United States District Court, M.D. Florida, Tampa Division
NICKY B. DUDASH, individually and as assignee of David Heisig, Plaintiff,
SOUTHERN-OWNERS INSURANCE COMPANY, Defendant.
D. WHITTEMORE United States District Judge.
THE COURT are Plaintiffs Motion for Partial Summary Judgment
(Dkt. 55), Defendant's Motion for Summary Judgment (Dkt.
56), and the respective responses (Dkts. 67, 69). Upon
consideration, the Motions (Dkts. 55, 56) are DENIED.
Dudash was injured in an automobile accident with David
Heisig. It is undisputed that Heisig was liable for the
accident. Prior to Dudash filing suit, Heisig's
automobile liability insurance carrier, Southern-Owners
Insurance Company, refused to tender the limits of
Heisig's insurance policy of $100, 000. After ajury
trial, Dudash obtained a judgment of $865, 000 against
Heisig. She then commenced this third-party common law bad
faith action on behalf of herself and as assignee of Heisig
alleging that Southern-Owners did not attempt in good faith
to settle her claim against Heisig. (Dkt. 19). Southern-Owners
moves for summary judgment on Dudash's bad faith claim.
Dudash moves for partial summary judgment on the narrow issue
that Southern-Owners could have settled Dudash's claim
against Heisig within policy limits.
issued a policy to Heisig with bodily injury liability
coverage in the amount of $100, 000 per person and $300, 000
per accident. (Dkt. 58 ¶ 7). While the policy was in
effect, on December 1, 2005, Heisig rearended Dudash while
she was stopped. (Dkt. 58-2 at 22). He was cited for careless
driving. (Dkt. 58-6 at 8). The accident was reported to
Southern-Owners on December 6, 2005, and Jeremy Moore was
assigned as the adjuster. Dudash retained attorney Jeffrey
Byrd to represent her. After minimal activity on the claim,
on May 2, 2008, Byrd offered to settle her claim against
Heisig for $100, 000. (Dkt. 58-6), Included in the offer were
her medical bills and records. Southern-Owners' internal
review found that Heisig was fully liable. (Dkt. 58-10).
Southern-Owners did not tender the policy limits or otherwise
attempt to negotiate, and the offer expired on June 2, 2008.
months after the offer expired, on January 12, 2009, Moore
requested $45, 000 in settlement authority from Scott Norris,
an attorney in Southern-Owners' legal department, which
was granted. (Dkt. 58-13), The same day, Moore offered to
settle the claim for $29, 000. (Dkt. 58-14). On April 16,
2009, Moore followed up again on his settlement offer. (Dkt.
58-15). Between February and August, Dudash had two
surgeries. (Dkt 58-22). On August 31, 2009, Dudash filed a
lawsuit against Heisig. (Dkt. 19 ¶ 22). On September 18,
2009, Byrd advised that the time for pre-suit negotiations
had passed. (Dkt. 58-18). On January 19, 2010, Moore
requested authority of $ 100, 000 from Norris, which was
granted. (Dkt. 58-23). On January 20, 2010, Southern-Owners,
through counsel, offered to settle Dudash's claim for
$100, 000. (Dkt. 58-24). On January 22, 2010, the offer was
rejected. (Dkt. 58-26). On March 4, 2011, a jury verdict was
entered in favor of Dudash for $875, 000. (Dkt. 19¶26).
Finaljudgment in the amount of $865, 000 was entered in favor
of Dudash and against Heisig on November 6, 2012. (Dkt. 19 at
judgment is appropriate where "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as amatter of law." Fed.R.Civ.P. 56(a). "A
genuine factual dispute exists only if a reasonable
fact-finder 'could find by a preponderance of the
evidence that the [non-movant] is entitled to a
verdict.'" Kernel Records Oy v. Mosley, 694
F.3d 1294, 1300 (11thCir. 2012) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). "An
issue of fact is 'material' if it is a legal element
of the claim under the applicable substantive law which might
affect the outcome of the case" Atten v. Tyson
Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997)
(citations omitted). The court will not weigh the evidence or
make findings of fact. Morrison v. Amway Corp., 323
F.3d 920, 924 (11th Cir. 2003). Rather, facts are viewed and
reasonable inferences are drawn in the light most favorable
to the non-moving party. Scott v. Harris, 550 U.S.
372, 378 (2007). The court's role, therefore, "is
limited to deciding whether there is sufficient evidence upon
which a reasonable juror could find for the non-moving
party." Morrision, 323 F.3d at 924.
Southern-Owners' Motion for Summary Judgment
moves for summary judgment contending that the undisputed
facts show that it acted in good faith at all times in
handling the claim. Dudash counters that whether under the
totality of the circumstances Southern-Owners acted in bad
faith is a question for the jury.
brings this common law bad faith action on behalf of herself
and as an assignee of Heisig. Florida common law recognizes
third-party bad faith actions brought by an insured or the
injured third party against the insured's liability
carrier. QBE Ins. Corp. v. Chalfonte Condo.
Apartment Ass'n, Inc., 94 So.3d 541, 545 (Fla.
2012); Fidelity & Cas. Co. v. Cope, 462 So.2d
459, 461 (Fla. 1985). Whether she brings the action
individually or as an assignee, the basis of the action
remains the duty owed to Heisig and his damages. See
Fidelity, 462 So.2d at 460-61; Thompson v.
Commercial Union Insurance Co., 250 So.2d 259, 264 (Fla.
1971). And, in handling the defense of claims against Heisig,
Southern-Owners "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."
Boston Old Colony Insurance Co. v. Gutierrez, 386
So.2d 783, 785 (Fla.1980).
determining whether Southern-Owners acted in bad faith, the
"totality of the circumstances" standard applies.
Berges v. Infinity Ins. Co.,896 So.2d 665, 680
(Fla. 2004). The issue therefore "is whether, under all
of the circumstances, [Southern-Owners] could and should have
settled the claim within the policy limits had it acted