[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-13496 ____________________

AMERICAN BUILDERS INSURANCE COMPANY, Plaintiff-Appellee, versus SOUTHERN-OWNERS INSURANCE COMPANY,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 9:20-cv-81357-WM ____________________ USCA11 Case: 21-13496 Document: 52-1 Date Filed: 06/20/2023 Page: 2 of 26

2 Opinion of the Court 21-13496

ON PETITION FOR REHEARING Before WILLIAM PRYOR, Chief Judge, ROSENBAUM, and MARCUS, Circuit Judges. MARCUS, Circuit Judge: Southern-Owners Insurance Company’s motion for panel rehearing is granted, and we vacate our previous opinion, pub- lished at 56 F.4th 938 (11th Cir. 2023), and substitute the following opinion in its place. In this opinion, we change section II.C in light of the Supreme Court’s recent decision in Dupree v. Younger, 143 S. Ct. 1382 (2023). We make no further changes to the opinion, and our holding remains the same. Ernest Guthrie fell from a roof and became paralyzed from the waist down, never to walk again. Within months, his medical bills climbed past $400,000, and future costs projected into the mil- lions. Three insurance companies potentially provided coverage for Guthrie. This appeal is a battle between two of them. The primary insurer for Guthrie’s company was Southern- Owners Insurance Company. At the time of the accident, Guthrie was performing subcontracting work for Beck Construction, which had a policy with American Builders Insurance Company and an excess policy with Evanston Insurance Company. American Build- ers investigated the accident, assessed Beck Construction’s liability, and evaluated Guthrie’s claim. Southern-Owners, in contrast, did little to nothing for months. When push came to shove, Southern- Owners refused to pay any amount to Guthrie to settle the claim, USCA11 Case: 21-13496 Document: 52-1 Date Filed: 06/20/2023 Page: 3 of 26

21-13496 Opinion of the Court 3

and American Builders and Evanston ponied up a million dollars apiece instead. American Builders then sued Southern-Owners for com- mon law bad faith under Florida’s doctrine of equitable subroga- tion. Along the way, Southern-Owners moved for summary judg- ment, but the district court denied the motion. A federal trial jury heard the case and found in favor of American Builders. After the entry of final judgment, Southern-Owners sought judgment as a matter of law, or, in the alternative, a new trial. The district court denied those motions, too. On appeal, Southern-Owners chal- lenges the denials of its summary judgment and post-trial motions. After thorough review of the record and with the benefit of oral argument, we affirm. I. A. Ernest Guthrie, an employee of Ernest Guthrie, LLC per- forming work for Beck Construction, slipped from the roof of a house on April 1, 2