Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

)

GREAT AMERICAN ALLIANCE )

INSURANCE COMPANY, a foreign )

Corporation, )

)

Plaintiff, )

)

Vv. ) CIVIL ACTION NO.

) 5:24-cv-00055-WGY-PRL

)

AUTO-OWNERS INSURANCE COMPANY, a )

foreign corporation, )

)

Defendant. )

a)

YOUNG, D.J.2 April 21, 2026

MEMORANDUM AND ORDER

Before the Court in this equitable subrogation action are

the cross-motions for summary judgment of Great American

Alliance Insurance Company (“Great American”) and Auto-Owners

Insurance Company (“Auto-Owners”). For the reasons stated

below, the cross-motions for summary judgment, ECF Nos. 35 and

38, are each hereby DENIED.

1 Of the District of Massachusetts, sitting by designation.

I. BACKGROUND

A. Undisputed Facts

On or around May 17, 2017, four individuals were exposed to

legionella bacteria in a hot tub at Summit Greens, a property

located in Lake County, Florida. Compl. {9 18-20; Fischer

Complaint, ECF No. 35-1 47 16, 22; Lewis Complaint, ECF No. 35-2

77] 13, 28. Karin Fischer became ill, Delmar Fischer died, and

Charlie Lewis and Dessie Larita Brown-Lewis became ill or

suffered other damage. Id.

Auto-Owners for purposes of this action is the primary

carrier of Summit Greens Residents’ Association, Inc. (“Summit

Greens”) and Leland Management, Inc. (“Leland Management”), both

of which maintained a $1,000,0000 Commercial General Liability

insurance policy with Auto-Owners. Auto-Owners SOF { 1; Great

American SOF @ 7; Auto-Owners Policy, ECF No. 10-1 at 7.2 Great

American for purposes of this action is the excess carrier that

insured both Summit Greens and Leland, with a $10,000,000

umbrella policy. Great American SOF 4 8; Great American Policy,

ECF No. 10-2 at 2.

2 References to Auto-Owners Statement of Undisputed Facts

(“Auto-Owners’ SOF”) and Great American’s Statement of Fact

(“Auto-Owners SOF”) are contained in their respective motions

for summary judgment, ECF Nos. 35 and 38, respectively. Some

portions of the statements of fact are recited verbatim without

quotations for readability.

[2]

On July 23, 2018, Karin Fischer, individually, and as the

personal representative of the estate of Delmer Fischer, filed a

wrongful death and personal injury lawsuit against Summit Greens

and Leland Management, as well as the pool servicing company

(“the Fischer Action”) in Florida state court. Auto-Owners SOF

4; Great American SOF 97 1.

Charlie Lewis made a claim to Auto-Owners on June 11, 2019,

to which Auto-Owners assigned claim number 300-0192569-2019

(“the Lewis Claim”). See Kennison Aff., ECF No. 50-1 at @@ 17-

18.

On June 17, .2019, Auto-Owners responded to a letter of

representation from counsel for Charlie Lewis acknowledging Mr.

Lewis’ claim (“Lewis Claim”) and attaching, in part: a June 10,

2019 Disclosure of Insurance Information that (1) identifies

Auto-Owners’ policy number 72089334 issued to Summit Greens, (2)

assigns claim number of 300-0192569-2019 to the Lewis Claim, and

(3) identifies Great American’s excess policy number UM4959365

issued to Summit Greens. Great American SOF { 9.

Auto-Owners made multiple inquiries to Charlie Lewis’s

counsel, who did not respond. See Great American SOF Wf 10-15;

Kennison Aff. @ 25; Ex. 5-1 - 5-3, ECF No. 50-1 at 22-36.

On October 12, 2020, Great American’s counsel wrote to

Auto-Owners, putting them on notice of possible multiple claims

[3]

arising out of a single occurrence, seeking the identity of “two

other individuals” in the hot tub (i.e., the Lewises):

Third, Great American also seeks to confirm from Auto-Owners whether all

claimants/potential claimants will be attending the mediation. As you, Florida law mandates that □□

an insurer has the right to exhaust the limits on less than the presented claims; however, it cannot □

do so on a first-come-first-serve basis, or without conducting a full and complete professional □

evaluation of all such claims. See Farinas v. Florida Farm Bureau, 850 So. 2d 555 (Fla. 4th

DCA 2003). An insurer who maximizes the protection available to a policyholder after □

conducting a thorough and complete investigation, therefore, can settle some, but not all of the □□

. “te . eos * . . . . □□

claims within the available policy limits without subjecting themselves to a bad faith claim. See

General Security National Ins. Co. v. Marsh, 303 F.Supp.2d 1321 (M.D. Fla. 2004); see also

Liberty Mutual Ins. Co. v. Davis, 412 F.2d 475 (5th Cir. (Fla.) 1969) (“The insurer’s □

investigation of the facts relating to liability and to damages, the extent and seriousness of the {.

negotiations, and the insurer’s rejection of settlement are all relevant to the issue of good □□□□□

before as well as after suit is filed.” Jd. at 483-84.). Because Great American understands that □

at least two other individuals were present the subject hot tub — upon which the □

Fischers’ claims are premised — with Karin Fischer and Delmer Fischer, can you confirm [

whether these individuals are expected to be present at the mediation? If so, please provide □□

their names and contact information to the undersigned, or to Ms. Hugues. If not, please

confirm what efforts have been made to ensure their attendance, or representation, at the §.

mediation?

Letter, ECF No. 46-3 at 7. It is unclear from the record when

Great American’s counsel first became aware of potential claims

by the Lewises by name; indeed, Great American submits an

affidavit, see infra, that it was not aware of the Lewis Claim

until August 2021.

On October 20, 2020, Great American’s counsel sent an email

to Auto-Owner’s counsel reiterating the same concerns:

[4]

Hi Robin... □

| just learned that you have been brought on board by Auto Owners regarding the above matter. |

represent Great American, the excess carrier over the Auto Owners policy. As you know, this matter

is scheduled for mediation next week. On behalf of Great American, | sent the attached

correspondence to Matt Kennison last week. As noted in the letter, Great American has the

following three inquiries for Auto Owners — to which Great American has yet to receive a response:

First, has Auto-Owners — whether through Summit Greens or directly from Auto-Owners — tendered

the defense and indemnification of the Underlying Action to Leland, or Leland’s insurance carrier?

Second, and in keeping with Auto-Owners’s fiduciary duties owed to Great American, please forward □

the reports from defense counse! defending Leland before the mediation — as Great American has i

not received any recorts regarding Leland. Please ensure that defense counsel’s pre-mediation

report is included.

Third, Great American understands that at least two other individuals were present in the subject

hot tub — upon which the Fischers’ claims are premised — with Karin Fischer and Delmer Fischer, can E

you confirm whether these individuals are expected to be present at the mediation? If so, please

provide their names and contact information to the undersigned, or to Ms. Hugues. If not, please □

confirm what efforts have been made to ensure their attendance, or representation, at the □

mediation?

There are other areas of discussion as well. Are you available this Friday for a call? —| am free all day.

in the interim, and to the extent you have responses; please forward to my attention.

Thanks. □

Email, ECF No. 46-3 at 2.

The Fischers, Auto-Owners, and Great American settled the

Fischer Action on May 11, 2021. Great American SOF {7 2, 16;

Auto-Owners SOF § 11. Great American paid amounts in excess of

the Auto-Owners’ $1,000,000 policy limit. Auto-Owners SOF

10-11.

Two days later, on May 13, 2021, the Lewises filed a

lawsuit against Summit Greens, Leland Management, and the pool

servicing company for personal injury and loss of consortium

fed

(“The Lewis Action”) in Florida state court. See Auto-Owners

SOF 7 5; Great American’s SOF @ 4.

On August 13, 2021, Auto-Owners was aware of the Lewis

Action. See Great American SOF 7 19.

On August 19, 2021, Auto-Owners separately provided notice

of the Lewis Action to Great American. Id. at 2. Great

American has submitted an affidavit that states this is the

first time it was aware of the Lewis Claim and the Lewis Action.

Daniel Aff. © 6, ECF No. 44-2 (“Prior to August 19, 2021, Great

American was unaware of the Lewis Complaint, the Lewis Claim,

and the Lewis Claim Emails.”). This may be true as to the

filing of the lawsuit and the identity of the Lewises, but it is

clear that Great American’s counsel was aware approximately nine

months earlier that there were other potential claimants. See

October 12, 2020 letter, ECF No. 46-3, supra.

Almost a year later, on August 25, 2022, the Lewis Action

was dismissed as to Auto-Owners’ and Great American’s insureds

after settiement. Auto-Owners SOF 12; Great American SOF 5;

Notice of Voluntary Dismissal with Prejudice, ECF No. 44-9.

Great American contributed to that settlement in an amount that

exceeded Auto-Owners’ exhausted primary policy. Daniel Aff. 97

8.

[6]

B. Procedural History

Great American brings one count against Auto Owners for

equitable subrogation.? Compl. @ 42, ECF no. 1. .The cross-

motions for summary judgment are fully briefed. See Def. Auto-

Owners Ins. Co.’s Mot. Summ. J. (“Auto-Owners’ Mot. Summ. J.”),

ECF No. 35; Pl.’s Resp. Opp’n Def.’s Mot. Summ J. (“Great

American’s Opp’n”), ECF No. 44; Def. Auto-Owners Ins. Co.’s

Reply Supp. Mot. Summ. J. (“Auto-Owners’ Reply”), ECF No. 50;

Pl.’s Mot. Summ. J. (“Great American’s Mot. Summ. J.”), ECF No.

38; Def. Auto Owners Ins. Co.’s Resp. Pl. Great American

Alliance Ins. Co.’s Mot. Summ. J. (“Auto-Owners’ Opp’n”), ECF

No. 46; Pl.’s Reply Def.’s Resp. Opp’n Pl.’s Mot. Summ. J.

(“Great American’s Reply”), ECF No. 51. This Court held a

hearing on the cross-motions for summary judgment on March 27,

2025, and took the matter under advisement. See Minute Entry,

ECF No. 59.

II. ANALYSIS

A. Legal Standard

In reviewing a motion for summary judgment, the Court

“view[s] all the evidence and draws all reasonable inferences in

favor of the non-moving party” and “[a] grant of summary

3 Under Florida law, insurers may bring a claim of equitable

subrogration. See Cincinnati Ins. Co. v. Superior Guar. Ins.

Co., 441 F. Supp. 3d 1271, 1275-76 (M.D. Fla. 2020) (Corrigan,

J.)

[7]

judgment is proper where there is ‘no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.’” FCOA LLC v. Foremost Title & Escrow Servs. LLC, 57 F.

4th 939, 946 (llth Cir. 2023), cert. denied, 144 S. Ct. 103

(2023) (citing Fed. R. Civ. P. 56(a)).

Great American has the burden of proof on its claims, and

“[w]hen the moving party has the burden of proof at trial, that

party must show affirmatively the absence of a genuine issue of

material fact: it ‘must support its motion with credible

evidence . . . that would entitle it to a directed verdict if

not controverted at trial.’” United States v. Four Parcels of

Real Prop. in Greene and Tuscaloosa Ctys. in State of Ala., 941

F. 2d 1428, 1438 (11th Cir. 1991) (quoting Celotex Corp. v.

Catrett 477 U.S. 323, 331 (1986) (Brennan, J., dissenting) )

(emphasis omitted). That is, “the moving party must show 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.” Id. In other words, wherever the jury could

rationally disbelieve Great American’s proffered evidence,

summary judgment will not lie. Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 146-148 (2000).

As here, where there are cross-motions for summary

judgment, the Eleventh Circuit instructs that “courts should be

very careful in their analysis to ensure that the proper party

[8]

receives the benefit of the summary judgment standard.” FCOA

LLC, 57 F. 4th at 959. Simply put, “[(w]hen parties jointly move

for summary judgment, the court has three options: granting

summary judgment for the plaintiff under the defendant's best

case, granting summary judgment for the defendant under the

plaintiff's best case, or denying both motions for summary

judgment and proceeding to trial.” Id.

B. The Cross-Motions For Summary Judgment Are Denied

1. Auto-Owners’ Motion for Summary Judgment

Auto-Owners argues first that, as matter of law, there is

no evidence that it “missed or refused any opportunity to settle

claims within the Auto-Owners Policy limits.” Auto-Owners Mot.

Summ. J. at 16. It argues that multiple claimant cases, such as

Farinas v. Florida Farm Bureau Gen. Ins. Co., 850 So. 2d 555,

560-561 (Fla. 4th DCA 2003), do not apply where there is

adequate excess coverage. Id. 18-19. Auto-Owners further

claims that on the undisputed facts, it had no duty to notify

Great American of the other claimants. Id. at 19. Because the

motion fails on the first argument, there is no need to address

the second argument.

Great American argues that its claim is different, a so-

called multiple claim, single occurrence scenario (“MC-SO

Scenario”). Great American argues, under Florida law, as

consistently interpreted in the Middle District of Florida, that

[9]

when faced with a MC-SO Scenario, a primary insurer owes a duty

to their insured (and is equitably subrogated to its excess

insurer) to act reasonably when settling claims with specific

requirements:

Florida law provides that where multiple claims arise

out of one accident the liability insurer may exercise

its discretion in how it elects to settle claims, “and

may even choose to settle certain claims to the

exclusion of others, provided [that] this decision is

reasonable and in keeping with its good faith duty.”[]

In order to satisfy these requirements 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. []

General 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; Harmon v. State Farm Mut. Automobile Ins. Co., 232 So.

2d 206, 207-208 (Fla. 2d DCA 1970)). See also Pratt v.

Government Employees Ins. Co., No. 8:18-CV-1607-CEH-AEP, 2023 WL

2743264, at *7 (M.D. Fla. Mar. 31, 2023) (Honeywell, J.),

reconsideration denied, No. 8:18-CV-1607-CEH-AEP, 2023 WL

6809764 (M.D. Fla. Oct. 16, 2023); Eads v. Allstate Indem. Co.,

No. 14-CIV-61791, 2016 WL 3944072, at *6 (S.D. Fla. Jan. 26,

2016) (Bloom, J.). The above cases are not excess insurer

cases; however, “[i]n essence, the excess insurer steps into the

shoes of the insured with respect to a claim for bad faith

[10]

against the primary insurance company.” Vigilant Ins. Co. v.

Continental. Cas. Co., 33 So. 3d 734, 737-38 (Fla. 4th DCA

2010). Indeed, “Florida case law makes it abundantly clear that

an excess insurer's bad faith claim against a primary insurer is

derivative of the insured's bad faith claim against the primary

insurer.” Auto-Owners Ins. Co. v. American Yachts, Ltd., 492 F.

Supp. 2d 1379, 1385 (S.D. Fla. 2007), aff'd sub nom. Auto-Owners

Ins. v. American Yachts Ltd., 271 Fed. Appx. 888 (11th Cir.

2008).

Auto-Owners’ claims that equitable subrogation under

Farinas is inapplicable where there is an excess policy in play,

extinguishing its leverage in obtaining discounted judgments,

and that Great American cannot now complain where it

participated in the settlement. Auto-Owners’ Mot. Summ. J. at

19. Auto-Owners mischaracterizes the claim.

Indeed, although not cited by either party, equitable

subrogation under Farinas in an MC-SO scenario was in play in

National Tr. Ins. Co. v. Columbia Nat’l Ins. Co., No. 3:18-CV-

1440-J-34JBT, 2020 WL 4284814 (M.D. Fla. May 21, 2020) (Toomey,

U.S.M.J.), report and recommendation adopted, No. 3:18-CV-1440-

J-34JBT, 2020 WL 4915675 (M.D. Fla. Aug. 21, 2020) (Howard, J.).

There, the court determined that a primary insurer’s exhaustion

of policy limits as to two of three claimants presented a jury

question as to a bad faith equitable subrogation claim. Id. at

[11]

*4-6. So it is here. Indeed, Auto-Owners as the primary

carrier had a duty to attempt to settle for a lower amount.

There are questions of facts as to whether it did so here with

respect to the Lewis Claim. Accordingly, Auto-Owners’ motion

for summary judgment is DENIED.

2. General American’s Motion for Summary Judgment

Turning to General American’s cross-motion for summary

judgment, it overreaches, arguing that the bad faith factors

were met as matter of law. Great American’s Mot. Summ. J. 13-

15; Great American’s Reply 5-6. Specifically, Great American

argues that it is entitled to judgment as matter of law because

Auto-Owners failed fully to investigate the Lewis Claim,

claiming Auto-Owners decided to wait out the statute of

limitations instead of investigating, that Auto-Owners did not

seek to settle both claims, failed to minimize the effect of

possible excess judgments, and failed to keep Great American

informed of the claim process by hiding the other claim. Id.

Great American is, however, viewing the facts and taking

all inferences in its favor, and cannot meet its burden of proof

to obtain an affirmative summary judgment. As an initial

Matter, whether an insurer acted in bad faith is a “totality of

the circumstances” analysis, and “in the end, ‘it is for the

jury to decide whether the insurer failed to act in good faith

with due regard for the interests of the insured.’” Primeaux v.

[12]

Progressive Am. Ins. Co., 620 F. Supp. 3d 1173, 1179 (M.D. Fla.

2022) (Badalamenti, J.) (quoting Harvey v. GEICO Gen. Ins. Co.,

259 So. 3d 1, 7 (Fla. 2018)) (citation omitted); see also Eads

v. Allstate Indem. Co., No. 14-CIV-61791, 2016 WL 3944072, at *5

(S.D. Fla. Jan. 26, 2016) (quoting Jaimes v. GEICO Gen. Ins.

Co., 534 Fed. Appx. 860, 865-66 (11th Cir. 2013)).

As for whether Auto-Owners fully investigated the claim, a

reasonable jury could conclude that, in view of Auto-Owners’

inguiries to Charlie Lewis’s counsel that went unanswered, the

potential resolution of the Fischer claims, and the statute of

limitations time ticking away, its actions were entirely

reasonable.

Similarly, a reasonable jury could conclude that seeking to

settle both the Fischer Action and the Lewis Claim within the

$1,000,000 policy while the statute of limitations was ticking

away could have produced a larger joint claim and potential

judgment against Auto-Owners and Great American.

Finally, there are questions of fact as to the effect, if

any, of the alleged failure to keep Great American fully

informed. Indeed, Great American indicated in correspondence

that it was, in fact, aware at least as of October 12, 2020 of

the potential of the Lewises’ claim, even if not it was not

aware of their identity. Given that Great American participated

in mediating the Fischer claim while aware of the potential

[13]

Lewis Claim, the Lewises’ absence at the Fischer mediation, and

Auteo-Owners’ apparent strategy of letting sleeping dogs lie, a

jury question is presented as to whether Great American was

sufficiently informed, and whether its continued participation

in the Fischer mediation without the Lewis parties somehow was.

the result of bad faith by Auto-Owners. A reasonable jury could

conclude that Great American was not prejudiced. A reasonable

jury could conclude that Great American was all-in on Auto-

Owners’ strategy.

Accordingly, summary judgment is also DENIED as to Great

American on its affirmative claims for summary judgment.

CONCLUSION

“Although determining whether an insurer acted in bad faith

is generally a question for the jury, courts applying Florida

law have granted summary judgment if the undisputed facts would

not allow any reasonable jury to conclude the defendant breached

its duty of good faith.” Martin v. Allstate Prop. and Cas. Ins.

Co., 794 Fed. Appx. 883, 887 (llth Cir. 2019) (emphasis added).

In sum, on this record, a reasonable jury could go either way on

these issues of fact surrounding the elements of bad faith.

Indeed, “this is not a question the Court can answer at this

stage when the evidence must be viewed in a light most favorable

to” each of the non-moving parties on their respective motions.

Primeaux, 620 F. Supp. 3d at 1180. Further, Great American has

[14]

the burden of proof at trial, and at summary judgment, wherever

the jury could rationally disbelieve Great American’s proffered

evidence, summary judgment will not lie. Reeves, v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 146-148 (2000).

The cross-motions for summary judgment, ECF Nos. 35 and 38,

are each hereby DENIED. As this Court indicated at the summary

judgment hearing, it was inclined to deny the cross-motions for

summary judgment. See Minute Entry, ECF No. 55. It has now

done so. This case is now set for a final pretrial conference

on June 22, 2026, and a jury rial for July 6, 2026, before Judge

Marcia Morales Howard.

SO ORDERED.

WILLIAM “po

JUDGE

of the

UNITED STATES?

4 This is how my predecessor, Peleg Sprague (D. Mass 1841-

1865), would sign official documents. Now that I’m a Senior

District Judge I adopt this format in honor of all the judicial

colleagues, state and federal, with whom I have had the

privilege to serve over the past 48 years.

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