[DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT           FILED
                             ________________________ U.S. COURT  OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                         AUGUST 16, 2010
                                     No. 06-10925
                                                                           JOHN LEY
                               ________________________                     CLERK

                       D. C. Docket No. 02-00688-CV-T-23-EAJ

PAMELA PERERA, as Personal Representative of the
Estate of Mitchell Kenneth Perera deceased, and
as assignee of Estes Express Lines Corporation,

                                                                           Plaintiff-Appellant,

                                             versus

UNITED STATES FIDELITY AND
GUARANTY COMPANY, a foreign corporation,

                                                                         Defendant-Appellee.

                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                           _________________________
                                 (August 16, 2010)

Before ANDERSON and MARCUS, Circuit Judges, and ALTONAGA,* District
Judge.
_______________

        *       Honorable Cecilia M. Altonaga, United States District Judge for the Southern
District of Florida, sitting by designation.
PER CURIAM:

      This case returns to us after we certified two questions to the Florida

Supreme Court regarding its law of bad faith in the insurance context. Perera v.

U.S. Fid. & Guar. Co., 

(11th Cir. 2008). The Florida Supreme

Court has rephrased our questions and answered in the negative. Perera v. U.S.

Fid. & Guar. Co., __ So.3d__, No. SC08-1968 (Fla. May 6, 2010).

      For background information on this case, we refer the reader to our previous

opinion, Perera v. U.S. Fid. & Guar. Co., 

(11th Cir. 2008). In that

case, we certified the following questions:

      1.     CAN A CAUSE OF ACTION FOR BAD FAITH AGAINST
             AN INSURER BE MAINTAINED WHEN THERE IS NOT AN
             EXCESS JUDGMENT AGAINST THE INSURED?

      2.     EVEN IF AN EXCESS JUDGMENT IS NOT ALWAYS
             REQUIRED, CAN A CAUSE OF ACTION FOR BAD FAITH
             AGAINST AN INSURER BE MAINTAINED WHEN THE
             INSURER’S ACTIONS NEVER RESULTED IN INCREASED
             EXPOSURE ON THE PART OF THE INSURED TO
             LIABILITY IN EXCESS OF THE POLICY LIMITS OF
             INSURED’S POLICIES?

The Florida Supreme Court rephrased our questions to one question:

      MAY A CAUSE OF ACTION FOR THIRD-PARTY BAD FAITH
      AGAINST AN INDEMNITY INSURER BE MAINTAINED WHEN
      THE INSURER'S ACTIONS WERE NOT A CAUSE OF THE
      DAMAGES TO THE INSURED OR WHEN THE INSURER'S
      ACTIONS NEVER RESULTED IN EXPOSURE TO LIABILITY IN

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      EXCESS OF THE POLICY LIMITS OF THE INSURED'S
      POLICIES?

Perera, __ So.3d at ___. In answering the question in the negative, the court first

held that there was no excess judgment because the consent judgment was within

the limits of all applicable policies. Id. at ___. In so doing, it rejected Perera’s

argument that the amount at issue was an excess judgment because it was in excess

of Estes’ primary policy limits; rather, the court explained, an excess judgment is

the difference between all available insurance coverage and the amount of the

judgment. 

court reasoned that this was not an instance involving a

Cunningham1 agreement where the insurer had agreed to protect the insured by

trying the bad faith issues first and stipulating to an amount of damages. 

rejected Perera’s argument that the rationale in Coblentz v. American Surety Co.

of New York, 

(5th Cir. 1969), applied to the facts in this case.

Perrera, __ So.3d at __. Additionally, the court rejected Perera’s argument

regarding equitable subrogation, noting that insurer Chubb did not assign to Perera

its potential cause of action against Appellee by virtue of equitable subrogation,

and that under the terms of Perera’s agreement with Chubb, Perera released Chubb

from any further liability. 

court rejected Perera’s reliance on North



      1
             Cunningham v. Standard Guar. Ins. Co., 

(Fla. 1994).

                                             3
American Van Lines v. Lexington Insurance Co., 

(Fla. Dist. Ct.

App. 1996), because unlike the situation in North American, Estes did not face the

“near certainty of a large judgment against it, exceeding all available coverage.”

Perrera, __ So.3d at __. Additionally, Estes did not pay funds that it would not

have been obligated to pay had Appellee acted in good faith. 

concluded that “there must be a casual connection between the damages claimed

and the insurer’s bad faith” and none existed on the facts here. 

received the Florida Supreme Court’s answer. Implementing the

decision of the Florida Supreme Court, we now affirm the district court’s grant of

summary judgment to Appellee.

AFFIRMED.




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