Service Corporation Int'l. v. Continental Casualty

[DO NOT PUBLISH]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.

________________________

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.

________________

*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

1
Other arguments of appellants are rejected without need for further discussion.

3