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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14235
Non-Argument Calendar
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D.C. Docket No. 0:16-cv-61768-CMA
TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA,
Plaintiff - Counter Defendant- Appellee,
versus
SALT ‘N BLUE LLC,
ROBERT WRANOVICS,
Defendants - Counter Claimants,
DOUGLAS BARKLEY,
Defendant - Counter Claimant - Appellant,
GLENN GROSSO, et al.,
Defendants.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 7, 2018)
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Before WILSON, JORDAN and BLACK, Circuit Judges.
PER CURIAM:
Douglas Barkley appeals the district court’s order granting summary
judgment in favor of Travelers Property Casualty Company of America (Travelers)
in this action regarding the scope of Travelers’ duty to defend and indemnify
Barkley and his assignee, certain underwriters at Lloyd’s of London, Syndicate
4020, Ark Underwriting, Inc. (Lloyds). The district court concluded Travelers had
no duty to defend or indemnify. After review, we affirm. 1
I. BACKGROUND
A. The Facts 2
This is a maritime insurance case. On July 30, 2014, Joseph Grosso and his
brother Nicholas Grosso boarded the M/V Scubatyme III (the Vessel) for a lobster
dive off the coast of Pompano Beach, Florida. Salt ‘N Blue LLC owned the
1
We review a grant of summary judgment de novo, viewing all evidence and drawing all
reasonable inferences in the non-moving party’s favor. Owen v. I.C. Sys., Inc.,
629 F.3d 1263,
1270 (11th Cir. 2011). “[I]nterpretation of an insurance contract is also a matter of law subject
to de novo review.” LaFarge Corp. v. Travelers Indem. Co.,
118 F.3d 1511, 1515 (11th Cir.
1997).
2
This opinion concerns only the duty to defend because there is no duty to indemnify
absent a duty to defend. Fun Spree Vacations, Inc. v. Orion Ins. Co.,
659 So. 2d 419, 422 (Fla.
3d DCA 1995). Under Florida law, which the parties agree applies, an insurer’s duty to defend
depends solely on the allegations in the complaint filed against the insured. Keen v. Fla.
Sheriffs’ Self-Ins.,
962 So. 2d 1021, 1024 (Fla. 4th DCA 2007). Therefore, the facts are taken
from the complaint in the underlying wrongful death action and, for purposes of our analysis,
presumed accurate. See Jones v. Fla. Ins. Guar. Ass’n,
908 So. 2d 435, 443 (Fla. 2005).
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Vessel, which was operated by Robert Wranovics, its captain, and Douglas
Barkley, a mate and divemaster.
The Vessel proceeded to the intended dive site. After completing their
dives, Joseph and Nicholas returned to the Vessel. Nicholas had exhausted his air
supply, but Joseph wanted to re-enter the water to retrieve a lobster he had marked
with a buoy. Although no one had checked the amount of air remaining in his
tank, Joseph was allowed to re-enter the water without a dive buddy.
During Joseph’s second dive, Wranovics steered the Vessel away to pick up
other divers. When Wranovics returned to Joseph’s location, Wranovics found
Joseph unresponsive in approximately fifteen feet of water. Joseph’s body was
tangled in a line with a buoy attached to it—a line given to him by a crewmember
on the Vessel. He had drowned.
B. The Procedural History
Joseph’s estate filed a wrongful death action (the Underlying Litigation) in
the Seventeenth Judicial Circuit Court of Florida, alleging Salt ‘N Blue,
Wranovics, and Barkley breached the duty of care owed Joseph by, inter alia,
allowing Joseph to re-enter the water without a dive buddy and leaving the dive
site to collect other divers. Lloyds defended Barkley in the Underlying Litigation
because Barkley is a named insured under a Lloyds-issued Professional Liability
Insurance Master Policy (Lloyds’ Policy).
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On September 26, 2016, counsel for Barkley demanded that Travelers join in
defending and indemnifying Barkley in the Underlying Litigation because Barkley
is also a named insured under a Commercial Marine Insurance Policy (Travelers’
Policy) issued by Travelers to Salt ‘N Blue. The Travelers’ Policy obligates
Travelers to “pay sums . . . a covered person under this policy become[s] legally
obligated to pay as a result of the ownership, operation or maintenance of the
insured vessel because of . . . bodily injury or loss of life.” Travelers agreed to
defend Barkley, subject to a full reservation of rights.
The Underlying Litigation settled and the case was dismissed with prejudice
on November 14, 2016. Although it paid sums for Wranovics and Salt ‘N Blue,
Travelers allegedly refused to participate in funding the settlement of the claims
against Barkley. To protect its insured from exposure in excess of the Lloyds’
Policy’s limits, Lloyds paid the entire settlement demand. Barkley assigned his
right to recovery under the Travelers’ Policy to Lloyds for valid consideration.
On July 22, 2016, while the Underlying Litigation was still pending,
Travelers filed the instant suit against Salt ‘N Blue, Wranovics, and Barkley,
seeking a declaration that it was not obligated to defend Barkley. Travelers relied,
in part, on the Diveboat Limitation Endorsement included in the Travelers’ Policy,
which excludes “[b]odily injury, loss of life, or illness of any person while in the
water or arising as a consequence of being in the water” from coverage. Barkley
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filed a counterclaim seeking a declaration that Travelers was obligated to defend
and indemnify Barkley. The parties ultimately filed cross motions for summary
judgment. The district court entered summary judgment for Travelers, holding that
it had no duty to defend or indemnify Barkley. Barkley appealed.
II. ANALYSIS
This appeal concerns the duty to defend and the duty to indemnify. The duty
to defend is distinct from, and broader than, the duty to indemnify. Keen v. Fla.
Sheriffs’ Self-Ins.,
962 So. 2d 1021, 1024 (Fla. 4th DCA 2007). We begin our
analysis with the duty to defend because if Travelers had no duty to defend
Barkley, it necessarily follows that Travelers had no duty to indemnify him. Fun
Spree Vacations, Inc. v. Orion Ins. Co.,
659 So. 2d 419, 422 (Fla. 3d DCA 1995)
(“Since [the insurer] had no duty to defend the insureds, correspondingly, there is
no duty to indemnify them . . . .”).
Under Florida law, an insurer’s duty to defend depends solely on the
allegations in the complaint filed against the insured.
Keen, 962 So. 2d at 1024.
Therefore, for purposes of our analysis, we look to the complaint filed in the
Underlying Litigation (Underlying Complaint) and assume all facts contained
therein are accurate. See Jones v. Florida Ins. Guar. Ass’n,
908 So. 2d 435, 443
(Fla. 2005) (“Indeed, when the actual facts are inconsistent with the allegations in
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the complaint, the allegations in the complaint control in determining the insurer’s
duty to defend.” (quotation omitted)).3
There is no duty to defend only if there is no doubt that the allegations of the
complaint do not fall within the policy’s coverage. Marr Invs., Inc. v. Greco,
621
So. 2d 447, 449 (Fla. 4th DCA 1993). “[T]he burden of demonstrating that the
allegations of the complaint are cast solely and entirely within [a] policy
exclusion” rests with the insurer. Hartford Accident & Indem. Co. v. Beaver,
466
F.3d 1289, 1296 (11th Cir. 2006) (quotation omitted). Correspondingly, “[a]ny
doubts regarding the duty to defend must be resolved in favor of the insured.”
Jones, 908 So. 2d at 443.
But, before exploring the merits, we must address Barkley’s argument that
the district court erred by analyzing an exclusion before deciding whether Barkley
fell within the general coverage grant. The general coverage grant obligates
Travelers to “pay sums . . . a covered person under this policy become[s] legally
obligated to pay as a result of the ownership, operation or maintenance of the
insured vessel because of . . . bodily injury or loss of life.” But the district court
did not decide whether Joseph’s death occurred “as a result of” the operation of the
Vessel. Instead, the district court granted summary judgment for Travelers
3
Barkley contends the district court erred by declining to limit its review to facts taken
from the Underlying Complaint. We need not pass on Barkley’s argument because, even taking
the allegations in the Underlying Complaint as true, there is no duty to defend.
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because, even assuming Jospeh’s death occurred as a result of the operation of the
Vessel, the facts alleged in the Underlying Complaint fall within the Diveboat
Limitation Endorsement.
Barkley asserts the district court erred by failing to rule on “the threshold
question of whether Barkley’s liability falls within the main coverage grant of the
policy.” We disagree. In support, Barkley cites Siegle v. Progressive Consumers
Insurance Company,
819 So. 2d 732 (Fla. 2002), for the proposition that ruling on
the main coverage grant is a necessary predicate to considering potentially
applicable exclusions. Barkley focuses on the following language from Siegle:
“[T]he existence or nonexistence of an exclusionary provision in an insurance
contract is not at all relevant until it has been concluded that the policy provides
coverage for the insured’s claimed
loss.” 819 So. 2d at 740. But Barkley’s
argument takes that quotation out of context. In Siegle, the Florida Supreme Court
rejected the argument that the absence of an exclusion for diminished value
supported the conclusion that an insurance policy did, in fact, cover diminished
value.
Id. The Florida Supreme Court did not hold that courts are barred from
assuming arguendo that a claim falls within the main coverage grant and
proceeding to analyze potentially relevant exclusions.
Accordingly we turn, as the district court did, to the language of the
exclusion. As Florida courts have repeated time and again, “insurance contracts
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must be construed in accordance with the plain language of the policy.” Swire
Pac. Holdings, Inc. v. Zurich Ins. Co.,
845 So. 2d 161, 165 (Fla. 2003). “If the
relevant policy language is susceptible to more than one reasonable interpretation,
one providing coverage and the [other] limiting coverage, the insurance policy is
considered ambiguous.”
Id. (alteration in original) (quotation omitted).
“[E]xclusionary provisions which are ambiguous or otherwise susceptible to more
than one meaning must be construed in favor of the insured.” State Farm Mut.
Auto. Ins. Co. v. Pridgen,
498 So. 2d 1245, 1248 (Fla. 1986). “But courts should
not strain to find ambiguity.” Sphinx Int’l, Inc. v. Nat’l Union Fire Ins. Co. of
Pittsburgh,
412 F.3d 1224, 1228 (11th Cir. 2005). “[I]f there is no genuine
ambiguity, there is no reason to bypass the policy’s plain meaning.”
Id.
The Diveboat Limitation Endorsement excludes “[b]odily injury, loss of life,
or illness of any person while in the water or arising as a consequence of being in
the water” from coverage. The facts alleged in the Underlying Complaint show
that Joseph drowned after re-entering the water to retrieve a lobster. His drowning
death is a “loss of life” that occurred “while in the water.” Barkley, however,
urges this Court to bypass plain meaning because the Diveboat Limitation
Endorsement is ambiguous.
Although Barkley asserts the Diveboat Limitation Endorsement, standing
alone, “is susceptible to more than one reasonable interpretation,” he does not
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elaborate on this conclusory statement by, for example, pointing out other
reasonable interpretations of the exclusion. Therefore, Barkley has waived the
argument that the exclusion is ambiguous when considered in isolation. See
Greenbriar, Ltd. v. City of Alabaster,
881 F.2d 1570, 1573 n.6 (11th Cir. 1989)
(finding waiver where the appellant “elaborate[d] no arguments on the merits as to
this issue in its initial . . . brief”). And even if the argument were not waived, the
standalone text of the Diveboat Limitation Endorsement is unambiguous: loss of
life while in the water is not covered.
Alternatively, Barkley contends the Diveboat Limitation Endorsement is
ambiguous when considered in context. First, he emphasizes the Travelers’ Policy
is “patently ambiguous . . . in that [it] provides coverage for operational negligence
of a vessel under its main coverage grant, and then takes away coverage where, as
a direct consequence of the negligent operation of the vessel, a diver drowns ‘in the
water.’” “However, simply because one provision gives a general grant of
coverage and another provision limits this coverage does not mean there is an
ambiguity.” Ajax Bldg. Corp. v. Hartford Fire Ins. Co.,
358 F.3d 795, 799 (11th
Cir. 2004). On the contrary, “[t]his is the very nature of an insurance contract;
exclusions in coverage are expressly intended to modify coverage clauses and to
limit their scope.”
Id. Therefore, the Diveboat Limitation Endorsement is not
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ambiguous because it limits the scope of the general coverage grant under the
Travelers’ Policy.
Second, Barkley cites the exclusion’s “interact[ion] and conflict[] with
several other endorsements” in the Travelers’ Policy to show ambiguity. Despite
his use of the plural “endorsements,” Barkley cites only one in his opening brief:
the Divemaster Limitation Endorsement. The Divemaster Limitation Endorsement
covers sums an insured “becom[es] legally obligated to pay as a result of the
ownership, operation or maintenance of the insured watercraft because of liability
to a Certified Divemaster and/or Dive Instructor performing diving services on
behalf of you from the insured watercraft.” The Travelers’ Policy further states
that exclusion (k), which was replaced by the Diveboat Limitation Exclusion, “[is]
deleted for the purpose of this endorsement only.” Barkley does not explain what,
exactly, is ambiguous about the Diveboat Limitation Endorsement’s interaction
with the Divemaster Limitation Endorsement. As noted above, this Court will not
consider an argument unless the appellant elaborates on the merits. See
Greenbriar
Ltd., 881 F.2d at 1573 n.6. And to the extent Barkley is attempting to
incorporate arguments made in his briefing before the district court, he cannot. See
Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A.,
377 F.3d 1164, 1167
n.4 (11th Cir. 2004) (rejecting the practice of incorporating by reference arguments
made to district courts).
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Again, even if the argument were not waived, it would be unavailing. The
Divemaster Limitation Endorsement provides that the Diveboat Limitation
Endorsement is disregarded where “liability to a Certified Divemaster and/or Dive
Instructor” is concerned. Barkley acknowledges that the Divemaster Limitation
Endorsement “does not apply to the facts presented in the Underlying Litigation.”
Liability to a certified divemaster or dive instructor is simply not at issue.
However, Barkley nonetheless emphasizes that “Travelers relied upon this
endorsement to try to bolster its position that no coverage exists.” The fact that
Travelers quoted the Divemaster Limitation Endorsement in a letter recounting
“many of the pertinent sections of the [Travelers’] Policy” does not demonstrate a
conflict between the Divemaster Limitation Endorsement and the Diveboat
Limitation Endorsement, particularly where the letter simultaneously “urge[d]
[Barkley] to review the full Policy for a complete listing of all applicable terms,
conditions, exclusions and endorsements.”
Third, Barkley cites testimony by Travelers’ underwriting representative,
Travis Ochowicz. Responding to hypotheticals, Ochowicz indicated the Travelers’
Policy would cover passenger deaths in the water if those deaths were attributable
to crewmember negligence. This testimony, Barkley contends, demonstrates
ambiguity. We disagree. “[I]nsurance contracts are interpreted according to the
plain language of the policy except when a genuine inconsistency, uncertainty, or
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ambiguity in meaning remains after resort to the ordinary rules of construction.”
Taurus Holdings, Inc. v. U.S. Fidelity & Guar. Co.,
913 So. 2d 528, 532 (Fla.
2005) (emphasis added) (quotation omitted). Here, there is no ambiguity after
considering the ordinary rules of construction, and we decline to introduce any
through Ochowicz’s testimony.
Finally, Barkley urges the Diveboat Limitation Endorsement is illusory. Not
so. Insurance coverage becomes illusory “[w]hen limitations or exclusions
completely contradict the insuring provisions.” Warwick Corp. v. Turetsky,
227
So. 3d 621, 625 (Fla. 4th DCA 2017) (quotation omitted). The Diveboat
Limitation Endorsement excludes “[b]odily injury, loss of life, or illness of any
person while in the water or arising as a consequence of being in the water.” As the
district court recognized, the Diveboat Limitation Endorsement would not apply to
bodily injury, loss of life, or illness occurring onboard the Vessel as a result of
negligence in the Vessel’s operation. Therefore, the Travelers’ Policy does not
“grant a right in one paragraph and then retract the very same right in a later one.”
Zucker for BankUnited Fin. Corp. v. U.S. Specialty Ins. Co.,
856 F.3d 1343, 1352
(11th Cir. 2017) (quotation omitted). Instead, the Diveboat Limitation
Endorsement “excludes coverage for a subset of claims that would ordinarily fall
within the policy’s insuring provisions.”
Id. The district court did not err by
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concluding the Diveboat Limitation Endorsement does not render the Travelers’
Policy illusory.
III. CONCLUSION
The district court did not err. Because Travelers had no duty to defend
Barkley in the Underlying Litigation, entering summary judgment for Travelers
was proper.
AFFIRMED.
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