USCA11 Case: 22-11092 Document: 50-1 Date Filed: 08/28/2023 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11092
Non-Argument Calendar
____________________
MEDMARC CASUALTY INSURANCE COMPANY,
PROASSURANCE SPECIALTY INSURANCE COMPANY,
d.b.a. Noetic Specialty Insurance,
Plaintiffs-Counter Defendant-Appellants,
versus
PETER J. YANOWITCH,
Defendant-Counter Claimant-Appellee,
JUAN POCH VIVES,
YANOWITCH LAW PA,
A Florida for profit corporation,
USCA11 Case: 22-11092 Document: 50-1 Date Filed: 08/28/2023 Page: 2 of 4
2 Opinion of the Court 22-11092
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-22822-DPG
____________________
Before WILLIAM PRYOR, Chief Judge, and ROSENBAUM and JILL
PRYOR, Circuit Judges.
PER CURIAM:
Medmarc Casualty Insurance Company and Noetic Spe-
cialty Insurance appeal the partial summary judgment and judg-
ment on the pleadings against them and in favor of their insureds,
Peter Yanowitch and Yanowitch Law, P.A. The insurers sought a
declaratory judgment that they owed no duty to defend or indem-
nify the insureds in a state-court action. The district court ruled that
the insurers owed a duty to defend but declined to rule on the duty
to indemnify until the state action was resolved. After the insurers
filed this interlocutory appeal challenging the ruling on the duty to
defend, the state court dismissed its action with prejudice.
The insureds move to dismiss this interlocutory appeal as
moot. They explain that the only issue on appeal is whether the
insurers owe a duty to defend them in a state action that is no
longer pending. And they contend that the dismissal of the state
action with prejudice makes any question about its defense moot.
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22-11092 Opinion of the Court 3
They also explain that the district court granted a joint motion to
dismiss the federal action as moot.
The insurers argue that this appeal is not moot, but they do
not dispute that they owe the insureds no duty to defend after the
state action has been dismissed with prejudice. Nor do they deny
that the district court dismissed the action from which this appeal
arose. The insurers instead speculate that if the interlocutory order
is not reversed, the district court may later award the insureds at-
torneys’ fees under Florida law.
We agree with the insureds that this interlocutory appeal is
moot. We cannot provide meaningful relief when the insurers have
already provided a defense and the underlying state and federal ac-
tions have since been dismissed. See Al Najjar v. Ashcroft,
273 F.3d
1330, 1335–36 (11th Cir. 2001). If the district court later were to
award the insureds attorneys’ fees, we could entertain an appeal of
the award and review any jurisdictional or other error. But a hypo-
thetical fee award does not create a controversy about the insurers’
duty to defend, which is now moot. See Lewis v. Continental Bank
Corp.,
494 U.S. 472, 480–81 (1990) (emphasis added) (“Where it ap-
pears on the face of the record that the only concrete interest in the
controversy has terminated, reasonable caution is needed to be
sure that mooted litigation is not pressed forward.”).
Because we lack jurisdiction to decide moot questions, Zinni
v. ER Sols.,
692 F.3d 1162, 1166 (11th Cir. 2012), we must dismiss
this appeal. And we need not vacate the challenged order when the
underlying action has since been dismissed. See Democratic Exec.
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4 Opinion of the Court 22-11092
Comm. of Fla. v. Nat’l Republican Senatorial Comm.,
950 F.3d 790, 795
(11th Cir. 2020) (quotation marks omitted) (“In the case of interloc-
utory appeals . . . the usual practice is [] to dismiss the appeal as
moot and not vacate the order appealed from.”).
We GRANT the motion to DISMISS this appeal as moot.
