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Mirror, mirror: Failure to verbatim comply with release language demand may not constitute bad faith

June 14, 2021

Heather Eres v. Progressive Am. Ins. Co., No. 20-11006, 8:17-cv-02354-TPB-SPF (11th Cir. 2021)

 

  • Upon being notified of an accident where plaintiff was severely injured and her son was killed, the insurer immediately tendered its policy limits to plaintiff’s attorney, who was not ready “to receive the checks.” 
  • The court found that the insurer remained diligent in following up regarding the tender.
  • Plaintiff later communicated through new counsel a desire to accept settlement with certain conditions, including an affidavit from the tortfeasor and a release without indemnity or hold harmless language. 
  • The insurer complied with all demands but while the release did not have indemnity language, it contained a waiver of subrogation which plaintiff found to be overbroad and not to comply with her demand to settle.
  • The settlement was never effectuated, and plaintiff recovered $10 million following a jury trial -- then filed a bad faith suit.
  • The Eleventh Circuit, affirming the Middle District of Florida, found the insurer did not act in bad faith. 
    • With regard to the release, the Court held the totality of the circumstances, including the fact that the insurer told plaintiff’s counsel in writing that the disputed language could be stricken from the release, relieved the insurer of any bad faith liability.
    •  

View full opinion here.

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