Rissman, Barrett, Hurt, Donahue & McClain, P.A. v. Westport Insurance

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-13827 MAY 25, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK

D.C. Docket No. 6:10-cv-00898-MSS-GJK

RISSMAN, BARRETT, HURT, DONAHUE & MCCLAIN, P.A.,
DAVID A. POPPER,

llllllllllllllllllllllllllllllllllllllll Plaintiffs - Appellants,

versus

WESTPORT INSURANCE CORPORATION,

llllllllllllllllllllllllllllllllllllllll Defendant - Appellee,

KINGSLAND LAND HOLDINGS, LLC,
a Florida Limited Liability Corporation,

llllllllllllllllllllllllllllllllllllllll Defendant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(May 25, 2012)
Before BARKETT, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

Plaintiffs Rissman, Barrett, Hurt, Donahue & McLain, P.A. (“Rissman

Firm”) and David Popper appeal the district court’s decision to grant summary

judgment to defendant Westport Insurance Corp. (“Westport”). After careful

review, we affirm.

The essential facts of this case are not in dispute. Popper is a an attorney

licensed in Florida, and at all relevant times, he was employed by the Rissman

Firm. The firm was the named insured of a lawyers professional liability

insurance policy issued by Wesport. Insuring Agreement I.A. of the policy

provides that Westport “shall pay on behalf of any INSURED all LOSS in excess

of the deductible which any INSURED becomes legally obligated to pay as a

result of CLAIMS first made against any INSURED . . . by reason of any

WRONGFUL ACT . . . .”

The policy defines the term “WRONGFUL ACT” as “any act, error,

omission, circumstance, PERSONAL INJURY or breach of duty in the rendition

of PROFESSIONAL SERVICES for others.” In turn, the policy defines the term

“PROFESSIONAL SERVICES” as “services rendered to others in the

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INSURED’s capacity as a lawyer, and arising out of the conduct of the

INSURED’s profession as a lawyer . . . .” The policy provides that Wesport “shall

have the right and duty to defend any CLAIM for LOSS against any INSURED

covered by Insuring Agreement I.A., even if such claim is groundless, false or

fraudulent . . . .”

In July 2009, Kingsland Land Holdings, LLC (“Kingsland”) filed a civil

complaint against Popper in Florida state court. The complaint addressed

Popper’s participation in the sale of a piece of real property to Kingsland.

Specifically, in Count II of the complaint, Kingsland alleged that Popper “was

acting as a real estate broker at a time when [he] was not licensed to so act” and

that he “stated that there were no significant defects on the property and that

entitlement to the property for residential purposes could easily be achieved.”

Kingsland alleged that Popper “knew or should have known that this statement

was false.” Kingsland sought damages for this alleged misrepresentation.

In August 2009, the Rissman Firm notified Westport of this lawsuit. In

September 2009, Westport informed the Rissman Firm of its decision to decline

coverage. In March 2010, the firm asked Westport to reconsider, but in May

2010, Westport refused to do so. In June 2010, the Rissman Firm and Popper

(collectively “the insureds”) filed this suit, seeking damages for breach of contract,

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as well as declaratory relief. On the parties’ cross-motions for summary judgment,

the district court held that there was no coverage for the underlying lawsuit and no

duty to defend. The district court therefore granted summary judgment to

Westport.

II.

We review a grant of summary judgment de novo, applying the same

standard as the district court. Midrash Sephardi, Inc. v. Town of Surfside, 366

F.3d 1214, 1222–23 (11th Cir. 2004).

The insureds argue that summary judgment in favor of Westport was not

proper “because the allegations of the underlying complaint . . . fall within the

scope of coverage under the policy.” As a result, according to the insureds, the

complaint triggered Westport’s duty to defend. This argument fails. “Florida law

provides that insurance contracts are construed in accordance with the plain

language of the policies as bargained for by the parties.” Auto-Owners Ins. Co. v.

Anderson, 756 So. 2d 29, 34 (Fla. 2000). Also, an insurer’s “duty to defend

depends solely on the facts and legal theories alleged in the pleadings and claims

against the insured.” James River Co. v. Ground Down Eng’g, Inc., 540 F.3d

1270, 1275 (11th Cir. 2008) (emphasis added) (quotation marks omitted).

As set out above, the policy here provides coverage for wrongs committed

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“in the rendition of PROFESSIONAL SERVICES for others.” The policy

specifically defines the term “PROFESSIONAL SERVICES” as “services

rendered to others in the INSURED’s capacity as a lawyer, and arising out of the

conduct of the INSURED’s profession as a lawyer . . . .” (Emphases added.) We

agree with the district court that the allegations in the underlying complaint do not

“fairly and potentially bring the suit within [this] policy coverage.” Lawyers Title

Ins. Corp. v. JDC (Am.) Corp., 52 F.3d 1575, 1580 (11th Cir. 1995).1

As the district court observed, Count II of the complaint repeatedly

identifies Popper as an unlicensed real estate broker. Specifically, Count II states

that Popper

was acting as a real estate broker at a time when [he] was not licensed
to so act. [He] stated that there were no significant defects on the
property and that entitlement to the property for residential purposes
could easily be achieved. [He] knew or should have known that this
statement was false.

Count II also alleges, by reference, that Popper received a commission for the sale

of the property and that at the time that he received the commission, he “was not

acting in his professional role as an attorney at law.” Count II does not otherwise

contain any allegation that Popper acted as an attorney. Thus, the underlying

1
In the district court and on appeal, the insureds have relied solely on the allegations in
Count II of the underlying complaint.

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complaint is squarely focused on Popper’s purported decision to act as an

unlicensed real estate broker and the misrepresentations he made in the course of

that conduct.

The insureds argue that the Third Circuit’s decision in Westport Insurance

Corp. v. Bayer, 284 F.3d 489 (3d Cir. 2002), supports their position. There, the

Third Circuit construed a similar policy and found that there was coverage. See

id. at 496–98. We find Bayer to be distinguishable, however. In the underlying

lawsuit in that case, the court found that the insured was “holding himself out as

an attorney” when he promoted a fraudulent investment scheme. Id. at 497. Here,

the underlying complaint contains no such allegation. The insureds’ reliance on

Bayer is therefore misplaced.

For these reasons, we affirm the judgment of the district court.

AFFIRMED.