Moore v. GEICO General Insurance Company

Filing 170

ORDER denying 166 Motion for Reconsideration. Signed by Judge Susan C Bucklew on 3/13/2017. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JOSHUA MOORE,
Plaintiff,
v.

Case No. 8:13-cv-1569-T-24 AEP

GEICO GENERAL INSURANCE
COMPANY,
Defendant.
____________________________/
ORDER
This cause comes before the Court on Plaintiff’s Motion for Reconsideration. (Doc. No.
166). Defendant opposes then motion. (Doc. No. 169). As explained below, the motion is
denied.
I. Background
This is a lawsuit in which Plaintiff Joshua Moore claims that Defendant GEICO General
Insurance Company (“GEICO”) acted in bad faith by failing to settle a bodily injury claim
asserted against him. On May 11, 2010, Plaintiff was involved in a multi-car accident. Plaintiff
was driving northbound on U.S. Highway 98 when another driver, Richard Waters, cut him off
in traffic and the two drivers engaged in hand gestures. Waters then swerved his truck into the
side of Plaintiff’s truck, and Plaintiff lost control of his truck, crossed into the southbound lanes,
and hit Amy Krupp’s vehicle nearly head on. Krupp and her minor son (“AO”) were severely
injured, and Krupp later died.
Plaintiff was an insured driver under an automobile insurance policy issued by GEICO,
which provided bodily injury limits of $10,000 per person/$20,000 per occurrence. Waters did

not have bodily injury coverage, but he did have property damage coverage issued by Peak
Insurance (“Peak”).
Gregory Kyser, as Personal Representative of the Estate of Amy Suzanne Krupp, retained
Lance Holden to represent the Estate for the bodily injury claim against Plaintiff. GEICO made
several attempts to pay the claimants1 Plaintiff’s bodily injury policy limits, but a settlement was
not reached, and the claimants obtained a $4,427,695.30 judgment against Plaintiff in state court.
The bad faith case went to trial on November 28, 2016. The jury found that GEICO
acted in bad faith in failing to settle the bodily injury claim against Plaintiff. (Doc. No. 143).
Thereafter, GEICO filed a motion for a new trial, in which it argued that during the trial, Plaintiff
asked questions and made arguments comparing GEICO and Peak’s claims handling that
unfairly prejudiced GEICO by confusing and distracting the jury from the issue before
them—whether GEICO acted in bad faith. (Doc. No. 157). The Court agreed with GEICO and
granted its motion, stating:
Based on the above, it is clear that there was substantial evidence and
argument presented to the jury comparing GEICO’s claims handling
to Peak’s claims handling. This unfairly prejudiced GEICO, because
the focus of the bad faith claim should have been on GEICO’s
conduct. Evidence of Peak’s claims handling likely significantly
distracted the jury from the proper focus in this case—GEICO’s
claims handling. The relevance of Peak’s settlement of a property
damage claim that did not appear to exceed Waters’ and Plaintiff’s
property damage limits is marginal at best. However, the evidence
that was introduced at trial regarding Peak’s claims handling and the
claimants’ settlement with Peak was substantial and likely confused
and misled the jury, leading them to believe that Peak handled the
property damage claim correctly, and GEICO’s failure to handle the
bodily injury claim the same way must be deemed bad faith. As

1

The claimants are Gregory Kyser, on behalf of Krupp’s Estate, and Brian Orr, as father
and guardian of AO.
2

such, this Court cannot say with fair assurance that the verdict was
not substantially swayed by the Court’s error in allowing this
evidence and argument. Thus, allowing the bad faith verdict to stand
when it may have been based in large part on this unfairly prejudicial
evidence and argument would be a miscarriage of justice.
(Doc. No. 165, p. 15–16). In response, Plaintiff filed the instant motion to reconsider the order
granting a new trial.
II. Motion for Reconsideration
There are three major grounds justifying reconsideration: (1) an intervening change in
controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or to
prevent manifest injustice. Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694
(M.D. Fla. 1994)(citations omitted). The Court notes that reconsideration of a previous order is
an extraordinary remedy to be employed sparingly. See id. (citations omitted). It appears that
Plaintiff’s motion is based on his perceived need to correct clear error or to prevent manifest
injustice. However, as explained below, the Court finds that the motion should be denied, as
Plaintiff has not shown that there is a need to correct clear error or to prevent manifest injustice.
In support of his motion, Plaintiff makes two arguments: (1) this Court’s Order granting a
new trial conflicts with the Eleventh Circuit’s opinion reversing the Court’s prior grant of
summary judgment; and (2) evidence of Peak’s claims handling was relevant and properly
considered by the jury. Accordingly, the Court will analyze each argument.
A. Eleventh Circuit’s Prior Opinion
Plaintiff first argues that this Court’s Order granting a new trial conflicts with the
Eleventh Circuit’s opinion reversing the Court’s prior grant of summary judgment. In that
opinion, the Eleventh Circuit stated, in pertinent part, the following:

3

Holden testified that his intention in sending the demand letter [to
Plaintiff] was in fact to effectuate a settlement. He explained that he
had his clients’ authority and permission to send it out, and that if
GEICO had “compl[ied] with what is in the letter, . . . then [there
would have been] an opportunity to resolve the case.” Holden further
noted that he had settled his clients’ claims against the other motorist
involved in the accident when that motorist’s insurance carrier
complied with the same demands as those made on GEICO. The
district court discounted this testimony. It concluded that—despite
Holden’s statements to the contrary—Holden’s demand was “based
more on the creation of a bad faith claim against GEICO than on truly
attempting to settle [the Krupp estate’s and AO’s] claims.” . . . The
district court in this case thus should have credited Holden’s
testimony and accepted—for the purposes of GEICO’s motion for
summary judgment—that Holden legitimately tried to settle the case.
Viewed in this light, GEICO’s failure to meet the demands of
Holden’s settlement offer impeded the parties’ ability to settle the
case against Moore. This evidence should therefore have been
considered by a jury in assessing whether the totality of GEICO’s
conduct amounted to a good-faith effort to settle the case.
(Doc. No. 64, p. 11–12)(internal citations omitted)(emphasis added).
Plaintiff argues that the phrase “this evidence” within the bolded language set forth above
refers to evidence of Peak’s claims handling. This Court disagrees. Instead, the “evidence”
being referred to is Holden’s testimony that he legitimately tried to settle the claims against
Plaintiff. This Court’s conclusion is supported by the fact that the Eleventh Circuit spent
considerable time in the remainder of its opinion explaining that this Court “should have focused
principally on GEICO’s handling of the claims against [Plaintiff].” (Doc. No. 64, p. 14). Just as
this Court should not have focused on Holden’s conduct in its summary judgment order, the jury
should not have been directed to focus on Peak’s claims handling and to compare it to GEICO’s
claims handling. Accordingly, the Court denies Plaintiff’s motion based on this argument.
B. Jury’s Consideration of Peak’s Claims Handling
Next, Plaintiff argues that evidence of Peak’s claims handling was relevant and properly
4

considered by the jury. Plaintiff argues that the fact that Peak only provided property damage
coverage does not make its claims handling any less relevant. Plaintiff argues that because
Waters could have been found liable for bodily injury damages, despite not having any bodily
injury coverage, Peak’s claims handling was relevant and properly considered by the jury.
In support of his argument, Plaintiff cites Allstate Indemnity Company v. Oser, 893 So.
2d 675 (Fla. 1st DCA 2005). In Oser, the insured and tort claimant brought a bad faith claim
against the insurance company for failing to settle a bodily injury claim despite the fact that the
insured did not have bodily injury coverage. See id. at 676. The court stated that the insurance
company’s liability for bad faith depended on “whether, even without [bodily injury] coverage,
[the insurer] owed [the insured] a duty to settle [the claimant’s] claims against her for both
[bodily injury] and property damage because it either expressly undertook such duty or because
the circumstances created a duty.” Id. at 677.
The Court is not persuaded by Plaintiff’s argument that Oser supports his contention that
Peak’s claims handling was relevant and properly considered by the jury. Instead, the Court
remains convinced that evidence of Peak’s claims handling and the claimants’ settlement with
Peak likely confused and misled the jury, leading them to believe that Peak handled the property
damage claim correctly, and GEICO’s failure to handle the bodily injury claim the same way
must be deemed bad faith. Accordingly, the Court denies Plaintiff’s motion based on this
argument.
III. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that Plaintiff’s Motion for
Reconsideration (Doc. No. 166) is DENIED.

5

DONE AND ORDERED at Tampa, Florida, this 13th day of March, 2017.

Copies to:
Counsel of Record

6