[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 07-10733 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ February 20, 2008
THOMAS K. KAHN
D. C. Docket No. 04-61156 CV-ASG CLERK
SERVICE CORPORATION INTERNATIONAL,
SCI FUNERAL SERVICES OF FLORIDA, INC.,
Plaintiffs-Appellants,
versus
GREAT AMERICAN INSURANCE COMPANY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 20, 2008)
Before ANDERSON and BARKETT, Circuit Judges, and TRAGER*, District
Judge.
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*Honorable David G. Trager, United States District Judge for the Eastern District of
NewYork, sitting by designation.
PER CURIAM:
After oral argument, and careful consideration, we conclude that the judgment
of the district court is due to be affirmed. It is true that an insurance company is
obligated to indemnify an insured under the following circumstances: where the
insurance company has had notice and an opportunity to defend, but declined; and
where the insured then settled a viable claim. Under such circumstances, the
insurance company is obligated to pay the claim which was settled so long as the
settlement was reasonable and so long as the plaintiff proves that the claim settled
was a covered claim. However, after full discussion at oral argument, we conclude
that the claims that were settled in this case were the claims of the one thousand or
fewer members of the class who did suffer mental anguish resulting from their
acquisition of knowledge that their own relatives’ remains had been mishandled.
We also conclude that the appellants conceded in the district court that the amount
of such claims which were covered (i.e., occurred within the policy period) would
total less than the $30 million threshold before which the insurance company’s
excess coverage took effect.
We also conclude that the $25 million paid by SCI as punitive damages in the
settlement is not insurable.
For the foregoing reasons, the district court correctly concluded that the
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insurance company owed no indemnity. The judgment of the district court is
AFFIRMED. 1
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Other arguments of appellants are rejected without need for further discussion.
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