USCA11 Case: 22-13249 Document: 28-1 Date Filed: 06/28/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13249
Non-Argument Calendar
____________________
EMPLOYERS INSURANCE COMPANY OF WAUSAU,
Plaintiff-Appellant,
versus
MICHAEL A. POOL,
THOMAS C. SERVINSKY,
MARIE L. SERVINSKY,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
USCA11 Case: 22-13249 Document: 28-1 Date Filed: 06/28/2023 Page: 2 of 7
2 Opinion of the Court 22-13249
D.C. Docket No. 2:22-cv-14146-AMC
____________________
Before NEWSOM, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
Following a car accident, the Servinskys—the victims—filed
suit against Michael Pool—the alleged tortfeasor—to collect dam-
ages. Nearly three years after that action began in Florida state
court, Employers Insurance Company—the provider that purport-
edly insured Pool—sought a declaratory judgment against both
Pool and the Servinskys in federal district court on three issues: (1)
that Pool isn’t an “insured” individual under the policy, (2) that Em-
ployers doesn’t have a duty to defend Pool in the underlying action,
and (3) that Employers has no duty to indemnify Pool in the event
he is found liable. The district court dismissed the action on all
three issues. Employers Insurance appeals.
The facts are known to the parties, and we repeat them here
only as necessary to decide the case. After carefully considering the
record and the parties’ arguments, we affirm.
I
Employers first contests the district court’s refusal to con-
sider whether Pool is “insured” under the car insurance policy. In
2016, Employers issued an auto insurance policy to Ebsary Foun-
dation Company Inc. that covered “[a]nyone . . . using with
[Ebsary’s] permission a covered ‘auto’ [Ebsary] own[s], hire[s] or
borrow[s].” When the accident occurred, the parties agree that
USCA11 Case: 22-13249 Document: 28-1 Date Filed: 06/28/2023 Page: 3 of 7
22-13249 Opinion of the Court 3
Pool was driving an Ebsary-owned car but disagree about whether
he had Ebsary’s permission to use it. Employers sought declara-
tory judgment to settle the question.
We review the district court’s dismissal of a declaratory
judgment action for abuse of discretion. Ameritas Variable Life Ins.
Co. v. Roach,
411 F.3d 1328, 1330 (11th Cir. 2005). A district court
decides whether to exercise its discretionary authority to issue a de-
claratory judgment by reference to the nine factors outlined in
Ameritas Variable Life Insurance Company v. Roach.
Id. An abuse of
discretion may occur “[1] when a relevant factor that should have
been given significant weight is not considered; [2] when an irrele-
vant or improper factor is considered and given significant weight;
and [3] when all proper factors, and no improper ones, are consid-
ered, but the court, in weighing those factors, commits a clear error
of judgment.”
Id. Employers contends that the district court ig-
nored most of the Ameritas factors and instead improperly focused
on the seventh and eighth factors, which consider the underlying
factual disputes and whether the case is better decided in state
court.
Employers’ claim fails on two fronts. First, it seems that the
district court did consider all the Ameritas factors but simply chose
to emphasize the few factors that it found particularly compelling.
After listing all nine factors in its Order, the court found that “[t]he
Ameritas guideposts militate in favor of abstaining here, most prin-
cipally because a determination of whether Pool is an insured over-
laps with facts at issue in the Underlying Lawsuit.” That passage
USCA11 Case: 22-13249 Document: 28-1 Date Filed: 06/28/2023 Page: 4 of 7
4 Opinion of the Court 22-13249
signals that the district court considered all the factors but only
chose to elaborate on the most applicable ones.
Second, even if the district court had only explicitly men-
tioned two of the nine factors in its Order, it’s not clear that would
have been erroneous under current Circuit precedent. “[I]n Ameri-
tas itself, we affirmed the district court’s decision to dismiss the de-
claratory-judgment action before it even though the district court
expressly considered only three of the specific factors we articu-
lated.” Gold-Fogel v. Fogel,
16 F.4th 790, 798 (11th Cir. 2021). “In-
deed, district courts may sometimes dismiss declaratory judgment
actions without considering any of the Ameritas guideposts.” Na-
tional Trust Ins. Co. v. S. Heating & Cooling Inc.,
12 F.4th 1278, 1286
(11th Cir. 2021). Instead, the district court need only “capture the
breadth of the competing interests.” James River Ins. Co. v. Rich Bon
Corp.,
34 F.4th 1054, 1060–61 (11th Cir. 2022) (holding that a district
court may not “cherry pick” claims in a declaratory judgment ac-
tion but remaining silent on whether a district court must explicitly
consider all Ameritas factors). We may affirm as long as “the record
reflects that the district court appropriately considered the parties’
arguments and applied the Ameritas doctrine, even if it did not ulti-
mately address each factor in writing.” Gold-Fogel, 16 F.4th at 798.
The record reveals that the district court did consider all of
the Ameritas factors. But even if it had relied only on factors seven
and eight, it didn’t err in doing so as the record evinces that the
court considered the parties’ arguments and applied the relevant
USCA11 Case: 22-13249 Document: 28-1 Date Filed: 06/28/2023 Page: 5 of 7
22-13249 Opinion of the Court 5
framework. Thus, the district court didn’t abuse its discretion in
dismissing Employers’ first claim.
II
Employers next contends that the district court erred in dis-
missing its declaratory-judgment complaint as to its duty-to-defend
claim. Under Florida law, the “eight corners rule” determines the
scope of an insurance company’s duty to defend. Jones v. Fla. Ins.
Guar. Ass’n, Inc.,
908 So.2d 435, 442–43 (Fla. 2005). Referring to the
four corners of the insurance policy and the four corners of the un-
derlying complaint, the “eight corners rule” provides that an in-
surer’s duty to defend its insured “arises when the complaint al-
leges facts that fairly and potentially bring the suit within policy
coverage.”
Id. Under the rule, no extrinsic evidence may be used
to contest the allegations in the complaint. Instead, an insurance
provider’s duty to defend “depends solely on the facts and legal the-
ories alleged in the pleadings and claims against the insured.” Ste-
phens v. Mid-Continent Cas. Co.,
749 F.3d 1318, 1323 (11th Cir. 2014)
(citation omitted).
The underlying complaint clearly alleges that Pool had per-
mission to use Ebsary’s car, and the insurance policy squarely co-
vers individuals who have Ebsary’s permission to use its covered
vehicles. Thus, on the eight corners, it seems that Pool is an in-
sured under the policy, which triggers Employers’ duty to defend
him in the underlying action.
While Employers apparently concedes that the “eight cor-
ners rule” is relevant, it insists that that the exception articulated in
USCA11 Case: 22-13249 Document: 28-1 Date Filed: 06/28/2023 Page: 6 of 7
6 Opinion of the Court 22-13249
Nateman v. Hartford Cas. Ins. Co.,
544 So. 2d 1026 (Fla. 3d Dist. Ct.
App. 1989), applies. That narrow exception permits a court to con-
sider extrinsic facts if they are (1) undisputed and (2) would have
clearly placed the claims outside of the scope of coverage had they
been pled in the complaint. Stephens,
749 F.3d at 1323. “In Nateman,
the appellate court applied [this] exception to the well-settled
[‘eight corners rule’] because . . . there was ‘no room for doubt’
that the appellant was not insured and, thus, the insurer did not
have a duty to defend.” Continental Cas. Co. v. Charleston,
704 So.
2d 137, 138 (Fla. 1st Dist. Ct. App. 1997).
The district court found that whether Pool had permission
to drive Ebsary’s vehicle is “explicitly in dispute” in the underlying
action. Having failed the first prong to trigger the Nateman excep-
tion, the court held that the exception didn’t apply. That holding
makes imminent sense. As before the district court, the parties’
briefs on appeal evince a key disagreement over whether Pool had
permission to operate Ebsary’s vehicle—a far cry from Nateman’s
requirement of an undisputed fact. Thus, the district court didn’t
err in declining to apply the Nateman exception and relying on the
“eight corners rule” alone to dismiss Employers’ declaratory judg-
ment action as to its duty to defend Pool.
III
Finally, Employers contests the district court’s determina-
tion that its request for declaratory judgment on its duty to indem-
nify Pool was premature. We will not consider a declaratory judg-
ment action on an insurance company’s duty to indemnify until the
USCA11 Case: 22-13249 Document: 28-1 Date Filed: 06/28/2023 Page: 7 of 7
22-13249 Opinion of the Court 7
underlying suit establishes the tortfeasor’s liability. See Allstate Ins.
Co. v. Emp’rs Liab. Assur. Corp.,
445 F.2d 1278, 1281 (5th Cir. 1971)
(“[N]o action for declaratory relief will lie to establish an insurer’s
liability . . . until a judgment has been rendered against the insured
since, until such judgment comes into being, the liabilities are con-
tingent and may never materialize.”). Until then, any declaratory
judgment would improperly announce a hypothetical obligation
(or lack thereof) to indemnify, which “might never arise.” American
Fidelity & Cas. Co. v. Pa. Threshermen & Farmers’ Mut. Cas. Ins. Co.,
280 F.2d 453, 461 (5th Cir. 1960).
The underlying lawsuit between Pool and the Servinskys re-
mains pending, and so the district court didn’t abuse its discretion
in dismissing Employers’ final claim.
AFFIRMED.
