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United States Court of Appeals, Eleventh Circuit.

DANIEL J. DIPERNA, Plaintiff - Appellee, v. GEICO GENERAL INSURANCE COMPANY, Defendant - Appellant.

No. 14-12011

Decided: August 13, 2015

Before WILSON and MARTIN, Circuit Judges, and VINSON,* District Judge.

Defendant-Appellant GEICO General Insurance Co. (GEICO) appeals the district court's denial of its Rule 50(b) motion for judgment as a matter of law after a jury returned a verdict in favor of Plaintiff-Appellee Daniel Diperna, as assignee of non-party Joseph Umberger, GEICO's insured, on a claim for bad faith. See Fed. R. Civ. P. 50(b). GEICO claims that the evidence at trial did not establish an essential element of Diperna's claim for bad faith.

We review the denial of a motion for judgment as a matter of law de novo. Gowski v. Peake, 682 F.3d 1299, 1310 (11th Cir. 2012) (per curiam). A court should render judgment as a matter of law when “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a). The court should review the entire record, but “must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 2110 (2000). Thus, the court “must disregard all evidence favorable to the moving party that the jury is not required to believe,” while giving credence to evidence favoring the movant that is “uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.” Id. at 151, 120 S. Ct. at 2110 (internal quotation marks omitted).

Taking the evidence in the light most favorable to Diperna, that evidence was sufficient to support the jury's verdict finding bad faith on GEICO's part. For that reason, we affirm the judgment of the district court.


I can agree that, viewed in the light most favorable to the jury verdict, there was ample evidence that GEICO may have been negligent in processing Diperna's claim. However, negligence is not bad faith under Florida law. See Campbell v. GEICO, 306 So.2d 525, 530 (Fla. 1974) (recognizing that Florida has “aligned ․ with those states whose standards for determining liability in an excess judgment case is bad faith rather than negligence”); accord DeLaune v. Liberty Mut. Ins. Co., 314 So.2d 601, 603 (Fla. 4th DCA 1975) (concluding that “evidence of negligence may be considered by the jury as it may bear on the question of bad faith, [but] a cause of action based solely on negligence which does not rise to the level of bad faith does not lie”). Ultimately, “[t]he essence of an insurance bad faith claim is that the insurer acted in its own best interests to the detriment of the insured ․” See, e.g., Johnson v. GEICO, 318 F. App'x 847, 849 (11th Cir. 2009) (per curiam) (citing Macola v. GEICO, 953 So.2d 451, 458 (Fla. 2006)). Because there is no evidence in the record that GEICO was acting in its own best interests in handling Diperna's claim --- it is undisputed that GEICO tendered full policy limits within the short time frame set by plaintiff's counsel --- this case should never have gone to the jury in the first place.

I respectfully dissent.


Appeal Number: 14-12011-CC

Case Style: Daniel Diperna v. GEICO General Insurance Compan

District Court Docket No: 6:12-cv-00687-CEH-KRS

This Court requires all counsel to file documents electronically using the Electronic Case Files (“ECF”) system, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).

The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.

Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .

Counsel appointed under the CRIMINAL JUSTICE ACT must file a CJA voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for a writ of certiorari (whichever is later).

Pursuant to Fed.R.App.P. 39, costs taxed against appellant.

The Bill of Costs form is available on the internet at

For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Joe Caruso, CC at (404) 335-6177.


DOUGLAS J. MINCHER, Clerk of Court

Reply to: Jeff R. Patch

Phone #: 404-335-6161

OPIN-1A Issuance of Opinion With Costs


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