Background
Charbel Consul rear-ended William Choisser on September 6, 2016, while driving a vehicle insured by Progressive American Insurance Company. The policy provided $10,000 per person in bodily-injury coverage and $10,000 per accident in property-damage coverage. Progressive determined Consul was entirely at fault. Choisser’s 1991 Mercedes, purchased for $3,000, was damaged and towed to a junkyard; Progressive valued it at $2,258.42 and deemed it a total loss, which Choisser’s attorney disputed.
On October 17, Choisser’s attorney, Matthew Posgay, offered to settle for $10,000 for injuries and $5,000 for vehicle damage, contingent on a financial affidavit and resolution of uninsured-motorist issues. Progressive’s November 15 counteroffer paid those amounts but added two conditions: a release of any consortium claim by Choisser’s wife and transfer of the vehicle title. Posgay did not represent the wife and declined to supply her name. Progressive’s own investigation mistakenly identified Choisser’s ex-wife and placed her name on the proposed release. Progressive did not contact the wife directly or ask Consul whether he wanted to settle without the consortium waiver. Posgay rejected the counteroffer on December 13, also disputing that a total-loss designation required surrender of title when Choisser wished to retain and repair the car.
Choisser sued Consul in Florida state court in November 2017. He later settled the property-damage claim by surrendering title to Progressive in exchange for $7,500. The bodily-injury claim went to trial and produced a judgment exceeding $1 million, including costs and fees. Consul brought this bad-faith action in May 2021, alleging deficient investigation, settlement negotiations, and communications. The district court granted Progressive summary judgment, finding its consortium and title positions reasonable, its communications sufficient, and settlement impossible after Choisser rejected the added terms.
The Court’s Holding
Reviewing de novo and drawing reasonable inferences for Consul, the Eleventh Circuit vacated and remanded. Applying Florida law, the majority explained that an insurer must investigate, advise and warn its insured, fairly consider reasonable settlement opportunities, and act with the care and diligence it would use in its own affairs. Bad faith ordinarily presents a fact-intensive, totality-of-the-circumstances question, although summary judgment remains available when no reasonable jury could find bad faith.
The court identified genuine disputes concerning both added settlement conditions. A jury could find it unreasonable for Progressive to insist on a consortium waiver without communicating with Choisser’s wife, particularly given evidence that she did not intend to pursue a claim and Consul’s testimony that he would have forgone the waiver. Progressive’s offer to amend language or correct the name did not eliminate the jury question because it continued requiring the waiver. The majority acknowledged Posgay’s own conduct but emphasized that the inquiry focuses on the insurer’s actions.
On the vehicle, the court did not definitively construe Florida’s total-loss statute. It nevertheless held that a jury could find Progressive’s valuation and title demands unreasonable. Section 319.30(3)(b) allowed either the owner retaining the vehicle or the insurer receiving the title to forward the certificate to the state, undermining Progressive’s claim that it had to obtain title. The majority also found disputes over Progressive’s communications and whether it sent an excess-judgment letter, given conflicting testimony and internal records. Finally, a jury could find settlement remained realistically possible after December 13: the opinion cited Posgay’s December 16 letter, Progressive’s notes, Choisser’s testimony that he would have settled on his original terms, and the later property-damage settlement. The court did not find bad faith; it held that a jury could reasonably find it and could infer that the deficient settlement process caused the excess judgment.
Key Takeaways
- The judgment was vacated and the case remanded; the majority did not decide that Progressive actually acted in bad faith.
- Consortium-waiver demands, vehicle valuation and title requirements, insured communications, causation, and the continuing possibility of settlement all presented jury questions on this record.
- Judge Tjoflat dissented and would have affirmed summary judgment. Alternatively, he would have instructed the district court on remand to join Choisser and Posgay under Rule 19 and to issue a Rule 11 order to show cause concerning attorneys Richardson and Thompson.
Why It Matters
The decision illustrates how settlement conditions and communications can collectively prevent summary judgment even when an insurer matches the claimant’s monetary demand. It also distinguishes a jury question about post-rejection settlement opportunities from cases where the injured party would not have settled at all.
The dissent took a different view of the evidence, emphasizing Posgay’s conduct, testimony casting doubt on whether Choisser’s wife would have signed a release, Progressive’s communications with Consul’s attorney, and causation. Its proposed joinder and sanctions instructions were alternative measures, not actions ordered by the majority.