15 Oz Fresh & Healthy Foods LLC v. Underwriters at Lloyd's London Known as Syndicates AML 2001, WBC 5886, MMX 2010 AND SKD 1897 ( 2022 )

USCA11 Case: 21-10949 Date Filed: 10/11/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10949
____________________
15 OZ FRESH & HEALTHY FOODS LLC,
Plaintiff-Appellant,
versus
UNDERWRITERS AT LLOYD'S LONDON
KNOWN AS SYNDICATES AML 2001,
WBC 5886, MMX 2010 AND SKD 1897,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-23407-AHS
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2 Opinion of the Court 21-10949
____________________
Before BRANCH, LUCK, Circuit Judges, and SANDS, ∗ District Judge.
PER CURIAM:
15 Oz Fresh & Healthy Foods LLC (“15 Oz”) appeals the
district court’s dismissal with prejudice of its six-count class-action
complaint against Underwriters at Lloyd’s London Known as
Syndicates AML 2001, WBC 5886, MMX 2010, and SKD 1897
(“Underwriters”), concerning insurance coverage under Florida
law for losses incurred by businesses as a result of the COVID-19
pandemic.1 Because the parties are well aware of the facts, we will
not restate them here. Instead, we start with 15 Oz’s pending
motion to amend its complaint to include additional allegations of
the parties’ citizenship for purposes of diversity jurisdiction. For
the reasons below, we grant 15 Oz’s motion to amend its
complaint, find that subject matter jurisdiction exists, and affirm
∗ Honorable W. Louis Sands, United States District Judge for the Middle
District of Georgia, sitting by designation.
1 15 Oz’s complaint alleged that it sustained various COVID-19–related
business losses that were covered by its insurance policy with Underwriters.
Specifically, 15 Oz brought claims for a declaratory judgment and breach of
contract on behalf of the business income class (counts one and two), a
declaratory judgment and breach of contract on behalf of the extra expense
coverage class (counts three and four), and a declaratory judgment and breach
of contract on behalf of the civil authority coverage class (counts five and six).
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21-10949 Opinion of the Court 3
the district court’s dismissal of 15 Oz’s complaint for failure to state
a claim upon which relief can be granted.
I. Motion to Amend
We are “obligated to inquire into subject matter jurisdiction
sua sponte whenever it may be lacking.” Univ. of S. Ala. v. Am.
Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). We must confirm
that we have jurisdiction and that the district court did as well. Id.After examining 15 Oz’s complaint, we issued a jurisdictional
question asking whether the pleadings sufficiently alleged the
citizenship of the parties so as to invoke diversity jurisdiction in the
first instance. The parties jointly responded, and 15 Oz filed an
uncontested motion to amend its complaint to cure the insufficient
citizenship allegations. We carried the jurisdictional issue and
pending motion to amend with the case.
In accordance with 28 U.S.C. § 1653 and our precedent, we
GRANT 15 Oz’s uncontested motion to amend its complaint. See
28 U.S.C. § 1653 (“Defective allegations of jurisdiction may be
amended, upon terms, in the trial or appellate courts.”); Mallory &
Evans Contractors & Eng’rs, LLC v. Tuskegee Univ., 663 F.3d
1304, 1305 (11th Cir. 2011) (“Because we suspect there may be
diversity of citizenship, [appellant] is invited to file in this
court . . . a motion for leave to amend the complaint to correct the
deficient allegations of citizenship.”).
II. Subject Matter Jurisdiction
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4 Opinion of the Court 21-10949
We must now decide whether 15 Oz’s amended complaint
alleges sufficient information to establish diversity jurisdiction. We
hold that it does.
In pertinent part, 15 Oz’s complaint now alleges that (a) 15
Oz is a limited liability company organized to do business in Florida
and (b) Lloyd’s Syndicate AML 2001—one of the defendant-
syndicates—is comprised of only one capital provider, MS Amlin
Corporate Member Limited, which is incorporated under the laws
of England and Wales and has its principal place of business in
London, England.2 Because 15 Oz brought a class-action
complaint, we analyze diversity jurisdiction under the Class Action
Fairness Act of 2005 (“CAFA”). We recognize that there is a
2 The Lloyd’s of London insurance market is unique. To start, “Lloyd’s is not
a company; it is a market somewhat analogous to the New York Stock
Exchange.” Roby v. Corp. of Lloyd’s, 996 F.2d 1353, 1357 (2d Cir. 1993). Thus,
Lloyd’s itself does not insure any risk. Individual underwriters,
known as ‘Names’ or ‘members,’ assume the risk of the
insurance loss. Names can be people or corporations; they
sign up for certain percentages of various risks across several
policies.
...
Names underwrite insurance through administrative entities
called syndicates, which cumulatively assume the risk of a
particular policy.
Underwriters at Lloyd’s, London v. Osting-Schwinn, 613 F.3d 1079, 1083 (11th
Cir. 2010).
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21-10949 Opinion of the Court 5
complicated question at the intersection of CAFA and one of our
precedents, Underwriters at Lloyd’s, London v. Osting-Schwinn,
613 F.3d 1079 (11th Cir. 2010), but we do not address that issue
today because it is clear that diversity jurisdiction exists under any
resolution.
In Osting-Schwinn, we held that Lloyd’s syndicates “fall
squarely within the class of unincorporated associations for which
the pleading of every member’s citizenship is essential to
establishing diversity jurisdiction.” 613 F.3d at 1088 (emphasis
added). Osting-Schwinn, however, did not consider diversity
jurisdiction in the class action context. CAFA controls class actions,
and provides that “an unincorporated association shall be deemed
to be a citizen of the State where it has its principal place of business
and the State under whose laws it is organized.” 28 U.S.C.
§ 1332(d)(10) (emphasis added).
That is, the plain language of CAFA requires us to consider
the principal place of business and state of incorporation of the
association (syndicate) itself while Osting-Schwinn requires us to
consider the citizenship of “every” underlying capital-contributing
member. Compare id., with Osting-Schwinn, 613 F.3d at 1088.
Because Lloyd’s Syndicate AML 2001 is a single-member syndicate,
however, we need not resolve the conflict today. We conclude
there is diversity jurisdiction under any resolution of the conflict in
authority, so we proceed to the merits of 15 Oz’s appeal.
III. District Court’s Dismissal of 15 Oz’s Complaint
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6 Opinion of the Court 21-10949
We now affirm. Our precedent in SA Palm Beach LLC v.
Certain Underwriters at Lloyd’s, London—issued while the instant
case was pending and after the parties submitted their briefs—
squarely rejects 15 Oz’s argument that Florida law extends
insurance coverage to business losses and expenses related to the
COVID-19 pandemic, and it forecloses further consideration of this
issue. 32 F.4th 1347, 1359–63 (11th Cir. 2022) (predicting that the
Florida Supreme Court would follow the “majority view” and
conclude that business income, extra expense, and civil authority
provisions, among others, would be inadequate to trigger coverage
for losses and expenses incurred by businesses caused by COVID-
19 in similar Lloyd’s insurance policies under Florida law); see also,
e.g., Commodore, Inc. v. Certain Underwriters at Lloyd’s London,
342 So. 3d 697, 698–705 (Fla. 3d DCA 2022) (confirming this
prediction); Suhaag Garden, Inc. v. Certain Underwriters at Lloyd’s
London, No. 3D21-1803, -- So. 3d --, 2022 WL 3050339, at *1 (Fla.
3d DCA Aug. 3, 2022) (same). In SA Palm Beach, we held that
losses stemming from the suspension of business operations and
extra costs incurred because of COVID-19 were insufficient under
Florida law to trigger insurance coverage because they lacked the
requisite “tangible alteration of the insured properties.” 32 F.4th at
1350. So too here.
MOTION TO AMEND GRANTED. AFFIRMED.