RICHARD PRIMEAUX

v.

PROGRESSIVE AMERICAN INSURANCE COMPANY

1 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). 2 Progressive does not challenge whether Ms. Gray is qualified to provide this opinion and only briefly touches upon the usefulness of her testimony to a jury, stating her opinion that Progressive violated the Adjuster Code of Ethics would confuse the jury. (Doc. 43 at 11.) To the extent Progressive’s argument here can be characterized as Ms. Gray applying an incorrect legal standard to reach her opinions, that would be analogous to a scientific expert’s miscalculation (i.e., methodological flaws). If an opinion is based on inaccurate data or an inadequate study, then the weight of the evidence—not its admissibility—is at issue and should be addressed through rigorous cross-examination at trial. Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F. 3d 1333, 1345 (11th Cir. 2003). 3 See Fla. Admin. Code r. 69B-220.201 (providing a “code of ethics” for determined] that Progressive, or any Progressive adjuster, violated the Adjuster Code of Ethics in handling of [Mr. Primeaux’s] claim.” (Id. at 11.) Thus, Progressive argues that allowing “[Mr. Primeaux] to argue to the jury a violation of the Adjuster Code of Ethics occurred in this case would allow Plaintiff to assert a civil cause of action that does not exist under Florida law, would only serve to confuse the jury, and should be excluded from trial.” (Id.) Progressive is correct that no independent cause of action exists for a violation of the Adjuster Code of Ethics. See Kuhlman v. Crawford & Co., No. 01- 6036-CIV, 2002 WL 34368089, at *4 (S.D. Fla. Jan. 23, 2002) (concluding that “the plain language limits enforcement to administrative action”). But Mr. Primeaux is alleging that Progressive handled his claim in bad faith; not that Progressive is liable for violating the Adjuster Code of Ethics. (See Doc. 21.) Further, Ms. Gray does not opine that Progressive is liable for Mr. Primeaux’s damages because Progressive purportedly violated the Adjuster Code of Ethics. Rather, she notes that the Adjuster Code of Ethics provides support for certain duties an insurer owes its insured and that Progressive did not treat the other claimants and Mr. Primeaux equally as the Adjuster Code of Ethics requires. (Doc. 43-1 at 10, 17; Doc. 43-2 at 23.) “District court judges in the Eleventh Circuit have” held that “failure to follow recognized rules that are not mandatory is admissible to show how a reasonable person might have acted.” Cook v. Royal Caribbean Cruises, Ltd., No. adjusting insurance claims). 11-20723-CIV, 2012 WL 1792628, at *4 (S.D. Fla. May 15, 2012) (quotation omitted). And in Florida, under both statute and common law, an “insurer, in handling the defense of claims against its insured, 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.” Bos. Old Colony Ins. Co. v. Gutierrez, 386 So. 2d 783, 785 (Fla. 1980). “Because the duty of good faith involves diligence and care in the investigation and evaluation of the claim against the insured, negligence is relevant to the question of good faith.” Id. Thus, “such matters as reasonable diligence and ordinary care [are] material in determining bad faith” and “[t]raditionally, reasonable diligence and ordinary care are considerations of fact—not of law.” Campbell v. Gov’t Emps. Ins. Co., 306 So. 2d 525, 530–31 (Fla. 1974.) Progressive does not identify any specific portion of Ms. Gray’s report or line of testimony that it seeks to strike or preclude from trial in particular. And the Court is not persuaded that a blanket prohibition is appropriate. Of course, Ms. Gray cannot “merely tell the jury what result to reach” or testify to the “legal implications of conduct.” Montgomery v. Aetna Cas. & Sur. Co., 898 F. 2d 1537, 1541 (11th Cir. 1990). For example, she cannot testify that noncompliance with the Adjuster Code of Ethics is “indicative of bad faith.” (Doc. 43-2 at 56.) Ms. Gray may, however, provide testimony about the standards and practices of the insurance industry and whether Progressive complied with those standards. DeCamp v. State Farm Fire & Cas. Co., No. 8:20-CV-1747-VMC-TGW, 2021 WL 4059906, at *5 (M.D. Fla. Sept. 7, 2021). Such testimony is not contrary to law because it would assist a jury in determining whether Progressive resolved Mr. Primeaux’s claim with the appropriate diligence and care of an ordinary and prudent person.

4 In Powell, the Florida Third District Court of Appeal held that “[w]here liability is clear, and injuries so serious that a judgment in excess of the policy limits is likely, an insurer has an affirmative duty to initiate settlement negotiations.” 584 So. 2d at 14. can provide her opinion that Progressive’s decision to settle Mr. Primeaux’s claim through a global settlement conference at the same time Progressive sought to resolve those of other claimants did not comport with industry standards given the facts of this case. See generally Berges v. Infinity Ins. Co., 896 So. 2d 665, 680 (Fla. 2004) (bad faith is based upon an assessment of the totality of the circumstances). Thus, Ms. Gray’s testimony “as to the claims handling standards within the insurance industry, and whether or not [Progressive’s] actions met those standards, will help the jury understand the evidence and determine a fact in issue.” Maharaj v. GEICO Cas. Co., No. 12-80582-CIV-MARRA, 2015 WL