Case Law Update: Progressive American v. Heimler, Fourth DCA Affirms No Coverage Forfeiture Without Proof of Prejudice

On September 9, 2026, Florida’s Fourth District Court of Appeal affirmed a judgment holding that Progressive American Insurance Company could not undo an uninsured/underinsured motorist claim after its insured settled with the at-fault driver’s carrier without permission, because Progressive did not prove it was harmed. The case is Progressive American Insurance Company v. Randall Marc Heimler, No. 4D2025-1854, on appeal from the Nineteenth Judicial Circuit in Indian River County (Judge Cynthia L. Cox). Associate Judge Howard K. Coates, Jr. wrote for the panel, with Judges Shepherd and Lott concurring. The decision is not final until disposition of any timely filed motion for rehearing.

What happened

Heimler was in a motor vehicle accident on April 30, 2022. The at-fault driver was insured by Liberty Mutual under a $10,000 liability limit; Heimler carried $500,000 in UM/UIM coverage with Progressive. Before suing Progressive, he signed a “Bodily Injury Release” with Liberty Mutual for the $10,000. His prior counsel had not obtained Progressive’s consent or a waiver of subrogation. New counsel tried to unwind the settlement, asking Progressive for a subrogation waiver and sending Liberty Mutual a $10,000 check from the firm’s trust account.

Heimler sued Progressive for UM/UIM benefits. Progressive raised his failure to obtain a waiver of subrogation or permission to settle under section 627.727, Florida Statutes (2023), and moved for summary judgment. The circuit court denied that motion, finding disputed fact issues on the at-fault driver’s solvency and on prejudice. On Progressive’s motion the court then bifurcated the proceedings, setting a first trial on whether the release had been rescinded and whether Progressive had been prejudiced. After hearing testimony about the at-fault driver’s finances, it entered a partial final judgment finding no rescission of the settlement but also finding Progressive was not prejudiced, given the tortfeasor’s apparent and probable insolvency.

What the Fourth DCA held

The parties agreed Heimler was required, by statute and by contract, to obtain a waiver of subrogation before settling, and that he did not. That did not end the matter. The court restated the Florida rule that an unauthorized settlement bars recovery only if the insurer is prejudiced, and that it creates a rebuttable presumption of prejudice, with the burden on the insured to show its absence. See American Fire & Casualty Co. v. Sinz, 487 So. 2d 340 (Fla. 4th DCA 1986); General Accident Insurance Co. v. Taplis, 493 So. 2d 32 (Fla. 5th DCA 1986). The court called that approach “consistent with our supreme court’s holdings in cases in which the insured breached the contract by providing dilatory notice of a claim,” citing Bankers Insurance Co. v. Macias, 475 So. 2d 1216 (Fla. 1985).

Two points make this opinion notable. First, the court settled a wording dispute between districts. Both sides argued over whether the Fourth District’s “probable insolvency” language in Muth v. AIU Insurance Co., 982 So. 2d 749 (Fla. 4th DCA 2008), sets a different bar than the “is and will remain judgment proof” phrasing used elsewhere. The court answered that “no new standards emerge from those opinions; those courts were simply explaining their reasoning,” adding that courts should not “read judicial opinions like statutes.” The single standard is whether the insurer was prejudiced, and the burden sits with the insured.

Second, the court spelled out how prejudice is measured, as a counterfactual: whether, “if the insured had complied with the policy, a reasonably prudent insurer would have approved the decision, or instead rejected the settlement and pursued a damages claim against the tortfeasor (expecting to come out financially ahead thereby).” Trial courts may weigh whether assets would have been easily collectable or instead protected by homestead or bankruptcy exemptions, and may compare the cost of collections against the expected collectable judgment. Quoting Southeast Fidelity Insurance Co. v. Earnest, 395 So. 2d 230 (Fla. 3d DCA 1981), the court noted that where a judgment “would not have been worth the paper it was printed on,” the carrier “lost nothing,” and “a technical and illusory ‘loss’ of this kind cannot result in the forfeiture of insurance coverage.” Reviewing for competent substantial evidence and abuse of discretion, the panel could not say “no judge could have ruled as the circuit court did in this instance,” and affirmed.

What this means if you have a UM or UIM claim in Florida

This decision does not give anyone permission to settle with the at-fault driver’s insurer without telling their own carrier first. Section 627.727(6)(a) sets out the process: written notice of a proposed settlement by certified or registered mail to every underinsured motorist insurer, which then has 30 days to authorize the settlement or retain its subrogation rights. Skipping it starts you with a presumption working against you.

What the ruling does confirm is that a missed step is not automatically the end of the claim. If the at-fault driver had nothing worth collecting, an insured may be able to rebut the presumption of prejudice, and the outcome turns on evidence about the tortfeasor’s finances, not the breach alone. That is a fact question for the trial court, and results depend on the record.

A note on scope

This is an automobile UM/UIM case, not a property insurance case, and it was decided by the Fourth District, so it governs in that district; under Pardo v. State, 596 So. 2d 665 (Fla. 1992), trial courts in other districts generally follow a district court decision when their own district has not addressed the point. The prejudice principle it applies comes from a broader line of Florida decisions about breached policy conditions, including the late notice cases cited above. Whether that reasoning helps in a homeowners claim turns on the policy language, the statute, and the facts.

Our overview of uninsured motorist claims in Florida explains how they work. More decisions are on our Case Law and Industry Insights page.

This article summarizes a court decision as of September 10, 2026. It is general information, not legal advice, and no result predicts another.