” Celotex, 477 U.S. at 325.
When the moving party has discharged its burden, the nonmoving party must

then designate specific facts showing that there is a genuine issue of material fact. Id. at
324. Issues of fact are “genuine only if a reasonable jury, considering the evidence
present, could find for the nonmoving party,” and a fact is “material” if it may affect
the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248–49 (1986). In determining whether a genuine issue of material fact exists, the

court must consider all the evidence in the light most favorable to the nonmoving
party. Celotex, 477 U.S. at 323. However, a party cannot defeat summary judgment by
relying on conclusory allegations. See Hill v. Oil Dri Corp. of Ga., 198 Fed. App’x. 852,
858 (11th Cir. 2006). Summary judgment should be granted only if “the record taken
as a whole could not lead a rational trier of fact to find for the non-moving party.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The court
need consider only the cited materials, but it may consider other materials in the
record.” Fed. R. Civ. P. 56(c)(3).

The standard of review for cross-motions for summary judgment does not differ
from the standard applied when only one party files a motion, but simply requires a
determination of whether either of the parties deserves judgment as a matter of law on
the undisputed facts. Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331 (11th
Cir. 2005). The Court must consider each motion on its own merits, resolving all

reasonable inferences against the party whose motion is under consideration. Id. The
Eleventh Circuit has explained that cross-motions for summary judgment will not, in
themselves, warrant a grant of summary judgment unless one of the parties is entitled
to judgment as a matter of law on facts that are not genuinely disputed. United States v.

Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) (quoting Bricklayers Int’l Union, Local 15
v. Stuart Plastering Co., 512 F.2d 1017 (5th Cir. 1975)). Cross-motions may, however,
be probative of the absence of a factual dispute where they reflect general agreement
by the parties as to the controlling legal theories and material facts. Id. at 1555–56.

III. ANALYSIS
A. Defendant’s Motion for Summary Judgment
In its motion for summary judgment, Defendant asserts that no reasonable jury
could find that it acted in bad faith in handling Plaintiff’s claim against Eason. Doc.
35 at 1. Defendant contends that it fulfilled its duty of good faith to Eason by
investigating liability and damages, promptly offering the Policy’s $50,000 per
occurrence bodily injury limits to all claimants, coordinating a global settlement

conference in an attempt to resolve as many claims as possible within the Policy’s
limits, immediately tendering the Policy’s per person limits with a proposed release to
Pratt following the global settlement conference, and keeping Eason apprised of the
claims resolution process. Id. at 2. Finally, Defendant avers that summary judgment is
warranted because Pratt was unwilling to settle her claim against Eason—thereby

foreclosing any realistic settlement opportunity—and because Plaintiff fails to establish
the element of damages. Id.
Plaintiff responds that summary judgment is inappropriate because a reasonable
jury could determine that Defendant failed to act reasonably and diligently by not

settling Plaintiff’s claim against Eason. Doc. 41 at 15. In support of this argument,
Plaintiff alleges that Defendant knew early in the claims process that Plaintiff was the
most seriously injured claimant and nevertheless failed to accept her demand. Id.
Plaintiff also contends that a reasonable jury could determine that Defendant’s failure
to settle resulted from its improper determination that ATS was an insured. Id. Finally,

Plaintiff argues that she has properly alleged damages, and that Defendant’s argument
for summary judgment improperly focuses on the fact that Plaintiff’s second attorney
in the Underlying Action never made a settlement demand to Defendant. Id. at 16–20.
Defendant’s supplemental filing argues further that no reasonable jury could
conclude that it acted in bad faith. Doc. 117. It cites numerous Eleventh Circuit
decisions affirming grants of summary judgment for insurance companies that were
published after its initial motion for summary judgment. Id. It also argues that an
insurer’s decision to pursue a global settlement when there are multiple claimants is

consistent with its duty of good faith as a matter of law. Id. at 3–9. On the issue of
damages, Defendant does not attempt to distinguish this case from McNamara or
otherwise reinforce its original argument.
Plaintiff responds to Defendant’s supplemental brief, arguing that whether

Defendant acted in bad faith is a fact question that should be decided by a jury. Doc.
119 at 9–16. Plaintiff also argues that Defendant fails to explain the relevance of the
new authority it cites and that those cases are distinguishable. Id. at 16. Finally,
Plaintiff asserts that there is at least a fact question regarding whether the claim could
have settled, and that Defendant’s motion for summary judgment should thus be

denied. Id. at 20.
For the reasons set forth below, a reasonable jury could find that Defendant
failed to act reasonably and diligently by not settling Plaintiff’s claim against Eason.
Thus, Defendant’s motion for summary judgment is due to be denied.

i. Bad Faith Legal Standard
“Bad 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, 682–683
(Fla. 2004). An insurer defending 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). Indeed, “when the insured has surrendered to the insurer
all control over the handling of the claim, including all decisions with regard to
litigation and settlement, then the insurer must assume a duty to exercise such control
and make such decisions in good faith and with due regard for the interests of the
insured.” Id. The Florida Supreme Court has explained what this duty requires of

insurers:
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 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. Because the duty
of good faith involves diligence and care in the investigation
and evaluation of the claim against the insured, negligence
is relevant to the question of good faith.
Id. (internal citations omitted).
These obligations are no mere checklist, and an insurer is not absolved of
liability simply because it advises its insured of settlement opportunities, the probable
outcome of the litigation, and the possibility of an excess judgment. Harvey v. GEICO
Gen. Ins. Co., 259 So.3d 1, 7 (Fla. 2018). Instead, the “critical inquiry” in a bad faith
action 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.” Id.
A threshold causal requirement in a bad faith action is that “[t]he damages

claimed by an insured in a bad faith case ‘must be caused by the insurer’s bad faith.’”
Id. (quoting Perera v. U.S. Fidelity & Guar. Co., 35 So.3d 893, 902 (Fla. 2010)). Further,
“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.” Berges,

896 So.2d at 680. And generally, the question of bad faith will be for “the jury to
decide.” Harvey, 259 So.3d at 7 (quoting Boston Old Colony, 386 So.2d at 785).
“However, numerous courts have held that, where the evidence establishes that no
reasonable jury could find the insurance company acted in bad faith, a court can and
should enter summary judgment for the insurer.” Valle v. State Farm Mut. Automobile

Ins. Co., No. 08-22117-CIV, 2010 WL 5475608, at *3 (S.D. Fla. Jan. 15, 2010), aff’d
sub nom. Valle v. State Farm Mut. Auto. Ins. Co., 394 F. App’x 555 (11th Cir. 2010).
The accident in this case led to multiple injured claimants, which means that
Defendant’s actions must also be analyzed under a second standard. See Farinas v. Fla.
Farm Bureau Gen. Ins. Co., 850 So.2d 555, 560 (Fla. 4th DCA 2003) (“Therefore, the

Boston Old Colony standard applies to all Florida cases alleging insurer bad faith, and
Harmon applies to the subset of those cases involving multiple competing claims.
Under this rationale, the present case is subject to both standards.”) When an insurer
faces multiple competing claims, it “may enter into reasonable settlements with chosen
claimants, even if those settlements fully exhaust the policy limits, leaving one or more
claimants without recourse against the insurer, so long as the insurer’s decision to do
so is reasonable and within the purview of its duty of good faith.” Mesa v. Clarendon

Nat’l Ins. Co., 799 F.3d 1353, 1359 (11th Cir. 2015). In order to satisfy its duty of good
faith, “the insurer must: (1) fully investigate all claims arising from a multiple claim
accident; (2) seek to settle as many claims as possible within the policy limit; (3)
minimize the magnitude of possible excess judgments against the insured by reasoned
claim settlement; and (4) keep the insured informed of the claim resolution process.”

Gen. Sec. Nat’l Ins. Co. v. Marsh, 303 F. Supp. 2d 1321, 1325 (M.D. Fla. 2004) (Hodges,
J.) (citing Farinas, 850 So.2d at 560–561).
Based on the foregoing, the Court begins with an examination of Defendant’s
degree of care, diligence, precision, and haste. The Court then turns to the multiple-

claim standard for bad faith actions. Next, the Court addresses Defendant’s claim that
Plaintiff was unwilling to settle. Finally, the Court concludes by analyzing whether a
reasonable jury could find that Defendant acted in bad faith, considering the totality
of the circumstances.

a) Defendant’s Degree of Care, Diligence, Precision, and Haste
Defendant avers that it “diligently worked on behalf of Eason to avoid an excess
judgment with the same haste and precision as if it were in Eason’s shoes.” Doc. 35 at
18–19. Plaintiff disagrees, arguing that Defendant should have settled her claim
against Eason and that it improperly determined that ATS was an insured it needed to
protect. Doc. 41 at 15–16.
First, the Court considers Defendant’s haste in dealing with the claims. Upon

learning of the accident, Defendant immediately began an investigation and assigned
Sinclair to handle the claim. By the next day, Sinclair had obtained a recorded
statement from Eason and contacted an attorney for ATS to gather information about
the injuries and settlement demands. Doc. 39 ¶¶4–5. Defendant decided to cover
Eason less than a week after receiving notice of the accident. Doc. 35-4 at 7. And a

day after deciding to provide coverage, Defendant authorized settlement authority for
the entire $50,000 bodily injury liability per occurrence limit. Doc. 35-4 at 8–9.
Fariello, Plaintiff’s counsel, first contacted Defendant to make a settlement
demand on December 20, 2006. Doc. 35-12. Defendant also learned on this date that
McCrary’s estate had settled with Hartford for its $1 million policy limits, in exchange

for a release of ATS and Eason. Doc. 35-4 at 22–23. Consequently, Defendant knew
at this time that claims by Plaintiff and the Hajipours, at a minimum, remained
pending against Eason. On December 26, 2006, one of Defendant’s attorneys wrote to
Fariello, stating that Defendant believed coordinating a global settlement conference
would be “the most fair and equitable way of resolving the claims.” Doc. 39 ¶17.

On January 4, 2007, Setchel notified all claimants that Defendant had
scheduled a global settlement conference. She noted that Defendant had authorized
her to tender the Policy’s full $25,000/$50,000 limits “in full and complete settlement
of all claims against Marise S. Eason” arising from the accident. Id. ¶21. The settlement
conference was held on January 8, 2007 and the next day Defendant sent a check for
$25,000 to Whalen, which represented the Policy’s bodily injury per person limit “in
full and final settlement of [Plaintiff’s] claim.” Doc. 35-26 at 1. An enclosed letter

advised that the settlement was “conditioned upon [Plaintiff] executing a mutually
acceptable release of all claims and demands” and included a proposed release. Id.
Therefore, within thirty-three days of receiving notice of the accident, Defendant
offered the Policy’s entire $25,000 per person limits to Plaintiff, along with a release.
As to Defendant’s diligence, precision, and care, Plaintiff argues that Defendant

did not act reasonably and diligently when it rejected Fariello’s initial offer despite
knowing that Plaintiff had the most serious outstanding claim. Doc. 41 at 15. She
contends that Fariello’s offer presented an opportunity to settle her claims, as well as
those of the Hajipours, which would have left only Zapolski’s “relatively minor soft-
tissue injury.” Id.

The record indicates that Defendant knew Plaintiff’s injuries were severe soon
after it learned of the accident. Claim notes reveal that as early as December 8, 2006,
Defendant learned that Plaintiff was “seriously injured with facial [fractures],” in a
coma, at risk of losing an eye, and likely needed “add[itional] plastic surgery.” Doc.

26-1 at 7–8. At that time, whether Zapolski had sustained injuries was unknown, and
Josh Hajipour was noted as having sustained “minor injuries.” Id. at 4, 8. Moreover,
Defendant received further information about Plaintiff’s injuries from Hartford’s
attorney on December 14, 2006. Id. at 17. Although the precise content of this
conversation was not recorded, Plaintiff argues that Hartford’s attorney probably
relayed the same facts that he memorialized in a letter to Hartford sent the same day.
That letter detailed McCrary’s death, the Hajipours’ injuries, Plaintiff’s injuries, and
Zapolski’s injuries. Doc. 41-3 at 1–4. It explained that, of the three survivors in the

Hajipour vehicle, Plaintiff was “clearly the most seriously injured” and had already
incurred medical bills totaling $57,439. Id. at 4. The letter also noted that, although
Zapolski’s lawyer had informed Kissane that his injuries were “soft tissue in nature,”
the police report from the accident described Zapolski’s injuries as “incapacitating
injuries” and he was scheduled for an MRI. Id.

Defendant’s December 14, 2006 letter to Eason recognized Plaintiff’s claims as
the most serious of the surviving individuals, describing the injuries as follows:
“Joshua Hajipour, non specific soft tissue; Jaclynne McCrary, fatality; [Plaintiff],
multiple facial and skull fractures, possible hearing loss; Jessica Hajipour, soft tissue

injuries and a fracture of the left orbital floor; Michael Zapolski, non specific soft tissue
injuries.” Doc. 35-9. Fariello’s initial demand letter, sent on December 20, 2006,
further reinforced the severity of Plaintiff’s injuries. It asserted that Plaintiff had
incurred $98,449 in medical expenses, compared to $50,236 in medical expenses for
Josh Hajipour and $75,992 in medical expenses for Jessica Hajipour. Doc. 35-12 at 1.

Thus, Fariello claimed that Plaintiff’s medical expenses alone far exceeded the Policy’s
$25,000 per person limit, with the medical expenses for Plaintiff and the Hajipours
combined far exceeding the Policy’s $50,000 per occurrence limit. And while he stated
that Plaintiff’s treatment was “unknown” in the demand letter, Fariello clearly detailed
the extent of Plaintiff’s severe injuries. Id. at 3. Although Fariello did not attach any
medical bills to the demand letter to support these assertions, contending he had “[n]o
reports or bills at this time,” Setchel testified that, “[f]rom the get-go,” Defendant
believed that Plaintiff had the most severe claim based on the demand letter and that

Zapolski’s “soft tissue claims” and the other minor injuries were “very defensible.”
Doc. 41-5 at 71:22, 72:1–13. Indeed, she admits that “[Defendant] had identified
[Plaintiff’s] claim as Number 1.” Id.
Because Defendant knew how severe Plaintiff’s injuries were by the time it
received Fariello’s initial demand, Plaintiff argues that Defendant had a responsibility

to accept the offer, as the offer represented an opportunity for Defendant to settle the
most serious claim and avoid an excess judgment. The Court will consider these facts
in its totality of the circumstances analysis.
b) Multiple Claims Standard

The Court must also analyze Defendant’s actions in light of the multiple claims
against Eason. See Farinas, 850 So.2d at 560. As such, the Court considers whether
Defendant fully investigated the claims, sought to settle as many claims as possible
within the policy limits, used reasoned claim settlement to minimize the magnitude of
possible excess judgments against Eason, and kept him informed. Id. at 560–561.

Defendant contends that it met each of those criteria. Plaintiff disagrees.
There is evidence in the record which suggests that Defendant’s investigation
was incomplete. Although Defendant promptly opened an investigation upon
receiving notice of the accident and obtained two recorded statements from Eason,
much of its investigation relied upon information provided by other parties. There is
no indication from the record that Defendant sought medical records from the
claimants themselves. Notably, Defendant did not ask for any medical records from
Fariello upon receiving the initial demand. Nor does the record show any effort to

request information regarding Zapolski’s injuries. Instead, any information about his
injuries seems to have come solely from Hartford’s counsel. To that end, there is no
indication that, going into the settlement conference—the purpose of which was to
settle all claims, not investigate them—that Defendant had investigated the extent of
Zapolski’s injuries.

Further, the record lacks any indication that Defendant sought the police report
from the accident. Nor does it show that Defendant interviewed Ortiz or Richardson,
two of the other injured parties. Defendant, as the insurer entrusted with control over
the handling of the claims, undertook few investigative efforts prior to the settlement
conference. That distinguishes this case from those that Defendant cites, such as Mesa,

where there was no clear indication as to which party was the most seriously injured
and the insurer immediately hired an entity to investigate, adjust the claims, identify
potential claimants, and assist those claimants in achieving a global settlement. 799
F.3d at 1358–1360.
Defendant was also obligated to seek to settle as many claims as possible within

the Policy’s limits. Farinas, 850 So.2d at 559. Defendant made some effort to do so by
scheduling a global settlement conference and advising all claimants that the goal of
the conference was to equitably distribute the Policy’s proceeds, because the limits
“may not be sufficient to fully compensate the parties.” Doc. 35-15 at 1; Doc. 39 ¶21.
At the conference, Defendant’s attorney announced that Defendant had
$50,000 that it would tender on behalf of Eason and ATS.3 Doc. 35-4 at 19. The
claimants’ attorneys then discussed their clients’ respective injuries and claims. It was

confirmed that Plaintiff had the most serious injuries, following by Jessica Hajipour,
Josh Hajipour, and Zapolski. Doc. 35-4 at 17–18. Whalen advised Defendant of the
severity of Plaintiff’s injuries and asserted that her claim was worth even more than
McCrary’s. Id. A day after the conference, Defendant sent a $25,000 check with a
proposed release to Fariello to settle Jessica Hajipour’s claim, (Doc. 35-27 at 1), and a

$25,000 check with a proposed release to Whalen to settle Plaintiff’s claim, (Doc. 35-
26 at 1). The Court will consider Defendant’s attempts to settle as many claims as
possible when evaluating bad faith under the totality of the circumstances.
Next, the Court must consider whether Defendant minimized the magnitude of
possible excess judgments against Eason by “reasoned claim settlement.” Marsh, 303

F. Supp. 2d at 1325. Plaintiff alleges in her amended complaint that Defendant failed
to take timely and appropriate action to minimize the risk of Eason’s exposure to an
excess judgment. Doc. 31 ¶28. Defendant maintains that it pursued a reasoned “plan
of action” by seeking to settle as many claims as possible within the Policy limits. Doc.

35 at 20. Plaintiff attacks this notion by asserting that accepting Fariello’s December
20, 2006 demand would have clearly minimized the magnitude of the possible excess
judgments because only Zapolski’s minor injury claim would have remained. Doc. 41

3 Defendant’s decision to try and secure a release for ATS is a separate issue, discussed below.
at 15. Plaintiff also argues that a reasonable jury could find that Eason was harmed by
Defendant’s failure to settle the most serious claims against him, which in turn resulted
from Defendant “improperly and wrongly determining that ATS was an insured which

[Defendant] needed to protect.” Id.
Defendant’s decision to seek a release of claims against ATS is a key issue of
contention, and Plaintiff’s arguments that Defendant’s decision to do so was not
backed up by a reasonable investigation and was harmful to Eason are supported by
some evidence. The settlement offer and proposed release that Defendant sent to

Plaintiff clearly stated that it was made on behalf of Defendant, the Easons, and ATS,
and would “release, acquit, and forever discharge” those three parties from “claims,
actions, or causes of action that Plaintiff then had or might thereafter accrue on
account of or arising in any way out of all known and unknown, foreseen and
unforeseen, injuries and damages resulting or to result from the accident.” Doc. 35-26

at 1. Thus, in exchange for payment, Plaintiff was asked to release Defendant, Eason,
Eason’s wife, and ATS from all future liability.
Ordinarily, the Court would examine the Policy to determine Defendant’s basis
for seeking a release of claims against ATS. Plaintiff argues that the Court must
construe the Policy under Georgia law because the Policy “was issued for delivery to

a Georgia insured.” Doc. 41 at 11. However, as discussed further in the analysis of
Plaintiff’s motion for partial summary judgment, the rule of lex loci contractus dictates
that the law of the jurisdiction where the contract was executed governs the parties’
rights and liability in determining an issue of insurance coverage. State Farm Mut. Auto.
Ins. Co. v. Roach, 945 So.2d 1160, 1163 (Fla. 2006). Here, no argument or analysis
regarding the location of the insurance contract’s execution is provided by either side.
As such, the Court declines to interpret the Policy in accordance with a particular

jurisdiction’s laws.
Nonetheless, there is significant evidence in the record that casts doubt on
Defendant’s decision to defend ATS in this case and include it in the proposed release
it sent to Plaintiff. Scott Jones, Defendant’s corporate representative, testified that ATS
was not a named insured under the Policy. Doc. 35-8 at 36:19–24. He stated that,

despite ATS not being a named insured, Defendant saw ATS as a “potential insured”
when it decided to afford coverage because Eason had been driving ATS’s vehicle at
the time of the accident. Id. at 18:4–11. He also testified that, because Eason was
driving a “work vehicle,” whether coverage would exist was unclear to Defendant. Id.

at 35:1–9. Jones explained that, because Defendant was not sure if ATS owned the
vehicle involved in the accident, it could not determine whether a provision of the
Policy that provided liability coverage for a non-named insured would apply in this
case. Id. at 36:1–18.
Jones confirmed that Defendant never made a specific coverage determination

that ATS was a covered party under the Policy. Doc. 36-6 at 18:22–20:11, 19:1–4.
Instead, it “made a coverage determination to afford coverage for the loss itself,” and
having made this determination, was not “going to [go] back and say, well, you’re not
covered. . .” Id. at 19:5–7. Jones said that Defendant was “going to try and cover
everybody that [it] could.” Id. at 19:7–8. Even though ATS was not a named insured,
he explained, if ATS was an entity that Defendant was going to “protect underneath
the [P]olicy,” then Defendant would “consider them an insured underneath the
[P]olicy.” Doc. 35-8 at 37:6–9. When asked why Defendant took the position that any

settlement for the Policy’s limits must include Eason and ATS, Jones explained that
ATS had asked Defendant to be included on the release. Doc. 36-6 at 30:15–23. Jones
testified that Defendant was “trying to get all parties out that [it] could.” Id. at 31:1–7
(emphasis added).
There is ample evidence in the record indicating that Defendant treated ATS as

an insured and sought to defend it against Plaintiff’s claims. For example, Sinclair sent
an Affidavit of Coverage to Jones on December 15, 2006, which lists ATS as an
additional insured under Section I. Doc. 35-11 at 2. Further, Setchel advised in her
January 4, 2007, letter regarding the global settlement conference that she was
representing Eason and ATS. Doc. 35-22 at 2. ATS also received a letter that day from

Defendant’s retained attorneys stating that they would represent ATS at the global
settlement conference. Doc. 36-2 at 1. The letter advised that Defendant would “secure
releases from each claimant and mail copies to” ATS if it was “able to settle all pending
claims” against ATS. Id. Jones testified that ATS’s attorney responded to this letter

demanding that Defendant’s settlement strategy minimize the possible excess
judgments against both ATS and Eason. Doc. 36-6 at 41:21–25, 42:1–23.
Jones’ testimony also suggests that Defendant’s decision to treat ATS as an
insured may have resulted from a failure to investigate whether coverage existed. Doc.
36-6 at 35:1–12. Jones admitted that Defendant never made a coverage determination
whether ATS was an insured under the Policy, and, potentially relevant to such a
coverage determination, that they lacked records demonstrating whether ATS owned
the vehicle. Id. at 50:1–53:7. Defendant’s reasoning was that it was “trying to get all

parties out that [it] could.” Id. at 31:1–7. Like the preceding analyses, the Court will
consider these facts when evaluating the totality of the circumstances.
The Court next considers whether Defendant kept Eason informed of the claim
resolution process. Marsh, 303 F. Supp. 2d at 1325. Generally, it did. Within one week

of learning of the accident, Sinclair sent a certified letter to Eason that: (1) set forth the
Policy’s available limits; (2) advised that the claims would exceed the Policy’s limits;
(3) advised Eason of his right to seek legal counsel regarding any personal liability that
may arise from the claims; (4) described the claims being presented by Plaintiff,
McCrary, Zapolski, and the Hajipours; and (5) informed Eason that these claims

against him could exceed Hartford’s $1 million policy limits. Doc. 35-9. Sinclair then
forwarded a copy of Fariello’s initial demand to Eason six days after it was received,
advised Eason that Defendant had retained the Law Office of James Pratt on Eason’s
behalf, and informed Eason that Hartford had settled with McCrary’s estate for the $1
million policy limits. Doc. 35-14. A copy of Bloom’s response letter, which requested

an extension of time to coordinate the global settlement conference, was also sent to
Eason. Doc. 35-16. Plaintiff does not point out any potential lapses in communication,
and Eason also testified that Defendant provided him with competent counsel in the
Underlying Action—despite him mentioning that he was unaware of certain events
that were “going on behind the scenes.” Doc. 35-2.
c) Unwillingness to Settle Claim Against Eason
Defendant also argues that summary judgment is warranted because the

undisputed facts demonstrate that Plaintiff was unwilling to settle her claim. Doc. 35
at 21–23. It is true that “the claimant’s unwillingness to settle the claim is relevant to
whether the insurer acted in bad faith under a totality of the circumstances and is a
factor that must be considered.” Losat v. Geico Cas. Co., No. 8:10-cv-1564-EAK-TGW,
2011 WL 5834689, at *6 (M.D. Fla. Nov. 21, 2011) (Kovachevich, J.) “[A]lthough a

bad faith claim derives from and emphasizes the duty of the insurer to the insured, the
conduct of a claimant and the claimant’s attorney is relevant to determining the
‘realistic possibility of settlement.’” Cardenas v. Geico Ins. Co., 760 F. Supp. 2d 1305,
1309 (M.D. Fla. 2011) (Merryday, J.) (quoting Barry v. Geico Gen. Ins. Co., 938 So.2d
613, 618 (Fla. 4th DCA 2006)). Clearly, an insurer’s failure to settle would not be the

cause of a resulting excess judgment if the claimant was unwilling to settle. Eads v.
Allstate Indemnity Co., No. 14-CIV-61791-Bloom/Valle, 2016 WL 3944072, at *11
(S.D. Fla. Jan. 25, 2016).
As noted above, the first demand on Plaintiff’s behalf came on December 20,
2006, in which Fariello demanded the $50,000 per occurrence limit to settle the claims

of Plaintiff and the Hajipours. Doc. 26-2. Fariello indicated that he was unwilling to
release ATS as part of this proposed settlement. Doc. 26-1 at 22. Not long after,
Plaintiff fired Fariello and retained Whelan to represent her, who initially demanded
that Defendant postpone the settlement conference until he was able to “adequately
participate.” Doc. 35-23 at 1. The settlement conference nonetheless proceeded, and
Whalen attended on Plaintiff’s behalf. According to claim notes, Whalen demanded
$25,000 from Defendant for Plaintiff’s injuries in exchange for a release of Defendant
alone, and not the Easons, ATS, or Hartford. Doc. 35-4 at 24. Defendant rejected this

demand because ATS and Eason were not included in the release. Id.
Defendant tendered a $25,000 settlement check to Whalen via letter the next
day. The letter conditioned the settlement “upon [Plaintiff] executing a mutually
acceptable release of all claims and demands.” Doc. 39 ¶25. Enclosed was a release
stipulating that Plaintiff would release her claims against Defendant, the Easons, and

ATS. Doc. 35-26. Id. Whalen testified that he did not specifically recall whether he
communicated his concerns regarding the release. Doc. 35-25 at 35:7–11. He also
stated that he did not believe he contacted Defendant to address the release’s language
or sent a letter in response. Id. at 41:11–13; 35:14–22. Whalen said that he understood

Defendant’s letter, check, and release to be a response to the “initial demand letter”
and, because the terms differed from the “initial demand letter,” he was not “sure that
[he] did much of anything with it.” Id. at 35:14–24. He further testified that a demand
was made “specifically about releasing only Mr. Eason.” Doc. 26-5 at 39:1–10. He
claimed that he did not “really follow up with [Defendant] to get other offers” because

Defendant “had not responded to the offer” and had rejected “the demand that was
made.” Id. When asked whether Plaintiff had been willing to settle against Eason
within the Policy’s $25,000 per person limit, Whalen testified that “there really
wouldn’t have been much of a choice, but [Defendant] never” tendered the policy
limits just for Mr. Eason. Id. at 44:1–9.
In analyzing Defendant’s motion for summary judgment, the Court must view
the evidence and factual inferences in the light most favorable to Plaintiff—and having
done so, a genuine issue of material fact exists as to whether Plaintiff was willing to

settle. Whalen testified that he did not act on Defendant’s settlement offer because it
included entities and individuals in addition to Eason, including ATS. Doc. 26-5 at
19:19–20:8. He stated that the offer “was not in compliance with the demand that was
made” because it was “conditioned upon [a] mutually acceptable release of all claims
and demands, and the proposed release attached release[d] all claims and demands by

everybody . . . .” Id. at 40:18–25. Indeed, the offer letter stated that the settlement was
“conditioned upon [Plaintiff] executing a mutually acceptable release of all claims and
demands,” and provided a proposed release. Doc. 35-26 at 1 (emphasis added). Thus,
there is evidence that Whalen objected to the settlement because it was conditioned

upon a release of all claims and demands against ATS.
Defendant attempts to dodge this argument by focusing on the letter’s
description of the release as “proposed” and thus open to negotiation. Defendant
points to Setchel’s testimony that in response to such releases, the claimant’s attorney
“can respond, delete anything he or she wants to delete, add anything he or she wants

to add, if there are additional stipulations or agreements, anything of that nature.”
Doc. 35-17 at 60:19–25, 61:1–7. Further, Sinclair testified that Whalen did not express
his concerns about the release to her. Doc. 35-5 at 70:11–19. Defendant also highlights
Sinclair’s testimony that, had Whalen responded to this letter and expressed concerns
regarding the release’s language, she would have “worked with him” to address his
concerns. Id. at 70:20–25.
Although the Court is cognizant that Whalen did not propose a counteroffer

limiting the release to Defendant and Eason, his testimony indicates that Plaintiff
would have settled for a release of Eason and Defendant alone. Other evidence, such
as the settlement conference notes, also supports Plaintiff’s claim that Whalen objected
to Defendant conditioning settlement upon a release of all claims and demands.4 Doc.
35-4 at 24. Additionally, aside from highlighting the fact that Defendant simply

reissued the check many times over the course of several years, Defendant fails to cite
any of its own efforts to communicate with Whalen following the tender of the $25,000
and the proposed release to reach a settlement of the matter.
The Court disagrees with Defendant’s assertion that this case is like those in
which claimants or their attorneys repeatedly refuse to respond to the insurer’s

representatives. See e.g., Eads, 2016 WL 3944072, at *2–3. Defendant, as the insurer,

4 Defendant asserts that this testimony of Whalen is “self-serving” and cities to Shin Crest PTE,
Ltd. v. AIU Ins. Co., 368 F. App’x 14 (11th Cir. 2010), to argue impliedly that such testimony
should be disregarded. Doc. 44 at 8. However, in Shin Crest, the court described the statement
of the plaintiffs in the underlying action that they would have agreed to a global settlement
with Shin Crest and another entity at mediation constituted a self-serving statement at odds
with “numerous portions of the record” indicating their strategy to avoid pursuing a settlement
with Shin Crest. 368 F. App’x at 15 (emphasis added). The court emphasized that, even
accepting their assertion as true, their “uncommunicated state of mind” did not show that the
insurer ever knew that it could settle their claims against Shin Crest and the other entity before
executing the settlement agreement and that the underlying plaintiffs’ communications
conveyed the exact opposite impression. Id. at 16. Here, Defendant points only to the
“proposed” nature of the release and Whalen’s failure to object to Defendant’s offer, rather
than any communications by Whalen or Pratt to Defendant that evidenced a refusal to settle.
Doc. 44 at 8.
“has the burden to show that there was no realistic possibility for settlement.” Barry v.
GEICO Gen. Ins. Co., 938 So.2d 613, 617 (Fla. 4th DCA 2006). And “[a]ny question
about the possible outcome of a settlement effort should be resolved in favor of the

insured.” Powell v. Prudential Prop. & Cas. Ins. Co., 584 So.2d 12, 14 (Fla. 3d DCA 1991).
Thus, viewing the evidence and the factual inferences in the light most favorable to
Plaintiff, Defendant has failed to show that there was no realistic possibility for
settlement.

d) Totality of the Circumstances
Ultimately, the question of whether an insured acted in bad faith is determined
by evaluating the totality of the circumstances. Berges, 896 So.2d at 680. Under Florida
common law, Defendant carries the “duty to [its] insureds to refrain from acting solely
on the basis of [its] own interests in settlement.” State Farm Mut. Auto. Ins. Co. v.

LaForet, 658 So.2d 55, 58 (Fla. 1995). The Court is guided by the analysis from above
and additional considerations relevant to insurers’ obligations under Florida law, as
set forth in Boston Old Colony, Harvey, and other cases. The Court is mindful that
summary judgment can and should be granted for an insurer where the evidence
establishes that no reasonable jury could find for the plaintiff. However, in this case, a

reasonable jury could find that Defendant acted in bad faith.
At the outset, Defendant appears to have sought to settle as many claims as
possible. Indeed, it immediately began an investigation of the claim, acted diligently
to coordinate a global settlement conference, and ensured that Eason received updates
throughout the claim process. However, in other areas, Defendant did not do as well.
First, Defendant’s purported investigation of the claims relied heavily on materials
from others. It did not itself seek critical pieces of evidence, such as the police report
and medical records for claimants’ injuries. Significantly, Defendant also failed to

conduct substantial investigation into whether the Policy provided coverage for ATS
before reaching a decision to treat ATS as an insured. And Defendant continued to
treat ATS as such in written communications, at the settlement conference, and for
purposes of its offer to Plaintiff. Additionally, there is evidence in the record to suggest
that Plaintiff would have settled for a release of Eason alone. Such a settlement would

clearly have been in Eason’s interest, and it would have allowed him to avoid the $1
million excess judgment that resulted from Plaintiff’s claims.
Thus, based on the totality of the circumstances, a reasonable jury could find
that Defendant did not act with the same haste and precision as it would if it were in
Eason’s shoes in seeking to avoid an excess judgment, and that Defendant did not “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, 386 So.2d at 785.
Thus, given the totality of the circumstances and the existence of genuine issues of
material fact, the question of bad faith, here, is for the jury to decide.

e) Damages
Defendant’s initial motion argued that it is also entitled to summary judgment
because Plaintiff fails to establish the necessary element of damages. Doc. 35 at 23–
25. Defendant’s motion for summary judgment was originally granted on this
threshold issue—as the Court found that Plaintiff had not obtained an excess judgment
or its functional equivalent, which is necessary to show damages. Doc. 93 at 9–10.
However, as noted in the procedural posture section of this order, the Eleventh

Circuit has since clarified that consent judgments are excess judgments that can satisfy
the causation requirement for a bad-faith claim. McNamara, 30 F.4th at 1060. It is now
clear that a final judgment that exceeds all available insurance coverage, regardless of
whether it results from a consensual settlement or a jury verdict, is an “excess
judgment” under Florida law. Id. at 1058. A brief overview of the Stipulated Final

Judgment in this case follows.
On August 25, 2016, Thompson, Eason’s attorney, sent Defendant draft copies
of the Stipulated Final Judgment and the Stipulation for Final Judgment. Docs. 35-34
at 1–6. Thompson described these documents as “the offer of Plaintiff to resolve this

case short of a trial.” Id. at 1. The copy of the Stipulated Final Judgment provided by
Thompson to Defendant is identical to the court-executed copy of the same document,
which Plaintiff provided. Docs. 31-3; 35-34 at 3–4. Neither party objects that these
submitted copies are not representative of the final versions of the document. Docs.
35-34 at 5–6; 36-5 at 1–2.

Under the terms of the Stipulation for Final Judgment, Plaintiff and Eason
agreed to settle the Underlying Action to “avoid the expense and uncertainties of a
jury trial” and the entry of a judgment. Doc. 36-35 at 1. To that end, the Stipulation
for Final Judgment provided that the settlement would resolve any claims by Plaintiff
against Eason in the Underlying Action, except taxable costs and attorney’s fees, and
the total amount of the stipulated settlement agreement would be $1 million. Id. The
Stipulation for Final Judgment also provided that, prior to entering into the
stipulation, Eason had “confirmed with” Defendant that he was “not violating the

terms and conditions of” the Policy, “specifically the clauses involving voluntary
assumption/payment and lack of cooperation.” Id. at 2.
Execution of the Stipulation for Final Judgment did not assign any of Eason’s
rights, claims, or causes of action that Eason had against Defendant arising out of or
related to the Underlying Action; Eason made such assignment in the Joint Stipulation

and Agreement, executed by Plaintiff and Eason several years later. Doc. 31-4 at 2.
Plaintiff and Eason agreed to, and the state court entered, a Stipulated Final
Judgment for $1 million. Doc. 39 ¶27. Pratt and Eason then entered into the Joint
Stipulation and Agreement in 2018, in which Eason granted an assignment of certain

rights, claims, actions, or causes of action that Eason had against Defendant which
arose out of or were in any way related to the subject matter of the Underlying Action,
Doc. 31-4 at 2. On these facts, the Court now examines whether there was an excess
judgment or its functional equivalent in this case.
The Court first notes that Defendant’s supplemental briefing did not argue that

the facts of this case differ from McNamara. Doc. 117. As already explained, under
Florida law, an excess judgment is a judgment against the insured that exceeds his
insurance coverage. McNamara, 30 F.4th at 1059. Here, Eason accepted a proposal for
settlement and the judge entered a final judgment in the underlying action for one
million dollars, which significantly exceeded the policy limits of $25,000 per person
and $50,000 per claim. This final judgment thus qualifies as an excess judgment for
the purposes of this bad faith suit. Potter v. Progressive Am. Ins. Co., No. 21-11134, 2022
WL 2525721, at *2 (11th Cir. July 7, 2022); McNamara, 30 F.4th at 1059. Thus,

Defendant is not entitled to summary judgment on this point.
Accordingly, for all the foregoing reasons, the Court will deny Defendant’s
motion for summary judgment.
B. Plaintiff’s Motion for Partial Summary Judgment

In moving for partial summary judgment, Plaintiff seeks several legal rulings.
Specifically, Plaintiff asks the Court to find that: (1) ATS was not insured under the
Policy; (2) Defendant’s January 9, 2007, offer required that ATS be released; (3) a
potential indemnification claim was not a basis for Defendant to attempt to settle the
claims against ATS; and (4) the Stipulated Final Judgment is reasonable and

enforceable against Defendant. Doc. 36 at 2. The Court will deny this motion, in part,
and grant it, in part.
i. Coverage for ATS Under the Policy
Plaintiff asks the Court to find that the Policy did not afford coverage to ATS.
Doc. 36 at 2, 9. This request is due to be denied.

The rule of lex loci contractus “provides that the law of the jurisdiction where the
contract was executed governs the rights and liabilities of the parties in determining an
issue of insurance coverage.” Roach, 945 So.2d at 1163 (emphasis added). The Florida
Supreme Court has described this rule as an “inflexible rule.” Id. at 1264 (internal
quotation marks omitted). “The determination of where a contract was executed is
fact-intensive, and requires a determination of where the last act necessary to complete
the contract was done.” Prime Ins. Syndicate, Inc. v. B.J. Handley Trucking, Inc., 363 F.3d

1089, 1092–93 (11th Cir. 2004). “The Eleventh Circuit has held that in the context of
Florida’s lex loci contractus rule that ‘[t]he last act necessary to complete a contract is
the offeree’s communication of acceptance to the offeror.” Pierce v. Prop. & Cas. Ins. Co.
of Hartford, 303 F. Supp. 3d 1302, 1305 (M.D. Fla. 2017) (Byron, J.) (alteration in

original) (quoting Prime Ins. Syndicate, 363 F.3d at 1092–93). Similarly, “in the context
of insurance contracts, courts have found that the last act necessary to create an
insurance contract is an insurer’s (or its agent’s) communication of acceptance of the
insured’s (or its agent’s) offer to purchase insurance.” Id.
Plaintiff contends that the Policy must be “construed under Georgia insurance

contract law” because the Policy “was issued for delivery to a Georgia insured.” Doc.
36 at 9. On this basis, Plaintiff cites principles of contract interpretation under Georgia
law to argue, in three sentences, that the Policy did not afford coverage to ATS because
ATS owned the automobile involved in the accident. Id. However, Plaintiff’s argument
that Georgia law applies because the Policy “was issued for delivery to a Georgia

insured” is incomplete, because the law of the jurisdiction where the contract was
executed governs parties’ rights and liabilities in determining an issue of insurance
coverage. Plaintiff does not address, through argument, record citations, or otherwise,
where the Policy was executed. While the parties agree that the Policy provided
coverage to Eason and that Eason advised Sinclair that he lived in Georgia, these facts
do not demonstrate where the Policy was executed. Similarly, although a review of
the Policy reveals a Georgia address for Eason and his wife, as the named insureds,
this address does not show that the Policy was executed in Georgia. Doc. 31-1 at 1.

The determination of where a contract was executed is a fact-intensive inquiry, yet
Plaintiff fails to offer the facts necessary for the Court to make such a determination.
As such, the Court declines to interpret the Policy in accordance with a particular
jurisdiction’s laws of interpretation in the absence of a determination of where the
insurance contract was executed.

The Court will allow the parties to submit a stipulation regarding the place
where the policy of insurance at issue was executed, if there is no dispute. Any such
stipulation shall be submitted on or before April 14, 2023. Upon receipt of the
stipulation, the Court will reconsider Plaintiff’s motion for partial summary judgment
as to whether ATS was insured under the policy.5

ii. Offer Requiring a Release of ATS and Eason
Plaintiff next asks the Court to find that Defendant’s January 9, 2007, offer
requires a release of Eason and ATS. Doc. 36 at 10. Plaintiff argues that the offer’s
terms cannot be interpreted as offering to release Eason only and that the offer’s use

of “proposed” does not alter the conclusion that the offer included a release of ATS.

5 The Court disagrees with Defendant that Plaintiff is requesting a declaratory judgment
against Defendant on the issue of whether ATS was insured under the policy. Pursuant to
Rule 56, Fed. R. Civ. P., a party may move for summary judgment on a part of each claim
or defense. An issue for determination in this case is whether Defendant improperly
determined that ATS was an insured party for which it should seek a release of claims.
Id. Plaintiff argues that whether the offer required a release of ATS is relevant to
whether the offer was reasonable under the circumstances. Doc. 43 at 3.
In Hayas v. GEICO General Insurance Company, this Court was confronted with a

similar determination. No. 8:13-cv-1432-VMC-AEP, 2014 WL 6883131, at *6 (M.D.
Fla. Dec. 5, 2014) (Covington, J.). In that bad faith action, the plaintiff moved for
partial summary judgment, seeking a determination from the Court that the insurer’s
initial response to an original time-limited settlement offer constituted a rejection of,
and counteroffer to, the plaintiff. Id. The Court explained that, although the plaintiff’s

arguments were grounded in simple contract law, whether the insurer acted in
accordance with its duty of good faith under the totality of the circumstances was the
issue to be determined. Id. Because the action was a bad faith action and not simply a
contract dispute, the Court denied the request. Id.

Here, similarly, Plaintiff’s arguments are grounded in contract law. Doc. 36 at
10. However, the ultimate issue before the Court is whether Defendant acted in bad
faith with regard to Eason’s claims. As such, the Court must evaluate, under the
totality of the circumstances, whether Defendant acted in bad faith. A decision on only
one aspect of the totality of the circumstances test would not obviate the need for trial

in accordance with the underlying purpose of Federal Rule of Civil Procedure 56. See
McPartland v. Gov’t Emps. Ins. Co., No. 6:09-cv-268-MSS-GJK, 2010 WL 11507564, at
*7 (M.D. Fla. May 19, 2010) (Scriven, J.).
Additionally, genuine issues of material fact exist as to whether Defendant’s
January 9, 2007 offer required that ATS be released. For example, Plaintiff urges that
the offer did since ATS was included in the release. Defendant contends that the
release was a proposed release that could have been negotiated. Accordingly, this
request is denied.

iii. Potential Indemnification Claim
Plaintiff next argues that undisputed evidence demonstrates that Defendant’s
efforts to defend ATS were not “based on any concern regarding a potential
indemnification claim by ATS against Eason.” Doc. 36 at 10. Specifically, Plaintiff

asserts that Kathy Maus, Defendant’s insurance claims expert, improperly opined that
Defendant was correct to defend ATS based on a potential indemnity claim. Id. at 7–
8. To that end, Plaintiff asks the Court to find that “[a] potential indemnification claim
was not a basis for [Defendant] to attempt to settle the claims against ATS.” Id. at 3.
The Court presently declines to consider Maus’ testimony because no effort has

been made to address the foundation for its admissibility.6 Although the Court is a
gatekeeper to insure that speculative and unreliable opinions do not reach the jury,
challenges to expert testimony are usually made in motions to exclude under Daubert7
or during cross-examination at trial. To the extent that Plaintiff requests the Court find
that Maus’ opinion was wrong, this issue goes towards Maus’ credibility, and Plaintiff

6 “The burden for laying the proper foundation for admission of expert testimony is on the
party offering the expert; admissibility must be shown by a preponderance of the evidence.”
Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1312–13 (11th Cir. 2014). As no
effort has been made to address the foundation for the admissibility of Ms. Maus’ testimony
or, the testimony’s admissibility more generally, the Court presently declines to consider such
testimony.
7 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
may address the issue on cross-examination at trial. Id. at 11. Moreover, genuine issues
of material fact exist as to whether a potential indemnification claim was the basis for
Defendant’s attempt to settle the claims against ATS. Accordingly, Plaintiff’s request

is denied.
iv. Reasonableness and Enforceability of Consent Judgment
Finally, Plaintiff asks the Court to make a determination that “the consent
judgment is reasonable and enforceable” against Defendant. Doc. 36 at 2. Defendant

responds that Plaintiff has not met the legal requirements for maintaining her action
against GEICO because Florida law requires that Plaintiff obtain an excess judgment
or its “functional equivalent” to establish a claim for damages caused by the alleged
bad faith. Defendant’s argument has been foreclosed by McNamara v. GEICO, 30 F.
4th 1055 (11th Cir. 2022), in which the Eleventh Circuit concluded that a stipulated

judgment “would be a way to obtain an excess judgment that could be used in a bad
faith lawsuit” against an insurer.8 Id. at 1061-1062. If this is the only basis for
Defendant’s Third Affirmative Defense, Plaintiff’s motion for partial summary
judgment on this affirmative defense is due to be granted.
However, if by its Third Affirmative Defense, Defendant contends that the

amount of the stipulated judgment is unreasonable or the product of fraud or collision,
that issue is for the jury to decide. The record reflects that Defendant is not a party to

8 The Court notes that the initial briefing by the parties in this case concluded prior to the
appellate court’s opinion in McNamara. Although supplemental briefing was permitted, in
light of McNamara and the appellate court’s remand of this case, the parties did not further
address this issue.
the judgment, as its policy limits were limited to $25,000 per person. See Doc. 31-3;
Doc. 39 ¶ 27. Defendant expressly stated it was not agreeing that the stipulated
judgment amount was reasonable. Doc. 35-35 at 1. But Defendant agreed that Eason’s

stipulation to damages did not violate the terms of the policy. A dispute exists as to
whether Defendant agreed to the Stipulated Final Judgment. Because genuine issues
of material fact exist as to the reasonableness of the amount of the stipulated judgment,
Plaintiff’s motion for partial summary judgment as to the Third Affirmative Defense
based on the reasonableness of the amount of the judgment is due to be denied.

IV. CONCLUSION
Accordingly, it is ORDERED as follows:
1. Defendant’s Motion for Final Summary Judgment, (Doc. 35), is DENIED.

2. Plaintiff’s Motion for Partial Summary Judgment and Incorporated
Memorandum of Law, (Doc. 36), is DENIED, in part, and GRANTED, in
part, as set forth in this Order. Plaintiff’s motion is granted to the extent that
by its Third Affirmative Defense, Defendant asserts that Plaintiff has not met
the legal requirements for maintaining her action against Defendant.

3. A final pretrial conference and trial term for this action will be scheduled by
separate notice.
DONE and ORDERED in Tampa, Florida on March 31, 2023.
C Aa Baca Xt hod GAGA Mono. gl el Q □
Charlene Edwards Honeywell
United States District Judge

Copies furnished to:
Counsel of Record
Unrepresented Parties

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10112571. Public record. Not legal advice.