[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 20, 2005
No. 04-14314
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 02-21828-CV-FAM
OFFICIAL CARGO TRANSPORT COMPANY, INC.,
a Florida corporation,
Plaintiff-Appellant,
CROWLEY LINER SERVICES, INC.,
Intervenor-Plaintiff-
Appellant,
versus
UNDERWRITERS AT LLOYD’S OF LONDON,
Defendant-
Intervenor-Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 20, 2005)
Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Official Cargo Transport Company, Inc. (“Official Cargo”) and Crowley Liner
Services, Inc. (“Crowley”) appeal from the district court’s final judgment, entered
pursuant to a jury verdict, in favor of Underwriters at Lloyd’s of London (“Lloyd’s”).
After thorough review of the record, as well as careful consideration of the parties’
briefs, we affirm.
Official Cargo sued Lloyd’s for breach of contract, seeking to recover
insurance proceeds alleged due under primary and excess insurance policies (Count
I), and for a declaratory judgment of coverage under the policies (Count II). After the
case was removed from a Florida state court, Crowley, as an intervening plaintiff,
filed an intervening complaint against Lloyd’s for breach of contract, seeking
recovery as an additional named insured (Intervening Count I) and as a third party
beneficiary (Intervening Count II). In the complaint and intervening complaint,
Official Cargo and Crowley asserted that Lloyd’s breached its obligations under the
insurance contract by refusing coverage for a theft of apparel that occurred on
December 1, 2001. The estimated value of the stolen merchandise was $239,185.
The primary policy provided $100,000 of coverage and the excess policy $150,000.
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After discovery, the parties filed cross-motions for summary judgment.
Lloyd’s sought summary judgment as to, inter alia, Crowley’s intervening complaint
and the limitation of liability for Official Cargo’s suit. Official Cargo and Crowley
argued they were entitled to summary judgment because Lloyd’s failed to effectuate
proper delivery of the policies prior to the loss. The district court entered summary
judgment on Intervening Count I, in which Crowley sought recovery as an additional
insured under the policy.1 The court denied summary judgment as to Official Cargo’s
complaint and Intervening Count II (seeking recovery as a third-party beneficiary).
After the close of evidence at the subsequent jury trial, the district court entered
judgment as a matter of law, in favor of Lloyd’s, on the issue of delivery of the
policies. The court found that Lloyd’s fully executed its delivery and notification
duties under the policy and consistent with Florida law. The district court then
submitted the following two issues to the jury: (1) whether the trailer (which was
1
The district court granted summary judgment on Intervening Count I because Crowley was
not a named insured under the policy, nor had Lloyd’s agreed to add Crowley as an insured at the
time of the claim. In support of his claim that he was an additional named insured, Crowley relied
on a “certificate of insurance” that was issued by D&D Insurance Agency, which was acting as the
broker or intermediary for Official Cargo in its procurement of insurance. The district court held,
and we agree, that D&D’s “certificate of insurance” did not in any way evidence that Lloyd’s had
agreed to the addition of Crowley as a named insured. Indeed, the certificate stated that it “does not
amend, extend or alter the coverage afforded by the policies.” Moreover, to the extent Crowley now
asserts arguments based on concepts of agency and apparent authority, that he did not raise below,
we have found none of the “exceptional circumstances” in which we may exercise appropriately our
discretion to hear issues raised for the first time on appeal, and we do not consider these additional
arguments. See Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355, 360-61 (11th Cir. 1984).
Accordingly, we affirm the entry of summary judgment in favor of Lloyd’s on Intervening Count I.
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stolen, with the merchandise in it) was under constant surveillance at the time of the
theft, as required for coverage; and (2) whether Crowley was a third-party
beneficiary.2 The jury returned a verdict in favor of Lloyd’s on both of these issues
and the district court entered final judgment in favor of Lloyd’s. This appeal
followed.
First, Crowley and Official Cargo challenge the district court’s denial of their
pre-trial motion for summary judgment on the question of delivery of the policies.
They also assert the district court erred by granting Lloyd’s judgment as a matter of
law on the same issue prior to submitting the case to the jury. Lloyd’s responds that
the district court correctly found that Exhibits 7, 8, 9, 11 and 12, when considered
together, satisfied the delivery requirements of Florida surplus-lines law, which
allows Florida insureds to obtain surplus-lines coverage that is unavailable from
authorized insurers and thus may be procured from unauthorized insurers, subject to
certain conditions of Florida law. See Fla. Stat. §§ 626.13 et seq.
We review the denial of a motion for summary judgment de novo. See Sheth
v. Webster, 145 F.3d 1231, 1235 (11th Cir. 1998). We likewise review a district
2
Appellants do not challenge the judgment in favor of Lloyd’s on Intervening Count II in
which Crowley sought recovery as a third-party beneficiary and, thus, we do not consider this issue
on appeal.
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court’s decision on a motion for judgment as a matter of law de novo. See Ross v.
Rhodes Furniture, Inc., 146 F.3d 1286. 1289 (11th Cir. 1998).
In Florida, a surplus-lines agent must provide an insured with, among other
things, a document that: is countersigned or executed by the agent; contains a
description and location of the subject of the insurance; describes the conditions and
terms of coverage; states the premium and rate charged, as well as taxes collected
from the insured; and contains the name and address of the insured and insurer. See
Fla. Stat. § 626.922(1). Based on our review of the parties’ arguments, the district
court did not err by relying on the foregoing exhibits to show compliance with §
626.922(1), insofar as what was required of Lloyd’s, as an surplus-lines insurer. We
affirm the entry of judgment as a matter of law on this issue.3
We likewise are unpersuaded by Official Cargo’s last argument, that the district
court erred by preventing Official Cargo from allowing Norberto Fernandez, an agent
at All Risk Insurance Agency, to opine on whether there was a statutory 60-day
requirement for delivery of policies to insureds in Florida. The district court did not
allow the testimony because Fernandez was a “fact witness” who was not qualified
to give opinion testimony on the requirements of Florida law. In overruling Official
3
In reaching this conclusion, we observe that, irrespective of the delivery issues raised in
this appeal, Official Cargo has not appealed the jury’s finding, on the special verdict form, that the
stolen trailer was not under constant supervision, as required by the policy for coverage.
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Cargo’s objection, the district court informed counsel that the court would instruct the
jury on the law at the close of the trial.
As Lloyd’s highlights in its brief, it is not disputed that, despite the district
court’s ruling, later during the trial, plaintiffs’ counsel elicited testimony about the
60-day requirement from another fact witness. Thus, the error, if any, was harmless
because the jury heard about the 60-day statutory period. Moreover, because the only
question submitted to the jury concerned the existence of “constant supervision,”
within the meaning of the Policy, the testimony about delivery (an issue the district
court decided as an matter of law) was irrelevant. In any event, we can find no abuse
of discretion in the district court’s evidentiary ruling. Cf. United States v. Frazier,
387 F.3d 1244, 1258 (11th Cir. 2004) (en banc), cert. denied, 125 S. Ct. 2516 (2005).
(reviewing district court’s evidentiary rulings for abuse of discretion).
Finally, Lloyd’s has moved for appellate attorneys’ fees and costs, based on
Florida’s offer-of- judgment statute, Fla. Stat. § 768.79. We construe the motion as
one for appellate attorneys’ fees and non-taxable costs and REMAND to the district
court for a determination of entitlement and the reasonable amount of fees, if any, to
be awarded under § 768.79.
AFFIRMED; REMANDED WITH INSTRUCTIONS.
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