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                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT

                             _____________

                        Nos. 12-14427 & 13-10847
                         Non-Argument Calendar
                             _____________

                  D. C. Docket No. 9:10-cv-80769-KAM

RICHARD JAIMES,

                                                      Plaintiff-Appellee,

                                  versus

GEICO GENERAL INSURANCE COMPANY,
a corporation,

                                                      Defendant-Appellant.

                             ______________

               Appeals from the United States District Court
                   for the Southern District of Florida
                            ______________

                            (August 15, 2013)

Before DUBINA, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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       Defendant-Appellant GEICO General Insurance Company (“GEICO”)

appeals the final judgment following a jury verdict in favor of insured Richard

Jaimes (“Jaimes”). GEICO asserts two issues on appeal: (1) the district court erred

in denying its Rule 60(b) motion for relief from final judgment; and (2) the district

court erred in denying its Rule 50 motion for judgment as a matter of law because

there was no evidence of bad faith conduct by GEICO. After thorough review of

the record and consideration of the parties’ briefs, we affirm the judgment of the

district court entered on the jury’s verdict. 1

                                               I.

       On November 19, 2007, Jaimes was involved in a single-car accident.

Debbie Lindenberger and her minor daughter (“K.L.”) (collectively the

“Lindenbergers”) were passengers in Jaimes’s vehicle at the time of the accident.

K.L. sustained serious injuries to her hand, and one of her fingers was later

amputated as a result of the accident.

       At the time of the accident, Jaimes was insured with GEICO under a policy

that had a $10,000 per occurrence and $20,000 per accident liability limit

(“Policy”). After the accident occurred, Jaimes called GEICO from the hospital to

       1
          In its related consolidated appeal, No. 13-10847, GEICO contends that if the underlying
judgment is reversed, vacated, or modified, the judgment awarding costs should be as well.
GEICO does not challenge the award of costs independently from its appeal of the final
judgment. Because we affirm the final judgment in appeal No. 12-14427, we also affirm the
district court’s order awarding costs in appeal No. 13-10847.
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report the accident. He informed the GEICO adjuster that K.L. had sustained

significant injuries to her hand and that the accident was his fault. Jaimes also

asked the GEICO adjuster if he wished to speak with Debbie Lindenberger, but the

adjuster declined the opportunity. Due to the extent of K.L.’s injuries, the adjuster

viewed her potential claim as exceeding the Policy’s liability limit.

      During their initial conversation, Jaimes provided the GEICO adjuster with

the Lindenbergers’ contact information. The adjuster testified that after the

accident he called to initiate contact with the Lindenbergers, but that the number he

dialed connected him to an automobile mechanic instead. It is unclear whether

Jaimes provided the adjuster with an incorrect number or the adjuster erred in

recording the number. In late November, GEICO received a $24,000 medical bill

for K.L.’s hospital treatment. The bill confirmed that K.L. had indeed sustained

serious injuries and that damages far exceeded the Policy’s liability limits. In

response, GEICO mailed a letter to the hospital claiming that the Policy did not

provide medical coverage. GEICO attempted to mail the same letter to the

Lindenbergers, but the address on file was inaccurate. The letter did not

communicate a desire to settle K.L.’s potential claim against Jaimes.

      GEICO was unsuccessful in its efforts to contact the Lindenbergers in the

months following the accident. At trial, the parties largely blamed each other for

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this lack of communication. GEICO offered evidence that it sent numerous letters

(to multiple addresses) and left a few voicemails (at various numbers) for the

Lindenbergers to contact GEICO regarding the accident. None of GEICO’s failed

attempts communicated its desire to settle K.L.’s claim. The Lindenbergers

similarly testified that multiple voicemails were left with GEICO that went

unreturned.

       Unbeknownst to GEICO, the Lindenbergers retained Jason D. Weisser

(“Weisser”) as counsel shortly after the accident. Significantly, at the time

Weisser was retained, he was representing Jaimes in an unrelated car-accident.

Weisser recognized the obvious conflict of interest but somehow concluded the

conflict was waivable; accordingly, he had his paralegal arrange for Debbie

Lindenberger and Jaimes to sign forms waiving any potential claim based on the

conflict of interest. 2

       With Weisser serving as counsel, the Lindenbergers filed suit against Jaimes

on January 11, 2008 to recover for injuries sustained by K.L. during the accident.


       2
         We are troubled that Weisser determined that he could ethically represent the
Lindenbergers in a lawsuit against his current client, Jaimes, under the circumstances of this
case. Indeed, as explained below, Weisser allowed Jaimes to go into default in a suit that
Weisser filed against Jaimes on the Lindenbergers’ behalf. We find it “difficult to imagine how
[Weisser] could appear in court one day arguing vigorously for [Jaimes], and then face [Jaimes]
the next day and vigorously oppose him in another matter, without seriously damaging their
professional relationship. Such unseemly conduct . . . erode[s] the public’s regard for the legal
profession.” Morse v. Clark, 

, 498 (Fla. Dist. Ct. App. 2004).
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Debbie Lindenberger testified that, before she filed the lawsuit, she was willing to

accept the $10,000 policy limits and release Jaimes from liability. Weisser

claimed that service of process was effected at Jaimes’s father’s house and that a

courtesy copy was sent to GEICO. Jaimes testified that he did not learn of the suit

until sometime in February 2008, and he acknowledged that he did not inform

GEICO about it at that time. Because Jaimes did not respond to the suit, the court

entered default against him. On April 7, 2008, GEICO received a fax from

Jaimes’s father which included a motion for default filed in the Lindenbergers’ suit

against Jaimes. It was the first time GEICO learned of the Lindenbergers’ suit

against Jaimes. Although Weisser had obtained a default against Jaimes (who he

still represented in the unrelated suit), Weisser agreed to set the default aside so

that GEICO could enter a defense. GEICO’s defense was unsuccessful, however,

as Jaimes lost at trial. A judgment in the amount of $227,493.85 was subsequently

entered against Jaimes.

      Thereafter, Jaimes filed the current action against GEICO alleging that it had

acted in bad faith in handling the Lindenbergers’ claim against him. During the

trial, GEICO became aware of the conflict waiver forms signed by Jaimes and

Debbie Lindenberger. Weisser contends that he did not produce the conflict

waiver forms when his files were subpoenaed in the current action because the

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documents were privileged. When responding to the subpoena, however, Weisser

did not complete a privilege log acknowledging the existence of the conflict waiver

forms. GEICO’s subpoena had sought “all nonprivilege[d] portions of the file.”

[R. 203 at 11.]

      Upon learning of the conflict waiver forms, GEICO moved for a mistrial.

Because the forms reflect they were executed on November, 27 2007, GEICO

contended Jaimes had testified falsely when he stated that he had not met with

Weisser between November 19, 2007, the date of the accident, and January 11,

2008, the date the Lindenbergers filed suit against him. Jaimes countered

GEICO’s position by explaining that he had only met with a paralegal at Weisser’s

firm, and not Weisser himself. Despite expressing concern that Jaimes may have

testified falsely, the district court denied GEICO’s motion for a mistrial. GEICO

was thereafter permitted to question Jaimes and Weisser about the circumstances

involving the conflict forms.

      The jury ultimately found in Jaimes’s favor, and the district court entered

judgment in the amount of $274,297.45 against GEICO. GEICO filed two post-

trial motions, a combined motion for relief from judgment and new trial, and a

renewed motion for judgment as a matter of law. The district court denied both

motions and this timely appeal ensued.

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                                           II.


      Motions under Federal Rule of Civil Procedure 60(b) “are directed to the

sound discretion of the district court.” Griffin v. Swim-Tech Corp., 

,

680 (11th Cir. 1984). Thus, we review the district court’s denial of the motion

only for an abuse of discretion. 

district court’s ruling on a motion for judgment as a matter of

law under Rule 50 de novo, examining the evidence in the light most favorable to

the non-moving party[.]” Optimum Techs., Inc. v. Henkel Consumer Adhesives,

Inc., 

, 1251 (11th Cir. 2007). “The question before the district court

regarding a motion for judgment as a matter of law remains whether the evidence

is legally sufficient to find for the party on that issue[.]” 

and

internal quotation marks omitted).

                                           III.

   A. Rule 60(b)(3)

      GEICO posits that it is entitled to relief from final judgment due to Jaimes’s

pretrial nondisclosure of the conflict waiver forms. Specifically, GEICO submits

the conflict waiver forms were unknown to GEICO before trial and their

nondisclosure prevented GEICO from adequately preparing its defense. In support

of this position, GEICO directs the court to Rule 60(b)(3), which provides relief
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from final judgment for “fraud . . . , misrepresentation, or misconduct by an

opposing party.” To prevail on a Rule 60(b)(3) motion, GEICO is required to

“prove by clear and convincing evidence that an adverse party has obtained the

verdict through fraud, misrepresentation, or other misconduct.” Cox Nuclear

Pharmacy, Inc. v. CTI, Inc., 

, 1314 (11th Cir. 2007) (alteration and

internal quotation marks omitted). GEICO must also establish that the misconduct

“prevented [it] from fully and fairly presenting [its] case or defense.” 

omitted). GEICO has not met its burden to prove by clear and

convincing evidence that Jaimes obtained the verdict through misconduct, nor has

it shown that it was prevented from fully and fairly presenting its defense.

      GEICO argues that the evidence reflects “that [Jaimes] colluded with

[Debbie Lindenberger], withheld evidence[,] and testified falsely to hide the

collusion.” [Appellant’s Br. at 27.] GEICO further contends that “[t]he record

contains considerable evidence that [Jaimes and Debbie Lindenberger], assisted by

their attorney, ‘set up’ a bad faith claim against GEICO and contains false

testimony by [Jaimes.]” [Id. at 26.] GEICO falls short of proving “collusion”

between Jaimes and Debbie Lindenberger by clear and convincing evidence.

Indeed, GEICO raised the same argument at trial, and it was rejected by the jury.




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       GEICO’s evidence of collusion consists of the conflict waiver forms and

Jaimes’s related testimony. First, we note that GEICO’s argument that the conflict

waiver forms were withheld for an improper purpose is largely undercut by

Jaimes’s own reference to the documents in his response in opposition to GEICO’s

motion for summary judgment. [See R. 35 at 8.] Stated differently, it defies

common sense to assume Jaimes intended to improperly withhold the conflict

waiver forms when he alerted GEICO to their existence. 3 Moreover, Jaimes’s

signing of a conflict waiver form does not automatically prove collusion as GEICO

suggests. 4 Certainly, one could argue—as GEICO did at trial—that signing the

conflict waiver forms creates an inference that Jaimes and Debbie Lindenberger

acted in a nefarious manner. This inference was rejected by the jury, however, and

simply does not rise to the level of clear and convincing evidence to warrant relief

under Rule 60(b)(3).

       Most importantly, even assuming that GEICO had demonstrated its

allegations of misconduct and collusion by clear and convincing evidence, GEICO


       3
       That Jaimes specifically referenced the conflict waiver forms also greatly undermines
GEICO’s contention that it was surprised to learn of the documents’ existence at trial.
       4
         GEICO also argues that the district court should have granted its motion for a mistrial
based on the pretrial nondisclosure of the conflict waiver forms. [Appellant’s Br. at 28–29.] We
decline to address this argument because our review of a district court’s denial of a Rule 60(b)
motion “is narrow in scope, [and] address[es] only the propriety of the denial or grant of relief
and does not raise issues in the underlying judgment for review.” Am. Bankers Ins. Co. of Fla. v.
Nw. Nat’l Ins. Co., 

, 1338 (11th Cir. 1999).
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has not shown how such conduct prevented it from fully presenting its case. As

noted by the district court, GEICO had the full opportunity to challenge the

veracity of, and the circumstances surrounding the signing of, the conflict waiver

forms. GEICO was also able to use the existence of these forms to support its

theory that Jaimes and Debbie Lindenberger colluded together to set GEICO up for

a bad faith claim. The jury simply was not convinced.

   B. Judgment as a Matter of Law

         We next turn to GEICO’s contention that the district court erred in denying

its motion for judgment as a matter of law. GEICO presents three arguments in

support of its position on appeal. First, GEICO contends that Jaimes is precluded

from recovering under the Policy because he failed to comply with its terms and

conditions. Second, GEICO argues the record contains no evidence that GEICO

acted in bad faith. Finally, GEICO submits that because the Lindenbergers made

no demand on GEICO, Jaimes cannot recover. All of GEICO’s arguments lack

merit.

            i.     Jaimes is not barred from recovering under the Policy

         The Policy provides that “[n]o suit will lie against [GEICO] . . . unless

[Jaimes] has fully complied with all the policy’s terms and conditions.” [R. 208-4

at 21.] GEICO argues that it is entitled to judgment as a matter of law because

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Jaimes did not comply with the Policy’s terms and conditions. Specifically,

GEICO directs the court to two provisions in the Policy which it contends Jaimes

violated: (1) the requirement that Jaimes cooperate with and assist GEICO, and (2)

the requirement that Jaimes inform GEICO “[i]f a claim or suit is brought against

[him]” by sending GEICO “each demand, notice, summons or other process

received.” [Id.]

      Jaimes did not violate the Policy’s requirement that he cooperate and assist

GEICO in its investigation of the incident. The Policy states that “[Jaimes] will

cooperate and assist [GEICO], if requested.” [Id. (emphasis added).] The only

request reflected in the record that GEICO made of Jaimes was a request to

provide the Lindenbergers’ address and phone numbers, which he did.

      GEICO’s next contention—that Jaimes violated the terms of the Policy by

failing to send GEICO “each demand, notice, summons or other process

received”—is not properly before the court. In GEICO’s initial Rule 50(a) motion,

it did not argue, as it did in its renewed Rule 50(b) motion, that Jaimes failed to

comply with the Policy’s notice requirements. [See R. 126.] Our court “repeatedly

has made clear that any renewal of a motion for judgment as a matter of law under

Rule 50(b) must be based upon the same grounds as the original request for

judgment as a matter of law made under Rule 50(a) at the close of the evidence and

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prior to the case being submitted to the jury.” Doe v. Celebrity Cruises, Inc., 

, 903 (11th Cir. 2004) (citing cases). Because GEICO failed to argue in

its Rule 50(a) motion that Jaimes breached the Policy’s notice provision by failing

to promptly inform GEICO of the Lindenbergers’ suit, the district court lacked

authority to enter judgment under Rule 50(b) based on that argument. See 

therefore find no reversible error on this basis.

          ii.     Jaimes presented sufficient evidence of bad faith

      GEICO next argues that it is entitled to judgment as a matter of law because

Jaimes offered no evidence that GEICO acted in bad faith. According to GEICO,

at most, Jaimes offered evidence that the GEICO adjuster was negligent, but not

that he acted in bad faith.

      In Florida, the question of whether an insurer acted in bad faith in handling

claims against the insured is determined under the “totality of the circumstances”

standard. State Farm Mut. Auto. Ins. Co. v. Laforet, 

, 62–63 (Fla.

1995). The inquiry focuses on the actions of the insurer in fulfilling its obligations

to the insured. Berges v. Infinity Ins. Co., 

, 677 (Fla. 2004). The

insurer’s good faith requirement “obligates the insurer to advise the insured of

settlement opportunities, to advise as to the probable outcome of the litigation, to

warn of the possibility of an excess judgment, and to advise the insured of any

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steps he might take to avoid same.” Boston Old Colony Ins. Co. v. Gutierrez, 

, 785 (Fla. 1980). Thus, an insurance company “acts in bad faith in

failing to settle a claim against its insured within its policy limits when, under all

of the circumstances, it could and should have done so, had it acted fairly and

honestly towards its insured and with due regards to his interests.” Berges, 

at 671 (internal quotation marks omitted). Furthermore, “[b]ad faith may be

inferred from a delay in settlement negotiations which is willful and without

reasonable cause.” Powell v. Prudential Prop. & Cas. Ins. Co., 

, 14

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

      GEICO offers numerous explanations for why it did not offer to settle or

even contact the Lindenbergers until long after the accident occurred. Relying on

such justifications, GEICO contends that, at most, its lack of success in contacting

the Lindenbergers evidences negligence, not bad faith. The Florida Supreme Court

has held, however, “that such matters as reasonable diligence and ordinary care

[are] material in determining bad faith.” Campbell v. Gov’t Emps. Ins. Co., 

, 530–31 (Fla. 1974). Hence, GEICO’s purported negligence in

handling the underlying claim is not a defense, but rather, is material in

determining bad faith.




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      Rule 50 provides that a court may grant judgment as a matter of law only “if

there is no legally sufficient evidentiary basis” for the jury’s decision. Fed. R. Civ.

P. 50(a). Viewing the record in the light most favorable to Jaimes, there was

sufficient evidence to create a jury question regarding whether GEICO breached its

duty of good faith. First, GEICO knew that liability was clear from the outset. [R.

202 at 98.] Moreover, GEICO was also aware that damages well exceeded the

Policy’s limits. [Id.] Indeed, GEICO acknowledged that, based on the information

provided on the day of the accident, the injury warranted a tender of the Policy’s

limits. [Id.] Armed with this information, GEICO knew it was necessary to

promptly seek to settle this case within the policy limits. [Id. at 99.] Yet, GEICO

did not offer the policy limits until 140 days after the accident occurred. By then,

the Lindenbergers had already filed suit, and the opportunity to settle within the

policy limits had long since passed. Drawing all reasonable inferences in favor of

Jaimes, the jury could have reasonably found in his favor and against GEICO in

this case.

             iii.     A formal settlement offer is not a prerequisite to bad faith

      Finally, GEICO argues is that it is entitled to judgment as a matter of law

because the Lindenbergers did not make a demand on GEICO within the time

period in which she would have accepted the Policy’s limits to settle her claim.

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We find this argument without merit. See 

(“The lack of a

formal offer to settle does not preclude a finding of bad faith.”).

                                          IV.

      For the foregoing reasons, the judgment entered on the jury’s verdict in

favor of Jaimes is affirmed.

AFFIRMED.




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