IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

WINNIE THOMPSON,

Plaintiff,

vs. CASE NO. 3:10-cv-318/RS-EMT

CINCINNATI INS. CO.,

a foreign corporation, 

Defendant.

_________________________________________/

ORDER

Before me is Plaintiff‟s Motion for Partial Summary Judgment (Doc. 67), 

Defendant‟s Response (Doc. 81), and Plaintiff‟s Reply (Doc. 86). 

Standard of Review

Summary judgment is appropriate when “there is no genuine issue as to any 

material fact and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56 (c). In other words, the basic issue before the court is “whether the evidence 

presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 251, 106 S. Ct. 2505, 2512 (1986). The moving party has the burden of 

showing the absence of a genuine issue as to any material fact, and in deciding whether 

the movant has met this burden, the court must view the movant‟s evidence and all 

factual inferences arising from it in the light most favorable to the nonmoving party. 

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 
1112, 1115 (11th Cir. 1993). Thus, if reasonable minds could differ on the inferences 

arising from undisputed facts, then a court should deny summary judgment. Miranda v. B 

& B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile 

Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, 

a mere „scintilla‟ of evidence supporting the nonmoving party's position will not suffice; 

there must be enough of a showing that the jury could reasonably find for that party. 

Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 

251). 

Background

This is a common law bad faith action for failure to settle a claim between 

Plaintiff, the insured, and Defendant, the insurer. Plaintiff alleges that in October 2007, 

Plaintiff was involved in an automobile accident that resulted in the death of Mr. Ronald 

Chavers. Plaintiff was found liable for the wrongful death of Mr. Chavers, and Ms. Katie 

Chavers, as personal representative of the estate, was awarded $3,642,750.

It is alleged that Defendant “maintained full and exclusive control of the handling, 

settlement, investigation and defense” of the Chavers claims and “no offer to pay policy 

limits was extended for the death of [Mr. Chavers].” Plaintiff contends that Defendant

failed to “act fairly and honestly” and failed to “settle the claim against [Plaintiff] when it 

could have and should have done so (Doc. 1, Attach. 1, p. 3-4).” 

Plaintiffs raise several issues in their Motion for Partial Summary Judgment (Doc. 

67). Except for the first issue regarding the Defendant‟s affirmative defense, each is a 

pure question of law. As such, Plaintiff‟s Motion will be construed as a Motion for 
Partial Summary Judgment as to Defendant‟s Affirmative Defense, and a Motion for 

Determination of Law. 

Analysis

1. Common Law or Statutory Claim

A plaintiff is allowed to seek remedies under both common law and statutory 

theories where an insurance company does not attempt to settle claims in good faith. 

However, no matter what claims are pled, a plaintiff is only entitled to one recovery. 

FLA. STAT. § 624.155(8); Hogan v. Provident Life & Accident Ins. Co., 665 F. Supp. 2d 

1273, 1288 (M.D. Fla. 2009). 

Here, the complaint (Doc. 1, Attach. 1) does not specify whether Plaintiff‟s claims 

are the construct of statute or common law. The factual and legal allegations that are 

made could be the basis for either. In the Motion for Partial Summary Judgment (Doc. 

67, p.4), Plaintiff has represented that the complaint seeks only a common law bad faith 

claim. Plaintiff‟s representation, therefore, clears up any ambiguity: this is a common 

law claim. Defendant‟s affirmative defense (Doc. 11, p. 5) regarding the statutory 60-day 

waiting period is inapplicable as a matter of law. 

2. Appointment of Personal Representative 

“Acts of a personal representative prior to his/her appointment may be validated 

upon appointment.” Univ. of Miami v. Wilson, 948 So. 2d 774, 778 (Fla. Dist. Ct. App. 

3d Dist. 2006). Thus, while settlement between a presumptive personal representative 

and the insured‟s insurance provider may not actually be consummated before

appointment, “the statutory schemes governing . . . estate claims contemplate the 
completion of settlement negotiations prior to court approval.” Berges v. Infinity Ins. 

Co., 896 So. 2d 665, 675 (Fla. 2004). A personal representative of decedent‟s estate, as 

Plaintiff contends, was not necessary as a matter of law to conduct settlement 

negotiations and reach a tentative agreement. 

In certain instances, a lawyer-expert may provide relevant information regarding 

the reasonableness of an insurance company‟s conduct in settlement activities. See, e.g.,

Barry v. Geico Gen. Ins. Co., 938 So. 2d 613, 615 (Fla. Dist. Ct. App. 4th Dist. 2006) 

(where “a lawyer-expert in insurance bad faith” testified regarding the handling of a 

claim). And, it is possible that such an expert would be allowed to testify concerning 

issues surrounding the appointment of a personal representative. Specific boundaries 

regarding this type of expert testimony should be addressed at a later stage of the case. 

3. Duty of Settlement 

Defendant and Plaintiff both agree that Plaintiff had no legal obligation to make a

demand to settle her claims. And, as a general proposition, it is the insurer‟s duty to 

initiate settlement negotiations. Snowden v. Lumbermens Mut. Cas. Co., 358 F. Supp. 2d 

1125, 1129 (N.D. Fla. 2003). This duty is subject to the totality of the circumstances test 

where the jury will have to weigh numerous factors in reaching their ultimate conclusion. 

Id. 

4. The Burden of Proof 

When an insurer is handling claims against its insured, it “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.” Perera v. United States Fid. & Guar. 
Co., 35 So. 3d 893, 898 (Fla. 2010) (citations and quotations omitted). This duty 

includes an obligation to settle “where a reasonably prudent person, faced with the 

prospect of paying the total recovery, would do so.” Id. Breach of this duty may give 

rise to a cause of action for bad faith against the insurer. Id. 

In general, the Plaintiff bears the burden of proving the elements of a claim for bad 

faith failure to settle an insurance claim by the “greater weight of the evidence.” 

FLORIDA STANDARD JURY INSTRUCTIONS IN CIVIL CASES 404.2; Id. at 404.8. 

Principally, this involves establishing that there was a breach of the duty. 

It is true, as Plaintiff asserts, that “the insurer has the burden to show . . . that there 

was no realistic possibility of settlement within policy limits.” GEICO Gen. Ins. Co. v. 

McDonald, 315 Fed. Appx. 181, 183 (11th Cir. 2008) (citing Powell v. Prudential 

Property and Casualty Ins. Co., 584 So. 2d 12, 14 (Fla. 3d DCA 1991)). This burden is 

shouldered by the insurer only for the issue of “the possible outcome of a settlement 

effort.” Id. (emphasis added). The outcome of a settlement agreement goes to causation 

— the connection between the purported breach and damages. 

In GEICO, the Eleventh Circuit found the following jury instruction proper: 

In your determination of whether [insurance company] acted 

in bad faith in the handling of the [claimant‟s] claim against 

[the insured] any question about the possible outcome of a 

settlement effort should be resolved in favor of [the insured]. 

[Insurance company] has the burden to show that there was 

no realistic possibility of settlement within policy limits.
In all likelihood, if this case is to go to trial, this jury instruction and the Florida 

Standard Jury Instructions for insurer‟s bad faith would be issued together representing 

the two related, but different burdens, of proof in cases such as these. 

Plaintiff‟s Motion for Partial Summary Judgment as to Defendant‟s Affirmative 

Defense (Doc. 67) is GRANTED. Plaintiff‟s Motion for Determination of Law is 

GRANTED in part as addressed in this Order. 

ORDERED on April 12, 2011.

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE