[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 01-17246 September 9, 2003
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 94-10062 CV-JCP
TRANS COASTAL ROOFING COMPANY, INC.,
Plaintiff-
Counter-Defendant-
Appellee,
INTERCARGO INSURANCE COMPANY
Counter-Defendant-
Appellee,
versus
DAVID BOLAND INCORPORATED
Defendant
Counter-Claimant-
Appellant,
AMERICAN INSURANCE COMPANY,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 9, 2003)
Before TJOFLAT and BARKETT, Circuit Judges, and WEINER*, District Judge.
PER CURIAM:
The procedural history, facts, and issues in this case are contained in our
previous opinion, which certified a dispositive question of state law to the Florida
Supreme Court. Trans Coastal Roofing Co. v. David Boland, Inc., 309 F.3d 758
(11th Cir. 2002). That Court has now answered the certified question in the
affirmative. See David Boland, Inc., v. Trans Coastal Roofing Company, 28 Fla. L.
Weekly S626 (Fla., July 11, 2003). The district court therefore erred in
interpreting Florida Statutes § 627.428 to prohibit the recovery of attorneys’ fees
in excess of a performance bond’s face amount from a subcontractor’s surety when
the fees claimant has not shown independent misconduct on the part of the surety.
Accordingly, we VACATE the district court judgment with regard to limiting
Intercargo’s liability for attorneys’ fees and REMAND this case for further
proceedings consistent with the opinion of Florida Supreme Court.
*
Honorable Charles R. Weiner, United States District Judge for the Eastern District of
Pennsylvania.
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