Charbel Consul v. Progressive American Insurance Company

USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 1 of 52 FOR PUBLICATION In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 23-11458 ____________________ CHARBEL CONSUL, Plaintiff-Appellant, versus PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:21-cv-00505-TJC-LLL ____________________ Before ROSENBAUM, ABUDU, and TJOFLAT, Circuit Judges. ABUDU, Circuit Judge: Charbel Consul, who was found liable in an underlying au- tomobile accident case involving another vehicle, sued his insurer, Progressive American Insurance Company (“Progressive”), for en- gaging in bad faith during settlement negotiations with the injured USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 2 of 52 2 Opinion of the Court 23-11458 party. In this separate bad faith action Consul brought against Pro- gressive, the district court granted summary judgment in Progres- sive’s favor. Consul appeals that ruling, arguing that the totality of the circumstances created genuine issues of material fact which warranted the case going to trial. After a thorough review of the record and the parties’ briefs, and with the benefit of oral argument, we agree Progressive was not entitled to summary judgment as to whether it acted in bad faith viewing the evidence in the light most favorable to Consul. Accordingly, we vacate the district court’s judgment and remand the case for further proceedings. I. FACTUAL BACKGROUND Progressive issued an automobile insurance policy to Con- sul, which included bodily injury (with limits of $10,000 per per- son) and property damage coverage (with limits of $10,000 per ac- cident). While driving an insured vehicle on September 6, 2016, Consul rear-ended William Choisser. Both Consul and Choisser were injured in the accident. Consul hired an attorney, Christopher Campione, to represent him regarding “injuries sustained in the . . . accident.” Choisser was driving a 1991 Mercedes that he purchased for $3,000 a few years prior in a “friendly deal,” because he knew the prior owner. His car was damaged in the accident and towed to a junkyard. Progressive determined that Consul was 100% at fault for the accident. Progressive’s adjuster testified that, upon receiving the insurance claim, she immediately mailed an excess letter to USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 3 of 52 23-11458 Opinion of the Court 3 Consul, indicating that the damage from the accident could exceed the policy limit of his insurance coverage. At her deposition, she produced a time-date-stamped copy of the letter. Consul disputes whether Progressive actually sent the letter, as he did not recall re- ceiving it. Additionally, Progressive’s litigation manager for this claim indicated on an internal form that an excess letter must not have been sent because he could not locate a copy of the letter in Progressive’s electronic record system or hard copy files, which is where it would have been kept had it been sent. At the summary judgment phase, we must assume Consul never received the letter. Days after the accident, Progressive contacted Choisser’s at- torney, Matthew Posgay, to request documentation of Choisser’s injuries to aid in settlement negotiations.1 Additionally, Progressive requested Choisser’s wife’s name so it could prepare a release form for any loss of consortium claim she might have considered bring- ing. Choisser’s attorney did not provide Choisser’s wife’s name, stating that he did not understand why Progressive needed that in- formation and that Choisser’s injury alone warranted tender of the policy limits. Progressive determined that Choisser’s car, which it valued at $2,258.42, was a “total loss” under Florida law. Choisser’s attor- ney disputed Progressive’s determination of the car’s assessed value and the car’s legal status as a “total loss.” 1 Posgay represented Choisser in “any and all claims” arising out of the Sep- tember 6, 2016, crash. Importantly, he did not represent Choisser’s wife. USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 4 of 52 4 Opinion of the Court 23-11458 On October 17, 2016, Posgay, on behalf of Choisser, offered to settle the dispute if Progressive paid $10,000 for Choisser’s inju- ries and $5,000 for the damage to his car. That offer was contingent on Consul completing a financial affidavit indicating that he could not pay any damages out of pocket and pending resolution of Choisser’s uninsured motorist claims against Consul. Progressive communicated this offer to Campione.2 Campione helped Consul complete the affidavit and returned it to Posgay. On November 15, Progressive sent a counteroffer to Posgay. Progressive agreed to pay $10,000 for Choisser’s injuries and $5,000 for damage to Choisser’s car, and it attached the appropriate checks for each amount. However, Progressive tried to impose two new conditions. First, it required that Choisser’s wife release any con- sortium-related injuries she may have suffered due to Choisser’s in- juries. 3 Progressive made no efforts to contact Choisser’s wife di- rectly and did not contact Consul to ask whether he wanted to set- tle without having her release the consortium claim. The second 2 The parties dispute whether Campione was Consul’s attorney for the pur- poses of Choisser’s injuries and suit, as opposed to solely representing Consul to recover for his injuries. Nonetheless, Progressive continued to contact Campione over the course of the settlement, and he continued to respond on Consul’s behalf. Furthermore, Consul testified that he hired Campione to be his representative when communicating with Progressive and that Campione was corresponding with Progressive on his behalf. 3 After Choisser’s attorney refused to provide Progressive with the identity of Choisser’s wife, Progressive conducted its own investigation, came to the mis- taken conclusion that Choisser’s ex-wife was his current wife, and placed the ex-wife’s name on its proposed consortium claim release form. USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 5 of 52 23-11458 Opinion of the Court 5 condition, based on Progressive’s own interpretation of Florida law, required Choisser to transfer the title of his vehicle to it as a total loss. On December 1, Posgay inquired whether Consul’s ac- ceptance of Progressive’s additional terms and relinquishment of title were necessary to settle the claim. He also reminded Progres- sive that he did not represent Choisser’s wife. Progressive re- sponded a week later, on December 7, reiterating that a waiver of any loss of consortium claim was necessary and that Choisser’s car was a total loss, so he must transfer its title, even if he wished to retain salvage rights over the vehicle. At this juncture, Progressive again failed to notify Consul of its actions or solicit his input on the settlement. Consul testified that, had he been asked whether he wanted to forego the loss of consortium waiver from the settle- ment, he would have done so. Choisser’s wife testified that she had no interest in pursuing a consortium claim, had she been asked. On December 13, Posgay declined Progressive’s counterof- fer on behalf of Choisser. He reiterated that he did not represent Choisser’s wife and could not waive claims on her behalf. Moreo- ver, Posgay reported that he did “not believe that [Progressive’s] determination that the cost of repair exceeds the value of the vehi- cle (making it a total loss) requires surrender of the vehicle title, if it is Dr. Choisser’s desire to retain and repair the vehicle.” There- fore, as Posgay stated in his denial letter, Choisser was “unable to resolve the claim on the terms [Progressive] propose[d], and USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 6 of 52 6 Opinion of the Court 23-11458 [Progressive] declined to resolve the claim on the terms proposed by” Choisser. Choisser maintained that he would have settled under his original terms, had Progressive offered them, even after this denial letter. Yet, Progressive determined that the parties were at an im- passe and the claims could not be resolved. Progressive timely no- tified Campione that the settlement efforts failed and that he should be on notice of a lawsuit. Campione expressed concern that Progressive might be acting in bad faith and exposing Consul to an excess judgment. In November 2017, Choisser filed suit in a Florida state court against Consul. Eventually, Choisser settled his property damage claim; he surrendered title of his vehicle to Progressive in exchange for $7,500. The bodily injury claim proceeded to a jury trial. The jury verdict resulted in a total judgment of over $1,000,000, includ- ing costs and fees, in favor of Choisser. II. PROCEDURAL HISTORY In May 2021, Consul commenced this bad faith action against Progressive. Consul alleged that Progressive breached its obligations to him in its accident investigation, settlement negotia- tions with Choisser, and communications with Consul. According to Consul, Progressive’s bad faith handling of Choisser’s claims re- sulted in the excess judgment entered against him in state court. Progressive moved for summary judgment, arguing that it had not acted in bad faith under the totality of circumstances. USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 7 of 52 23-11458 Opinion of the Court 7 After briefing, the district court granted Progressive’s mo- tion for summary judgment. The district court reasoned that Pro- gressive’s efforts to settle the consortium claim were not in bad faith. It also determined that Progressive’s request for Choisser’s vehicle title was based on a reasonable interpretation of Florida law. Moreover, it concluded that Progressive sufficiently commu- nicated with Consul and Campione throughout the settlement ne- gotiations. The district court held that Progressive could not be held responsible for the excess judgment award because no settle- ment was possible once Choisser rejected Progressive’s additional settlement terms. Consul timely appealed. III. STANDARD OF REVIEW We review the district court’s grant of summary judgment de novo, construing all facts and drawing all reasonable inferences in favor of the non-moving party. Guevara v. Lafise Corp., 127 F.4th 824, 828 (11th Cir. 2025). Summary judgment is appropriate when no genuine dispute of material fact exists, which is when no rea- sonable jury could return a verdict for the non-moving party. Id. at 828–29; see Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F.3d 1121, 1134 (11th Cir. 2020) (en banc) (“[A] mere ‘scintilla’ of evidence sup- porting the opposing party’s position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” (quoting Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990))). “[T]he non-movant’s evidence is to be accepted for pur- poses of summary judgment.” Kinsale Ins. Co. v. Pride of St. Lucie Lodge 1189, Inc., 135 F.4th 961, 968 (11th Cir. 2025) (quoting Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)). While USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 8 of 52 8 Opinion of the Court 23-11458 a court can resolve a case at summary judgment when there are no genuine issues of material fact, it is the function of a jury to weigh the evidence, make credibility determinations, and draw any legit- imate inferences from the facts. Hicks v. Middleton, 141 F.4th 1174, 1180 (11th Cir. 2025). IV. DISCUSSION The issue on appeal is whether the district court erred in granting summary judgment against Consul on his bad faith claim. Given the totality of circumstances in this case, we hold that sum- mary judgment was improper. In reviewing this case under our diversity jurisdiction, we apply Florida law to state-law issues and decide them as Florida courts would. Pincus v. Am. Traffic Sols., Inc., 986 F.3d 1306, 1310 (11th Cir. 2021). Under Florida law, an insurer “has a duty to use the same degree of care and diligence [in handling the defense of claims against its insured] as a person of ordinary care and prudence should exercise in the management of his own business.” Boston Old Colony Ins. Co. v. Gutierrez, 386 So. 2d 783, 785 (Fla. 1980); see Kinsale Ins. Co., 135 F.4th at 968 (same); Harvey v. GEICO Gen. Ins. Co., 259 So. 3d 1, 7 (Fla. 2018) (holding that the central issue in a bad faith claim is “whether the insurer diligently, and with the same haste and precision as if it were in the insured’s shoes, worked on the insured’s behalf to avoid an excess judgment”). As part of this obligation, an insurer must “investigate the facts,” “advise [the insured] as to the probable outcome of litiga- tion,” “warn of the possibility of an excess judgment,” and explain USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 9 of 52 23-11458 Opinion of the Court 9 any steps the insured can take to avoid an excess judgment. Am. Builders Ins. Co. v. Southern-Owners Ins. Co., 71 F.4th 847, 854 (11th Cir. 2023) (quoting Boston Old Colony Ins. Co., 386 So. 2d at 785). Regarding settlement specifically, the insurer must “give fair con- sideration to a reasonable settlement offer,” “advise the insured of settlement opportunities,” and settle when a “reasonably prudent person” would do so. Id. (quoting Boston Old Colony Ins. Co., 386 So. 2d at 785). Whether an insurer has met its duty of good faith to an in- sured is a fact-based inquiry, considered under the totality of cir- cumstances. Berges v. Infinity Ins. Co., 896 So. 2d 665, 680 (Fla. 2004); Cadle v. GEICO Gen. Ins. Co., 838 F.3d 1113, 1123 (11th Cir. 2016). As such, “[g]ood-faith or bad-faith decisions depend upon various attendant circumstances and usually are issues of fact to be deter- mined by a fact-finder.” Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1275 (Fla. 2000); Woods v. Progressive Am. Ins. Co., 159 F.4th 837, 842 (11th Cir. 2025) (same); see also Harvey, 259 So. 3d at 7 (“[I]t is for the jury to decide whether the insurer failed to ‘act in good faith with due regard for the interests of the insured.’” (quoting Boston Old Colony Ins. Co., 386 So. 2d at 785)). However, summary judg- ment is appropriate where no reasonable jury could conclude that the insurer behaved in bad faith. Eres v. Progressive Am. Ins. Co., 998 F.3d 1273, 1278 (11th Cir. 2021). The conditions attached to a settlement offer must be rea- sonable. See Cruz v. Am. United Ins. Co., 580 So. 2d 311, 312 (Fla. 3d DCA 1991) (“The legal standard governing an insurer’s settlement USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 10 of 52 10 Opinion of the Court 23-11458 conduct is one of reasonableness.”); Boston Old Colony Ins. Co., 386 So. 2d at 785 (holding that an insurer must “give fair consideration to a settlement offer that is not unreasonable under the facts”). The question of whether the settlement strategy, including its terms, was reasonable is also a question of fact typically determined by a jury. Farinas v. Fla. Farm Bureau Gen. Ins. Co., 850 So. 2d 555, 561 (Fla. 4th DCA 2003). Here, taking the evidence and drawing all reasonable infer- ences in the light most favorable to Consul, a jury reasonably could have concluded that Progressive did not attempt to settle Choisser’s claim in good faith, resulting in the excess judgment award against Consul. In particular, the evidence raised questions about Progres- sive’s settlement efforts, especially given the parties’ apparent mu- tual assent as to the original terms, Progressive’s subsequent refusal to remove a theoretical consortium claim from the settlement, and its requirement that Choisser surrender the car title as a total loss on the vehicle. Additionally, Consul raised disputed factual ques- tions related to Progressive’s outreach to Consul, either through his attorney or directly, regarding the additional settlement terms, Choisser’s position, and the developing likelihood that settlement was becoming less likely. While Progressive tries to minimize its acts as, at most, slightly negligent, a jury could conclude the in- surer’s behavior rose more to the level of failing to act with the necessary “care and diligence” to protect Consul from a $1 million excess judgment. Harvey, 259 So. 3d at 8; see Pelaez v. Gov’t Emps. Ins. Co., 13 F.4th 1243, 1251 (11th Cir. 2021) (explaining that while negligence is not the standard for bad faith claims, it is relevant to USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 11 of 52 23-11458 Opinion of the Court 11 the bad faith inquiry). Thus, genuine issues of material fact exist as to whether Progressive satisfied its duty of good faith to Consul in negotiating a settlement with Choisser. See Powell v. Prudential Prop. & Cas. Ins. Co., 584 So. 2d 12, 14 (Fla. 3d DCA 1991) (“[T]he insurer has the burden to show . . . that there was no realistic pos- sibility of settlement within policy limits. . . .”). A. Consortium Claim Waiver As to the consortium claim waiver, the evidence suggested that Choisser’s wife was not interested in pursuing a claim in the first place. Progressive’s agent handling the settlement, contrary to her standard practice, never attempted to reach out to Choisser’s wife about any potential consortium claim. Indeed, Progressive never communicated with Choisser’s wife at all, and instead relied on her husband’s lawyer—who it knew did not represent her—to communicate its position. If Progressive had contacted her, it would have discovered that she never intended to pursue a consor- tium claim, so a reasonable jury could conclude that she would have waived the claim. Additionally, Progressive never asked Campione or Consul directly whether Consul wanted to settle without waiving the consortium claim. Had it done so, Consul tes- tified that he would have foregone the loss of consortium waiver to settle the other claim. Instead, Progressive initiated its own flawed investigation into Choisser’s wife’s identity, mistook her for USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 12 of 52 12 Opinion of the Court 23-11458 Choisser’s ex-wife, and erroneously listed the ex-wife’s name on the proposed release form that it sent to Choisser’s attorney. 4 In general, an insurer’s refusal to amend problematic lan- guage in a release may or may not constitute bad faith based on the context in which the refusal took place. See Pelaez, 13 F.4th at 1253; Eres, 998 F.3d at 1279. Although Progressive offered to amend the release’s language or correct the name if it was incorrect, it refused to remove the waiver requirement even when it became clear that it was one of the primary impediments to settling the case. Federal courts have found genuine issues of material fact when an insurer refused to remove overly broad and disputed indemnification lan- guage. See Eres, 998 F.3d at 1279 (noting that while “an overbroad release can create a jury question about bad faith,” it did not do so when the insurer offered to strike the offending language) (empha- sis in original). A jury could reasonably conclude that Progressive at least should have complied with its regular business practice of communicating with the person from whom a waiver is sought, as opposed to what happened here, where Progressive failed to take those steps. Such a jury finding is especially reasonable given the evidence suggesting that Choisser’s wife would have waived the consortium claim. See Harvey, 259 So. 3d at 7 (holding that the in- surer must “diligently, and with the same haste and precision as if 4 We are not blind to the fact that Posgay provided no reason as to why he could not provide his client’s wife’s name and failed to even alert Progressive that the release listed the wrong person. Yet, while we factor in the claimant’s behavior, we focus on the actions of the insurer and, at this stage, we review the evidence in a light most favorable to Consul. Pelaez, 13 F.4th at 1250. USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 13 of 52 23-11458 Opinion of the Court 13 it were in the insured’s shoes, work[] on the insured’s behalf to avoid an excess judgment”). Therefore, there is a genuine issue of material fact as to whether conditioning the settlement on the waiver of the consortium claim—particularly without even seeking to secure the waiver from Choisser’s wife—was reasonable. B. Transfer of Vehicle Title With respect to the title issue, Progressive continued to rely on its interpretation of Florida’s total loss statute to require the car title as part of any settlement. Without wading too deeply into the proper interpretation of Section 319.30, the interpretation and ap- plication of this statute were a sticking point for both parties in ne- gotiations. Section 319.30 states, in relevant part, “As used in this section, a motor vehicle or mobile home is a ‘total loss’ . . . [w]hen an insurance company pays the vehicle owner to replace the wrecked or damaged vehicle with one of like kind and quality . . . .” Fla. Stat. § 319.30(3)(a)(1)(a). It continues: A motor vehicle or mobile home shall not be consid- ered a “total loss” if the insurance company and owner of a motor vehicle or mobile home agree to repair, rather than to replace, the motor vehicle or mobile home. However, if the actual cost to repair the motor vehicle or mobile home to the insurance company exceeds 100 percent of the cost of replacing the wrecked or damaged motor vehicle or mobile home with one of like kind and quality, the owner shall forward to the department, within 72 hours after the agreement, a request to brand the certificate of ti- tle with the words “Total Loss Vehicle.” USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 14 of 52 14 Opinion of the Court 23-11458 Id. § 319.30(3)(a)(2). Progressive and Choisser differed in their interpretations of this Section and on whether Florida law required Choisser to pro- vide Progressive with the title if Progressive declared the car a total loss. 5 Progressive took Section 319.30 to mean that transfer of title was required once they (alone) deemed the car a total loss and at- tempted to compensate Choisser for the value of a replacement ve- hicle. Conversely, Choisser contended that Progressive could not merely declare the car’s status as a total loss based on its sole deter- mination, especially if Choisser decided to retain and repair the ve- hicle. Choisser did not agree that his car was a total loss. He wanted Progressive to work with him to determine a mutually ac- ceptable valuation for the car and asked that Progressive consider the Kelley Blue Book and NADA Guidebook in reaching that valu- ation. Florida Statute § 626.9743(5) suggests various ways to value a total loss, including “[a] guidebook that is generally available to 5 While we need not definitively say who is right and who is wrong on this matter of statutory construction, we note that there are not many cases ad- dressing this portion of this statute. See, e.g., Allen v. GEICO Gen. Ins. Co., No. 24-CV-21230, 2024 WL 2976757, at *6 n.7 (S.D. Fla. June 13, 2024) (explaining Section 319.30(3)), report and recommendation adopted, 2024 WL 3616004 (S.D. Fla. Aug. 1, 2024); Koung v. Giordano, 346 So. 3d 108, 116 (Fla. 1st DCA 2022) (acknowledging that Section 319.30 requires transfer of title when both parties agree that the vehicle was a total loss); McKinney v. Fortune Ins. Co., 949 So. 2d 225, 225 (Fla. 3d DCA 2006) (“Section 319.30 defines a vehicle which consti- tutes a ‘total loss’ as one when there is an agreement between the insurance company and the vehicle owner to replace the vehicle with one of like kind and quality.”). USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 15 of 52 23-11458 Opinion of the Court 15 the general public,” another method “supported by documenta- tion,” or “[a]ny other method agreed to by the claimant.” Because Choisser never agreed to replace as opposed to repair his car, he did not believe that the statute required him to transfer the title. Florida’s bad-faith law focuses on the actions of the insurer “in fulfilling its obligations to the insured.” Berges, 896 So. 2d at 677. Here, Progressive knew that Choisser was rejecting its calculation, knew the sources Posgay wanted Progressive to consider, and knew how to calculate the vehicle’s value using the NADA Guidebook. A reasonable jury could conclude that Progressive’s failure even to consider these sources in the valuation during settlement negotia- tions was unreasonable. That raises a genuine dispute of material fact about the car’s valuation and whether Progressive acted in bad faith in working with Posgay to determine the car’s value.6 Additionally, Progressive avers it was required by statute to obtain the car’s title, as a total loss, to forward it to Florida’s De- partment of Motor Vehicles. However, a subsection of the Florida Statutes clarifies that either Progressive or Choisser could have for- warded the title to the state, negating the need for Progressive to require the title transfer. That subsection provides: 6 Once again, the record reflects that Posgay may have contributed to the problem. Progressive appears to have sought more information from Posgay about how he valued the car, and Posgay does not appear to have been re- sponsive. For this reason, a reasonable jury could conclude that Progressive did not act in bad faith when it did not reconsider the car’s valuation. USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 16 of 52 16 Opinion of the Court 23-11458 [I]f the owner retains possession of a motor vehicle or mobile home in connection with a total loss claim set- tlement for such motor vehicle or mobile home, the owner must, within 72 hours after the motor vehicle or mobile home becomes salvage, or the insurance com- pany must, within 72 hours after receiving the certifi- cate of title for such motor vehicle or mobile home, forward the certificate of title to the motor vehicle or mobile home to the department for processing . . . . Fla. Stat. § 319.30(3)(b) (emphasis added). The plain text of this subsection of the statute shows that Progressive did not need to insist on the title once it learned that Choisser wanted to retain the car because the law allowed for Choisser to send the title to the state on his own. Given how clear this subsection is, Progressive “‘dropped the ball’ in its handling of this case.” Berges, 896 So. 2d at 682. Florida generally does not recognize ignorance or misunderstanding of the law as excusable, so there is no reason why we should assume that Florida would permit insurers to claim lack of bad faith when mak- ing this sort of basic error. Cf. Hovercraft of S. Fla., LLC v. Reynolds, 211 So. 3d 1073, 1077 (Fla. 5th DCA 2017) (collecting cases regard- ing an attorney’s mistake of law). The insurer’s duty of good faith includes being “diligent in its effort to negotiate a settlement.” Camp v. St. Paul Fire & Marine Ins. Co., 616 So. 2d 12, 14 (Fla. 1993); cf. Martinez v. GEICO Cas. Ins. Co., 152 F.4th 1323, 1335 (11th Cir. 2025) (“When an insurer faces both ‘an affirmative duty to offer settlement’ and a coverage issue, USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 17 of 52 23-11458 Opinion of the Court 17 it still must be allowed some opportunity ‘to resolve the coverage dispute promptly’ or with the requisite ‘diligence and thorough- ness.’” (quoting Am. Builders Ins. Co., 71 F.4th at 855–56)). Of course, the insurer need not exhaust all sources of information to obtain necessary facts to be characterized as acting in good faith, but it must exercise a reasonable “degree of care and diligence” which an ordinary person would exert when managing their own affairs. Auto Mut. Indem. Co. v. Shaw, 184 So. 852, 858 (Fla. 1938) (quoting Hilker v. W. Auto. Ins. Co., 235 N.W. 413, 415 (Wis. 1931)); King v. Gov’t Emps. Ins. Co., No. 8:10-CV-977-T-30AEP, 2012 WL 4052271, at *4 (M.D. Fla. Sept. 13, 2012) (noting that, when an in- surer unsuccessfully raises a legal issue, the jury need not decide the merits of the legal issue but whether the insurer acted “fairly and honestly toward its insured with due regard for his or her in- terests by insisting on legal defenses instead of settling” (citing Kearney v. Auto-Owners Ins. Co., 664 F. Supp. 2d 1234, 1243–44 (M.D. Fla. 2009)). Here, the law does not support Progressive’s decision to make a hardline stance and pressure Choisser into a title transfer as a prerequisite to a high-value settlement. See, e.g., Fla. Stat. § 624.155(4)(A) (“An action for bad faith involving a liability insur- ance claim, including any such action brought under the common law, shall not lie if the insurer tenders the lesser of the policy limits or the amount demanded by the claimant within 90 days after re- ceiving actual notice of a claim which is accompanied by sufficient evidence to support the amount of the claim.”). Not only that, but if Progressive had any uncertainty, it could have included a USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 18 of 52 18 Opinion of the Court 23-11458 reservation of rights clause in the settlement agreement or sought a declaratory judgment regarding Section 319.30’s application. In- stead, Progressive tried to impose another precondition just as the parties were close to a meeting of the minds, and exposed Consul to a significant excess judgment award. Therefore, a reasonable jury could find Progressive acted in bad faith when it insisted Choisser turn over his title to it to receive the money for the dam- age to the car. C. Communication with Consul There are also genuine disputes over the diligence Progres- sive exercised in communicating with Consul. The record, again viewed in the light most favorable to Consul, adequately suggests that Progressive failed to keep Consul abreast of its settlement ne- gotiations or seek his input on settlement terms, including the im- position of conditions Choisser indicated he did not believe were mandatory. See Powell, 584 So. 2d at 14 (“An insurer has a duty to advise the insured of settlement opportunities and the probable outcome of a lawsuit and to warn him of the consequences of an excess judgment so that he might take whatever steps are available for his own protection.”). Additionally, insurers are required to cau- tion their insured of a potential excess judgment. Boston Old Colony Ins. Co., 386 So. 2d at 785. However, there is conflicting evidence over whether Progressive even sent an excess-judgment letter to Consul. While a claims specialist testified that she sent the letter, Progressive’s litigation manager could not find either a hard copy or an electronic copy of any record that it had sent an excess letter to Consul, and Progressive indicated on an internal form that no USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 19 of 52 23-11458 Opinion of the Court 19 excess letter had been sent. Given this factual debate and the jury’s role in determining credibility, it is more appropriate for a jury to decide whether to believe the claims specialist who said she sent the letter, the litigation manager who said he could not find the letter, or Consul who indicated he did not recall receiving it, for purposes of deciding whether Progressive fulfilled its notice obli- gations. See Hicks, 141 F.4th at 1180; Baker v. Upson Reg’l Med. Ctr., 94 F.4th 1312, 1317 (11th Cir. 2024) (“[T]he court will not make credibility determinations or weigh the parties’ evidence.”). * * * Taken together, a jury could conclude that Progressive failed to act with the required diligence and care when it demanded that Choisser relinquish title to his vehicle and insisted upon the release of rights from a third party with whom it never communicated. This must be considered in addition to the alleged irregularities in outreach to the insured in contravention of Florida law. When viewed as a whole, we cannot say that a reasonable jury could not have ruled in Consul’s favor on the bad faith claim. See generally Kinsale Ins. Co., 135 F.4th at 971 (“To be certain, we do not decide whether—as a factual matter—the Lodge’s liability was ‘clear.’ We hold only that a jury could reasonably so find when presented with this fact pattern.”). Finally, achieving a settlement was still possible even after Posgay’s December 13 letter. Though Posgay later testified that settlement negotiations seemed nonviable after December 2016, Posgay’s December 16 letter did not foreclose the possibility of USCA11 Case: 23-11458 Document: 50-1 Date Filed: 11/05/2026 Page: 20 of 52 20 Opinion of the Court 23-11458 settlement, Progressive’s case notes suggested that Progressive be- lieved the case could settle, and Choisser later testified that he “would have” settled the case at that time. Indeed, a portion of the suit—the property damage claim—settled before trial. The authorities upon which Progressive relies are not help- ful to its case. In a handful of cases cited in Progressive’s brief, the injured party would not have settled under the circumstances pre- sented, making any settlement effort fruitless. See, e.g., Messinese v. USAA Cas. Ins. Co., No. 3:13-CV-160-J-20JBT, 2014 WL 2916451, at *5 (M.D. Fla. May 22, 2014) (“In sum, Plaintiffs would not have set- tled for $100,000 in any event. For this reason, even if Plaintiffs have raised a genuine dispute as to whether USAA acted in bad faith, they have failed to raise a genuine dispute as to wh