[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11878

Non-Argument Calendar

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DARLENE DEARY, 

individually and as assignee of Dwight Norman,

Plaintiff-Appellant,

versus

PROGRESSIVE AMERICAN INSURANCE COMPANY, 

 Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 9:20-cv-80279-DMM

____________________

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2 Opinion of the Court 21-11878

Before WILSON, BRASHER, and ANDERSON, Circuit Judges.

PER CURIAM:

This insurance appeal turns on whether Progressive American Insurance Company handled Darlene Deary’s personal injury 

claim against its insured, Dwight Norman, in bad faith. Deary, individually and as Norman’s assignee, sued Progressive after it initially offered to settle her claim for an amount below Norman’s 

policy limits. After careful consideration, we conclude that no reasonable jury could have found that Progressive acted in bad faith.

Thus, we affirm.

I. BACKGROUND 

On March 17, 2017, Deary and Norman were involved in a 

car accident. The next day, Progressive determined that Norman 

was one hundred percent at fault for the accident and identified 

Deary’s mother Elizabeth Diente as the owner of the car that 

Deary was driving. The insurance adjuster assigned to the case 

called Diente that day and left a message. A few days later, the adjuster spoke with Diente, who told him that she was experiencing 

neck pain as a result of the accident. During the call, Diente mentioned that Deary “ha[d] pancreatic disease and now was in pain.” 

On March 23, another Progressive employee met with both Deary 

and Diente, and the latter agreed to settle Diente’s bodily injury 

claim against Norman for 500 dollars. Progressive’s record of this 

meeting makes no mention of Deary mentioning injuries resulting 

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from the accident, and Deary stated that she was answering important text messages during the meeting. 

About three weekslater, Deary notified Progressive through 

counsel that she had also sustained injuries from the accident, and 

Progressive promptly filed a claim. Progressive informed Norman 

of the new claim and began to investigate, discovering that Deary

had been treated at an emergency room and that she had been involved in a car accident fifteen years earlier. Soon after, Progressive 

mailed Norman two letters, one via certified mail, advising him 

that: (1) a claim had been filed against him; (2) the claim might exceed his policy limits of $25,000 per person; and (3) Progressive 

would appoint him counsel if Deary filed suit. The certified letter 

was returned to Progressive as undelivered, but the other letter 

was not. About a week after mailing the letters, a Progressive adjuster called to discuss Deary’s claim only to be told by Norman 

that he was unavailable to talk. 

On July 17, Deary’s counsel sent a letter to Progressive demanding that it settle for the full amount of Norman’s policy limits

no later than August 7. The letter included medical records documenting Deary’s various treatments. These records confirmed that 

Deary first saw a doctor twelve days after the accident and that she 

was diagnosed with “acute pain due to trauma” as well as degenerative injuries. One of Deary’s doctors noted that if her condition 

worsened, “definitive surgical intervention may be warranted.” After receiving the demand, Progressive mailed Norman letters updating him on the claim, although Norman denies receiving them. 

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Progressive also requested that Deary’s counsel provide her Personal Injury Protection logs and additional medical billing records 

to allow it to fully evaluate the claim. Ten days after Progressive’s

request, Deary’s counsel furnished the relevant records. An adjuster then reviewed them and concluded that Deary’s out of 

pocket expenses were just over 1,600 dollars. Using that information, Progressive’s in-house claim evaluation software, and her 

own experience, the adjuster determined that an appropriate settlement range for Deary’s claim was between 8,500 and 12,701 dollars.

On August 3, Progressive offered to settle Deary’s claim for 

8,500 dollars. The proposal included nearly 7,000 dollars in “general damages” which included pain and suffering and did not account for future medical expenses. Deary’s counsel rejected the offer out of hand, replying that they would “not accept anything less 

than the [full policy] limits.” Several days later, Deary’s counsel 

sent Progressive a formal response that extended the demand deadline to August 14, again demanded the full policy limits, and stated 

that Deary would file suit if a proffer was not made by the new 

extended deadline. The renewed demand contained no additional 

information as to Deary’s condition or medical records. Progressive requested another extension on August 7, which Deary denied. Based on its previous evaluation and the lack of any new medical documentation, Progressive re-offered 8,500 dollars on August 

11. Deary’s counsel rejected the offer on August 15, informing Progressive that Deary would be suing Norman and stating that they 

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would not negotiate any further. That day, Progressive mailed 

Norman an update advising that he would be sued, although he

denies receiving it. 

Progressive continued to seek updates on Deary’s medical 

condition and documentation, but its efforts were rebuffed by 

counsel. On September 18, Deary’s counsel sent Progressive a 

medical record confirming for the first time that she was scheduled

to undergo surgery, although the surgery was later delayed. This 

new record arrived alongside a statement that Deary’s “settlement 

demand for 25,000 dollars [was] hereby withdrawn and [that she

would] proceed with filing a Complaint for Damages.” But even 

after her formal withdrawal, Progressive continued to inquire 

about Deary’s condition and the possibility of settling. Eventually,

Progressive learned through discovery that Deary had been involved in another car accident, but it remained unsure of the exact 

date of her surgery. These new facts prompted a need for additional 

medical documentation to fully evaluate their effect on Deary’s 

claim. On November 21, Deary filed suit. 

About eight months after Deary had surgery and eleven 

months after she formally withdrew her offer of settlement, Progressive received documentation establishing that Deary underwent surgery on November 16, 2017, and that her gross medical 

bills exceeded Norman’s policy limits. Progressive immediately instructed Norman’s appointed counsel to file a proposal for settlement for the full amount of the policy limits, which Deary’s 

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counsel rejected. Deary would go on to win a jury verdict against 

Norman for 332,500 dollars.

Following the verdict, Deary initiated the bad-faith action 

giving rise to this appeal. The district court granted summary judgment to Progressive and Deary timely appealed. 

II. STANDARD OF REVIEW 

We review a district court’s grant of summary judgment de 

novo, viewing all facts and drawing all inferences in the light most 

favorable to the nonmoving party. Eres v. Progressive Am. Ins. 

Co., 998 F.3d 1273, 1278 n.3 (11th Cir. 2021). 

III. DISCUSSION 

The only issue on appeal is whether the district court erred 

in concluding that no reasonable jury could find that Progressive 

acted in bad faith with respect to Deary’s claim. Deary argues that 

summary judgment was improper because Progressive could and 

should have settled for the policy limits “if [it] had acted fairly and 

honestly” towards Norman. We disagree. 

Under Florida law, which both parties agree governs the dispute, an insurer owes its insured a duty of good faith. Mesa v. Clarendon Nat’l Ins. Co., 799 F.3d 1353, 1358–59 (11th Cir. 2015). 

Whether an insurer has fulfilled its good-faith obligations is evaluated using the “totality of the circumstances standard,” which considers whether the insurer acted with “reasonable diligence” and 

“ordinary care.” Id. at 1359 (quoting Campbell v. Gov’t Emps. Ins. 

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Co., 306 So. 2d 525, 530–31 (Fla. 1974)). The claimed damages from 

a judgment entered against the insured must also be causally connected to the insurer’s alleged bad faith. Id. at 1359 (quoting Perera 

v. U.S. Fid. & Guar. Co., 35 So. 3d 893, 903–04 (Fla. 2010)). Although bad faith is ordinarily a jury question, we have affirmed 

summary judgment where “there is no sufficient evidence from 

which any reasonable jury could have concluded that there was 

bad faith on the part of the insurer.” Eres, 998 F.3d 1273, 1278 (11th 

Cir. 2021) (quoting Boston Old Colony Ins. Co. v. Gutierrez, 386 

So. 2d 783, 785 (Fla. 1980)).

The undisputed facts reveal that Progressive acted with reasonable diligence and ordinary care for three reasons. 

First, the record establishes that, from the moment it learned 

of the accident, Progressive took reasonable steps to communicate 

with its insured to protect Norman from the potential of an excess 

judgment. Good faith requires that an insurer “advise their insured... [of the] probable outcome of a lawsuit and warn him of 

the consequences of an excess judgment.” Powell v. Prudential 

Prop. & Cas. Ins. Co., 584 So. 2d 12, 14 (Fla. Dist. Ct. App. 1991).

Within a day of the accident, Progressive determined that Norman 

was one-hundred percent liable for the accident and notified him 

of that determination. And when Deary later retained counsel, Progressive attempted to inform Norman by at least three methods of 

communication that: (1) her claim could potentially exceed the limits of his policy; and (2) it would appoint him counsel should a suit 

be filed. When told that Deary would be filing suit, Progressive

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again immediately notified Norman. In sum, throughout the process Progressive attempted to keep Norman apprised of the changing circumstances of Deary’s claim and his potential legal exposure.

Deary’s contention that several certified letters were returned as 

undeliverable does not compel a different conclusion, especially in 

the light of undisputed evidence that Progressive consistently attempted to reach Norman using multiple methods of communication. 

Second, a reasonable jury could not find that Progressive’s 

actions in making an offer to settle Deary’s claim were evidence of 

bad faith simply because the initial offer failed to reach the policy 

limits. Under Florida law, disagreement over the valuation of a 

claim resulting in an insurance company’s refusal to pay the demanded amount does not equate to per se bad faith. See Cruz v. 

American United Ins. Co., 580 So. 2d 311, 312 (Fla. Dist. Ct. App. 

1991) (affirming summary judgment to an insurer where the claim 

failed to settle because “[t]he legal standard governing an insurer’s 

settlement conduct is one of reasonableness”). Instead, an insurer 

must only “give fair consideration to a settlement offer that is not 

unreasonable under the facts.” Boston Old Colony, 386 So. 2d at 

783. Here, we agree with the district court that the “undisputed 

facts of this case . . . reflect that Progressive simply disagreed about 

the value of [Deary]’s claim . . . ” From the outset, Deary made 

clear she would accept nothing less than the limits of Norman’s 

policy. But after an examination of the only medical documentation provided by Deary’s counsel at the time of the settlement 

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offer, Progressive determined the value of her claim to be 8,500

dollars, including roughly 7,000 dollars in “general damages” that 

included non-economic damages such as pain and suffering. Progressive’s offer was more than five times Deary’s out-of-pocket expenses that were documented at the time. By contrast, Deary’s demand for the full policy limits was equal to approximately sixteen 

times those same expenses. Of course, after Deary provided documents that substantiated a higher settlement demand, Progressive 

attempted to settle for an amount equal to the policy limits. But it 

was immediately rebuffed by Deary’s counsel—conduct that factors into our analysis. Pelaez v. Gov’t Emps. Ins. Co., 13 F.4th 1243, 

1254 (11th Cir. 2021) (There is a “difference between focusing on a 

claimant’s actions, which would be improper, and factoring a 

claimant’s actions into the totality of the circumstances analysis, 

which is not improper.”).

Finally, Progressive’s delay in tendering the policy limits until June 2018 is not evidence of bad faith. Deary, through counsel, 

had expressly disclaimed any willingness to settle as of September 

18, 2017. In Florida, “[o]nce it [is] clear that [a claimant] [is] unwilling to settle with [one insured] and give him a complete release, 

[the insurance company] ha[s] no further opportunity to give fair 

consideration to a reasonable settlement offer” for that insured. 

Contreras v. U.S. Sec. Ins. Co., 977 So. 2d. 16, 21 (Fla. Dist. Ct. App. 

2006). Deary’s September 18 communication formally withdrawing her settlement offer expressed just such an intention, and Progressive was not bound to try and overcome it once expressed. The 

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mere suggestion by Deary’s expert that a claim settling after an express withdrawal “has happened” in other cases provides no 

grounds for a reasonable jury to conclude otherwise contra Deary’s 

undisputed conduct in this case: expressly withdrawing a settlement offer for the policy limits in writing and through counsel.

IV. CONCLUSION 

For the foregoing reasons, the district court’s order granting 

summary judgment is AFFIRMED.

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