ORDER

JAMES D. WHITTEMORE, District Judge.

BEFORE THE COURT are Plaintiff's 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.

Background

Nicky 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 a jury 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.1 (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.

Undisputed Material Facts

Southern-Owners 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. (Dkt. 58-6).

Six 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). Final judgment in the amount of $865,000 was entered in favor of Dudash and against Heisig on November 6, 2012. (Dkt. 19 at 62).

Standard

Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter 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 (11th Cir. 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." Allen 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.

Discussion

A. Southern-Owners' Motion for Summary Judgment

Southern-Owners 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.

Dudash brings this common law bad faith action on behalf of herself and as an assignee of Heisig.2 Florida common law recognizes third-party bad faith actions brought by an insured or the injured third party against the insured's liability carrier.3 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).

In 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 fairly and honestly toward [Heisig] and with due regard for his interests." Id. at 679.

Generally, the question of bad faith is reserved for the jury. Id. at 672-73; see Gutierrez, 386 So.2d at 785 ("The question of failure to act in good faith with due regard for the interests of the insured is for the jury."); see also Campbell v. Gov't Employees Ins. Co., 306 So.2d 525, 530-31 (Fla.1974) ("[R]easonable diligence and ordinary care [are] material in determining bad faith. Traditionally, reasonable diligence and ordinary care are considerations of fact — not of law."). And, that will be the case here.4

Southern-Owners owed a duty to "investigate the facts, give fair consideration to a settlement offer that [was] 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." Gutierrez, 386 So.2d at 785. "Bad faith may be inferred from a delay in settlement negotiations which is willful and without reasonable cause." Powell v. Prudential Prop. & Cas. Ins. Co., 584 So.2d 12, 14 (Fla. 3d DCA 1991). And, based on the facts of this case, a reasonable juror could infer that Southern-Owners' delays in negotiating were willful and without reasonable cause.

On May 2, 2008, Byrd extended a settlement offer to Southern-Owners of $100,000. (Dkt. 58-6). The offer expired Monday, June 2, 2008 at 4:00 p.m, but could be extended if the extension was requested in writing within ten days "with a reasonable explanation for such request." (Dkt. 58-6 at 5). It included Dudash's medical records and bills, documented her current medical expenses of $17,280.06, and advised that her future medical expenses were in the range of $2,500 to $3,000 annually, "not including any surgery costs that may result because of this accident." (Dkt. 58-6 at 4) (emphasis added). She was diagnosed with cervical disc herniation, thoracic sprain/strain, and lumbar ligamnetous instability, and assigned a 16% permanent partial impairment rating as a direct result from the automobile accident. (Dkt. 58-6 at 12). The likelihood of her experiencing future degenerative changes was "certainly a significant one." (Id.). And, while her records show that in May 2006, she elected to continue conservative treatment, multiple treatment options were discussed, including operative care. (Dkt. 58-6 at 70).

On May 12, 2008, instead of making a counter offer or requesting an extension of time to respond, Moore asked for information regarding Dudash's personal automobile insurance and her treatment, if any, for a motor vehicle accident in 1992. (Dkt. 58-8). Between May 12 and May 16, 2008, Moore memorialized his evaluation of the claim. (Dkt. 69-1; Dkt. 55-1 at 52:25-53:7). He noted that Heisig was 100% liable, and there was the "possibility of surgery[,] but [Dudash] will treat conservative[ly]." (Dkt. 69-1) (emphasis added).

On May 21, 2008, Moore sent a memorandum to Norris in the legal department. (Dkt. 58-10). Notably, Moore recognized that "he believed the insured to be at fault for the accident," Dudash's "[m]edical records indicate the possibility of future surgery but at this time seems very speculative," and "[i]f she goes and decides to have surgery, this case could be a policy limits case, but Mrs. Dudash has chosen to treat conservatively." (Id.) (emphasis added). He valued the case between $32,500 and $42,500, but did not request authority from Moore. (Id.). Plaintiff's expert testified that this evaluation was flawed.5 (Dkt. 59-5 at 93:25-94:12).

When the offer expired, Moore knew Heisig was 100% liable for the accident, that Dudash was diagnosed with several injuries, there was a "significant" likelihood of future degenerative changes, a possibility of future surgery, and if she had surgery the case could be a policy limits case.6 And, although before the offer expired, he called Byrd's office three times and sent four faxes requesting additional information, he never countered, sought an extension of time to respond, or expressed a willingness to negotiate or otherwise resolve the claim.

Southern-Owners contends that it did not engage in settlement negotiations because it was waiting for two items of information from Byrd: (1) Dudash's automobile liability insurance limits for personal injury protection and medical payments, and (2) details of any treatment for a motor vehicle accident in 1992.7 It relies on Clauss v. Fortune to support its contention that an insurer is entitled to verify and obtain evidence of the damages asserted. 523 So.2d 1177, 1178 (Fla. 5th DCA 1988). While this contention is not without merit, Southern-Owners had sufficient evidence to assign a value to Dudash's claim, assign 100% liability to its insured, and recognize the case could be a policy limits case.8 Yet, it did not attempt to negotiate before the settlement offer expired or seek an extension. And, it did not attempt settlement negotiations for six more months.9 (Dkt. 58-14). A reasonable juror could, therefore, infer that Southern-Owners' delays were willful and without reasonable cause, and that it acted in bad faith. Powell, 584 So.2d at 14; Gutierrez v. Yochim, 23 So.3d 1221, 1226 (Fla. 2d DCA 2009) (reasonableness of insurance carrier "to insist on additional medical information beyond what it already knew" is a factual dispute for the jury).

Southern-Owners argues that after the settlement offer expired, there was no bad faith conduct that caused Heisig's damages because there was not a realistic opportunity to settle due to Byrd's conduct.10 This argument is flawed because it does not consider that the standard in a bad faith case is the totality of the circumstances, not an isolated time frame. Berges, 896 So.2d at 677. While Byrd's conduct may be relevant to the question of whether there was a realistic opportunity to settle, based on the foregoing, whether Southern-Owners acted in bad faith is a question for the jury. See Gutierrez, 23 So.3d at 1226; Barry v. GEICO Gen. Ins. Co., 938 So.2d 613, 618 (Fla. 4th DCA 2006); Powell, 584 So.2d at 14. Southern-Owners' motion, therefore, is due to be denied.

B. Dudash's Motion for Partial Summary Judgment

Dudash moves for partial summary judgment on the narrow issue that Southern-Owners could have settled her claim against Heisig within policy limits.11 (Dkt. 55). As Southern-Owners correctly argues, Dudash's motion is inapposite to the applicable standard, that is, whether under the totality of the circumstances, a reasonable juror could find that Southern-Owners could and should have settled the claim within the policy limits had it acted fairly and honestly toward Heisig and with due regard for his interests. Morrision, 323 F.3d at 924; Berges, 896 So.2d at 672. As discussed supra, this is a question for the jury and Dudash's motion is due to be denied.

Conclusion

Accordingly, based on the foregoing, Defendant, Southern-Owners Insurance Company's, Motion for Summary Judgment (Dkt. 56) and Plaintiff's Motion for Partial Summary Judgment (Dkt. 55) are DENIED.