AmWINS Brokerage of Alabama v. Triumph Housing Management, LLC ( 2021 )


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  •       USCA11 Case: 20-10165     Date Filed: 05/13/2021   Page: 1 of 26
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 20-10165
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:18-cv-01770-TCB
    GENERAL STAR INDEMNITY COMPANY,
    Plaintiff – Counter Defendant,
    AMWINS BROKERAGE OF ALABAMA,
    THE CONE COMPANY,
    Plaintiffs – Third Party Defendants –
    Appellees,
    versus
    TRIUMPH HOUSING MANAGEMENT, LLC,
    Defendant - Third Party Plaintiff -
    Counter Claimant - Appellant
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    ________________________
    (May 13, 2021)
    USCA11 Case: 20-10165      Date Filed: 05/13/2021    Page: 2 of 26
    Before MARTIN, BRANCH, and GRANT, Circuit Judges.
    PER CURIAM:
    Triumph Housing Management, LLC, a property management company,
    appeals the district court’s dismissal of its claims for negligent procurement of
    insurance and negligent misrepresentation against insurance broker AmWINS
    Brokerage of Alabama and insurance agent The Cone Company. AmWINS and
    Cone have moved to dismiss the appeal, arguing that Triumph’s notice of appeal
    was untimely and otherwise failed to comply with the Federal Rules of Appellate
    Procedure, and that Triumph’s claims against them are now moot. We hold that
    Triumph’s notice of appeal was timely and sufficient to invoke our appellate
    jurisdiction, and that Triumph’s claims against AmWINS and Cone are not moot.
    On review of the merits, we conclude that the allegations in Triumph’s third-
    party complaint were sufficient to state claims for negligent procurement against
    AmWINS and Cone, and we therefore reverse the district court’s orders dismissing
    those claims and remand for further proceedings consistent with this opinion.
    Triumph has abandoned any argument regarding the district court’s dismissal of its
    negligent misrepresentation claims, however, so we affirm the court’s orders in
    relevant part.
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    USCA11 Case: 20-10165        Date Filed: 05/13/2021    Page: 3 of 26
    I.
    General Star Indemnity Company initiated this action for declaratory
    judgment against Triumph, seeking a declaration that the insurance policy it had
    issued to Triumph was void ab initio and should be rescinded, and alternatively,
    that the policy issued to Triumph provided scheduled coverage—that is, it
    provided coverage only for the structures specifically listed in the policy, up to the
    listed value for each structure—rather than blanket coverage that insured all
    structures on any given property up to a single set limit. General Star alleged that
    AmWINS, a wholesale insurance broker, obtained the policy from General Star for
    Triumph, but Triumph had provided misinformation during the underwriting
    process—failing to correctly state the values and number of buildings at issue,
    failing to report past losses, and failing to adequately describe the buildings.
    Triumph filed counterclaims against General Star for reformation, breach of
    contract, bad faith, and vicarious liability for negligence by AmWINS, which
    Triumph alleged was acting as a dual agent for General Star and Triumph in
    brokering the policy.
    Triumph also filed a third-party complaint against AmWINS and Cone, an
    insurance agency that had helped secure the policy, for negligence and negligent
    misrepresentation. Triumph alleged that AmWINS and Cone were negligent in
    procuring a policy for scheduled coverage when it had requested blanket coverage
    3
    USCA11 Case: 20-10165        Date Filed: 05/13/2021   Page: 4 of 26
    and in failing to ensure that all structures were adequately covered. It further
    alleged that AmWINS and Cone had concealed or failed to communicate that the
    policy was for scheduled coverage, rather than the blanket coverage it requested.
    AmWINS moved to dismiss Triumph’s third-party claims against it and
    General Star moved to dismiss Triumph’s counterclaims in part, and the district
    court granted both motions. With respect to AmWINS, the court concluded that
    Triumph’s first amended third-party complaint failed to state a claim for negligent
    procurement against AmWINS under Georgia law, which insulates insurance
    agents from liability for procuring the wrong coverage when the client fails to read
    the policy to determine what coverage is provided. The court also found that
    Triumph failed to plead the element of justifiable reliance in its negligent
    misrepresentation claim against AmWINS because if it had read the policy, it
    would have known that AmWINS had not procured the blanket coverage that
    Triumph had requested.
    Cone later moved for judgment on the pleadings on grounds similar to those
    raised in AmWINS’s motion to dismiss. Triumph moved for reconsideration of the
    dismissal of its claims against AmWINS and for leave to file an amended third-
    party complaint. In a single order, the district court granted Cone’s motion and
    denied Triumph’s motions. The court again found that Triumph’s claim for
    negligent procurement was barred by its failure to read the policy procured by
    4
    USCA11 Case: 20-10165       Date Filed: 05/13/2021   Page: 5 of 26
    Cone, and that Triumph had failed to plead justifiable reliance in its negligent
    misrepresentation claim. Regarding the motion to amend, the court concluded that
    amendment would be futile because the proposed second amended third-party
    complaint still failed to allege plausible claims of negligence or negligent
    misrepresentation against AmWINS or Cone, in light of Triumph’s admitted
    failure to read the policy.
    General Star’s declaratory judgment complaint and Triumph’s counterclaim
    against General Star for breach of contract remained pending for several months
    after the court dismissed Triumph’s claims against AmWINS and Cone. In
    December 2019, General Star and Triumph filed a joint motion to dismiss the
    action pursuant to a settlement agreement. The district court entered a final
    consent order on December 13, 2019, dismissing all claims and counterclaims
    between General Star and Triumph, returning to Triumph the insurance premiums
    paid, and rescinding the policy and declaring it void ab initio.
    On January 10, 2020, Triumph filed a notice of appeal, specifically
    referencing the orders (1) granting AmWINS’s motion to dismiss, and (2) granting
    Cone’s motion for judgment on the pleadings, denying Triumph’s motion for
    reconsideration of the order dismissing its claims against AmWINS, and denying
    its motion for leave to amend its third-party complaint.
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    USCA11 Case: 20-10165       Date Filed: 05/13/2021    Page: 6 of 26
    After Triumph filed its opening brief in this appeal, AmWINS and Cone
    separately moved to dismiss for lack of jurisdiction. In its motion, AmWINS
    contends that Triumph’s notice of appeal is “untimely and improper” because it
    specifically designates two nonappealable interlocutory orders rather than the final
    consent judgment. AmWINS also argues that the final consent order rendered this
    appeal moot because (1) the consent order declared the policy it procured for
    Triumph void ab initio, so “there can be no live case or controversy that centers on
    how that policy was procured for Triumph, or what alleged representations were
    made to Triumph about its terms,” and (2) Triumph is not liable to General Star
    under the consent order, so its third-party claims—which AmWINS argues can
    only be brought to recover some portion of the first-party defendant’s liability to
    the first-party plaintiff—are moot. In its motion to dismiss, Cone adopts
    AmWINS’s arguments and also contends that by consenting to the final order
    rescinding the policy, Triumph made factual admissions that render its third-party
    claims against Cone moot.
    II.
    We must first consider the matter of our own jurisdiction. United States v.
    Amodeo, 
    916 F.3d 967
    , 971 (11th Cir. 2019). We begin with the third-party
    defendants’ argument that Triumph’s notice of appeal was insufficient to invoke
    6
    USCA11 Case: 20-10165       Date Filed: 05/13/2021    Page: 7 of 26
    our jurisdiction, and then we consider whether the district court’s consent
    judgment rendered the issues for appeal moot.
    A.
    Rule 3(c) of the Federal Rules of Appellate Procedure specifies that a notice
    of appeal must, among other things, “designate the judgment, order, or part thereof
    being appealed.” Rule 4(a) provides that the notice of appeal required by Rule 3
    must be filed “within 30 days after entry of the judgment or order appealed from.”
    Both the timeliness and the content requirements are jurisdictional in civil cases.
    Auto. Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 
    953 F.3d 707
    , 722 (11th Cir. 2020) (content); see Hamer v. Neighborhood Hous. Servs. of
    Chicago, 
    138 S. Ct. 13
    , 21 (2017) (timeliness). But an “appeal must not be
    dismissed for informality of form or title of the notice of appeal.” Fed. R. App. P.
    3(c)(4). And the requirements of Rule 3(c) are liberally construed, especially
    where the defect in the appellant’s designation of the order appealed from did not
    mislead or prejudice the appellee. See Smith v. Barry, 
    502 U.S. 244
    , 248 (1992);
    Nichols v. Ala. State Bar, 
    815 F.3d 726
    , 730 (11th Cir. 2016).
    Construed liberally, Triumph’s notice of appeal was neither untimely nor
    improper. The two orders specified in Triumph’s notice of appeal were
    interlocutory orders that were not immediately appealable when they were entered.
    See Supreme Fuels Trading FZE v. Sargeant, 
    689 F.3d 1244
    , 1246 (11th Cir.
    7
    USCA11 Case: 20-10165       Date Filed: 05/13/2021   Page: 8 of 26
    2012). But when “a district court enters a final judgment, ‘all prior non-final
    orders and rulings which produced the judgment’ are merged into the judgment
    and subject to review on appeal.” Akin v. PAFEC Ltd., 
    991 F.2d 1550
    , 1563 (11th
    Cir. 1993) (quoting Barfield v. Brierton, 
    883 F.2d 923
    , 930 (11th Cir. 1989)). This
    means that Triumph could have appealed the orders dismissing AmWINS and
    Cone by specifying just the final consent judgment in its notice of appeal, even
    though the substance of Triumph’s appeal involves only the prior interlocutory
    orders. See OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 
    549 F.3d 1344
    ,
    1356 (11th Cir. 2008). In other words, because nonfinal orders dismissing some
    claims or parties merge into and become part of the final judgment, a notice of
    appeal from the final judgment encompasses those earlier nonfinal orders even if
    the notice of appeal does not mention them. Id.; see Myers v. Sullivan, 
    916 F.2d 659
    , 673 (11th Cir. 1990).
    Given these principles, we construe Triumph’s notice of appeal as
    representing the converse proposition—that is, because the nonfinal dismissal
    orders merged with and became part of the final judgment, Triumph’s notice of
    appeal specifying those orders complies with Rule 3(c)’s requirement that it
    designate the judgment “or part thereof” being appealed. Neither AmWINS nor
    Cone contends that Triumph’s designation of the specific orders it sought to
    challenge misled or prejudiced them. See Nichols, 
    815 F.3d 730
    . And because
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    USCA11 Case: 20-10165       Date Filed: 05/13/2021    Page: 9 of 26
    Triumph filed its notice of appeal within 30 days after the district court entered its
    final, appealable order—into which the interlocutory orders being appealed
    merged—its notice of appeal was timely, and Rule 4 provides no bar to our
    jurisdiction either.
    B.
    Article III of the Constitution limits this Court’s jurisdiction to “cases” and
    “controversies.” Christian Coal. of Fla., Inc. v. United States, 
    662 F.3d 1182
    ,
    1189 (11th Cir. 2011). The case or controversy requirement has “three strands of
    justiciability doctrine—standing, ripeness, and mootness.” 
    Id.
     (citation omitted).
    An issue becomes moot, and therefore nonjusticiable, “when it no longer presents a
    live controversy with respect to which the court can give meaningful relief.” 
    Id.
    (citation omitted).
    1.
    AmWINS and Cone argue that because the final consent judgment declared
    the insurance policy issued by General Star to be “void ab initio,” Triumph’s
    claims that they acted negligently in procuring the policy must be moot. Not so.
    In its third-party complaint, Triumph claimed that AmWINS and Cone were
    negligent in failing to obtain the insurance coverage that it requested, and that the
    policy that AmWINS and Cone procured instead was inadequate, resulting in
    uncovered losses. See Westchester Specialty Ins. Servs., Inc. v. U.S. Fire Ins. Co.,
    9
    USCA11 Case: 20-10165          Date Filed: 05/13/2021      Page: 10 of 26
    
    119 F.3d 1505
    , 1509 (11th Cir. 1997) (explaining that an insurance agent may be
    liable to the insured under Georgia law if it negligently fails to procure insurance
    coverage).1 The fact that the policy that the third-party defendants procured turned
    out to be not just inadequate but void does nothing to moot Triumph’s claims. “A
    contract that is void ab initio is a contract that never existed.” Pruco Life Ins. Co.
    v. Wells Fargo Bank, N.A., 
    780 F.3d 1327
    , 1332 (11th Cir. 2015). Whether
    AmWINS and Cone procured inadequate coverage or no coverage at all, a live
    controversy remains as to whether they were negligent for failing to procure the
    coverage that Triumph requested.
    2.
    AmWINS and Cone also argue that under Rule 14, a defendant’s third-party
    claims must be derivative of the claims made against that defendant by the first-
    party plaintiff. If Triumph’s third-party claims against AmWINS and Cone were
    derivative of General Star’s claims against Triumph, they reason, then the consent
    judgment resolving General Star’s claims without imposing liability on Triumph
    must have rendered Triumph’s third-party claims moot. This argument relies on a
    too-narrow reading of Rule 14 and misunderstands the nature of General Star’s
    claims against Triumph.
    1
    The parties agree that Georgia law applies. See Broyles v. Bayless, 
    878 F.2d 1400
    , 1402 (11th
    Cir. 1989).
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    USCA11 Case: 20-10165          Date Filed: 05/13/2021       Page: 11 of 26
    Federal Rule of Civil Procedure 14 permits a defendant to implead a third-
    party defendant “who is or may be liable to it for all or part of the claim against it.”
    Fed. R. Civ. P. 14(a)(1). The “use of the word ‘claim’ in Rule 14 avoids the
    narrow concepts of ‘cause of action’ and employs instead the idea of the claim as a
    group of operative facts giving occasion for judicial action.” United States v. Joe
    Grasso & Son, Inc., 
    380 F.2d 749
    , 751 (5th Cir. 1967).2 Thus, “when the
    defendant’s right against the third party is merely an outgrowth of the same core of
    facts which determines the plaintiff’s claim, impleader is properly used ‘to reduce
    litigation by having one lawsuit do the work of two.’” 
    Id.
     Impleader is only
    available, however, when “the third party defendant’s liability is secondary to, or a
    derivative of, the original defendant’s liability on the original plaintiff’s claim.”
    Faser v. Sears, Roebuck & Co., 
    674 F.2d 856
    , 860 (11th Cir. 1982); see also Joe
    Grasso & Son, Inc., 
    380 F.2d at 751
     (explaining that “the defendant must attempt
    to pass on to the third party all or part of the liability asserted against” it).
    In this action, General Star did not seek to hold Triumph liable to it in the
    usual sense; rather, it asked for a declaratory judgment rescinding and voiding the
    insurance policy it had issued to Triumph—in other words, General Star sought a
    declaration that it was not liable to Triumph under the policy. Triumph responded
    2
    Decisions of the former Fifth Circuit rendered before the close of business on September 30,
    1981, are binding on this Court. See Bonner v. City of Pritchard, 
    661 F.2d 1206
    , 1209 (11th Cir.
    1981) (en banc).
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    USCA11 Case: 20-10165       Date Filed: 05/13/2021   Page: 12 of 26
    that the policy should be construed to provide coverage for its losses, based in part
    on General Star’s alleged vicarious liability for AmWINS’s negligence in
    procuring the policy. And it brought third-party claims against AmWINS and
    Cone alleging that if General Star was not required to cover its losses under the
    policy, then AmWINS and Cone were liable for those losses because they
    negligently failed to procure a policy that provided coverage.
    Although the claim of the first-party plaintiff in this declaratory judgment
    action is not a typical claim for payment of money damages, impleader of a third-
    party defendant under Rule 14 works much the same way in this context. General
    Star sought a declaration that would enable it to avoid liability to Triumph under
    the policy—effectively shifting the burden for Triumph’s losses back to
    Triumph—and Triumph sought to pass on liability for those losses to AmWINS
    and Cone. Triumph’s third-party claims against AmWINS and Cone were
    “secondary to, or derivative of” General Star’s declaratory judgment claims, in that
    they were contingent upon General Star’s success in its effort to avoid paying
    Triumph’s insurance claims. Under our precedent, impleader is permissible in a
    declaratory judgment action like this one, where the issues raised by the defendant
    in its third-party complaint are “closely intertwined” with the claims of the
    declaratory judgment plaintiff. Am. Fid. & Cas. Co. v. Greyhound Corp., 
    232 F.2d 89
    , 92 (5th Cir. 1956).
    12
    USCA11 Case: 20-10165      Date Filed: 05/13/2021   Page: 13 of 26
    If Triumph had prevailed, then its policy with General Star would have been
    construed to cover its losses, and Triumph’s third-party negligence claims may
    have become moot at that stage. By the terms of the consent order, however, the
    policy issued by General Star was rescinded and void, leaving Triumph without
    coverage for its losses—and under those circumstances, as we have already
    explained, Triumph’s claims that AmWINS and Cone failed to procure the
    requested coverage are not moot.
    3.
    In addition to the arguments discussed above, Cone argues that by
    consenting to the judgment voiding the General Star policy, Triumph made factual
    admissions that rendered its claims against Cone moot. By agreeing to the relief
    that General Star sought in its complaint, the argument goes, Triumph admitted the
    truth of General Star’s allegations “concerning the alleged provision of material
    misrepresentations of fact during the procurement and underwriting process
    sufficient to justify rescission.” And having admitted to the misrepresentation of
    material facts in obtaining the policy, Cone continues, Triumph (1) is equitably
    estopped from claiming that the lack of coverage is Cone’s fault, and (2) has
    ratified any material misrepresentations made by Cone, absolving Cone of any
    liability to Triumph for those misrepresentations.
    13
    USCA11 Case: 20-10165      Date Filed: 05/13/2021   Page: 14 of 26
    One obvious flaw in this reasoning is its initial premise—contrary to Cone’s
    arguments, Triumph made no factual admissions in the joint motion to dismiss or
    in the consent order. The joint motion to dismiss simply stated that General Star
    and Triumph had reached a settlement and no longer wished to pursue their claims
    against each other. The consent order granted the relief requested by the parties in
    the joint motion to dismiss—rescinding the policy and declaring it void ab initio,
    returning to Triumph the amount it paid to General Star in insurance premiums,
    and dismissing all the remaining claims and counterclaims between General Star
    and Triumph—without making any factual findings. The fact that the consent
    order granted the same relief that General Star sought in its complaint does not
    constitute a factual admission by Triumph.
    In any event, equitable defenses that Cone may raise to Triumph’s claims
    against it do not render those claims moot. A plausible claim for money damages
    ensures a live controversy, even where recovery on the claim is uncertain or even
    unlikely. Mission Prod. Holdings, Inc. v. Tempnology, LLC, 
    139 S. Ct. 1652
    , 1660
    (2019). Triumph continues to allege that it suffered financial losses caused by
    Cone’s (and AmWINS’s) negligence in failing to obtain the insurance coverage
    that it requested, and a judgment in Triumph’s favor against Cone (or AmWINS)
    would provide meaningful relief for Triumph’s alleged injury.
    14
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    III.
    Having satisfied ourselves that we have jurisdiction to hear the appeal, we
    proceed to the merits. Triumph argues that the district court erred in granting
    AmWINS’s motion to dismiss and Cone’s motion for judgment on the pleadings,
    because (1) the duty to read its insurance policy does not bar its negligent
    procurement claims where it did not have a copy of the insurance policy until it
    had already suffered several losses; and (2) Triumph’s reliance on AmWINS’s and
    Cone’s expertise to procure the right coverage excused it from the duty to examine
    the policy in detail, and the lack of adequate coverage was not readily apparent
    from the policy. Triumph also argues that the district court abused its discretion in
    denying Triumph’s motion to reconsider the dismissal of its third-party claims and
    its motion for leave to amend its third-party complaint. We consider each
    argument in turn.
    A.
    We review the grant of a Rule 12(b)(6) motion to dismiss de novo. PBT
    Real Est., LLC v. Town of Palm Beach, 
    988 F.3d 1274
    , 1286 (11th Cir. 2021). “In
    doing so, we accept the allegations in the complaint as true and draw all reasonable
    inferences in the plaintiff’s favor.” 
    Id.
     A court considering a Rule 12(b) motion is
    generally limited to the facts alleged in the complaint or contained in documents
    that are either attached to the complaint or referred to in the complaint and central
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    USCA11 Case: 20-10165        Date Filed: 05/13/2021    Page: 16 of 26
    to the claim. See Wilchombe v. TeeVee Toons, Inc., 
    555 F.3d 949
    , 959 (11th Cir.
    2009).
    To avoid dismissal, the complaint must allege facts that, if accepted as true,
    “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
    
    550 U.S. 544
    , 570 (2007). A claim for relief is plausible if the complaint contains
    factual allegations that allow “the court to draw the reasonable inference that the
    defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 
    556 U.S. 662
    ,
    678 (2009).
    We also review a district court’s entry of judgment on the pleadings
    pursuant to Rule 12(c) de novo, “accepting the facts in the complaint as true and
    viewing them in the light most favorable to the nonmoving party.” Abdur–Rahman
    v. Walker, 
    567 F.3d 1278
    , 1280–81 (11th Cir. 2009) (citation omitted). “Judgment
    on the pleadings is appropriate when no material facts are in dispute and the
    movant is entitled to judgment as a matter of law.” Washington v. Rivera, 
    939 F.3d 1239
    , 1242 (11th Cir. 2019).
    Under Georgia law, “an insurance agent who undertakes to procure a policy
    of insurance for his principal but negligently fails to do so may be held liable to the
    principal for any resulting loss.” Atlanta Women’s Club, Inc. v. Washburne, 
    427 S.E.2d 18
    , 20 (Ga. Ct. App. 1992). But where the agent does procure a policy and
    the insured fails to examine it to determine what coverage is provided, the insured
    16
    USCA11 Case: 20-10165       Date Filed: 05/13/2021   Page: 17 of 26
    will not have a viable claim for negligent procurement “if, prior to suffering the
    uninsured loss, he had the alleged non-conforming policy in his possession.”
    England v. Georgia-Fla. Co., 
    402 S.E.2d 783
    , 785 (Ga. Ct. App. 1991).
    Even where the insured is not in physical possession of the policy, his claim
    for negligent procurement may be barred if he had actual prior knowledge of, or in
    the exercise of ordinary diligence he could have learned, the terms and conditions
    of the policy. See Four Seasons Healthcare, Inc., 
    682 S.E.2d 316
    , 318 (Ga. Ct.
    App. 2009) (insured “knew about and requested” the exclusion at issue); Fregeau
    v. Hall, 
    396 S.E.2d 241
    , 243 (Ga. Ct. App. 1990) (application signed by insured’s
    wife with power of attorney for insured clearly specified type of coverage provided
    in policy). For example, the Georgia Court of Appeals has held that the duty to
    read barred an insured’s negligent procurement claim where the insured was in
    possession of the policy’s declaration pages, renewal documents, or other materials
    that provided notice of the relevant terms of the policy. See Martin v. Chasteen,
    
    841 S.E.2d 157
    , 160 (Ga. Ct. App. 2020) (declaration pages); MacIntyre &
    Edwards, Inc. v. Rich, 
    599 S.E.2d 15
    , 18 (Ga. Ct. App. 2004) (renewal
    documents); Hunt v. Greenway Ins. Agency, 
    443 S.E.2d 661
    , 661–62 (Ga. Ct. App.
    1994) (application for insurance).
    Thus, to satisfy its obligation to exercise ordinary diligence, an insured
    without a copy of its policy generally must make some effort to learn the policy’s
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    USCA11 Case: 20-10165       Date Filed: 05/13/2021    Page: 18 of 26
    terms. Martin, 841 S.E.2d at 160. In Brasington v. King, for instance, the
    insured’s negligent procurement claim was barred where, although the insured was
    not himself in possession of his policy, he knew that his bank had a copy of the
    policy and he made no effort to review it. 
    307 S.E.2d 16
    , 18–19 (Ga. Ct. App.
    1983). Whether a party has exercised ordinary diligence is generally a question for
    the jury, except where the evidence is “plain, palpable and undisputable.” Weeks v.
    Remington Arms Co., 
    733 F.2d 1485
    , 1490 (11th Cir. 1984); see Beard v. Audio
    Visual Servs., Inc., 
    580 S.E.2d 272
    , 273 (Ga. Ct. App. 2003) (“What constitutes
    ordinary diligence, under any particular circumstances, is a question for the jury.”).
    A partial exception to the duty to read applies “where the agent, acting in a
    fiduciary relationship with the insured, holds himself out as an expert in the field of
    insurance and performs expert services on behalf of the insured under
    circumstances in which the insured ‘must rely [up]on the expertise of the agent to
    identify and procure the correct amount or type of insurance.’” Atlanta Women’s
    Club, Inc., 
    427 S.E.2d at 20
     (alteration in the original) (citation omitted). The
    insured may also be excused from the obligation to examine its insurance policy if
    “the evidence reflects a special relationship of trust or other unusual circumstances
    which would have prevented or excused [the insured] of his duty to exercise
    ordinary diligence.” Canales v. Wilson Southland Ins. Agency, 
    583 S.E.2d 203
    ,
    204 (Ga. Ct. App. 2003) (alteration in the original) (citation omitted).
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    USCA11 Case: 20-10165       Date Filed: 05/13/2021   Page: 19 of 26
    Triumph argues that it was relieved of its duty to examine its insurance
    policy because it relied on AmWINS’s and Cone’s expertise to procure adequate
    coverage for its properties. We disagree. The facts alleged in Triumph’s third-
    party complaint show that Triumph did not rely on AmWINS or Cone to select the
    appropriate kind or amount of insurance.
    Triumph alleged that it asked Cone to provide pricing for “the same property
    insurance coverage” that the policy it had at the time provided, which was blanket
    coverage. It also alleged that it would not have agreed to the policy that Cone and
    AmWINS procured if it had known that the policy provided scheduled coverage
    rather than blanket coverage. The expert exception does not apply under these
    circumstances because Triumph specified exactly what coverage it wanted—it did
    not ask Cone or AmWINS to decide what type or amount of coverage would be
    adequate. Filling Triumph’s order required no expertise by Cone or AmWINS and
    left nothing to their discretion.
    But while the expert exception did not relieve Triumph of its duty to
    examine the policy or related materials in its possession, the duty to read does not
    necessarily bar Triumph’s negligent procurement claims against AmWINS and
    Cone under the circumstances alleged in Triumph’s third-party complaint. As we
    have explained, an insured’s duty to read its policy under Georgia law amounts to
    an obligation to exercise ordinary diligence to verify that no ambiguity or
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    USCA11 Case: 20-10165        Date Filed: 05/13/2021    Page: 20 of 26
    discrepancy exists between the insurance coverage requested and the coverage
    provided by the policy. See Hunt, 
    443 S.E.2d at 662
    . If the insured was otherwise
    on notice of the disputed terms, or if the policy was available to him and he failed
    to review it, then the fact that he did not receive a copy of the policy will not
    excuse him from the duty to find out the contents of the policy. See Brasington,
    
    307 S.E.2d at 19
    .
    But an insured’s duty to read his insurance policy and verify its terms does
    not require him to be clairvoyant. Thus, under Georgia law, an insured “clearly
    cannot be charged with a legal duty to read an endorsement she never received
    which changed her original policy upon renewal.” Pennsylvania Millers Mut. Ins.
    Co. v. Dunlap, 
    264 S.E.2d 483
    , 475 (Ga. Ct. App. 1980); see Hunt, 
    443 S.E.2d at 662
     (“Because Hunt did not receive her copy of the policy before the loss, she
    could not have examined its contents.”). And where the insured specified exactly
    what coverage it wanted and was not otherwise on notice of the discrepancies
    between the coverage it requested and the coverage actually provided by the
    policy, the viability of the insured’s claim for negligent procurement “is ultimately
    dependent upon whether appellee had the replacement policy in its possession prior
    to suffering the uninsured loss.” England, 
    402 S.E.2d at 785
    .
    Triumph alleged that it did not receive a copy of the General Star policy
    until after several claims had arisen under it. For purposes of Triumph’s negligent-
    20
    USCA11 Case: 20-10165      Date Filed: 05/13/2021    Page: 21 of 26
    procurement claims against AmWINS and Cone, therefore, the pivotal question is
    whether the remaining facts alleged in Triumph’s third-party complaint support an
    inference that Triumph exercised ordinary diligence to find out the terms of the
    policy issued by General Star and verify that it provided the coverage that Triumph
    sought.
    The district court did not consider that pivotal question. Instead, relying on
    Southeastern Security Insurance Company v. Empire Banking Company, 
    498 S.E.2d 282
     (Ga. Ct. App. 1998), the district court concluded that Triumph would
    be assumed to know the terms of its policy under Georgia law. The district court’s
    reliance on Empire Banking is misplaced.
    In that case, the plaintiff sued in contract to enforce an auto insurance policy
    against the insurance company. The Georgia Court of Appeals held that “[i]nsured
    persons under an insurance policy are presumed to know its conditions if they
    intend to rely upon its benefits, or else they must find out those conditions.” 
    498 S.E.2d 282
    , 284 (Ga. Ct. App. 1998) (quoting Cotton States Mut. Ins. Co. v. Hipps,
    
    481 S.E.2d 876
    , 878 (Ga. Ct. App. 1997)). In other words, where one party seeks
    to enforce an insurance contract, he may be bound by an exclusion contained in the
    contract even if he did not have the policy in his possession; “the courts must
    adhere to the contract made by the parties even if it is beneficial to the insurer and
    detrimental to the insured, for we must construe the contract as written.” Hipps,
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    USCA11 Case: 20-10165       Date Filed: 05/13/2021   Page: 22 of 26
    
    481 S.E.2d at 878
    . Here, however, Triumph seeks to hold AmWINS and Cone
    liable for negligence in failing to procure insurance coverage, not to enforce the
    insurance contract against the insurer. See Four Seasons Healthcare, Inc., 
    682 S.E.2d at
    318–19 (setting out the general rule in a negligent-procurement case that
    an insured “who has the policy in his possession prior to the uninsured loss is
    charged with the knowledge of the terms and conditions of the policy, namely and
    in particular that the policy coverage was not as contracted for between the
    parties.” (emphasis added) (quoting England, 
    402 S.E.2d at
    704–05)).
    Moreover, the insurance policy at issue in Empire Banking was a renewal
    policy, so the insured was on notice of the policy’s terms even if he had not
    received the renewal documents. Empire Banking, 
    498 S.E.2d at 284
    . In addition,
    the application for insurance signed by the insured included a notice that warned
    the applicant of a requirement related to the relevant exclusion. 
    Id.
    By contrast, Triumph alleged that (1) it gave specific instructions regarding
    the type and amount of insurance that it wanted, (2) at the time that the insurance
    binder issued, Cone reported to Triumph that it had applied for blanket coverage
    on Triumph’s behalf, and it understood that the policy to be issued by General Star
    was for blanket coverage, and (3) it did not receive a copy of the General Star
    policy until after several of its losses had occurred. Although the allegations
    provide sparse information relevant to whether Triumph exercised ordinary
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    USCA11 Case: 20-10165          Date Filed: 05/13/2021     Page: 23 of 26
    diligence in verifying that the General Star policy provided the coverage it
    requested, we cannot say that the matter is so plain from the face of Triumph’s
    complaint that dismissal at the pleading stage was warranted—especially where, as
    discussed below, Triumph may have been able to allege additional supportive facts
    if it had been given an opportunity to amend its complaint. In ruling on
    AmWINS’s motion to dismiss and Cone’s motion for judgment on the pleadings,
    the district court erred in disregarding as irrelevant Triumph’s allegation that it did
    not receive the nonconforming policy until after sustaining several of its losses,
    without considering whether the facts alleged in Triumph’s third-party complaint
    showed that it was otherwise on notice that the policy did not provide the coverage
    it requested, or that it could have learned the terms of the policy through the
    exercise of ordinary diligence. We therefore reverse the district court’s orders
    dismissing Triumph’s third-party negligent procurement claims.
    B.
    We turn last to Triumph’s motion for leave to amend its third-party
    complaint.3 Under Rule 15, a plaintiff may amend his complaint with leave of the
    court, which should be given freely “when justice so requires.” Fed. R. Civ. P.
    15(a)(2). A party who requests leave to amend ordinarily must be given at least
    3
    Because we reverse the district court’s order granting AmWINS’s motion to dismiss, we need
    not address Triumph’s motion for reconsideration of that order.
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    USCA11 Case: 20-10165         Date Filed: 05/13/2021    Page: 24 of 26
    one opportunity to do so before the complaint is dismissed. See Corsello v.
    Lincare, Inc., 
    428 F.3d 1008
    , 1014 (11th Cir. 2005). The district court need not
    allow an amendment, however, “(1) where there has been undue delay, bad faith,
    dilatory motive, or repeated failure to cure deficiencies by amendments previously
    allowed; (2) where allowing amendment would cause undue prejudice to the
    opposing party; or (3) where amendment would be futile.” 
    Id.
     “Leave to amend a
    complaint is futile when the complaint as amended would still be properly
    dismissed or be immediately subject to summary judgment for the defendant.”
    Cockrell v. Sparks, 
    510 F.3d 1307
    , 1310 (11th Cir. 2007). “We review the district
    court’s refusal to grant leave to amend for abuse of discretion, although we
    exercise de novo review as to the underlying legal conclusion that an amendment
    to the complaint would be futile.” SFM Holdings, Ltd. v. Banc of America
    Securities, LLC, 
    600 F.3d 1334
    , 1336 (11th Cir. 2010) (citation omitted). “A
    district court abuses its discretion if it applies an incorrect legal standard, follows
    improper procedures in making the determination, or makes findings of fact that
    are clearly erroneous.” Klay v. United Healthgroup, Inc., 
    376 F.3d 1092
    , 1096
    (11th Cir. 2004) (citation omitted).
    In its proposed amended third-party complaint, Triumph added more
    detailed allegations about AmWINS’s and Cone’s actions in procuring the
    scheduled insurance policy from General Star. We agree with the district court
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    USCA11 Case: 20-10165      Date Filed: 05/13/2021    Page: 25 of 26
    that the additional facts alleged by Triumph still did not support Triumph’s claim
    that it relied on AmWINS’s or Cone’s expertise in procuring insurance coverage.
    Triumph again alleged that it informed Cone that it wanted “the same property
    insurance coverage” that it had before. Triumph’s additional allegation that
    without Triumph’s knowledge or consent, AmWINS and Cone compiled
    information necessary to obtain scheduled coverage does not change the fact that
    Triumph specified the type and amount of coverage it wanted, leaving nothing to
    AmWINS’s and Cone’s discretion.
    But Triumph’s proposed amended complaint also contained allegations that
    in late November 2017, Triumph’s manager emailed Cone and asked for
    information about coverage under the policy. According to Triumph, Cone
    “provided a complicated, technical response” to the manager’s inquiry “that did
    not mention that the coverage was scheduled, rather than blanket.” Triumph’s
    allegation that it inquired about the coverage provided under the policy less than a
    month after coverage was bound but before its first loss—and before it received a
    copy of the policy—shows that it made some effort to find out the terms of its
    insurance policy. Because these allegations support an inference that Triumph
    exercised ordinary diligence to verify that the policy provided the coverage it
    requested, its proposed amendment was not futile. Under Rule 15’s liberal
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    USCA11 Case: 20-10165         Date Filed: 05/13/2021        Page: 26 of 26
    standard, therefore, Triumph should be given the opportunity to amend its third-
    party complaint in this regard. See Corsello, 428 F.3d at 1014.
    IV.
    We conclude that Triumph’s notice of appeal properly invoked our appellate
    jurisdiction, and the issues that Triumph raises on appeal are not moot. We
    therefore DENY Appellees’ motions to dismiss the appeal for lack of jurisdiction.
    We further conclude that the district court erred in dismissing Triumph’s claims for
    negligent procurement against AmWINS and Cone at the pleading stage, without
    giving Triumph at least one opportunity to amend its complaint to allege additional
    relevant facts. We therefore reverse the district court’s dismissal of Triumph’s
    negligent-procurement claims against AmWINS and Cone, and we remand with
    instructions for the district court to allow Triumph at least one opportunity to
    amend its third-party complaint to allege additional facts relevant to those claims.
    Because Triumph has abandoned any argument that the district court erred in
    dismissing its negligent misrepresentation claims, however, we affirm in relevant
    part. 4
    AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
    4
    See Sapuppo v. Allstate Floridian Ins. Co., 
    739 F.3d 678
    , 681–82 (11th Cir. 2014) (“passing
    references” to an issue in an appellant’s opening brief are not enough to bring the issue before
    this Court on appeal).
    26