ROYAL INSURANCE COMPANY, Plaintiff-Appellant,
v.
LATIN AMERICAN AVIATION SERVICES, INC., Millon Air Cargo, Inc., Defendants-Appellees,
Underwriters, Third-Party Defendant.
No. 99-12844
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
April 27, 2000.
Appeal from the United States District Court for the Southern District of Florida.(No. 96-01261-CV-JAL),
Joan A. Lenard, Judge.
Before COX and WILSON, Circuit Judges, and RONEY, Senior Circuit Judge.
RONEY, Senior Circuit Judge:
This action arises from the October 22, 1995 theft of computer parts from a warehouse located near
Miami International Airport. Royal Insurance Company ("Royal") insured the computer parts pursuant to
an insurance policy purchased by United Information Systems, Inc. ("UIS"), the owner/exporter of the
computer parts, which were intended for export to Brazilian companies. This appeal involves the
unsuccessful attempts by Royal to recover, as subrogee, its payment to its insured on the theft property claim.
Specifically, Royal appeals the grant of summary judgment in favor of an impled third-party defendant, the
insurer of the airline slated to deliver the stolen cargo to Brazil. The appeal turns on whether at the time of
the theft, the cargo was in the "course of carriage." The magistrate judge held that it was not. We affirm.
To properly understand this appeal, a brief overview of UIS's export procedure is helpful. UIS is in
the business of purchasing computer parts for export to Brazilian companies. Once UIS had the cargo ready
for shipment, it contacted Millon Air Cargo ("MAC"), an airfreight forwarding company, to obtain air
waybills. When these air waybills were prepared and signed, the cargo would then be delivered to Latin
American Aviation Services,("LAAS"), MAC's receiver or handling agent. The cargo remained in LAAS's
warehouse, however, until an aircraft became available to transport the cargo. At that point, the cargo was
"palletized"—wrapped in plastic sheets and netting—and transferred to an aircraft supplied by Millon Air,
Inc., ("MAI").
In this case, computer parts valued at $308,496 were stolen from the LAAS warehouse. After the
theft, Royal paid UIS's claim for the loss and brought a subrogation claim against LAAS and MAC. A
non-jury trial was conducted by consent before a magistrate judge who entered final judgment in favor of
Royal in the amount of $358,659.17. ("Order I").
When Royal was unsuccessful in collecting on its judgment against LAAS and MAC, it initiated
supplementary proceedings and impled as third party defendants certain insurers, collectively British Aviation
Insurance Company, Limited ("Underwriters"). This action against Underwriters is the proceeding now
before us.
Underwriters provides aircraft liability insurance to Millon Air Inc., ("MAI"), the airline slated to
deliver the computer parts to Brazil. MAI is not a party to this action. Royal's theory of recovery is that
LAAS and MAC are insured as "associated companies" of MAI under the policy and are therefore entitled
to indemnification from Underwriters for the judgment entered against them. The magistrate judge granted
Underwriters summary judgment on the ground that its policy did not insure MAI for this loss, so that of
course, it did not insure any "associated companies" of MAI.
MAI's policy contains a cargo legal liability inclusion endorsement which insures MAI's liability for
loss of cargo "during the course of carriage."
The Insurers will indemnify the Insured in respect of all sums which the Insured shall become legally
liable to pay as compensatory damages in respect of Loss of or damage to Cargo during the course
of carriage by the Insured and whilst in the care, custody, or control of the Insured whether in the air
or on the ground including while such Cargo is being loaded onto or unloaded from the Aircraft.
Coverage hereunder attaches from the time of acceptance of such Cargo by the Insured and ceases
upon delivery by the Insured at the final destination or when handed over to a succeeding carrier.
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The magistrate judge held that the loss here did not occur while the property was "in the course of
carriage." We affirm for two reasons.
First, although the term "carriage" is nowhere defined in the policy, the question Royal raises about
the interpretation of "course of carriage" had already been decided by the magistrate judge in Order I. That
determination is binding on Royal as the law of the case. See United States v. Escobar-Urrego, 110 F.3d
1556, 1560 (11th Cir.1997)("Under the law-of-the-case doctrine, an issue decided at one stage of a case is
binding at later stages of the same case.").
In Order I, the magistrate judge was called on to determine whether MAC and LAAS were entitled
to a limitation on their liability, a decision dependent upon whether there was "carriage" under the controlling
air waybill at the time of the theft. Following the argument made by Royal, the magistrate judge stated that
the term carriage was unambiguous and attached to it its ordinary meaning: " '[t]he act or process of
transporting or carrying' or '[t]ransportation of goods, freight or passengers,' " citing American Heritage
Dictionary 206 (New Coll. ed.1981); Black's Law Dictionary 214 (6th ed.1990). The magistrate judge made
the factual finding that "the stolen goods were not ready for transport. They were just stored, waiting to be
palletized." In its conclusions of law, the magistrate judge determined as a matter of fact and law that
"[a]t the time of the theft, MILLON and LAAS had stored the cargo in the warehouse pending
palletization and preparation for transport to Brazil. Order 15. Given its ordinary and unambiguous
meaning, 'carriage' had not begun....This court finds that at the time of the robbery, the defendant(s)
were engaged in 'services incidental' to carriage, and not carriage, itself."
No appeal was taken from Order I. The magistrate judge reiterated this definition and factual findings
in the second order. While there are exceptions to the law of the case doctrine, see Escobar-Urrego, 110 F.3d
at 1561, quoting White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967)(footnotes omitted), none apply here:
no new evidence has been brought to the court's attention, there has been no change in the law, and "the
district court's decision was not a clear error" that "would work manifest injustice."
Second, we hold the district court's decision on the merits was correct. Royal argues that "course
of carriage" encompasses a broader range of activity than the mere term "carriage." The magistrate court
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found, however, that the "goods were not ready for transport. They were just stored, waiting to be palletized."
There was no error in the court's determination that there was no issue of fact on this point.
The magistrate judge correctly determined that the only way to reach Royal's interpretation of the
contract language is to read "and" as "or" so that the relevant phrase is disjunctive. The clause would then
provide that Underwriters agrees to indemnify their insured for loss of cargo that occurs "either during the
course of carriage by the Insured or whilst in the care, custody or control of the Insured...." An insurance
policy must be construed in accordance with its plain language. See Prudential Prop. and Cas. Ins. Co. v.
Swindal, 622 So.2d 467, 470 (Fla.1993). Courts are not free to rewrite an insurance policy or to add terms
or meaning to it. See Mansfield Indus. Coatings, Inc. v. Employers Nat'l. Ins. Corp., 557 So.2d 221 (Fla. 1st
DCA 1990). See also Crown Life Ins. Co. v. Garcia, 424 So.2d 893, 894 n. 1 (Fla. 3d DCA 1982)("[T]he
conclusion that the policy terms provide coverage can be achieved only by changing the disjunctive word 'or,'
between the two separate exclusionary definitions of 'disabled,' to the conjunctive 'and.' "). Accord Prudential
Ins. Co., of America v. Bellar, 391 So.2d 737 (Fla. 4th DCA 1980). "Courts are forbidden, however from
engaging in any such rewriting process, even in the guise of 'interpreting' an insurance policy against the
company." Garcia, 424 So.2d at 894 n. 1 (quoting Griffin v. Speidel, 179 So.2d 569 (Fla.1965)).
The other language in the policy is not inconsistent with this interpretation. Neither the temporal
limitation of the coverage (coverage attaches from the insured's acceptance to delivery or handing over to
another carrier), nor the condition requiring that the cargo in the care of the insured "be kept in secure
premises at all times other than during actual air transit," address the period during which liability may attach.
The goods were not in the course of carriage when stolen and the loss does not fall within the coverage
provided by Underwriters.
This decision makes it unnecessary to rule on Royal's appeal from the denial of its summary judgment
motion arguing that LAAS and MAC were "associated companies" with MAI under the policy. See, e.g., St.
Paul Fire & Marine Ins. Co. v. Mayor's Jewelers of Fort Lauderdale, Inc., 465 F.2d 317 (5th
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Cir.1972)(companies associated because significant integration of both managerial and financial control);
Fireman's Fund Ins. Cos. v. American Int'l Ins. Co. of Puerto Rico, Inc., 109 F.3d 41 (1st Cir.1997)(twenty
percent ownership of company does not constitute "associated"). The record tends to support the magistrate
court's determination that there is an issue of material fact as to the relationships of the companies, precluding
summary judgment.
AFFIRMED.
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