[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13496

____________________

AMERICAN BUILDERS INSURANCE COMPANY, 

Plaintiff-Appellee,

versus

SOUTHERN-OWNERS INSURANCE COMPANY, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 9:20-cv-81357-WM

____________________

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2 Opinion of the Court 21-13496

Before WILLIAM PRYOR, Chief Judge, ROSENBAUM, and MARCUS, 

Circuit Judges.

MARCUS, Circuit Judge:

Ernest Guthrie fell from a roof and became paralyzed from 

the waist down, never to walk again. Within months, his medical 

bills climbed past $400,000, and future costs projected into the millions. Three insurance companies potentially provided coverage 

for Guthrie. This appeal is a battle between two of them.

The primary insurer for Guthrie’s company was SouthernOwners Insurance Company. At the time of the accident, Guthrie

was performing subcontracting work for Beck Construction, which

had a policy with American Builders Insurance Company and an 

excess policy with Evanston Insurance Company. American Builders investigated the accident, assessed Beck Construction’s liability, 

and evaluated Guthrie’s claim. Southern-Owners, in contrast, did 

little to nothing for months. When push came to shove, SouthernOwners refused to pay any amount to Guthrie to settle the claim, 

and American Builders and Evanston ponied up a million dollars 

apiece instead.

American Builders then sued Southern-Owners for common law bad faith under Florida’s doctrine of equitable subrogation. Along the way, Southern-Owners moved for summary judgment, but the district court denied the motion. A federal trial jury 

heard the case and found in favor of American Builders. After the 

entry of final judgment, Southern-Owners sought judgment as a 

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21-13496 Opinion of the Court 3

matter of law, or, in the alternative, a new trial. The district court 

denied those motions, too. On appeal, Southern-Owners challenges the denials of its summary judgment and post-trial motions.

After thorough review of the record and with the benefit of 

oral argument, we affirm.

I. 

A. 

 Ernest Guthrie, an employee of Ernest Guthrie, LLC performing work for Beck Construction, slipped from the roof of a 

house on April 1, 2019, and crashed to the ground. He became 

paralyzed from the waist down. Guthrie’s lawyer, Stuart Cohen, 

wrote to Beck Construction to assert the company’s liability and 

request insurance information. Beck Construction, in turn, put its 

insurer, American Builders on notice on May 8. American Builders 

had issued a general liability policy to Beck Construction, with a 

limit of $1 million for each occurrence. American Builders’ claim 

specialist investigated the incident by meeting with the company 

and its outside investigator and collecting hospital records, rehabilitation facility records, and correspondences about the claim and 

injuries. 

Cohen investigated his client’s claim, too. He determined 

that Beck Construction instructed Guthrie to climb onto the roof 

without providing any fall protection, while two spotters focused 

on their phones. Guthrie had already sustained $400,000 in medical 

expenses, and Cohen calculated Guthrie’s claim at $4 million to $5

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4 Opinion of the Court 21-13496

million, even if Guthrie were partially liable. On September 5, Cohen demanded that American Builders pay its $1 million policy 

limit within thirty days in exchange for a release of Beck Construction from liability. American Builders requested an extension, and

Cohen granted ten days, placing the deadline on October 14. 

Cohen conditioned that demand on the lack of other available insurance. But, as it turns out, there were two other relevant 

policies: Evanston provided an excess policy worth $1 million per 

occurrence to Beck Construction, and Southern-Owners -- which 

would become the defendant in the instant bad-faith case -- sold

Ernest Guthrie, LLC a policy that covered $1 million. SouthernOwners’ policy contained an endorsement naming Beck Construction as an additional insured for any work Ernest Guthrie, LLC performed for Beck Construction, and making its policy the primary 

insurer for claims arising from Beck Construction’s work. 

 During American Builders’ investigation, it discovered these 

additional policies. So, on September 12, it tendered the defense of 

and indemnity for Guthrie’s claim to Southern-Owners. In its letter to Southern-Owners, American Builders attached the certificate 

of insurance listing Beck Construction as an additional insured on 

Ernest Guthrie, LLC’s policy; the initial notice of the claim to 

American Builders; and Cohen’s September 5 demand letter. A 

couple weeks later, on September 25, Southern-Owners’ counsel

sent letters to Cohen, American Builders, and Beck Construction, 

requesting additional incident reports, medical records, workers’ 

compensation records, potentially applicable insurance policies, 

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applicable construction contracts, and transcripts or recordings of 

statements by Guthrie and Beck Construction. She also asked Cohen for a forty-five-day extension on the September 5 demand. 

Two days later, Cohen provided Southern-Owners with 

Guthrie’s medical records and bills, American Builders’ insurance 

policy, and correspondences from Cohen to American Builders in 

May and June that explained the accident. Cohen did not respond 

to the forty-five-day extension request, but, that same day, American Builders requested an extension for American Builders until 

November 4, which Cohen granted. In his letter granting the extension, Cohen explained that he recently became aware that 

Southern-Owners and Evanston might also provide coverage for 

the accident. Because of this new information, Guthrie would now 

only execute a release of American Builders that reserved his rights 

to pursue claims against either Evanston or Southern-Owners. 

On October 10, American Builders retained counsel to address Cohen’s new stipulation. Working quickly, the attorney concluded in a few days that Guthrie’s claim was worth around $20

million to $30 million, far exceeding any applicable policy’s coverage even if Beck Construction were largely not responsible. On 

October 14, he then informed Cohen that American Builders was 

prepared to pay its $1 million policy limit but that it could not accept Cohen’s new stipulation because it provided only a partial release. 

During the early weeks of October, the record does not reflect that Southern-Owners did anything, other than request 

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extensions. But on October 18 -- over a month after receiving notice of Guthrie’s injury -- Southern-Owners contacted the lawyer 

that American Builders had retained for Beck Construction to set 

up an interview with Russell Beck, the company’s principal. Southern-Owners and the attorney spent the rest of October and all of 

November trying to set up a time to talk. 

On November 25, still struggling to set up a meeting with 

Beck, Southern-Owners wrote Cohen, describing the setback and 

noting that it had no written documentation on the claim. Southern-Owners also requested until December 20 to respond to the 

September 5 demand letter. That same day, Southern-Owners told 

American Builders that it would agree to a defense of Beck Construction under a reservation of rights, but only after it spoke with 

someone from Beck Construction and completed its investigation. 

The letter noted that Southern-Owners’ policy included an employer liability exclusion, which might bar coverage. American 

Builders passed along the contents of that letter to Beck Construction the same day. Also on November 25, Beck Construction’s lawyer offered November 26 or 27 for an interview with Beck, but 

Southern-Owners declined because this was not enough notice. 

He then proposed a telephone conference, but Southern-Owners 

demanded an in-person meeting. 

Meanwhile, Cohen continued his attempts to secure payment for Guthrie. On November 18, he wrote to Evanston’s claims 

manager, attaching the September 5 demand letter, the medical 

records, and other relevant documents, and made a new demand: 

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a $2 million payout in exchange for a complete release of both 

American Builders and Evanston, with a decision due by December 

18. American Builders received a copy of the November 18 demand letter two days later. 

On December 10, nearly three months after it received notice of the claim, Southern-Owners finally met with Beck. Beck 

told Southern-Owners that Ernest Guthrie, LLC employed Guthrie; Guthrie was performing subcontracting work for Beck Construction; the other people on site were not responsible for spotting 

Guthrie; Guthrie did not request fall protection; and Guthrie admitted that he “f*cked up” and “stepped off the roof.” Based on 

that conversation, Southern-Owners believed it had a strong liability defense. One week later, Southern-Owners decided it should 

talk with the other two workers present. At that time, SouthernOwners’ counsel was “in the process of reaching out” to them. 

Also on December 10, Evanston told American Builders’ 

counsel -- who was no longer involved in the case -- that it planned 

to tender its full policy to Guthrie, even though it was not the primary insurer. After reactivating his file, counsel saw the November 18 demand letter. With only eight days until that letter’s deadline, he once again worked fast, reviewed the 2,700-page file, and 

concluded that American Builders should tender its policy limit to 

avoid a bad-faith claim. 

On December 17, after internal discussions, American Builders decided to tender its limit. It then called Cohen to request a 

one-day extension and discuss the Southern-Owners policy. It

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learned that Guthrie did “not wish to pursue coverage under the 

[Southern-Owners] Policy and desire[d] to move forward with settlement without involving [Southern-Owners], directly.” American Builders’ counsel’s understanding was that Cohen and Guthrie 

simply wanted the payout and did not care where the money came 

from. 

The next day, American Builders’ counsel notified SouthernOwners of the November 18 demand letter. Since Southern-Owners was listed as the primary insurer, counsel believed that Southern-Owners had a primary obligation to pay, so he reached out to 

give Southern-Owners a chance to step up before American Builders did. Additionally, Southern-Owners’ policy required an insured 

receive consent before accepting any settlement. Counsel did not 

want American Builders -- standing in the shoes of Beck Construction -- to breach Southern-Owners’ contract by tendering payment 

without consent. Southern-Owners confirmed that it would not 

tender its coverage by the December 19 deadline. American Builders’ counsel then told Southern-Owners that American Builders

would be paying its policy limit. Later that day, he wrote to Southern-Owners’ counsel to confirm that American Builders was forced 

to pay the policy because Southern-Owners would not, and that 

American Builders would seek equitable subrogation against 

Southern-Owners. 

 American Builders paid the policy on December 19, and 

Guthrie provided a release for Beck Construction, American Builders, and Evanston the next day. At that point, Southern-Owners --

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having only conducted one interview with Beck -- ended its investigation. 

B. 

American Builders sued Southern-Owners in Florida state 

court for common law bad faith under Florida’s doctrine of equitable subrogation. Southern-Owners removed the case to the United 

States District Court for the Southern District of Florida based on 

diversity jurisdiction. Southern-Owners later moved for summary 

judgment, in part because it claimed its policy did not cover Guthrie’s injury. The district court denied the motion. 

The parties then consented to the jurisdiction of a magistrate 

judge, who oversaw a three-day jury trial. After the close of American Builders’ evidence, Southern-Owners moved for judgment as 

a matter of law under Federal Rule of Civil Procedure 50(a). Southern-Owners’ only argument was that American Builders introduced no evidence that proved Guthrie attempted to settle with 

Southern-Owners. The court denied the motion. After the close

of all evidence, the jury returned a verdict in favor of American 

Builders, and the district court entered final judgment for 

$1,091,240.82. Southern-Owners then filed a renewed motion for 

judgment as a matter of law under Rule 50(b), or, in the alternative, 

a motion for a new trial under Rule 59. This time, Southern-Owners argued that it could not have settledGuthrie’s demand, and that 

American Builders, standing in the insured’s shoes, breached 

Southern-Owners’ contract by failing to receive its consent before 

settling with Guthrie. The district court denied those motions. 

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 This timely appeal followed. 

II. 

“We review de novo the denial of a motion for judgment as 

a matter of law under Federal Rule of Civil Procedure 50, viewing 

the evidence in the light most favorable to the non-moving party.” 

St. Louis Condo. Ass’n, Inc. v. Rockhill Ins. Co., 5 F.4th 1235, 1242 

(11th Cir. 2021). “We review a ruling on a motion for a new trial 

for abuse of discretion,” giving deference to the district court

“where a new trial is denied and the jury’s verdict is left undisturbed.” McGinnis v. Am. Home Mortg. Serv., Inc., 817 F.3d 1241, 

1255 (11th Cir. 2016) (citation and quotation marks omitted). “We 

review a district court’s decision on summary judgment de novo,” 

viewing the evidence and drawing all inferences in the light most 

favorable to the non-moving party. Smith v. Owens, 848 F.3d 975, 

978 (11th Cir. 2017).

A. 

The first and most significant issue in this appeal is whether

American Builders proved a bad faith claim. Taking the evidence 

in the light most favorable to American Builders, a reasonable jury 

could have found (as it did) both that Southern-Owners acted in 

bad faith and that its bad faith caused American Builders to pay its 

policy. Moreover, American Builders did not breach SouthernOwners’ contract and relieve Southern-Owners of its good-faith 

duties. The district court did not err in denying Southern-Owners’ 

Rule 50(b) motion.

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1. 

Under controlling Florida law, “the critical inquiry in a bad 

faith [action] is whether the insurer diligently, and with the same 

haste and precision as if it were in the insured’s shoes, worked on 

the insured’s behalf to avoid an excess judgment.” Harvey v. 

GEICO Gen. Ins. Co., 259 So. 3d 1, 7 (Fla. 2018). Additionally, any 

“damages claimed by an insured in a bad faith case ‘must be caused 

by the insurer’s bad faith.’” Id. (citation omitted). That is, the bad 

faith conduct must “directly and in natural and continuous sequence produce[] or contribute[] substantially to producing such 

[damage], so that it can reasonably be said that, but for the bad faith 

conduct, the [damage] would not have occurred.” Id. at 11 (quoting Fla. Std. Jury Instr. (Civ.) 404.6(a)).

The bad faith inquiry “is determined under the ‘totality of 

the circumstances’ standard,” id. at 7, and we focus “not on the actions of the claimant but rather on those of the insurer in fulfilling 

its obligations to the insured,” Berges v. Infinity Ins. Co., 896 So. 2d 

665, 677 (Fla. 2004). That said, a claimant’s actions -- such as a decision not to offer a settlement -- remain relevant in assessing bad 

faith. See Powell v. Prudential Prop. & Cas. Ins. Co., 584 So. 2d 12, 

14 (Fla. 3d DCA 1991); Pelaez v. Gov’t Emps. Ins. Co., 13 F.4th 

1243, 1254 (11th Cir. 2021). Insurers have obligations “to advise 

the insured of settlement opportunities, to advise as to the probable 

outcome of the litigation, to warn of the possibility of an excess 

judgment, and to advise the insured of any steps he might take to 

avoid [the] same,” as well as to “investigate the facts, give fair 

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consideration to a settlement offer that is not unreasonable under 

the facts, and settle, if possible, where a reasonably prudent person, 

faced with the prospect of paying the total recovery, would do so.” 

Bos. Old Colony Ins. Co. v. Gutierrez, 386 So. 2d 783, 785 (Fla. 

1980). These “obligations . . . are not a mere checklist,” however, 

and, as the Florida Supreme Court has explained, “[a]n insurer is 

not absolved of liability simply because it advises its insured of settlement opportunities, the probable outcome of the litigation, and 

the possibility of an excess judgment.” Harvey, 259 So. 3d at 7.

Moreover, insurance companies occasionally have an affirmative duty to offer settlements. “Bad faith may be inferred 

from a delay in settlement negotiations which is willful and without reasonable cause.” Powell, 584 So. 2d at 14. Thus, “[w]here 

liability is clear, and injuries so serious that a judgment in excess of 

the policy limits is likely,” the insurer must “initiate settlement negotiations.” Id. “In such a case, where ‘[t]he financial exposure to 

[the insured] [i]s a ticking financial time bomb’ and ‘[s]uit c[an] be 

filed at any time,’ any ‘delay in making an offer under the circumstances of this case even where there was no assurance that the 

claim could be settled could be viewed by a fact finder as evidence 

of bad faith.’” Harvey, 259 So. 2d at 7 (alterations in original) (citation omitted).

At the end of trial, the district court properly and thoroughly

instructed the jury on bad faith. The court charged the jury to consider “all of the circumstances” in determining whether the insurer 

“use[d] the same degree of care and diligence as a person of 

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ordinary care and prudence should exercise in the management of 

his own business,” “investigate[d] the facts, . . . and “settle[d], if 

possible, where a reasonably prudent person faced with the prospect of paying the total recovery would do so.” Moreover, the 

district court instructed the jury on causation, observing, among 

other things, that bad faith must “directly and in natural and continuous sequence produce[] or contribute[] substantially to producing” any damage, though it “need not be the only cause.” 

On this record, there was enough evidence to allow the jury 

to reasonably find that Southern-Owners acted in bad faith because 

it delayed acting on its duty to investigate and settle Guthrie’s 

claim. American Builders notified Southern-Owners of the accident on September 12, and Cohen furnished the company with all 

relevant documents on September 27. Among those documents 

were proof of Guthrie’s paraplegic status and medical bills already 

exceeding $400,000 and correspondences between Cohen and 

American Builders, laying out Cohen’s theory of Beck Construction’s liability. Right off the bat, Southern-Owners had little work

left because the pertinent information landed in its lap. Those documents painted a picture of “injuries so serious that a judgment in 

excess of the policy limits [was] likely.” Powell, 584 So. 2d at 14. 

All that remained was a meeting with Beck, who could have helped

inform Southern-Owners whether “liability [was] clear.” Id. Instead of meeting with Beck, though, Southern-Owners dawdled. It 

did nothing for several weeks before finally reaching out to Beck 

Construction’s lawyer. Then, when Southern-Owners finally did 

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speak with counsel, it delayed reasonable offers to interview Beck

for nearly two months, turning down an in-person meeting for being last-minute and a phone interview for not being in person. After finally meeting with Beck in early December, Southern-Owners 

decided it needed to follow up with the two other workers on site 

that day. But it delayed again, providing no evidence that it 

reached out to them for at least another two weeks. As of December 18, Southern-Owners still had not contacted them -- even 

though Southern-Owners had requested until December 20 to respond to Cohen’s September 5 demand. With no time to spare, 

Southern-Owners was in essentially the same position it was in on 

September 27.

That body of evidence could lead a reasonable jury to conclude that Southern-Owners delayed its investigation instead of attempting “to resolve the coverage dispute promptly” or using “diligence and thoroughness.” Pozzi Window Co. v. Auto-Owners 

Ins., 446 F.3d 1178, 1188 (11th Cir. 2006) (quoting State Farm Mut. 

Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 63 (Fla. 1995)). And, in that 

delay, a jury could reasonably find that Southern-Owners completely neglected its “affirmative duty to initiate settlement negotiations,” Powell, 584 So. 2d at 14, while Guthrie’s hospital bills 

climbed due to his traumatic injury.

A reasonable jury could also find that Southern-Owners’ bad 

faith caused American Builders’ damages. See Harvey, 259 So. 3d 

at 7. When American Builders informed Southern-Owners of Cohen’s November 18 demand, Southern-Owners refused to pay 

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because it was still investigating the claims. Evanston had already 

tendered its $1 million policy on December 10, but the demand requested $2 million, so the next million needed to come from either 

Southern-Owners or American Builders. After Southern-Owners 

balked, American Builders had no choice but to tender payment. 

Southern-Owners’ delay in investigating and settling led to its inability to tender an offer on December 18. As a result, a reasonable 

jury could find (as it did) that American Builders’ damages 

stemmed directly and naturally from Southern-Owners’ bad faith. 

See id. at 11.

In defense, Southern-Owners points the finger at Guthrie 

and Cohen. It focuses on their two settlement demands, neither of 

which named Southern-Owners, and on Cohen’s statement that he 

and Guthrie had no interest in negotiating with Southern-Owners 

directly. However, “[t]he lack of a formal offer to settle does not 

preclude a finding of bad faith.” Powell, 584 So. 2d at 14. Instead, 

under Florida law, it “is merely one factor to be considered.” Id. A 

jury could find that even though Guthrie and Cohen never made 

an offer to Southern-Owners, this did not wipe Southern-Owners’ 

hands clean. What’s more, Southern-Owners was left to explain 

why its own actions were not in bad faith, rather than focusing on 

just the claimant’s actions. Harvey, 259 So. 3d at 7. Of course, 

“there’s 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.” 

Pelaez, 13 F.4th at 1254 (emphasis in original). In this case, though,

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Southern-Owners flipped Florida law on its head and exclusively 

focused on Guthrie and Cohen’s actions.

2. 

In the alternative, Southern-Owners argues that a reasonable jury should have found that it had no duty to act in good faith 

because American Builders breached Southern-Owners’ contract 

by not receiving consent before settling the claim.1 As we see it, 

this affirmative defense fails, for two separate reasons. For starters, 

a reasonable jury could find that American Builders’ failure to receive consent did not substantially prejudice Southern-Owners. 

What’s more, a reasonable jury could also find that Southern-Owners did not act diligently or in good faith in attempting to obtain 

consent.

1 Southern-Owners argued that a reasonable jury would have found in its favor on this affirmative defense for the first time in its Rule 50(b) motion. But 

“[d]istrict courts lack authority to grant a Rule 50(b) motion on a ground not 

previously raised in a Rule 50(a) motion prior to the submission of the case to 

the jury.” Johnston v. Borders, 36 F.4th 1254, 1270 n.31 (11th Cir. 2022). 

American Builders, however, did not raise this lack of authority in district

court and thus “fail[ed] to raise the inadequacy of [the] Rule 50(a) motion in 

response to [the] Rule 50(b) motion.” Howard v. Walgreen Co., 605 F.3d 

1239, 1243 (11th Cir. 2010). By not raising the argument in the trial court, 

American Builders “forfeited [its] right to raise waiver on appeal.” Id. Moreover, none of the exceptions to forfeiture apply, and American Builders does 

not argue otherwise. Thus, we consider this argument forfeited, and turn to 

the merits of the affirmative defense. 

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Southern-Owners’ contract with Beck Construction provided that “[n]o insured will, except at the insured’s own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent.” “[T]his language requires the insured to obtain the insurer’s consent before 

settling.” Am. Reliance Ins. Co. v. Perez, 712 So. 2d 1211, 1213 (Fla. 

3d DCA 1998). That is, “while an insured is free to enter into a 

reasonable settlement when its insurer has wrongfully refused to 

provide it with a defense to a suit, . . . the insured is not similarly 

free to independently engage in such settlements where, as here, 

the insurer had not declined a defense to suit.” First Am. Title Ins. 

Co. v. Nat’l Union Fire Ins. Co., 695 So. 2d 475, 477 (Fla. 3d DCA 

1997); see also Am. Reliance Ins. Co., 712 So. 2d at 1212–13. 

The Florida Supreme Court requires an insurer to establish 

three things in order to succeed on this affirmative defense: (1) a 

lack of consent; (2) substantial prejudice to the insurer; and (3) diligence and good faith by the insurer in attempting to receive consent. See Ramos v. Nw. Mut. Ins. Co., 336 So. 2d 71, 75 (Fla. 1976); 

Mid-Continent Cas. Co. v. Am. Pride Bldg. Co., 601 F.3d 1143, 

1149–50 (11th Cir. 2010). The first element has a few exceptions. 

The insured may settle without obtaining consent if the insurer 

“wrongfully refused to provide [the insured] with a defense to a 

suit,” First Am. Tit. Ins. Co., 695 So. 2d at 477, or offers a conditional defense that the parties cannot agree upon, Taylor v. Safeco 

Ins. Co., 361 So. 2d 743, 746 (Fla. 1st DCA 1978). Moreover, even 

if the insured was obliged to obtain consent, the failure to do so is 

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not an affirmative defense unless the insurer also establishes substantial prejudice and evinces good faith in bringing about the cooperation of the insured. Ramos, 336 So. 2d at 75. As the Florida 

Supreme Court put it:

This Court . . . emphasized that to constitute the 

breach of a policy, the lack of cooperation must be 

material and the insurance company must show that 

it was substantially prejudiced in the particular case 

by failure to cooperate. Furthermore, . . . the insurer 

must show that it has exercised diligence and good 

faith in bringing about the cooperation of its insured 

and must show that it has complied in good faith with 

the terms of the policy.

Id. (citations omitted).

We start with the first element: lack of consent. Over the 

objection of Southern-Owners, the district court instructed the jury 

to decide “whether American Builders Insurance Company voluntarily made a payment without obtaining Southern-Owners Insurance Company’s prior consent, or whether American Builders Insurance Company was legally obligated to make such payment.” 

Both parties agree that American Builders never received consent 

before paying. Instead, they debate only whether American Builders needed to obtain consent because its payment was not “voluntary.” 

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American Builders argued to the jury that its payment was 

involuntary because Southern-Owners unreasonably withheld 

consent and forced American Builders to either pay without consent or face a bad faith suit itself. The theory went this way: when 

Southern-Owners told American Builders that it would not tender 

payment, American Builders “involuntarily” paid “because of circumstances beyond [its] control,” since the “situation requir[ed]

immediate response to protect its legal interests.” See Rolyn Cos. 

v. R & J Sales of Tex., Inc., 412 F. App’x 252, 255 (11th Cir. 2011)

(quotation marks and citation omitted). Southern-Owners responded that it could not have unreasonably withheld consent because American Builders had already decided to pay. The jury was 

told by Southern-Owners that American Builders made its decision 

voluntarily and before seeking any consent. 

We need not settle whether American Builders made a voluntary payment under Florida law because Southern-Owners also 

bore the burden to prove two additional things -- substantial prejudice and good faith -- in order to sustain its affirmative defense, 

and the jury could reasonably have found that Southern-Owners 

failed to prove either.

Turning first to prejudice, the district court instructed the 

jury that Southern-Owners “must establish that [American Builders’] breach of the consent provision was material and caused defendant to suffer substantial prejudice.” See Ramos, 336 So. 2d at 

75. Southern-Owners provided no evidence of substantial prejudice. In fact, its claim adjuster (John Blaser) unambiguously

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testified that he did not know how Southern-Owners was prejudiced by American Builders’ decision to pay. When first asked 

whether Southern-Owners suffered any prejudice, the claim adjuster responded “maybe.” And when asked if he had any facts of 

prejudice, he simply replied, “Not that I’m aware of at this time.” 

We are unpersuaded by Southern-Owners’ claim that it has 

been prejudiced. For starters, Southern-Owners argues it was 

“blindsided” by American Builders’ decision to pay on December 

18 because it was not aware of Cohen’s November 18 demand. 

This argument has several flaws. To begin, American Builders may 

have decided to pay before it called Southern-Owners, but it did 

not plan to tender payment until after learning whether SouthernOwners decided to pay instead. The evidence was sufficient to establish that American Builders’ payment was contingent on Southern-Owners’ decision. Moreover, this argument overlooks that, by 

the December 18 phone call with American Builders, SouthernOwners should have been ready to decide whether it would pay

anyway because it had asked for an extension on its own investigation until December 20. Lastly, it ignores the company’s long 

months of delay. An insurer must have a reasonable time to investigate the claim, see Bos. Old Colony, 386 So. 2d at 785, but the 

evidence adduced at trial strongly suggested that Southern-Owners 

largely sat on its thumbs. 

Southern-Owners also says that the $1,091,240.92 judgment 

entered by the district court turned Southern-Owners into a judgment debtor in an amount greater than its policy limits, resulting 

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in substantial prejudice. But Southern-Owners forfeited this argument by not raising it in district court. See Blue Martini Kendall, 

LLC v. Miami Dade County, 816 F.3d 1343, 1349 (11th Cir. 2016). 

Regardless, a post-trial judgment does not affect “the rights of the 

insurer in defense of the cause.” Ramos, 336 So. 2d at 75. The 

judgment could not have affected Southern-Owners’ defense because it came after Southern-Owners decided not to provide coverage. 

Finally, as we have already detailed at length, a reasonable 

jury could (and did) plainly find that Southern-Owners did not 

“show that it [had] exercised diligence and good faith.” Id. American Builders did everything when it came to investigating Guthrie’s claim and deciding whether the insured should make a payment, all while Southern-Owners sat back and watched. The Florida Supreme Court has been clear on this point: without good faith, 

an insurer may not avail itself of an affirmative defense based on an 

insured’s failure to cooperate. See id. 

The long and short of it is that, on this record, the evidence 

is not “so overwhelmingly in favor of [Southern-Owners] that a 

reasonable jury could not” have ruled for American Builders on 

bad faith and against Southern-Owners on breach of contract. Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1246 (11th Cir. 

2001). We see no error in the denial of Southern-Owners’ 

Rule 50(b) motion.

B. 

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22 Opinion of the Court 21-13496

Next up is Southern-Owners’ claim that the district court 

abused its discretion in denying the motion for a new trial. Southern-Owners offers four reasons: (1) it did not act in bad faith because it was not offered an opportunity to settle; (2) any bad faith

did not cause American Builders’ damages; (3) American Builders 

breached its contract; and (4) generally, it did not act in bad faith.

All four of these arguments are retreads of the arguments for 

judgment as a matter of law that we have already rejected. The 

district court did not abuse its discretion in denying a new trial. For 

a new trial, Southern-Owners must show “the verdict ‘[was]

against the clear weight of the evidence or . . . result[ed] in a miscarriage of justice.’” Chmielewski v. City of St. Pete Beach, 890 

F.3d 942, 948 (11th Cir. 2018) (citation omitted). As we’ve already 

explained in some detail, sufficient evidence existed for a rational 

jury to find that: (1) Southern-Owners delayed in its investigation 

and neglected to act on its affirmative duty to settle, Powell, 584 

So. 2d at 14; (2) Southern-Owners’ bad faith caused American

Builders to suffer damages, Harvey, 259 So. 3d at 7, 11; and 

(3) American Builders did not breach because Southern-Owners 

did not establish substantial prejudice or good faith, Ramos, 336 So. 

2d at 75. The limited evidence favoring Southern-Owners -- its

multiple requests for extensions of time and the details from the 

Beck interview -- does not amount to “the clear weight of the evidence.” Chmielewski, 890 F.3d at 948 (citation omitted).

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The jury’s verdict was not against the clear weight of the 

evidence, and the district court did not abuse its discretion in denying Southern-Owners’ Rule 59 motion.

C.

The last issue raised is whether the district court erred in 

denying Southern-Owners’ summary judgment motion because its 

policy purportedly did not cover Guthrie’s injuries. We will not 

consider this issue for two separate reasons.

First, during oral argument, Southern-Owners maintained 

for the first time that a purely legal issue denied at summary judgment is appealable after trial. Oral Argument at 24:00–27:45. 

Southern-Owners said nothing about this in its briefing to our 

Court. “We do not consider arguments raised for the first time at 

oral argument.” Hernandez v. Plastipak Packaging, Inc., 15 F.4th 

1321, 1330 (11th Cir. 2021).

Second, and in any event, Southern-Owners is incorrect. 

Our circuit has no such legal-issue exception to the general rule

that “a party may not appeal an order denying summary judgment 

after there has been a full trial on the merits.” Carrizosa v. Chiquita 

Brands Int’l, Inc., 47 F.4th 1278, 1339 (11th Cir. 2022) (quotation 

marks and citation omitted); see also Ortiz v. Jordan, 562 U.S. 180, 

183–84 (2011) (“May a party . . . appeal an order denying summary 

judgment after a full trial on the merits? Our answer is no.”). In 

Ortiz, the Supreme Court left open the question whether an “issue 

of a ‘purely legal nature’ . . . is preserved for appeal by an 

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24 Opinion of the Court 21-13496

unsuccessful motion for summary judgment.” 562 U.S. at 190 (citation omitted). Other circuits are split on the answer to that question.2 Both before and after Ortiz, however, we have repeatedly

and broadly held that “this Court will not review the pretrial denial 

of a motion for summary judgment after a full trial and judgment 

on the merits.” Lind v. United Parcel Serv., Inc., 254 F.3d 1281, 

1286 (11th Cir. 2001); see also Akouri v. Fla. Dep’t of Transp., 408 

F.3d 1338, 1347 (11th Cir. 2005) (“[W]e have held that, after a full 

trial and judgment on the merits, we will not review the pretrial 

denial of a motion for summary judgment.”); Pensacola Motor 

Sales Inc. v. E. Shore Toyota, LLC, 684 F.3d 1211, 1219 (11th Cir. 

2012) (same); Scott v. United States, 825 F.3d 1275, 1282 (11th Cir. 

2 The Second, Third, Sixth, Seventh, Ninth, Tenth, D.C., and Federal Circuits 

allow appeals of purely legal arguments denied at summary judgment. See, 

e.g., Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir. 2004); Pennbarr Corp. v. 

Ins. Co. of N. Am., 976 F.2d 145, 149–55 (3d Cir. 1992); McPherson v. Kelsey, 

125 F.3d 989, 995 (6th Cir. 1997); Chemetall GMBH v. ZR Energy, Inc., 320 

F.3d 714, 719–20 (7th Cir. 2003); Pavon v. Swift Transp. Co., 192 F.3d 902, 906 

(9th Cir. 1999); Ruyle v. Cont’l Oil Co., 44 F.3d 837, 841–42 (10th Cir. 1994); 

Feld v. Feld, 688 F.3d 779, 783 (D.C. Cir. 2012); United Techs. Corp. v. Chromalloy Gas Turbine Corp., 189 F.3d 1338, 1344 (Fed. Cir. 1999). The Eighth 

Circuit allows appeals of decisions “based on [the] resolution of a preliminary 

legal issue,” like statute of limitations, estoppel, or standing. Kirk v. Schaeffler 

Grp. USA, Inc., 887 F.3d 376, 384 (8th Cir. 2018). The First, Fourth, and Fifth 

Circuits do not allow appeals of any denials of summary judgment after a trial 

on the merits, unless the issues are preserved in a Rule 50 motion. See, e.g., Ji 

v. Bose Corp., 626 F.3d 116, 127–28 (1st Cir. 2010); Chesapeake Paper Prods. 

Co. v. Stone & Webster Eng’g Corp., 51 F.3d 1229, 1237 (4th Cir. 1995); Feld 

Motor Sports, Inc. v. Traxxas, L.P., 861 F.3d 591, 596 (5th Cir. 2017).

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2016) (same); St. Louis Condo. Ass’n., 5 F.4th at 1242 (same); Carrizosa, 47 F.4th at 1339 (same).

AFFIRMED. 

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