[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13394 November 5, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 08-00081-CV-MHS-1
HOME DEPOT U.S.A., INC.,
Plaintiff-Appellant,
versus
UNITED STATES FIRE INSURANCE COMPANY,
Defendant-Appellee.
________________________
No. 08-13404
Non-Argument Calendar
________________________
D.C. Docket No. 06-03034-CV-MHS-1
HOME DEPOT U.S.A., INC.,
Plaintiff-Appellant,
versus
A. ANASTASIO & SONS TRUCKING CO., INC.,
UNITED STATES FIRE INSURANCE COMPANY,
Defendants-Appellees.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(November 5, 2008)
Before MARCUS, WILSON and COX, Circuit Judges.
PER CURIAM:
Home Depot U.S.A., Inc. filed two lawsuits. The first suit is against A.
Anastasio & Sons Trucking Co., Inc. (Anastasio) and United States Fire Insurance
Company (U.S. Fire). The second suit is against U.S. Fire alone. The district
court granted summary judgment to the defendants in the first suit, and dismissed
Home Depot’s claims in the second suit. Home Depot’s consolidated appeal is
before us.
The facts underlying both suits are the same. Anastasio provided trucking
services to Home Depot pursuant to oral agreements. In 1998, Home Depot sent
Anastasio an unsigned Contract Carrier Agreement (1998 CCA). The 1998 CCA
required Anastasio to indemnify Home Depot and to add Home Depot as an
2
additional insured on its Commercial General Liability (CGL) policy issued by
U.S. Fire. Anastasio made multiple handwritten changes to the terms of the 1998
CCA, signed it, and sent it back to Home Depot. Home Depot did not approve of
these changes and did not sign the 1998 CCA.
Shortly thereafer, one of Anastasio’s drivers was injured while inspecting
and tarping cargo which had been loaded at a Home Depot facility.
Home Depot then demanded Anastasio and U.S. Fire defend and indemnify
it in the lawsuit brought by Anastasio’s driver. Anastasio and U.S. Fire refused,
and Home Depot sued.
In the first suit, Home Depot asserted five claims against Anastasio: 1)
express indemnity under the 1998 CCA; 2) equitable indemnity; 3) contribution;
4) breach of the 1998 CCA for failure to defend Home Depot in the lawsuit; and 5)
breach of the 1998 CCA for failure to maintain insurance. Home Depot also
asserted three claims against U.S. Fire: 1) breach of U.S. Fire’s CGL Policy issued
to Anastasio; 2) bad faith; and 3) attorney’s fees. Anastasio and U.S. Fire moved
for summary judgment on all claims, which the district court granted. Home
Depot appeals.
Home Depot argues that the district court improperly granted summary
judgment to Anastasio for two reasons. First, Home Depot argues that the court
3
erred in determining that the 1998 CCA was not a valid contract, as Connecticut
law provides that an unsigned contract can be valid if there is some other
manifestation of mutual asset. This is not a complete statement of the law,
however. Connecticut law provides that if an offeree changes the terms of an
offer, it invalidates the offer and acts as a counteroffer. Cavallo v. Lewis, 473
A.2d 338, 340 (Conn. App. Ct. 1984).1 When Anastasio made handwritten
changes to the 1998 CCA and sent it back to Home Depot, it did not accept Home
Depot’s offer, but rather made a counteroffer. Home Depot never accepted this
counteroffer by signing it or otherwise manifesting assent. Because Home Depot
never accepted Anastasio’s counteroffer, the 1998 CCA is not a valid contract
between the parties and does not confer any rights to Home Depot.
Home Depot next argues that its indemnification and breach-of-contract
claims are based on the rights Home Depot enjoys under a Contract Carrier
Agreement executed in 2000 (2000 CCA). The 2000 CCA is not the subject of
this suit, however. In its complaint, Home Depot made claims against Anastasio
based on the 1998 CCA. (R.1-1 Ex. C at 2.) Home Depot cannot add claims
based on the 2000 CCA in opposition to Anastasio’s motion for summary
1
The parties still do not agree whether Connecticut or Georgia law applies. We need not
decide the issue since the 1998 CCA is not a valid contract under either state’s law. See Gill v. B
& R Int’l., Inc., 507 S.E.2d 477, 480-81 (Ga. Ct. App. 1998) (holding same as Cavallo).
4
judgment when its complaint is based on the 1998 CCA. We have held that, “[a]t
the summary judgment stage, the proper procedure for plaintiffs to assert a new
claim is to amend the complaint . . . . A plaintiff may not amend her complaint
through argument in a brief opposing summary judgment.” Gilmour v. Gates,
McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). Because Home Depot
did not amend its complaint to add claims based on the 2000 CCA, Home Depot
cannot assert those claims in opposition to summary judgment.
The 1998 CCA is not a valid contract and does not confer any rights upon
Home Depot. The 2000 CCA is irrelevant to this suit, which was brought based
on provisions of the 1998 CCA. Accordingly, we affirm the district court’s grant
of summary judgment for Anastasio on Home Depot’s claims based on the 1998
CCA.2
Next, we turn to Home Depot’s claims in the first suit against U.S. Fire.
Home Depot argues that U.S. Fire breached its CGL policy by failing to defend
and indemnify Home Depot in the suit brought by Anastasio’s driver. Home
Depot argues that summary judgment for U.S. Fire was inappropriate because
2
Home Depot does not challenge the grant of summary judgment for Anastasio on Home
Depot’s equitable indemnification or contribution claims.
5
Home Depot was an additional insured on the CGL policy.3 Home Depot’s chief
argument is that U.S. Fire is estopped to deny that Home Depot is covered by the
CGL policy since its agent, Arthur Watson, issued Home Depot a Certificate of
Liability Insurance. We disagree. We have held that “[e]vidence inadmissible at
trial cannot be used to avoid summary judgment.” Corwin v. Walt Disney Co., 475
F.3d 1239, 1249 (11th Cir. 2007) (quoting Broadway v. City of Montgomery, Ala.,
530 F.2d 657, 661 (5th Cir. 1976)). U.S. Fire disputes the authenticity of the
Certificate of Liability Insurance Home Depot offers as evidence of its coverage.
(R.1-3 at 11.) Home Depot, in order for this document to be admissible, must
offer “evidence sufficient to support a finding that the matter in question is what
its proponent claims.” Fed. R. Evid. 901(a). Home Depot has failed to offer any
evidence sufficient to support such a finding, and so the Certificate of Liability
Insurance is not admissible evidence. Home Depot cannot rely on this
inadmissible evidence in its opposition to U.S. Fire’s motion for summary
judgment. Because there is no admissible evidence to support Home Depot’s
contention that it is insured under the CGL policy which U.S. fire issued to
Anastasio, the district court correctly granted summary judgment to U.S. Fire.
3
We find no merit in Home Depot’s argument that it is covered under the CGL policy based
on the 1998 CCA. The 1998 CCA is not a valid contract, and so cannot give Home Depot rights
under the CGL policy.
6
Because Home Depot’s remaining arguments on appeal all presuppose that it is an
additional insured under the CGL policy, we do not address them.
Finally, we turn to Home Depot’s second lawsuit against U.S. Fire. Home
Depot argues that the district court improperly dismissed its claims on the basis
that they were barred by res judicata. Home Depot argues that its second suit,
even though it seeks the same relief for the same injury it sought in the first suit, is
not barred by res judicata because the second suit is based on a different insurance
policy than the first. We disagree. The district court correctly analyzed the
relevant elements of res judicata and concluded that the second suit was barred.
(R.1-10 at 1-5.)
Res judicata “bars the filing of claims which were raised or could have been
raised in an earlier proceeding.” Citibank N.A. v. Data Lease Fin. Corp., 904 F.2d
1498, 1501 (11th Cir. 1990) (emphasis added). Res judicata bars a claim when
four elements are satisfied: 1) a final judgment on the merits; 2) rendered by a
court of competent jurisdiction; 3) on the same cause of action; and 4) asserted
between the same parties. Id. Home Depot argues that res judicata is inapplicable
here because the same-cause-of-action element is not satisfied since this suit is
based on a different insurance policy than the first suit. We have held, however,
that absolutely identical cause of actions are not required for res judicata to apply:
7
“if a case arises out of the same nucleus of operative fact, or is based upon the
same factual predicate, as a former action, [then] the two cases are really the same
‘claim’ or ‘cause of action’ for purposes of res judicata.” Id. at 1503 (quoting
Ruple v. City of Vermillion, 714 F.2d 860, 861 (8th Cir. 1983)). See Ragsdale v.
Rubbermaid, Inc., 193 F.3d 1235, 1240 (11th Cir. 1999) (holding retaliatory
discharge claim barred by res judicata since it arose from same factual predicate as
qui tam action brought in prior suit).
Home Depot’s second lawsuit seeks the same relief for the same injury from
the same party as the first suit. The only difference between the first and second
suit is that instead of relying on U.S. Fire’s CGL policy issued to Anastasio to
assert its rights, Home Depot relies on U.S. Fire’s auto policy issued to Anastasio.
The auto policy was in existence at the time of the first suit and nothing prevented
Home Depot from asserting claims based on it in the first suit.4 Indeed, Home
Depot is not even named in the insurance policy it seeks to sue under, but asserts it
is an additional insured under the same 1998 CCA it relied on in the first suit.
Accordingly, we affirm the district court’s dismissal of Home Depot’s claims in
the second suit.
AFFIRMED.
4
Indeed, Home Depot attempted to untimely amend its complaint to include claims based on
this policy, but the motion to amend was denied. (R.3-58 at 1-4.)
8
9