[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10243

Non-Argument Calendar

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DANIEL VOSS, 

an individual, 

Plaintiff-Appellant,

versus

STATE FARM MUTUAL AUTOMOBILE INSURANCE 

COMPANY, 

Defendant-Appellee.

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Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 1:17-cv-01465-SGC

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Before WILSON, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:

Donna Smith, an underinsured motorist, hit Daniel Voss 

while he was riding his bicycle. Voss turned to State Farm Insurance, his underinsured-motorist insurance carrier. State Farm refused to pay Voss until he won a judgment against Smith—thereby 

proving her liability. After the trial, Voss was awarded $1.9 million 

in damages. He then sued State Farm for breach of contract, bad 

faith, and outrage. A magistrate judge granted State Farm summary judgment on each claim.1 Now, Voss appeals that order. For 

the reasons that follow, we affirm. 

I 

Donna Smith struck Daniel Voss with her car while he was 

bicycling, severely injuring him.2 Nationwide Mutual Insurance 

1 Pursuant to 28 U.S.C. § 636(c)(1), the parties consented to have their case 

adjudicated by a magistrate judge. 

2 Voss was taken to the University of Alabama at Birmingham hospital where 

he underwent four brain surgeries. Despite those surgeries, some of Voss’s 

injuries—including impaired cognitive function—will never fully heal. 

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Company, Smith’s auto insurer, offered Voss its policy limits to settle the claim against Smith. Unfortunately for Voss, Smith carried 

only $25,000 in liability insurance—far less than his medical expenses. See Smith v. Nationwide Mut. Ins. Co., 799 F. App'x 768, 

770 (11th Cir. 2020) (per curiam). Fortunately for Voss, at the time 

of the collision, he was covered by several State Farm policies that 

included $100,000 of underinsured motorist coverage—still less 

than his medical expenses. Voss informed State Farm that Smith’s 

insurance wouldn’t cover his medical costs and requested an underinsured-motorist payment. 

As its name implies, underinsured-motorist coverage pays 

an insured for his losses caused by a driver that doesn’t have sufficient liability insurance to cover the insured’s damages. Here it 

worked essentially like this: Once Voss realized that Nationwide’s 

policy-limits settlement offer wouldn’t cover the cost of his injuries, he approached his insurer, State Farm. After receiving notice 

that the settlement offer was insufficient to cover Voss’s costs, State 

Farm began investigating Voss’s claim against Smith. At that point

the insurance policy gave State Farm two options: (a) consent to 

the settlement with Smith/Nationwide or (b) refuse the settlement. If State Farm consented to the settlement, Nationwide 

would have paid Voss its $25,000 policy limits—thereby releasing 

Smith from any liability—and Voss would then have commenced 

a new, contract-based claim against State Farm for the costs of his 

injuries (or, more likely, would have settled with State Farm for its 

policy limits). If State Farm rejected the settlement, it was required 

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to advance, or “front,” Voss the amount of the settlement, and 

leave Voss to pursue a claim against Smith. See id.

After investigating Voss’s claim, State Farm was uncertain 

about Smith’s liability.3 Accordingly, it chose option (b) and rejected Nationwide’s policy-limits settlement so that Voss would 

have to prove Smith was, in fact, liable. State Farm “fronted” Voss 

the money that Voss would have received from the Smith/Nationwide settlement, leaving Voss to continue with a suit against 

Smith. Eventually, a jury found Smith liable to Voss for $1.9 million. After the suit, State Farm paid Voss the other $75,000 of his 

underinsured-motorist insurance coverage, and Nationwide paid 

it’s $25,000 policy limit. That left Voss with an excess judgment of 

$1.775 million against Smith. 

So, Voss sued State Farm. He contended that State Farm 

breached its insurance policy in two ways: (1) by failing to conduct 

a good-faith investigation into the question of who was liable for 

the collision; and (2) by refusing to consent to his settlement with 

Smith/Nationwide, thereby forcing him to litigate against Smith 

before paying him. He also contended that State Farm acted in bad 

faith and committed the tort of outrage. 

3This is relevant because under Alabama law, for an insured to receive underinsured motorist benefits, the insured must be legally entitled to recover from 

the driver of the underinsured vehicle. See Ex parte Carlton, 867 So. 2d 332, 

334 (Ala. 2003). Here, State Farm contends that there was evidence that Smith

wasn’t liable for the collision and, thus, that it believed Voss may not have 

been entitled to payment.

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State Farm moved for summary judgment, which a magistrate judge granted. With respect to the breach-of-contract claim, 

the magistrate judge held that, under Alabama law, State Farm had 

to pay Voss only after he demonstrated he was entitled to recovery 

from Smith, and Voss demonstrated liability only after his trial 

against Smith, at which point State Farm paid him. It also held that 

forcing Voss to litigate to establish Smith’s liability was permissible 

under Alabama Law. Thus, the court held, State Farm did not 

breach its contract. The court also held that Voss’s failure to show 

a breach of contract was fatal to his bad-faith claim because breach 

of an insurance contract is an element of that claim. Lastly, it held 

that State Farm’s conduct was not egregious enough to support 

Voss’s outrage claim. Voss now appeals the magistrate judge’s order.4

4 “We review a district court's”—or in this case, the magistrate judge’s—“grant 

of summary judgment de novo.” McNamara v. Gov't Emps. Ins. Co., 30 F.4th 

1055, 1058 n.2 (11th Cir. 2022). “Summary judgment is proper if ‘the movant 

shows that there is no genuine dispute as to any material fact and the movant 

is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). 

“And a genuine dispute exists if a jury applying the applicable evidentiary 

standard could reasonably find for either the plaintiff or the defendant as to 

the material fact.” Brady v. Carnival Corp., 33 F.4th 1278, 1281 (11th Cir. 2022) 

(cleaned up). “[W]e view all evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in that party's favor.” Affordable Bio Feedstock, Inc. v. United States, __ F. 4th __, No. 21-11850, 2022 WL 

2920058, at *2 (11th Cir. July 26, 2022) (quotation omitted). 

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II 

 For the reasons explained below, we hold that the magistrate judge correctly granted State Farm summary judgment on 

each of Voss’s claims.

A 

We start with breach of contract. Voss contends that State 

Farm breached its insurance contract by failing to conduct a goodfaith investigation and by requiring him to sue Smith to recover

before paying him. 

State Farm’s policy permitted it to “preserve [its] right of

subrogation against the . . . driver of the uninsured motor vehicle” 

by paying Voss “an amount equal to” Nationwide’s settlement offer. Doc. 73-22 at 8 (emphasis omitted). State Farm paid Voss 

$25,000 to protect its subrogation right. 

But Voss argues that State Farm shouldn’t have made him 

pursue litigation against Smith. Under Alabama Supreme Court 

precedent, an uninsured-motorist insurance carrier must conduct 

a “good faith investigation” or otherwise “waive any right to subrogation against the tort-feasor.” Lambert v. State Farm Mut. 

Auto. Ins. Co., 576 So. 2d 160, 167 (Ala. 1991). Voss seemingly contends (1) that State Farm did not conduct a “good faith investigation” and thereby waived its right to subrogation and, accordingly,

(2) that it then breached the contract by requiring him to litigate 

against Smith before being willing to pay him. Problematically for 

Voss, Alabama considers a bad-faith failure to investigate a tort

claim, not a breach-of-contract claim. See State Farm Fire & Cas. 

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Co. v. Brechbill, 144 So. 3d 248, 258 (Ala. 2013). And State Farm 

did not breach any promise that it made in the insurance contract. 

Moreover, Voss cannot prevail on a breach-of-contract 

claim by arguing that State Farm should have paid him sooner. 

The Alabama Supreme Court has held that an insurance company 

can’t be held liable for breach before the insured shows he is “legally entitled to recover” payment from the underinsured motorist. Quick v. State Farm Mut. Auto. Ins. Co., 429 So. 2d 1033, 1035 

(Ala. 1983) (holding that State Farm wasn’t liable for failure to pay 

on an uninsured motorist policy because the plaintiffs had not yet 

demonstrated the uninsured driver’s liability); see also Broadway 

v. State Farm Mut. Auto. Ins. Co., 364 F. Supp. 3d 1329, 1332, 1335–

36 (M.D. Ala. 2019) (explaining that, to recover from an insurance 

company, an insured must (1) prove that he is entitled to recovery 

against the tortfeasor and (2) show his damages). In other words, 

“[t]here can be no breach of an uninsured motorist contract . . . until the insured proves that he is legally entitled to recover.” Quick, 

429 So. 2d at 1035. 

Voss did not prove that he was legally entitled to recover

from Smith until after trial—at which point State Farm paid him.5 

5Trial is not the only method an insured has of showing that he is legally entitled to recover. An insured can also present the insurance company with “substantial evidence” that the uninsured driver was liable. Ex Parte Safeway Ins. 

Co. of Ala., Inc., 148 So. 3d 39, 43 (2013) (quotation omitted); Broadway, 364 

F. Supp. 3d at 1338–39 (M.D. Ala. 2019). But here, Voss did not do so. Although Voss alleged to State Farm that Smith was negligent, he didn’t present 

State Farm with substantial evidence showing that to be the case. 

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Accordingly, State Farm did not breach its insurance contract by 

refusing to pay Voss until after he was awarded damages from 

Smith. Because Voss cannot prevail on a breach of contract claim, 

the magistrate judge correctly granted summary judgment.

B 

Next, Voss’s bad-faith claim. The Alabama Supreme Court 

has held that “[r]egardless of whether the claim is a bad-faith refusal 

to pay or a bad-faith refusal to investigate, the tort of bad faith requires proof of the . . . absence of legitimate reason for denial.” 

Brechbill, 144 So. 3d at 258 (emphasis added). Here, even if a jury 

could find that State Farm’s investigation was sloppy,6 it couldn’t 

find that State Farm had no “legitimate reason” for its decision requiring Voss to litigate. The accident report, State Farm’s photographs of the scene, and State Farm’s investigator’s conclusions all 

reasonably led it to believe that Voss might have been contributorily negligent—and therefore not “entitled to recover.” And State 

Farm was within its rights to “insist that a jury determine liability 

and damages.” Ex parte Allstate Prop. & Cas. Ins. Co., 300 So. 3d 

1124, 1126 (Ala. 2020). Because the facts, even viewed in favor of 

Voss, cannot demonstrate that State Farm lacked a legitimate 

6 And, to be sure, it was. State Farm did not speak to any of several available 

witness who might have been able to explain what led to the collision. Nor 

did it consult photographs of the scene taken by Nationwide just seven days 

after the collision. Instead, State Farm relied primarily on a police report—the 

information in which was derived solely from Smith (who had an obvious interest in avoiding liability)—as well as photographs taken four months after 

the collision.

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reason to insist on subrogation, Voss cannot succeed on his tortious bad-faith claim and the court correctly granted summary 

judgment.

C 

Finally, “for a plaintiff to recover under [the tort of outrage], 

he must demonstrate that the defendant's conduct (1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused 

emotional distress so severe that no reasonable person could be expected to endure it.” Green Tree Acceptance, Inc. v. Standridge, 

565 So. 2d 38, 44 (Ala. 1990). For essentially the same reasons that 

we conclude that State Farm didn’t act in bad faith, we hold that a

reasonable jury could not find that State Farm’s conduct was “extreme and outrageous.” Thus, Voss could not prevail on his outrage claim, and the magistrate judge correctly granted summary 

judgment for State Farm.

* * *

In sum, the magistrate judge appropriately granted summary judgment.7

7 Voss separately argues that the magistrate judge erred by “refusing to consider any evidence presented by Voss’ expert in ruling on summary judgment 

without making any affirmative ruling on State Farm’s motion to exclude.” 

Br. of Appellant at 20. The magistrate judge didn’t “de facto” exclude Voss’s 

evidence. Rather, as we read her opinion, the magistrate judge simply found 

that Voss’s proposed evidence didn’t change the result and, accordingly, ruled 

that the evidentiary motion was moot. Doc. 91 at 12, 29. Nowhere in her 

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AFFIRMED. 

opinion does the magistrate judge indicate that she refused to consider the 

presented evidence.

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