[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 28, 2008
No. 05-13242 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-01688-CV-T-26-TGW
RICHARD L. TOOMEY,
Resident of Montgomery County, As an
individual and as an assignee of IMC Mortgage
Company,
BRIAN D. HOLMAN,
Resident of Baltimore County, As an
individual and as an assignee of IMC Mortgage
Company,
Plaintiffs-Appellees
Cross-Appellants,
versus
WACHOVIA INSURANCE SERVICES, INC.,
JOEL G. WILLIAMS,
DAVID BALDWIN, INC.,
A Division of Wachovia Insurance Services, Inc.,
Defendants-Appellants
Cross-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 28, 2008)
Before TJOFLAT, BARKETT and GOODWIN,* Circuit Judges.
PER CURIAM.
In this diversity action, Richard Toomey and Brian Holman sued Wachovia
Insurance Services, Inc., Davis Baldwin, Inc., a division of Wachovia Insurance
Services, Inc., and Joel Williams, an officer/employee of Wachovia Insurance
Services, Inc. (together “Wachovia”) alleging, inter alia, that Wachovia breached
fiduciary duties it owed to IMC Mortgage Company (“IMC”) and that Wachovia
was negligent in its dealings with IMC. In a previous settlement agreement
between IMC and Toomey and Holman, IMC had assigned its potential claims
against Wachovia to Toomey and Holman.
After trial, the district court submitted the breach of fiduciary duty claim to
the jury, which returned a verdict of $1,069,200 in favor of Toomey and Holman.
However, as to Toomey and Holman’s other claims, including the claim that
Wachovia was negligent in its dealings with IMC, the district court granted
*
Honorable Alfred T. Goodwin, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
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judgment as a matter of law in favor of Wachovia. Wachovia appealed the jury
verdict on the fiduciary duty claim and Toomey and Holman cross-appealed the
grant of judgment as a matter of law on the remaining claims and the denial of their
motion to alter or amend the judgment.
Because we found that determinative questions raised by this appeal were
unsettled under Florida law, we certified the following two questions to the Florida
Supreme Court:
WHAT IS THE EFFECT OF A SETTLEMENT AGREEMENT
BETWEEN TWO PARTIES THAT EXPLICITLY CONTAINS
BOTH AN ASSIGNMENT OF CAUSES OF ACTION AGAINST A
THIRD PARTY INSURER AND AN IMMEDIATE RELEASE OF
THE INSURED ON THE SAME CAUSES OF ACTION?
CAN A CLAIM FOR BREACH OF FIDUCIARY DUTY AGAINST
AN INSURANCE BROKER BE ASSIGNED?
The Florida Supreme Court answered both questions in the affirmative,
holding that the settlement agreement properly assigned IMC’s cause of action
against Wachovia to Holman and Toomey because the assignment was done
simultaneously with the release of IMC from all liability and that the claim for
breach of fiduciary duty against Wachovia is comparable to a bad faith claim and
thus is assignable. Wachovia Insurance Services, Inc. v. Toomey, No. SC06-1110,
2008 WL 4379587, at *9 (Fla. Sept. 29, 2008). The Florida Supreme Court further
determined that IMC’s negligence claim against Wachovia was assignable to
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Toomey and Holman and should have been submitted to the jury. Id. at *8-9.
Based on the Florida Supreme Court’s opinion in the instant case, we reverse
the district court’s grant of judgment as a matter of law in favor of Wachovia as to
the negligence claim, affirm the judgment finding Wachovia liable for breach of
fiduciary duty to IMC, affirm as to all other issues, and remand this case for any
further proceedings necessary and consistent with the Florida Supreme Court’s
opinion.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
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