RICHARD PRIMEAUX

v.

PROGRESSIVE AMERICAN INSURANCE COMPANY

Richard Primeaux and three other passengers were in a car accident. The driver was insured by Progressive American Insurance Company (“Progressive”). After Progressive investigated the passengers’ injuries, it allocated each passenger a portion of the policy’s bodily injury limits. Mr. Primeaux was allocated most of the available coverage. He sued the driver and received an excess judgment. Now, he sues Progressive, arguing it did not handle his claim in good faith, which resulted in that excess judgment. Progressive moves for summary judgment arguing it did not act in bad faith in resolving multiple claims against its insured. Alternatively, it argues that Mr. Primeaux refused to settle for the policy limits anyway and Progressive therefore did not contribute to his excess judgment. But these material facts are genuinely disputed. And there is sufficient evidence from which a reasonable jury could find that Progressive did not act in its insured’s interest by resolving Mr. Primeaux’s claim as it did. Thus, its motion for summary judgment (Doc. 44) is DENIED.

BACKGROUND¹

On September 29, 2017, Mr. Primeaux—along with Nashoba Gonzalez, Corbin Billie, and Yamil Silva—were injured in a car accident. (Doc. 44 at 2, ¶ 1.)

Callie Star Joe was driving, and the vehicle was insured by Progressive. (Id.; Doc. 45-2.) Her policy’s bodily injury limits were $10,000 per person and $20,000 per accident. (Doc. 45-2 at 2.) Progressive first learned of the accident on October⁵, 2017 when Ms. Gonzalez’s counsel contacted it and provided a summary of her injuries. (Doc. 45-3 at 22–23.) The next day, Progressive claims specialist Bjoern Styra reviewed Ms. Joe’s policy and began gathering information about the accident. (Id. at 20–21.) Mr. Styra could not contact Ms. Joe because the phone number he had for Ms. Joe was not in service. (Doc. 45-3 at 19.) On October 6, 2017, Mr. Styra sent Ms. Joe a letter and an email seeking to discuss the accident and her policy’s coverage. (Docs. 44-6, 45-5.) He also sent Ms. Joe a letter explaining the passengers’ injuries may exceed her coverage limits and that she would have to pay any difference. (Doc. 45-6.) On October 20 and 23, Mr. Styra was instructed to contact the passengers and determine the nature of their injuries. (Doc. 45-3 at 12–13.)

79.) Mr. Styra explained Ms. Joe’s coverage, her liability if the claims exceeded that coverage, and that the mail he sent her had been returned as undeliverable. (Id.) Ms. Joe provided Mr. Styra a corrected address and information about the passengers’ injuries. (Id.) Ms. Gonzalez, Ms. Joe’s cousin and passenger in the vehicle, had a tooth knocked out, sustained a concussion, and experienced a seizure at the hospital requiring medication. (Id.) Mr. Billie, Ms. Joe’s boyfriend at the time, lacerated and fractured his neck, fractured his ribs, and had a knee injury. (Id.) He did not require surgery and spent one day at the hospital. (Id.) Ms. Joe explained that Mr. Primeaux sustained a lumbar fracture and received surgery and stayed at the hospital for two days. (Id.) Finally, Ms. Joe stated that Mr. Silva “apparently was fine” and “was checked out and released at the hospital.” (Id.) Given the nature of the injuries, Mr. Styra told Ms. Joe Progressive likely would pursue a global settlement offer with the passengers given the minimal policy limits and multiple, serious injuries. (Id.) Ms. Joe told Mr. Styra that she was unable to contribute any money toward a settlement. (Id. at 78.) On November¹ and 8, 2017, Progressive sent Mr. Primeaux letters asking to speak with him about the accident and to resolve his claim. (Docs. 45-13, 45-14.) On November 13, Progressive received a letter of representation from Mr. Primeaux’s counsel. (Doc. 44-18.) On November 29, Mr. Primeaux’s counsel sent Progressive a copy of Mr. Primeaux’s hospital discharge sheet. (Doc. 44-20.) Mr. Primeaux was diagnosed with a “[c]losed head injury; Motor vehicle accident; T12 vertebral fracture.” (Id. at 2.) Progressive manager Nicholas DiPasquale confirmed receipt of the report on December 8, 2017, noting it was the only nonverbal information about the passenger’s injuries (i.e., records) that Progressive had received thus far. (Doc. 44-12 at 77; Doc. 44 at 6–7, ¶ 13.) Mr. DiPasquale then suggested a global settlement conference considering the severity of the injuries and approved Progressive referring the matter to outside counsel. (Doc. 44-12 at 77.) Progressive referred the matter to attorney David Chaiet on December 12. (Id. at

76.) On December 13, Progressive closed its file as to Mr. Billie because of inactivity and the lack of communication between the two. (Doc. 45-3 at 1–2.) Unbeknownst to Progressive, Mr. Primeaux and his counsel began preparing to sue Ms. Joe on December 15, 2017. (Doc. 44 at 7, ¶ 15; Doc. 44-23.) Neither Progressive nor Mr. Primeaux had made a settlement offer at the time. (Doc. 44 at 7, ¶ 15; Doc. 48 at 10–11, ¶ 15.) On December 20, 2017, Progressive sent the passengers and counsel a letter explaining that it was prepared to “tender our full policy limit of $20,000.” (Doc. 45-18.) The letter scheduled a global settlement conference for January 15, 2018, urging the participation of all claimants. (Id. at 2.) If the passengers could not agree how to divide the $20,000, Progressive informed them that it would “seek to resolve claims in a manner that protects” Ms. Joe’s “best interest.” (Id.) Mr. Chaiet sent a similar letter to the passengers and their counsel on December 26. (Doc. 45-19.) Again, Progressive noted it was offering the $20,000 limit and urged a “mutually agreeable distribution of the settlement proceeds.” (Id. at 2.) Mr. Chaiet also requested “all medical records and bills . . . so that [Progressive could] review and evaluate [the passengers’] claim[s].” (Id.) Mr. Primeaux authorized his counsel to sue Ms. Joe around December 27, 2017. (Doc. 44-29.) Mr. Primeaux’s counsel did not receive Progressive’s letters about the global settlement conference until December 28. (Doc. 44-32 at 1.) On January 11, 2018, four days before the global settlement conference, Progressive learned that Mr. Primeaux had received $5,500 from his parents’ policy with Progressive but that he had $80,000 in medical bills. (Doc. 44-12 at 75.) That same day, Mr. Styra contacted Mr. Primeaux’s counsel to see whether he and Mr. Primeaux would attend the conference. (Id. at 74.) Mr. Styra could not reach counsel and left a message with an assistant requesting their attendance and any additional records they may have about Mr. Primeaux’s injuries. (Id.) On January 12, Progressive received a $10,000 settlement demand from Ms. Gonzalez’s counsel. (Doc. 44-35.) The letter summarized her injuries as “head trauma resulting in four stitches; she also suffered a grand mal seizure while in the hospital. Ms. Gonzalez also sustained a gash on her left arm which required five stitches and lost her right front tooth.” (Id. at 1.) Ms. Gonzalez spent four days in the hospital and the letter included a lien for $59,613.46. (Id. at 4.) Ms. Gonzalez was prepared to file a lawsuit seeking an excess judgment if she did not hear back from Progressive within twenty-one days. (Id. at 3.) On January 15, 2018, the morning of the global settlement conference, Mr. Styra managed to call Mr. Billie. (Doc. 44-12 at 73.) Mr. Styra told Mr. Billie that the conference was occurring that afternoon and Mr. Billie stated he had not received Progressive’s correspondences. (Id.) Mr. Billie then summarized his injuries. (Id.) He spent four days in the hospital with a neck fracture, rib fractures, and torn MCL but received no follow-up care after he was discharged. (Id.) Mr. Billie agreed to participate in the conference via telephone. (Id.) Mr. Styra asked Mr. Billie if he could help in contacting Mr. Silva and Ms. Joe as he had not heard from them. (Id.) Mr. Billie responded that while Mr. Silva did not seem injured, he would contact Ms. Joe on Mr. Styra’s behalf. (Id.) The global settlement conference was held on January 15, with Mr. Chaiet, Mr. Styra, and mediator Isabelle Cavanagh appearing in person. (Id. at 71.) Ms. Gonzalez’s counsel and Mr. Billie attended by phone. (Id.) Neither Mr. Silva nor Mr. Primeaux (individually or through counsel) attended. (Id.) Mr. Styra called Mr. Primeaux’s counsel and spoke with a case manager explaining that counsel was out of the office the week before the conference, and counsel was out sick that day.

(Id.) The case manager agreed to forward the message to counsel. (Id.) An email from the case manager to counsel states that counsel “instructed me not to take their call and that we are not settling.” (Doc. 44-38.)² Once the conference was

Gonzalez’s for $9,900, and Mr. Silva’s for $100, and to allocate the remaining $9,000 to Mr. Primeaux. (Id. at 72–73.) Progressive tendered a check for $9,000 to Mr. Primeaux on January 19, 2018. (Doc. 44-39 at 2.) Mr. Primeaux, however, sued Ms. Joe and secured a final judgment for $141,479.58 on December 19, 2019. (Doc. 44-42.) Mr. Primeaux then sued Progressive who removed the matter from Florida state court to this Court on November 30, 2020. (Doc. 1.) His operative pleading alleges a single claim for bad faith claims handling. (See Doc. 21.)

SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56 states that “[t]he court shall grant summary judgment 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.” Fed. R. 28.) Civ. P. 56(a). If this showing is made, “the burden shifts to the nonmoving party to come forward with specific facts showing that there is a genuine issue for trial.” Shaw v. City of Selma, 884 F. 3d 1093, 1098 (11th Cir. 2018) (quotation omitted).

“A fact is ‘material’ if it has the potential of ‘affect[ing] the outcome’ of the case.” Id. (citation omitted). “And to raise a ‘genuine’ dispute, the nonmoving party must point to enough evidence that ‘a reasonable jury could return a verdict for [him].’” Id. (citation omitted). “When considering the record on summary judgment ‘the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.’” Id. (citation omitted). “[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence but is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F. 2d 1321, 1324 (11th Cir. 1982) (internal quotation marks and citation omitted).

DISCUSSION

The parties readily dispute whether Progressive handled Mr. Primeaux’s claim in bad faith and whether its handling of that claim resulted in the excess judgment Mr. Primeaux secured against Ms. Joe. The record contains evidence from which a reasonable jury could find that Progressive failed to fully investigate the severity of each passenger’s injuries, resulting in an indiscriminate settlement based mostly on oral representations. A jury could further find that Progressive’s allocation of the policy limits, a decision informed by its allegedly deficient investigation, resulted in Mr. Primeaux’s excess judgment. Conversely, a jury could also find that Progressive steadfastly tried to secure as much information as it could to resolve the multiple claims against Ms. Joe. Its decision to resolve Mr. Billie’s claim for $1,000 and securing Ms. Gonzalez’s release for less than she originally demanded––leaving $9,000 for Mr. Primeaux who did not attend the global settlement conference––may very well speak to Progressive’s good-faith handling of the claims. This is all to say, that determination is one of fact and not law. Thus, Progressive’s motion for summary judgment is due to be denied. I. Whether an insurer acted in bad faith is viewed under the totality of the circumstances. Under Florida law, insurers like Progressive “owe[] a fiduciary duty to act in [their insured’s] best interests.” Berges v. Infinity Ins. Co., 896 So. 2d 665, 677 (Fla. 2004). This good-faith duty “arises from the nature of the insurer’s role in handling the claim on the insured’s behalf.” Harvey v. GEICO Gen. Ins. Co., 259 So. 3d 1, 6 (Fla. 2018). “[I]f an insurer [is] found to have acted in bad faith, the insurer would have to pay the entire judgment entered against the insured in favor of the injured third party, including any amount in excess of the insured’s policy limits.” State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 58 (Fla. 1995).3 The “insurer 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.” Harvey, 259 So. 3d at 6 (quotation omitted). It must “investigate the facts . . . and settle, if possible, where a reasonably prudent person, faced with the

[Progressive] adequately investigated the facts of all of the claims” before distributing the policy limits. Farinas, 850 So. 2d at 561. III. Progressive’s actions may have contributed to the excess judgment. Next, Progressive argues that no reasonable jury could find that its claims handling resulted in Mr. Primeaux’s excess judgment because he was unwilling to settle, even for the full policy limit of $10,000. (Doc. 44 at 24–25.) Any “damages claimed by an insured in a bad faith case must be caused by the insurer’s bad faith.” Harvey, 259 So. at 7. Put differently, “[t]here must be a causal connection between the damages claimed and the insurer’s bad faith.” Perera v. U.S. Fid. & Guar. Co., 35 So. 3d 893, 902 (Fla. 2010). At the same time, “the focus in a bad faith case is not on the actions of the claimant but rather on those of the insurer in fulfilling its obligations to the insured.” Berges, 896 So. 2d at 677. An insurer may still be found liable for bad faith even where the insured could have attempted to avoid the excess judgment through his own actions. See Harvey, 259 So. 3d at 8. To be fair, Mr. Primeaux testified several times that he would not have accepted a settlement offer from Progressive. (See Doc. 44 at 25.) For example, he testified that he sued Ms. Joe because he wanted more than the $10,000 policy limit, he was unwilling to settle his claim after suing, and he would not have settled his claim had he attended the global settlement conference. (Doc. 44-46 at 13, 15, 17.) But at the same time, a jury may view Mr. Primeaux’s refusal (and credit his testimony) in the context of the $9,000 offer he eventually received. The $9,000, Mr. Primeaux attested, “wasn’t even the full amount” and that he would have settled for the “full amount,” (i.e., $10,000). (Id. at 16.) When confronted with his answers about refusing to settle, Mr. Primeaux clarified that he “never got offered [$10,000] at all, so that’s why I was never willing to settle. It was always [$9,000] from the start. I’m not taking [$9,000].” (Id. at 19.) Mr. Primeaux expressed frustration that he did not know how to communicate his settlement desires with his attorneys and he “didn’t know nothing about this [process].” (Id.) To find that Mr. Primeaux would or would not have accepted settlement, particularly when he himself could not say whether he would have settled given that Progressive never offered him the full policy limit, requires the Court to usurp the jury’s function. The Court simply does not resolve “whatifs” on summary judgment. Progressive highlights the conflicting nature of Mr. Primeaux’s testimony, pointing to his counsel’s refusal to participate in the global settlement conference and lack of information exchanged between the parties. It argues Mr. Primeaux’s “alleged willingness to settle is unsupported by any piece of record evidence other than his self-serving and contradictory testimony that should be rejected by this Court.” (Doc. 49 at 7.) This, however, goes to the weight of Mr. Primeaux’s testimony; not whether a jury should consider it in the first place in reaching their own credibility determination. Contrary to Progressive’s assertion about the “contradictory” testimony, this simply is not a situation “where a videotape . . . definitively established what happened and what did not.” Sears v. Roberts, 922 F. 3d 1199, 1208 (11th Cir. 2019) (explaining the very narrow circumstances in which a court can disregard a party’s testimony as “blatantly contradicted by the record” (quoting Scott v. Harris, 550 U.S. 372, 380 (2007))). Progressive is essentially asking the Court to make an impermissible character determination, to weigh the conflicting evidence in other words, on summary judgment. The Court will decline Progressive’s invitation. “While a jury ultimately may discredit [Mr. Primeaux’s and his counsel’s] testimony regarding the likelihood of settlement as inconsistent with [their] prior statements

[or lack thereof] to Progressive, [the Court’s] role at summary judgment is not to make credibility determinations or weigh the evidence.” Aldana v. Progressive Am. Ins. Co., 828 F. App’x 663, 672 (11th Cir. 2020) (citing Mize, 93 F. 3d at 742).

CONCLUSION

At bottom, the answer to whether Progressive handled the claims against Ms. Joe in good faith or if its actions resulted in Mr. Primeaux’s excess judgment is not for the Court to divine on summary judgment. A jury ultimately will have to decide which party has the better evidence—whose side presents the more believable witnesses—in resolving this dispute. But in light of the competing evidence before the Court, Progressive’s motion for summary judgment (Doc. 44) is

DENIED.

Having reviewed the entire summary judgment record in this case, the parties may want to consider engaging in settlement discussions. If the parties choose to do so in good faith, the Court, upon filing of a joint notice, would be inclined to stay the case and all its deadlines. ORDERED at Fort Myers, Florida, on August 8, 2022.

fi he aA Poflha br

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE