11th Circuit Revives Florida Bad Faith Claim Over $1M Judgment

The Eleventh Circuit revived a Florida insurance bad faith case on November 5, 2026, vacating summary judgment for Progressive American Insurance Company. The published opinion, divided 2 to 1, holds that a jury must decide whether the insurer's handling of a $15,000 settlement offer left its policyholder facing a judgment over $1,000,000.

Information last verified on November 7, 2026. This is a developing story; we update it as the record changes.

Jurisdiction scope: This article addresses Florida's common law third-party insurance bad faith doctrine as applied by the United States Court of Appeals for the Eleventh Circuit, the federal appeals court for Florida, Georgia and Alabama. It does not address first-party property insurance bad faith, and it does not survey other states, whose bad faith standards differ materially. For the underlying crash and liability rules, see our state-by-state guide to car accident liability.

What Happened

The Eleventh Circuit vacated a grant of summary judgment to Progressive American Insurance Company and remanded Charbel Consul's bad faith claim for further proceedings. Judge Abudu wrote the published opinion in Charbel Consul v. Progressive American Insurance Company, No. 23-11458, filed November 5, 2026, joined by Judge Rosenbaum, with Judge Tjoflat dissenting. The appeal came from the Middle District of Florida, D.C. Docket No. 3:21-cv-00505-TJC-LLL.

Progressive had issued Consul a policy with bodily injury limits of $10,000 per person and property damage limits of $10,000 per accident. While driving an insured vehicle on September 6, 2016, Consul rear-ended William Choisser, and Progressive determined that Consul was 100% at fault. Choisser's bodily injury claim eventually reached a Florida jury, whose verdict produced a total judgment of more than $1,000,000 against Consul, including costs and fees.

The settlement history is the heart of the case. On October 17, 2016, Choisser's attorney Matthew Posgay offered to settle if Progressive paid $10,000 for Choisser's injuries and $5,000 for his damaged 1991 Mercedes, contingent on Consul completing a financial affidavit and on resolution of Choisser's uninsured motorist claims. Consul completed the affidavit.

Progressive countered on November 15. It agreed to both dollar figures and attached checks for each. It also added two conditions that had not been part of the demand: a release of any loss of consortium claim by Choisser's wife, and transfer of the car's title to Progressive as a total loss.

Posgay answered that he did not represent Choisser's wife and could not waive claims on her behalf, and he disputed that a total loss determination required surrender of the title if his client wanted to keep and repair the car. On December 13, 2016, he declined the counteroffer. Progressive concluded the parties were at an impasse.

Choisser sued Consul in Florida state court in November 2017. The property damage claim later settled, with Choisser surrendering the title in exchange for $7,500. The bodily injury claim went to trial. Consul filed this bad faith action in May 2021, and the district court granted Progressive summary judgment, reasoning in part that no settlement was possible once Choisser rejected the added terms.

"Given the totality of circumstances in this case, we hold that summary judgment was improper." Source: Consul v. Progressive American Insurance Co., No. 23-11458, slip op. at 8 (11th Cir. Nov. 5, 2026)

How $10,000 of Coverage Becomes a Seven Figure Personal Judgment

A liability policy caps what the insurer pays. It does not cap what a court can enter against the driver who caused the crash. When a jury values the injuries above the limits, the policyholder owes the difference personally, and Florida courts call that gap an excess judgment.

Florida's response to that exposure is a duty rather than a higher limit. Because an insured surrenders control of the defense and of settlement to the insurer, Florida law puts the risk of a mishandled settlement back on the insurer. As the Florida Supreme Court put it in Boston Old Colony Insurance Co. v. Gutierrez, 386 So. 2d 783, 785 (Fla. 1980), and as the Eleventh Circuit quoted in Consul, the 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."

Where a settlement within limits was realistically available and the insurer's own conduct is what kept it from happening, Florida allows the policyholder to sue the insurer for the excess. Causation usually turns on the existence of the excess judgment itself. The Consul panel quoted McNamara v. Government Employees Insurance Co., 30 F.4th 1055, 1059 (11th Cir. 2022), for the point that "showing the existence of an 'excess judgment' is generally the most straightforward way to prove causation," while Perera v. United States Fidelity & Guaranty Co., 35 So. 3d 893, 900 to 901 (Fla. 2010), still requires a causal connection between the bad faith conduct and the loss.

The exposure is sharpest for drivers at minimum limits, which is why the facts here are not unusual. Our guide to how Florida handles fault, PIP and bodily injury liability coverage explains the coverage structure the policy sits inside.

What Florida Law Actually Requires of a Liability Insurer

Florida's duty of good faith is a list of affirmative obligations, not a single prohibition. Quoting Boston Old Colony through American Builders Insurance Co. v. Southern-Owners Insurance Co., 71 F.4th 847, 854 (11th Cir. 2023), the Consul panel said an insurer must "investigate the facts," "advise [the insured] as to the probable outcome of litigation," "warn of the possibility of an excess judgment," and explain any steps the insured can take to avoid one. On settlement in particular, it must "give fair consideration to a reasonable settlement offer," "advise the insured of settlement opportunities," and settle when a "reasonably prudent person" would.

The Florida Supreme Court has warned that this is not a checklist. In Harvey v. GEICO General Insurance Co., 259 So. 3d 1 (Fla. 2018), the court held that the critical inquiry 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." Harvey also reaffirmed, quoting Berges v. Infinity Insurance Co., 896 So. 2d 665, 677 (Fla. 2004), that "the focus in a bad faith case is not on the actions of the claimant but rather on those of the insurer in fulfilling its obligations to the insured."

Two consequences follow, and both drove the result in Consul. First, the question is almost always for a jury. Good faith is assessed under the totality of the circumstances, and the Consul panel collected Berges at 680, Vest v. Travelers Insurance Co., 753 So. 2d 1270, 1275 (Fla. 2000), and Harvey for the proposition that these are ordinarily issues of fact.

Summary judgment remains available, but only where no reasonable jury could find bad faith, per Eres v. Progressive American Insurance Co., 998 F.3d 1273, 1278 (11th Cir. 2021).

Second, the conditions an insurer attaches to a settlement are themselves measured for reasonableness. The panel cited Cruz v. American United Insurance Co., 580 So. 2d 311, 312 (Fla. 3d DCA 1991), that "[t]he legal standard governing an insurer's settlement conduct is one of reasonableness," and Powell v. Prudential Property & Casualty Insurance Co., 584 So. 2d 12, 14 (Fla. 3d DCA 1991), that the insurer carries "the burden to show . . . that there was no realistic possibility of settlement within policy limits."

Negligence alone is not bad faith, but it is not irrelevant either. Boston Old Colony said that because the duty of good faith involves diligence and care in investigating and evaluating the claim, "negligence is relevant to the question of good faith," language Harvey quoted with emphasis.

The Three Disputes the Panel Sent to a Jury

The consortium release

Viewing the record in Consul's favor, the panel found that Progressive conditioned settlement on a waiver from Choisser's wife while never communicating with her at all, relying instead on a lawyer it knew did not represent her. Its own agent departed from her standard practice of contacting claimants' spouses. Progressive then ran its own search, concluded that Choisser's ex-wife was his current wife, and put the wrong name on the proposed release.

The panel noted that Progressive offered to amend the release language or correct the name, but refused to drop the waiver requirement once it was clear that the requirement was a primary obstacle to settling. On that record, the court held, a jury could find the condition unreasonable, particularly given testimony that the wife had no interest in a consortium claim.

The vehicle title

Progressive insisted on the car's title based on its reading of Florida's total loss statute. The panel declined to resolve the statutory question, noting in a footnote that few cases address this part of section 319.30. It then pointed to the statute's own text: section 319.30(3)(b) provides that where "the owner retains possession of a motor vehicle . . . in connection with a total loss claim settlement," either the owner within 72 hours after the vehicle becomes salvage, or the insurance company within 72 hours after receiving the certificate of title, must forward the title to the department.

Because the law allowed Choisser to send the title himself, the panel reasoned, Progressive did not need to insist on the transfer once it learned Choisser wanted to keep the car. Because that subsection is clear, the panel wrote, Progressive "dropped the ball" in its handling of the case. It added that Florida does not generally excuse misunderstanding of the law, and that if Progressive was uncertain it could have used a reservation of rights or sought a declaratory judgment.

Valuation was the other half of the title dispute. Progressive put the car at $2,258.42; Posgay disputed both that figure and the total loss label, and asked Progressive to consult the Kelley Blue Book and the NADA Guidebook. The panel held that a jury could find it unreasonable that Progressive never considered those sources, citing section 626.9743(5), which lists methods including a publicly available guidebook, a method supported by documentation, or any other method agreed to by the claimant.

The panel then cut the other way in the same breath. In a footnote on that page it observed that Posgay "may have contributed to the problem" and "does not appear to have been responsive" when Progressive sought his valuation basis, and that "[f]or this reason, a reasonable jury could conclude that Progressive did not act in bad faith when it did not reconsider the car's valuation." Both inferences are open, which is the panel's point about what belongs to a jury.

The excess judgment letter

Florida requires an insurer to warn the insured of a possible excess judgment. Here the evidence conflicted.

A claims specialist testified she mailed an excess letter immediately on receiving the claim and produced a time and date stamped copy. Progressive's litigation manager could not locate a copy in either the electronic or hard copy files where it would have been kept, and an internal form indicated no excess letter had been sent. Consul did not recall receiving one.

The panel held that choosing among those accounts is a credibility question for a jury, not a matter for summary judgment.

What the Dissent Says

Judge Tjoflat would have affirmed. His dissent runs 30 pages and makes three substantive arguments worth knowing, because they map the limits of the majority's reasoning.

On the consortium release, he wrote that the agent asked Posgay for the wife's name five times, searched the internet and a third-party database, candidly told Posgay her investigation had been "unsuccessful," and offered to correct the name. He also read Progressive's December 7 letter as offering to remove the wife's name from the release altogether if Posgay would send a letter stating he would not pursue a consortium claim on her behalf, which in his view made Progressive's position an alternative request for assurance rather than a hard waiver condition. He also pointed to deposition testimony that the wife would not in fact have signed a release, which he treated as a gap in Consul's causation theory rather than a disputed fact.

On the title, he disagreed that section 319.30 is clear enough to call Progressive's reading a "basic error," noting that the district court expressed uncertainty and that the majority itself observed a lack of case law.

On the excess letter, he invoked the causation requirement directly. Even assuming no letter was sent, he wrote, Consul testified he would have set such a letter aside, citing Mesa v. Clarendon National Insurance Co., 799 F.3d 1353, 1360 (11th Cir. 2015), for the principle that a notice failure that did not cause the excess judgment is immaterial.

The dissent also describes features of the case the majority did not dwell on. It states that Consul is judgment proof, that he testified he did not know why he had sued Progressive, and that he signed an agreement passing any recovery to Choisser. Per the dissent, the amended final judgment in the underlying tort suit included $790,000.00 in damages, $388,505.00 in attorney's fees and $76,000.00 in taxable costs. Having said he would affirm, Judge Tjoflat added that in the alternative, if the case were remanded, he would direct the district court to join Choisser and Posgay as parties in interest under Rule 19 and to enter an order to show cause on Rule 11 sanctions against Consul's appellate counsel.

What Florida's 2023 Statute Changed

Readers comparing this case to a current claim should know the statutory ground moved after the conduct at issue. The Consul panel decided a common law third-party bad faith claim under Florida case law, and it cited section 624.155(4)(a) only as a signal, with a "see, e.g." reference.

That provision, which now says a liability bad faith action "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 receiving actual notice of a claim" supported by sufficient evidence, came from chapter 2023-15, Laws of Florida. The same act added section 624.155(5)(a), that "[m]ere negligence alone is insufficient to constitute bad faith," and section 624.155(5)(b), which imposes a duty on the insured, the claimant and their representatives to act in good faith in furnishing claim information, making demands, setting deadlines and attempting to settle, and lets a trier of fact reduce the damages awarded against the insurer where they did not.

Section 30 of the enrolled bill, CS/CS/HB 837, applies the act to causes of action filed after its effective date except where the act says otherwise. The Florida Senate's bill record lists that effective date as March 24, 2023. Consul filed in May 2021, which is why this opinion reads as common law doctrine rather than as a construction of the new subsections.

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

Vacating a summary judgment is a procedural ruling, and in most areas of law that makes it a modest event. In Florida bad faith litigation it is close to the whole fight. Because Florida law as the panel read it, drawing on Berges at 680 and on Harvey, makes good faith a totality question ordinarily reserved for a jury, the contested ground is whether the insurer can end the case on paper. Consul says that on this record it cannot, and it says so in a published opinion that district courts in Florida, Georgia and Alabama must now reckon with.

The most transferable part of the opinion is the title analysis. The panel expressly declined to resolve the total loss dispute under section 319.30, yet, calling subsection (3)(b) clear on its face, it held that a jury may treat reliance on a reading the statute's own text undercuts as a failure of diligence. That is a narrow but real proposition: under Florida law as the panel applied it, an insurer's good faith interpretation of a statute is not automatically a shield when the statute supplied an alternative that would have let the settlement close. The panel's suggested alternatives, a reservation of rights or a declaratory judgment, describe what diligence would have looked like.

One wrinkle deserves naming. The panel cited section 626.9743(5) for the valuation methods Progressive ignored. Section 626.9743 does reach third-party motor vehicle claims; subsection (2) speaks directly to third-party claimants. But subsection (5), by its own terms, governs "the adjustment and settlement of first-party motor vehicle total losses."

Choisser's property damage claim was a third-party claim against Progressive's insured. The panel used the provision as a benchmark for reasonable valuation practice rather than as a source of obligation, and the distinction is worth keeping in view when the case is cited.

Judge Tjoflat's causation argument is the live limiting principle rather than a dead letter. Perera requires a causal link between the bad faith conduct and the loss, and the dissent's reading of the excess letter evidence shows how a notice failure can be real and still immaterial. That argument remains available on remand and to insurers defending later cases.

Finally, the opinion's practical reach is bounded by its own timing. For causes of action filed since March 2023, the 90 day tender safe harbor and the codified negligence and claimant-conduct provisions change the analysis before the totality test is ever reached. Consul is strong authority on the common law contours, and those contours still matter, because section 624.155(5) overlays the common law remedy rather than replacing it. We make no prediction about how the case comes out on remand.

How This Affects You

Minimum limits do not cap personal liability. A Florida policy with $10,000 in bodily injury coverage pays $10,000; a jury can enter far more against the driver, and the difference is a personal obligation. That arithmetic, not anything unusual about this case, is what produced a seven figure judgment against a policyholder here.

The duty Florida imposes runs from the insurer to its own insured. Courts have generally held that it includes investigating, advising on the probable outcome, warning about the possibility of an excess judgment, passing along settlement opportunities and giving fair consideration to a reasonable offer. Whether a particular insurer met that duty is a fact question judged on the whole record, so no single act or omission decides it.

The exposure is largest where damages are largest. In fatal crashes, where limits are almost never adequate, the same mechanics apply on top of a separate statutory scheme; see our explainer on Florida wrongful death claims and who may bring them.

None of this is state neutral. Other states define insurer bad faith differently, some by statute, some by common law, some with notice or safe harbor provisions that look nothing like Florida's. A Florida case tells you about Florida.

This is general legal information, not legal advice. It covers Florida insurance bad faith doctrine as applied by the Eleventh Circuit and reflects sources verified on November 7, 2026. Laws change and this story is developing; consult a lawyer licensed in your jurisdiction about your specific situation.

Related articles

• Florida car accident laws: no-fault, PIP and your claim
• Car accident laws by state: fault, no-fault and your claim
• Florida wrongful death deadlines and who can sue
• Florida hit and run penalties and what to do

---

Last updated: 2026-11-07. This is a developing story; details verified as of 2026-11-07.

Frequently Asked Questions

Did the Eleventh Circuit rule that Progressive acted in bad faith?

No. In its November 5, 2026 opinion in No. 23-11458 the court held only that summary judgment was improper because a reasonable jury could find bad faith on this record. It vacated the district court's judgment and remanded for further proceedings, and it made no finding of liability.

What is third-party insurance bad faith in Florida?

It is a claim by a policyholder against their own liability insurer for mishandling the defense or settlement of a claim brought by someone else, usually after an excess judgment. Florida's duty comes from Boston Old Colony Ins. Co. v. Gutierrez, 386 So. 2d 783 (Fla. 1980), and is assessed under the totality of the circumstances.

How can a court judgment be larger than my policy limits?

Liability limits cap what the insurer pays, not what a court may award. If a Florida jury values the injuries above the limits, the amount above them is entered against the driver personally. Florida courts call that an excess judgment.

What does the totality of the circumstances test look at?

Everything the insurer did and failed to do in handling the claim, judged as a whole rather than item by item. Harvey v. GEICO Gen. Ins. Co., 259 So. 3d 1 (Fla. 2018), frames the question as whether the insurer worked on the insured's behalf with the same haste and precision as if it were in the insured's shoes.

Does a Florida insurer have to warn me that a judgment could exceed my limits?

Florida law places that obligation on the insurer. Boston Old Colony and Powell v. Prudential Prop. & Cas. Ins. Co., 584 So. 2d 12 (Fla. 3d DCA 1991), require an insurer to advise the insured of settlement opportunities and the probable outcome and to warn of the consequences of an excess judgment. In Consul the evidence about whether such a letter was ever sent conflicted, which the panel treated as a jury question.

Is mere negligence by an insurer enough to prove bad faith in Florida?

No. Florida Statutes section 624.155(5)(a), added in 2023, says mere negligence alone is insufficient to constitute bad faith. Boston Old Colony had already said negligence is not the standard, while also saying negligence is relevant to the good faith question because the duty involves diligence and care.

Does Florida's 2023 insurance law apply to this case?

Section 30 of CS/CS/HB 837, chapter 2023-15, Laws of Florida, applies the act to causes of action filed after its effective date, which the Florida Senate lists as March 24, 2023, except where the act provides otherwise. Consul filed his bad faith action in May 2021, and the panel decided the appeal as a common law claim.

Does this ruling apply outside Florida?

The Eleventh Circuit sits over Florida, Georgia and Alabama, but it was applying Florida substantive law under diversity jurisdiction, so the holding is about Florida bad faith doctrine. Other states' standards differ materially.

What happens next in the Consul case?

The panel vacated the district court's judgment and remanded to the Middle District of Florida, No. 3:21-cv-00505-TJC-LLL, for further proceedings. As of November 7, 2026, the Eleventh Circuit's published opinions list shows no later order in No. 23-11458 beyond the November 5, 2026 opinion. We do not predict the outcome.