the central flaw in the district court's opinion how it focused on the actions of the number two is the importance of the sixty day cure period which in florida law bad faith law exists first party case that the focus in a bad faith action is on the actions of the ensure and if the entire district court's order reads as though it's taking mrs cousins attorney to task certainly what mrs cousins attorney did or may not have done could be relevant evidence to be considered by the jury in determining the bad faith of geico but it's not dispositive and geico and mitt's that on page forty three of the answer and there's case after case after case from the florida supreme court instructing that that is the improper analysis and geico cites cases like barry  dillon and snowden from judge paul in the northern district of florida and in all those cases they went to the jury the jury weigh the evidence and looked at what the attorney in the insured did versus what the insured inquiry the florida supreme court has made it very clear we're looking at the again the statute whether the insurer attempted in good faith to settle claims when under all the circumstances it couldn't should have done so had it acted fairly and honestly toward its insured and with due regard for his or her interest so the key words are under all the circumstances if it's being thwarted and it have gone on to say had they not that that does not mean quote that all inquiries into prior conduct in motives are irrelevant and prejudicial and beyond that of all the bad faith claim derives from the duty of the insurer to the insured the conduct of the claimant and the claimants attorney are relevant to determining quote the realistic possibility of settlement within policy limits so i guess i don't see the florida law as being quite so air tight as you frame the question and it seems to me when looking at the totality of the circumstances notwithstanding having said that the focus is on the the insurer in fulfilling its obligations a court is perfectly free and indeed may have depending on  very good reasons two also examining the conduct of the case do you disagree with anything i've said i don't disagree with and as i said i was an exposition of florida law as pronounced by florida court right i think the i would just add that the cases that geico has been relying on about the relevance of the insurers conduct i'm sorry jury so the my how did you know that in no way undermines the proposition that a reviewing court would be free to look at the conduct of the insured and its counsel to under the totality of the circumstances to get the real estate possibility of a settlement with and policy limits that's what the florida courts have said i'm quoting from it i think it's all a degree and the focus the focus of judge davis order here was on counsel's conduct and i of if i can want to transition to my second point because i think it helps the court understand this which is the sixty day care period because there's a lot of talk about the deadlines that mr aris see as cousins  counsel gave and a lot of the case all you will read is in third party conned where the sixty day cure period does not apply common law and so the importance of the sixty day care period is the the insurance company has an absolute right under the to lot case t a l eighty four two thousand and if they pay the policy limits during the sixty days c were getting i would have two things to say about them one they were effectively meaningless in a first party contest because of subsection one d number two in the snowden case talks about this this procedure to issue the first bad faith notice the c r in notice the same day that you make a demand i don't think that is standard and we're not relying on the first c r in this case we're relying on the second and but it is part of seems now i wouldn't go that far either i don't think it's extraordinary i think that what you're bringing up is what geico should be allowed to talk to the jury about but i want to bring up about the second c r n y's important and why you are allowed to do multiple c r and the statute says that the civil remedies notice has to give notice to the insurance company of the facts and circumstance of the violation and if you look at the second c r in it's got a very different description than the first one and if this is on the october a offer of five thousand one hundred thirty five dollars which was made after geico had been informed about the likelihood of the the perk disc surgery i'll say for sure it was going to happen and geico and so the question and so at that point mr macy had a very good faith basis to say that was a lowball offer and he couldn't put that in the first c r and i agree but that offer based on what they knew was bad faith and so the c r and went out and they had sixty days to cure it i do want to just because i have a minute i see here i want to talk about  harvey in that case this court's unpublished case law is being directly challenge to those the heart of the arguments that were made it was argued nov first the novo case that was relied on by judge davis here do we have rely wait until they decide that to decide this case or can we decide this independently i think prudence would suggest you wait let me rephrase i don't think you let me rephrase my question if there are indeed material facts in dispute really didn't matter what they say in our view does it if you're right that the district court improbably granted summary judgment because they were material facts in dispute and it couldn't be decided that would yield the conclusion that the district court was wrong about its summary judgment order no matter what they say in harvey my right or wrong about your right eye just your right to the extent the court might matter as to the legal question but it doesn't really go because you're making two arguments if i've got it right one that the district court got it wrong as a matter of law and perceptor rated at the wrong on the wrong thing focused more on counsel then i'm a conduct of the insurance company and that was a legal era and harvey in some sense bears on that but independently of that you are arguing if i have it right that summary judgment or not to have been granted because they were material questions of fact and despite yes no matter where dispute does not matter can i ask you a question about that as a florida practice when would you expect a ruling from the florida supreme court on a case argued in of imber yet so november for always a tough question and i get asked this by clients but it will certainly the submissions the summary judgment stage as well as the appellant's brief that there are no disputes as to what actually occurred on this case i don't think that the plaintiffs have pointed to a single fact where they say well we say this happened but geico says something else happened and the jury has to sort that out i think everybody agrees on what happened what geico received what information they received what information they knew about stevens knew that cousins was being charged with them and stevens admitted that although she thought a typical that she thought a typical bill grange this procedure was between twenty and guy close knowledge of the surgery knowledge of the better go below and stevens apparent admission that the bills were reasonable and this seems to me to bear  and i think that that goes directly to this issue that there's precedent that simply because there's this type of surgery a person taking is this act in the surgery with this billing doesn't mean necessarily that there is a factual bit of background to that city geico is divided in the way it handles claims like this between his home office in d c and a local regional office who separately sort of come up with recommendations and evaluations of the claim because sounds like a jury argument  well i just i don't think it's bits here and i'll get to the second reason the first reason i don't think it is materials because of the president harrison kadal but the second issue that i think is more pressing is i don't think anything in this time because i don't think that there is a second cure period and i and this is addressed briefly at the end of our brief but i want to expound on it because it's been argued by the plaintiff in their presentation today if you look at the statute what the statute says is that no action shall lie if within sixty days after filing notice the damages are and what that means the way the statute is structured is it gives a private cause of action in these first party insurance cases for faith to insure and it says that before you can bring that private cause of action there's a condition proceed and that condition proceeding is you have to file a notice with the department and provided to the insurance company and then they have sixty days in which they can cure it but if it doesn't happen if it is not cured within that sixty days that claim now exists and you can't unring that bell so what happened in this case is a civil remedy notice was sent and then it expired and on the sixty first day after that first of all when they notice they have the right to bring this claim no matter what happened after that so i don't agree one bit with what the point of say when they say that well the deadline set forth by the plaintiff's attorney here isn't relevant because there was another the pay the payment of the full policy limits to mr cousins was pretty quick and easy and it's the same board certified neurosurgeon operated on mr  cousins was the one that recommended the surgery for mrs cousins and was characterized as geico as a doctor with put well established with a well established pattern of excessive billing billing well i don't think it creates an issue of fact that this is a bad faith claim i think that what the context of that statement is can be seen in this court's opinion in the harris case these types of surgeries not the kind that was performed on mr cousins which is a well recognized extensive surgery requires inpatient treatment it requires an actual incision insertion of hardware an overnight stay in the hospital significant recovery time signif expense that is a very serious surgery but i mean let's talk about this or this procedure this procedure me misty evens as judge marcus pointed out testified that the cost of the procedure was within normal range so on the one hand you've got you know this evidence and or the communication from geico this doctor was in and he's well established pattern of excessive billing and then on the other hand your claims handler saying twenty seven thousand dollars or whatever was is is within the normal range of which are again obviously we disagree with that in a number of ways but you're right that in and put it it shouldn't be a witness it's going to be construed in the light most favorable to the point if i don't believe it's material the reason i was just addressing i want to come back to that because i think this is the key issue i think this is the issue this court has to decide in order to decide this case is this issue of the second civil remedy know this and whether or not it provides a second cure  period because if it doesn't provide a second then there is no evidence in this record that geico had any opportunity to sell this case at the latest after two pm on the afternoon of november twelfth two thousand  when i looked at steven's deposition among other things she says the following she says one she wasn't sure why she said she hadn't to she said she didn't do any billing analysis at all to determine whether this is cousins bills or excessive she did not recall providing any justification to the reason as to why she thought the bills were excessive she had never taken any perk you taney used to sec to me surgery case to trial she never researched any jury verdict would try to determine a reasonable value for the procedure and she said that she was not aware of any settled cases involving the part is that a fair statement of what she said among other things i can't disagree with your honor that there are those statements amongst others that with yes ok so if we accept that why isn't there a remaining question material question of fact in this about geico assertion that the billing was excessive and relevant in determining whether or not the insurance company proceeded in good faith or bad yes your honor i think what's relevant is what utterly irrelevant to the question what information was known by the person who actually made the decision whether he had that experience i don't think the experience of essential at this point a ministerial functionary who's just doing what it shows that he had no more information regarding the documentation from mrs cousins candidacy for surgery or any billing analysis surrounding the facts and she did write she didn't have that information because it was he could only have what she could give him plus his general knowledge in the  that's correct but the reason that he not neither one of them had that information is because they didn't have the bill going because they weren't given to them by plaintiff's camp and the other thing i said i'll say is i have to come back to this timeframe again because i think this is extremely critical the first civil remedy notice expired on october twelfth or october eleventh of two thousand and nine at that point there was no longer a cure period there was no longer a statutorily a statutory right to cure this claim or remove the bad like so after that we're only looking at if anything what geico could have done in response to the demand that was sent by the plaintiff's attorney and that demand expired on nov twelfth of two thousand and eleven am that same morning is what the facts had are on the document says he sent for the very first time three hours before his demand expired a record saying that this surgery was causally related to the accident and that she is sustained a permanent injury that was related to this accident that was a question i had just about the timeline was that the first time that there was documentary medical evidence linking the back injury to the accident yes three hours before the demand re hours before the demand expired yes the demand had expiration time of two pm that day it was faxed over at eleven am three hours before the demand expired was the very first time geico was given any medical evidence that linked this back injury to the accident the stuff that had come before there was there was noise about back problems but it wasn't linked to the the accident is that that's absolutely correct and there was evidence in those medical records that these were degenerative conditions and there was evidence discovered later on that she had a prior history of back problems a guy who didn't know about it at the time i'm not suggesting they did but there was no there was evidence from which geico can infer that this could be preexisting based on what they had and there was no evidence whatsoever no medical evidence that she had sustained a permanent injury as a result of the accident or that the back injury was related to the accident until three hours before that a man expired and there was not a cure a period that extended beyond that i ask you one final question is short here in your view does the harvey case pending in the florida supreme court have any bearing on this case or put more on fully so any reason we have to wait on harvey to decide this is absolutely not your honor i tried the harvey case i breezed it to the fourth dca in the four supreme statement was requested from the insured that's facts that are completely different from this case and have absolutely no thank you very much thank you your hon what he what he's saying is you've got to have an expert opinion drawing the line between the back injury and the accident the accident happened on june twelfth and as of july twenty eighth m provided extensive medical records related to the collision to geico and they included her back pain but to the accident because i think there is evidence that she had preexisting back issues right chronic the separate evidence that they got later but the initial records that were sent on july twenty eighth were from med well and they were treatment for the auto collision now did she did they say on july twenty eighth you need to have surgery know the way this works medically is you don't just immediately have surgery or ratchet these things up what did what did july twenty eight satisfy have in my notes well this was and it was it was now this is it was related to the b i claim which geico was also handling and they try to draw this but geico got a notice of all these records from med well that included that she was sick and this and they were the folks that dealt with the auto collision that she was suffering from pain and stiffness in her neck and back and that she weeks after the collision you just can't ignore the temporal factor may not be dispositive geico has the right to investigate but to say they had no evidence is faults and also in the following was the police report right i mean police report  and then you know more evidence was provided on august tenth when the first c r n came in more records from from that well a patient assessment form that was referring decision to the extent it holds you have to have an expert opinion at this stage in the litigation the duty is on them to investigate not us this goes back to my original argument but they certainly had reason to believe that she had a back injury and the evidence continued to develop that it was not as he kept getting treated right as a permanent injury is one that you can't that is going to stay with you forever and you don't know that you don't know that the day after the accident you can't know that the day because you go and you try to treat it and they resolve itself but i think they they by the time you get to having the surgery that's a very extreme st and so once and they were told on october fifth and mr murray sees letter that looks likely that surgery is going to happen again they have reason to go investigate and as far as there were there was alternately unlike the more case if you find that to be persuasive which i don't believe it is and it's unpublished not binding but to the extent you find it is there was a straight out expert opinion provided on november twel and yes there was the timeline and they're going to be able to bring that up in front of the jury but the the if you go and you look at the snowden case the lawyer there said i'm not accepting any offer and then lawyers guess why you bring in when you offer money and they change their mind that happens all the time this is called puffery that's number one number two they're wrong about not the second c r in meaning nothing if they had made the offer if they had if they had paid the policy limits by december eleventh there would be no bad faith action and just to be buying preferred touch on this i'm involved in another case where the exact opposite argument is being made by the insurance company saying hey more facts developed after the first c r in the statute go read it it says you have to give the facts and circumstances of the violation you needed to send us a second  in to give us those additional facts and circumstances as the basis for your violation there is nothing in the statute that precludes you from sending multiple c r ins there is no case that holds that and it makes sense because the statute requires that the notice give you the facts and circuit so thank you your honor and thank you both for your efforts will proceed with the next case which