Case: 15-12612   Date Filed: 08/29/2016   Page: 1 of 11


                                                       [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                       Nos. 15-12612; 15-15424
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 8:12-cv-02448-AEP



EDDIE K. TAYLOR,

                                                            Plaintiff-Appellee,

                                 versus

GEICO INDEMNITY COMPANY,

                                                         Defendant-Appellant.

                      ________________________

              Appeals from the United States District Court
                   for the Middle District of Florida
                     ________________________

                           (August 29, 2016)

Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 15-12612     Date Filed: 08/29/2016    Page: 2 of 11


      GEICO Indemnity Company challenges the denial of its motions for

judgment as a matter of law and for a new trial. Fed. R. Civ. 59(a), 50(b). While

Eddie K. Taylor was insured by GEICO, he injured Ronald Donnerstag in an

automobile accident after which GEICO rejected Donnerstag’s requests to settle

the matter within Taylor’s policy limits. Taylor sued GEICO for breaching its duty

of good faith by failing to pay, and a jury returned a verdict for Taylor. The district

court denied the post-trial motion of GEICO on the grounds that the evidence was

sufficient to support the verdict; that its challenges to evidentiary rulings lacked

merit; and that the jury instructions were consistent with Florida law. We affirm.

                                 I. BACKGROUND

      Taylor turned his automobile left across Donnerstag’s lane of traffic, which

caused Donnerstag to collide with Taylor’s vehicle and to be thrown from his

motorcycle. GEICO determined that Taylor was predominantly at fault and that

Donnerstag’s bodily injuries far exceeded Taylor’s coverage limit of $10,000, but

GEICO failed to disclose that information to Taylor. GEICO sent Taylor a letter

informing him of his limits of coverage and of the “possibility” that he could be

responsible if the claims from the accident exceeded those limits. GEICO

contacted Donnerstag’s insurer, Allstate Insurance, and learned that it was

indemnifying Donnerstag for the total loss of his motorcycle, which appraised at

$5,563.80. GEICO did not request a copy of the appraisal or permission to inspect


                                           2
              Case: 15-12612       Date Filed: 08/29/2016   Page: 3 of 11


the motorcycle. GEICO also learned that Donnerstag had retained an attorney, R.

Waylon Thompson, but Thompson denied being hired by Donnerstag.

      On June 3, 2009, Donnerstag sent a letter to GEICO requesting that it

“[s]end all insurance money you can” because “Allstate is only paying $5,500” for

his motorcycle, which is “worth $7,000”; the accident ruined his clothing and a

helmet that cost $241; his wife had incurred $583 in gasoline and food expenses;

and they had to pay “$150 a day to rent” a motorcycle. GEICO did not inform

Taylor that he could be responsible for the difference between the fair market value

and the appraised value of Donnerstag’s motorcycle or that Taylor’s policy could

cover the difference. GEICO verified with Allstate that Donnerstag was disputing

its appraisal of his motorcycle.

      On June 15, 2009, a regional claims manager for GEICO made an entry in

Taylor’s file questioning if Donnerstag’s demand for property damage created “a

[c]oncern.” The next day, a claims adjuster called the hospital where Donnerstag

had been treated and learned that he had incurred medical bills totaling

$140,981.78, but this information was not shared with Taylor. On June 17, 2009,

GEICO mailed to Donnerstag a package containing a release form, a letter that

explained it would “not cover” his food and gasoline expenses as property damage,

one check made payable to Donnerstag and the hospital in the amount of the

$10,000 cap on Taylor’s coverage for bodily injury, and another check made


                                            3
              Case: 15-12612     Date Filed: 08/29/2016   Page: 4 of 11


payable to Donnerstag for $241 to indemnify him for his clothing and helmet.

GEICO provided a copy of those materials to Taylor. On June 29, 2009, the

regional manager for GEICO made a second entry in Taylor’s file expressing

concern that Donnerstag had not “[a]ccepted” the check for bodily injury and that

he might intend to “[t]ie” his demands for property damage and bodily injury.

Because GEICO had addressed its package mistakenly to Robert Donnerstag, his

wife refused delivery and the package was returned to GEICO.

      On July 6, 2009, Donnerstag contacted GEICO and learned about the

misdelivery of its package and that it would not reimburse him for gasoline and

food expenses. The claims adjuster who spoke with Donnerstag did not ask to

inspect his motorcycle and also did not inquire whether Donnerstag was

conditioning his settlement on payments for bodily injury and property damage.

GEICO did not inform Taylor of the conversation. Three days later, Donnerstag

sent GEICO a letter that it denied receiving. The letter stated,

      . . . We still want to settle our case if you could get the check back
      from [the hospital] and make it out to me and my wife. You can also
      put [the hospital] on the check for $10,000. We also think you should
      pay the $2,000 for the motorcycle and the rental cost we asked for. If
      you can agree, we will sign anything you need. If you cannot pay,
      please write us and tell us what you can pay. We need the money by
      the end of the month.

      On July 13, 2009, GEICO mailed Donnerstag another package containing

the letter explaining it would not cover his food and gasoline expenses and checks


                                          4
             Case: 15-12612    Date Filed: 08/29/2016   Page: 5 of 11


for $10,000 and $241, and a check for $500 as reimbursement for the deductible

that Donnerstag paid Allstate. On August 11, 2009, Donnerstag wrote to GEICO,

“My motorcycle was worth $7,000.00 Allstate has only agreed to pay me

$5,063.80. You have sent a check for $500. Can you pay the other

$1,436.20. My wife and I will sign any paperwork you need. We want to

finish this settlement in the next ten days.” On August 18, 2009, GEICO sent

Donnerstag a letter stating that it was “only able to pay the value of [his]

motorcycle” and inquired whether he had “presented proof [that the

motorcycle was worth $7,000] to [his] carrier to consider.”

      On August 27, 2015, Donnerstag rejected the offer from GEICO.

Donnerstag returned the checks to GEICO accompanied by a letter stating that they

were “sorry we could not reach an agreement.” The next day, GEICO received a

letter from Donnerstag’s attorney, Thompson. GEICO notified Taylor of the

impending lawsuit. Later, GEICO informed Taylor that the Donnerstags refused to

settle because they sought an additional $1,436.20 for his motorcycle.

      The Donnerstags sued Taylor, and a jury returned a verdict in favor of the

Donnerstags. The jury awarded more than $900,000 to compensate the

Donnerstags for past and future medical expenses, past and future pain and

suffering, property damage, and the loss of consortium by Ms. Donnerstag.




                                         5
              Case: 15-12612     Date Filed: 08/29/2016    Page: 6 of 11


      Taylor filed in a Florida court a complaint against GEICO for breaching its

duty of good faith. GEICO removed the action to the district court. Taylor

presented testimony from Donnerstag, an expert witness, and GEICO employees.

The jury found that GEICO acted in bad faith and answered in the negative

interrogatories inquiring whether GEICO had proved that the Donnerstags had

been unwilling to settle their claims against Taylor and that it had been denied a

reasonable opportunity to settle the Donnerstags’ claims against Taylor.

                          II. STANDARDS OF REVIEW

      This appeal is governed by two standards of review. We review de novo the

denial of a motion for a judgment as a matter of law and view the evidence in the

light most favorable to the nonmovant. McGinnis v. Am. Home Mortg. Servicing,

Inc., 

, 1254 (11th Cir. 2016). We review the denial of a motion for a

new trial for abuse of discretion. 

“Deference to the district court is

particularly appropriate where a new trial is denied and the jury’s verdict is left

undisturbed.” 

(quoting Middlebrooks v. Hillcrest Foods, Inc., 

, 1247 (11th Cir. 2001)).

                                 III. DISCUSSION

      GEICO seeks relief from the jury verdict on four grounds. First, GEICO

argues that it was entitled to judgment as a matter of law because the evidence was

insufficient to prove it acted in bad faith. Second, GEICO argues that it was


                                           6
              Case: 15-12612      Date Filed: 08/29/2016    Page: 7 of 11


entitled to a new trial because it was unfairly prejudiced by the admission of

testimony from Taylor’s expert witness. Third, GEICO challenges the admission of

evidence about the amount of the Donnerstags’ judgment against Taylor and the

exclusion of evidence about the date that the Donnerstags retained counsel and

Taylor’s receipt of a citation for driving with a suspended license. Fourth, GEICO

argues that the district court instructed the jury and submitted to it interrogatories

that erroneously shifted the burden of proof to GEICO. We reject each of these

arguments in turn.

      There was sufficient evidence for the jury to find that GEICO acted in bad

faith. Under Florida law, which the parties agree applies, an insurer is obligated to

handle claims against its policyholder with diligence and care and must

“investigate the facts, give fair consideration to a settlement offer that is not

unreasonable under the facts, and settle, if possible, where a reasonably prudent

person, faced with the prospect of paying the total recovery, would do so.” Berges

v. Infinity Ins. Co., 

, 669 (Fla. 2004) (quoting Boston Old Colony

Ins. Co. v. Gutierrez, 

, 785 (Fla. 1980)). GEICO argues that it acted

in good faith by tendering checks to the Donnerstags and that they were “not

willing to settle,” but they stated unambiguously that they “want[ed] to settle” in

their letters to GEICO. GEICO also argues that “the Donnerstags dampened [its]

ability to participate in settlement negotiations by failing to allow [it] to inspect the


                                            7
              Case: 15-12612    Date Filed: 08/29/2016    Page: 8 of 11


motorcycle,” but GEICO knew the location of the motorcycle yet never sought

permission from the Donnerstags or their insurer to examine it. GEICO contends

that it was not “reasonably notified” that the Donnerstags intended to “t[ie]

together their claims for settlement,” yet GEICO perceived that was an issue from

the Donnerstags’ letters, recorded its concerns in the Donnerstag file, and declined

to inquire how the Donnerstags wanted to structure their settlement. GEICO also

argues that Taylor cannot prove causation—that is, its failure to pay Donnerstag

$1,436.20 for his motorcycle, which is the amount the jury awarded Donnerstag for

property damage, did not cause Taylor to incur a judgment exceeding $900,000 for

Donnerstag’s bodily injuries—but Donnerstag’s letters and testimony established

that he would have accepted $10,000 for his bodily injuries had GEICO paid him

the amount he requested for his motorcycle.

      GEICO challenges the admission of testimony from Taylor’s expert witness

on three grounds, all of which fail. First, GEICO argues that it was unfairly

prejudiced when the expert was permitted to testify about the Donnerstags “tying

together” their claims for bodily injury and property damage, but GEICO failed to

object to the testimony to preserve the matter for appellate review. See Fed. R.

Evid. 103(a)(1); Hendrix v. Raybestos-Manhattan, Inc., 

, 1503 (11th

Cir. 1985). Second, GEICO argues that the expert was allowed to “improperly

attack” the insurer for making the check for bodily injuries payable to the hospital,


                                          8
              Case: 15-12612     Date Filed: 08/29/2016    Page: 9 of 11


but GEICO cannot obtain relief based on the admission of testimony that it elicited

from the expert on cross-examination. See United States v. Rosenthal, 

, 1245 (11th Cir. 1986) (It “would circumvent our entire judicial system to

allow one to elicit testimony at trial and later allow that person to complain of its

admissibility on appeal.”). Third, GEICO argues that the expert “testif[ied]

beyond the scope of his deposition testimony,” but GEICO did not object to this

testimony either. See Fed. R. Evid. 103(a)(1); 

.

      GEICO challenges evidentiary rulings on three grounds, but these arguments

fail too. First, GEICO argues that Taylor twice violated an order in limine

excluding evidence about the amount of the judgment against him. GEICO

contends that Taylor improperly elicited testimony from his expert that the award

for property damage exceeded the limits of Taylor’s policy, but GEICO waived the

argument by stating that it had “no” objection to allowing Taylor to elicit the

information from his expert. See Lindsey v. Navistar Int’l Transp. Corp., 

, 1315 n.2 (11th Cir. 1998). GEICO also complains that Taylor improperly

“elicit[ed] testimony from [a claims adjuster] as to the specific amount of the

property damage” award, but the district court eradicated any prejudice caused by

the adjuster’s nonresponsive answer by admonishing him and instructing the jury

to disregard the adjuster’s “testimony as to the amount.” See Woods v. Gettelfinger,

, 551 (5th Cir. 1939) (concluding that an error caused when a witness


                                           9
              Case: 15-12612     Date Filed: 08/29/2016     Page: 10 of 11


“interjected, not in response to a question, a [prejudicial] statement” was cured

when the district “court promptly instructed the jury to disregard that statement”).

Second, GEICO argues that its efforts to prove the Donnerstags never intended to

settle was hampered when “the district court erroneously granted Taylor’s Motion

in Limine, preventing GEICO from publishing evidence . . . [that the Donnerstags’

attorney asserted] an attorney client privilege over communications” before a

certain date, but the district court denied Taylor’s motion in limine. And, as the

district court stated, “portions of [the attorney’s] deposition were read into the

record” during trial and “GEICO . . . fails . . . [to identify] the portions [of the

deposition] it believes the exclusion of which prejudiced its ability to defend.”

Third, GEICO argues that its inability to introduce evidence that Taylor received at

the scene of the accident a citation for driving with a suspended driver’s license

prevented it from proving he was unable “to meaningfully contribute to settlement

opportunities above his policy limits,” but the district court reasonably determined

that “the relationship between the evidence and the . . . affirmative defense at issue

[was] simply too attenuated,” United States v. Hurn, 

, 1366 (11th

Cir. 2004). As stated aptly by the district court, “to assert Mr. Taylor’s purported

inability to contribute to a settlement agreement follows in any way from his

alleged[] driving with a suspended license requires the attenuated assumption that

he did so as a result of financial constraints and/or problems.”


                                            10
             Case: 15-12612     Date Filed: 08/29/2016    Page: 11 of 11


      GEICO’s argument that the jury instructions and special verdict form

unfairly shifted to it the burden of proof fails also. Consistent with the proposed

instructions submitted by GEICO requesting the jury to consider its “affirmative

defense,” the district court instructed the jury that GEICO had to prove that the

Donnerstags were unwilling to settle their claims and that GEICO was not

presented a reasonable opportunity to settle the Donnerstags’ claims. And the

treatment of the issues is consistent with state law, which provides that “the insurer

has the burden to show not only that there was no realistic possibility of settlement

within policy limits, but also that the insured was without the ability to contribute

to whatever settlement figure that the parties could have reached.” Powell v.

Prudential Prop. & Cas. Ins. Co., 

, 14 (Fla. Dist. Ct. App. 1991).

                                IV. CONCLUSION

      We AFFIRM the judgment against GEICO.




                                          11