USCA11 Case: 21-14361 Date Filed: 09/30/2022 Page: 1 of 13
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14361
Non-Argument Calendar
____________________
NUEBERT AERO CORPORATION,
Plaintiff-Appellant,
versus
STARSTONE NATIONAL INSURANCE COMPANY,
LONDON AVIATION UNDERWRITERS, INC.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:20-cv-00045
____________________
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2 Opinion of the Court 21-12101
Before JILL PRYOR, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
Nuebert Aero Corporation insured a new airplane—with
Tim Nuebert as its pilot. 1 Because of his lack of experience flying
this type of airplane, before the policy would cover him for solo
flights, it required that he meet rating, formal training, and flight-
hour requirements. As part of his training—but before achieving
his FAA pilot certificate rating—Nuebert flew solo and damaged
the airplane in an emergency landing. His insurers denied cover-
age because of his breach of the rating requirement.
Nuebert sought a declaratory judgment in state court. After
the insurers removed the case to federal court, they sought sum-
mary judgment. Nuebert opposed it, arguing (i) that he did not
breach the policy and (ii) that, even if he did, Florida’s so-called
“anti-technicality statute” applied. See
Fla. Stat. § 627.409(2). The
magistrate judge recommended granting summary judgment be-
cause Nuebert breached the policy—but, in so doing, he ignored
Nuebert’s argument about the anti-technicality statute. Accepting
the magistrate judge’s recommendations, the district court granted
the insurers’ motion for summary judgment.
1For ease of exposition, we will refer to both Nuebert Aero Corporation and
Tim Nuebert simply as Nuebert. Neither party contends that the existence of
the corporate entity affects the outcome of this appeal.
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21-12101 Opinion of the Court 3
Nuebert appeals on two grounds. First, he contends that the
court erred in granting summary judgment on whether he
breached the policy. Second, he argues that the court erred by fail-
ing to apply Florida’s anti-technicality statute.
We affirm the district court’s decision that Nuebert
breached the condition, but reverse and remand for the district
court to consider the application of the anti-technicality statute.
I
The insurers claim that Nuebert breached the ratings por-
tion of a special condition in the policy. That condition required
that “[p]rior to solo in the [airplane] . . . Neubert must have ob-
tained a multiengine rating and an instrument rating for mul-
tiengine aircraft.” The magistrate judge and district court agreed
that Nuebert breached the condition, and thus granted summary
judgment.
“We review a district court’s grant of summary judgment de
novo, considering the facts and drawing all reasonable inferences
in the light most favorable to the non-moving party. Summary
judgment is proper if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judg-
ment as a matter of law.” Brady v. Carnival Corp.,
33 F.4th 1278,
1281 (11th Cir. 2022) (citations omitted).
Under Florida law, “[i]nsurance contracts are construed ac-
cording to their plain meaning, with any ambiguities construed
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4 Opinion of the Court 21-12101
against the insurer and in favor of coverage.” United States Fire
Ins. Co. v. J.S.U.B., Inc.,
979 So. 2d 871, 877 (Fla. 2007).
Pilot certification and ratings are governed by a series of
complicated federal regulations. In particular,
14 C.F.R. § 61.31 re-
quires that:
To serve as the pilot in command of an aircraft, a per-
son must—
(1) Hold the appropriate category, class, and type rat-
ing (if a class or type rating is required) for the aircraft
to be flown; or
(2) Have received training required by this part that is
appropriate to the pilot certification level, aircraft cat-
egory, class, and type rating (if a class or type rating is
required) for the aircraft to be flown, and have re-
ceived an endorsement for solo flight in that aircraft
from an authorized instructor.
14 C.F.R. § 61.31(d) (emphasis added). But “[t]he rating limitations
of this section do not apply to . . . [t]he holder of a student pilot
certificate.”
Id. § 61.31(l)(2)(ii) (emphasis added).
The parties agree on two key facts. Nuebert did not have a
multiengine rating on his pilot certificate for purposes of
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21-12101 Opinion of the Court 5
§ 61.31(d)(1). He did, however, have an endorsement from his in-
structor—satisfying § 61.31(d)(2). 2
The magistrate judge recommended summary judgment
because—in his opinion—“rating” unambiguously referred to
§ 61.31(d)(1) ratings and not endorsements or certificates.
Nuebert’s primary argument in response is that a common
way to obtain the rating is through endorsed solo flying. Because
the policy specifically contemplated him obtaining the rating, he
says, we should interpret its coverage to include his training for
that rating. But endorsed solo flying is not necessary to obtain a
rating. 3
We agree with the magistrate judge’s and district court’s
conclusion that “multiengine rating” in the policy unambiguously
means “multiengine rating” under the federal regulations
2Portions of the record also suggest that Nuebert held a student pilot certifi-
cate. The presence or absence of a student pilot certificate would not affect
our interpretation of “rating” in the policy condition.
3 Nuebert disputes this, relying on FAA guidance that solo flight time is gen-
erally required for a new category rating. But going from “single-engine” to
“multiengine” is a new “class” rating, not a new “category” rating.
14 C.F.R.
§ 61.5(b). And new class ratings are explicitly exempt from the training-time
requirements (but new category ratings are not).
Id. § 61.63(b), (c)(3). Nue-
bert raises the point that he must take one solo flight before getting rated—his
“check ride,” i.e., the pilot equivalent of a driver’s test. But that doesn’t sud-
denly render the unambiguous language ambiguous, as he argues. At most, it
suggests an interpretation of solo that would not include flying with an exam-
iner.
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6 Opinion of the Court 21-12101
governing pilots. See
14 C.F.R. § 61.5(b)(2). And the implication
that this insurance policy limited Nuebert to one particular way of
obtaining that rating is neither absurd nor troubling.
Nuebert separately objects to the district court’s considera-
tion of certain expert testimony. But we can affirm summary judg-
ment on any ground in the record. Blackman v. United Cap. Invs.,
Inc.,
12 F.3d 1030, 1033 (11th Cir. 1994). Here, we determine sum-
mary judgment was appropriate without considering this expert
testimony and decline to address whether it was inappropriately
considered.
The district court correctly held that Nuebert breached the
policy condition.4
II
But even if Nuebert breached, he argues that Florida’s so-
called “anti-technicality” statute required the insurers to show that
his breach contributed to the loss. That statute provides that:
A breach or violation by the insured of a warranty,
condition, or provision of a wet marine or transpor-
tation insurance policy, contract of insurance, en-
dorsement, or application does not void the policy or
4 At points in the briefs, Nuebert also suggests a challenge to the interpretation
of the phrase “prior to solo in” based on the same arguments that he advances
for the ratings language. To the extent that Nuebert has not forfeited this
argument by failing to clearly raise it, we reject it as contrary to the unambig-
uous language of the policy.
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21-12101 Opinion of the Court 7
contract, or constitute a defense to a loss thereon, un-
less such breach or violation increased the hazard by
any means within the control of the insured.
Fla. Stat. § 627.409(2).
A threshold question: Is this aircraft-insurance policy “a wet
marine or transportation insurance policy?” If so, the district court
erred by not considering the statute.
When deciding state-law claims, we apply state law to sub-
stantive legal issues. See Ungaro–Benages v. Dresdner Bank AG,
379 F.3d 1227, 1232 (11th Cir. 2004);
28 U.S.C. § 1652. In doing so,
we defer to the state supreme court’s interpretation of its own law.
LeFrere v. Quezada,
582 F.3d 1260, 1263–64 (11th Cir. 2009). If the
state supreme court has not addressed the question, we defer to the
state’s intermediate appellate courts “absent some persuasive indi-
cation that the state’s highest court would decide the issue other-
wise.” People’s Gas Sys. v. Posen Constr., Inc.,
931 F.3d 1337, 1339
(11th Cir. 2019) (quotation omitted).
Two Florida District Courts of Appeals cases have expressly
applied this statute to aircraft-insurance policies. Florida Power &
Light Co. v. Foremost Ins. Co.,
433 So. 2d 536, 536 (Fla. Dist. Ct.
App. 1983); Pickett v. Woods,
404 So. 2d 1152, 1153 (Fla. Dist. Ct.
App. 1981); see also United States Aviation Underwriters, Inc. v.
Sunray Airline, Inc.,
543 So. 2d 1309, 1311 (Fla. Dist. Ct. App. 1989)
(characterizing Pickett as “holding that section 627.409(2) . . .
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8 Opinion of the Court 21-12101
applies to aviation insurance policies”).5 Both cases acknowledged
their departure from previous aircraft-insurance precedents due to
the passage of § 627.409(2) in the interim. But neither elaborates
on why § 627.409(2) applies to aircraft.
Nuebert argues that these cases reflect the legislative pur-
pose—as found in legislative history—that the provision apply be-
yond merely “wet marine and transportation insurance” policies.
But, to be clear, neither state-court case mentions this.
The insurers emphasize the purportedly atextual nature of
this holding and point us to the Florida Supreme Court’s practice
of applying the plain language of unambiguous statutes. See Bel-
anger v. Salvation Army,
556 F.3d 1153, 1155 (11th Cir. 2009) (col-
lecting Florida Supreme Court cases). They argue that “wet ma-
rine or transportation insurance” is a defined term meaning:
that part of marine insurance which includes only:
(a) Insurance upon vessels, crafts, and hulls and of in-
terests therein or with relation thereto;
(b) Insurance of marine builders’ risks, marine war
risks, and contracts of marine protection and indem-
nity insurance;
5The insurers’ attempt to identify a case to the contrary fails. That case—as
their own brief concedes—addresses a homeowners’ insurance policy. See In-
dependent Fire Ins. Co. v. Paulekas,
633 So. 2d 1111 (Fla. Dist. Ct. App. 1994).
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21-12101 Opinion of the Court 9
(c) Insurance of freights and disbursements pertaining
to a subject of insurance coming within this defini-
tion; and
(d) Insurance of personal property and interests
therein, in course of exportation from or importation
into any country, or in course of transportation coast-
wise or on inland waters, including transportation by
land, water, or air from point of origin to final desti-
nation, in respect to, appertaining to, or in connection
with any and all risks or perils of navigation, transit,
or transportation, and while being prepared for and
while awaiting shipment, and during any delays, stor-
age, transshipment, or reshipment incident thereto.
Fla. Stat. Ann. § 624.607(2).
In other words, “wet marine or transportation insurance”
must be both “marine insurance” and fall within one of four speci-
fied categories. The insurers argue aircraft insurance is “plainly not
marine insurance”—and thus don’t continue on to discuss the
other four categories. But the insurers overlook that “marine in-
surance” is itself a defined term including “insurance against . . .
[v]essels, craft, aircraft, cars, automobiles, and vehicles of every
kind . . . in connection with any and all risks or perils of navigation,
transit, or transportation . . .”
Id. § 624.607(1)(a) (emphasis added). 6
6The lengthy definition provides: “(a) Insurance against any kinds of loss or
damage to: 1. Vessels, craft, aircraft, cars, automobiles, and vehicles of every
kind, as well as all goods, freights, cargoes, merchandise, effects,
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10 Opinion of the Court 21-12101
So the question becomes whether aviation insurance fits
into one of the four categories of § 624.607(2). And the type of in-
surance at issue here—often called “hull insurance,” at least in the
era that this definition was enacted—falls within subsection (a)’s
“[i]nsurance upon vessels, crafts, and hulls.” See Hull insurance,
Black’s Law Dictionary (6th ed. 1990) (“Marine or aviation insur-
ance covering loss to vessel or plane or its machinery or equip-
ment”); Lewis E. Davids, Dictionary of Insurance 103 (1959) (de-
scribing a “hull policy” as “[a]n ocean or river marine or aviation
insurance contract covering the ship or plane itself”); see also Mat-
thew G. Berard, Flying Cars: The Reconciliation of Aircraft and Au-
tomobile Insurance Policies,
47 Tort Trial & Ins. Prac. L.J. 781, 785
(2012) (“Hull insurance covers the aircraft, including the engine,
propeller, and all other systems permanently attached to the air-
craft, such as avionics. Standard form aviation hull coverage is typ-
ically written to cover risks arising out of particular modes of oper-
ation--that is, risks taking place while the aircraft is in flight, taxiing,
disbursements, profits, moneys, bullion, precious stones, securities, choses in
action, evidences of debt, valuable papers, bottomry and respondentia inter-
ests and all other kinds of property and interests therein, in respect to, apper-
taining to, or in connection with any and all risks or perils of navigation,
transit, or transportation, including war risks, on or under any seas or other
waters, on land or in the air, or while being assembled, packed, crated, baled,
compressed, or similarly prepared for shipment or while awaiting the same or
during any delays, storage, transshipment, or reshipment incident thereto, in-
cluding marine builder’s risks and all personal property floater risks.”
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21-12101 Opinion of the Court 11
or on the ground or moored. Aircraft hull is derived from the ma-
rine term ‘hull.’”).7
Even if we might decide that aircraft aren’t included in the
statutory definition if deciding the question on our own, “[s]tate
law is what the state appellate courts say it is, and we are bound to
apply a decision of a state appellate court about state law even if
we think that decision is wrong.” Winn-Dixie Stores, Inc. v. Dol-
gencorp, LLC,
881 F.3d 835, 848 (11th Cir. 2018). And a close stat-
utory question doesn’t present the type of “persuasive indication”
that today’s Florida Supreme Court would disagree with those
courts’ decisions.
7 Notably, § 624.607(1)(a)’s definition was part of an extensive insurance code
enacted in 1959, see Florida Laws 1959, c. 59-205, § 105, and at that time, “hull”
terminology was pervasive. For example, a 1960 congressional report on “The
Insurance Industry: Aviation, Ocean Marine, and State Regulation” uses the
term “hull” 19 times in its 25-page summary of the aviation insurance industry.
S. Rep. No. 86-1834, at 16–42 (1960). In addition to discussing “hull insurance,”
the report also uses “hull” as a standalone noun, similar to the phrasing in the
statute. E.g., id. at 16 (discussing the maximum insurance “on any one hull”);
id. at 24 (“the total value of the hulls insured”). Court cases from that era
similarly explain “hull insurance” as applying to airplanes. E.g., Tyler Advert.,
Inc. v. Lamprey,
107 N.H. 138, 139,
218 A.2d 71, 72 (1966) (“‘hull insurance’
being the phrase used in airplane insurance to refer to coverage commonly
known as collision coverage in the automobile insurance industry”); In re Avi-
ation Ins. Indus.,
183 F. Supp. 374, 375 (S.D.N.Y. 1960) (describing “hull insur-
ance” as one of five types of aviation insurance).
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12 Opinion of the Court 21-12101
The district court should, therefore, have followed the state
courts in applying Florida’s anti-technicality statute to aircraft in-
surance.
The insurers make two further arguments—but both should
be considered first by the district court on remand. First, they ar-
gue that the statute doesn’t apply to exclusions and that along with
the condition the district court discussed, this policy also has an ex-
clusion for similar conduct. 8 But Nuebert correctly points out that
the exclusion provision was not interpreted by the district court in
its summary judgment order. Because it is not before us, we refrain
from addressing either whether the anti-technicality statute applies
to exclusions or whether the conduct here fits the exclusion.
8 The insurers point out that the district court previously addressed this statute
in a later-reconsidered ruling on a motion to dismiss. There, the district court
held that the statute did not apply to exclusions and that the activity here fell
within the policy’s exclusion. But it later granted leave to amend the com-
plaint. And the issue remained part of the case. In rejecting the insurers’ first
motion for summary judgment, the court mentioned the issue but declined to
reach it.
The exclusions language differs slightly from the conditions language:
“any pilot . . . is not certified for the make and model being flown and currently
rated for the flight involved.” Without the benefit of detailed briefing on the
issue, we leave to the district court in the first instance the question whether
“rated for the flight involved” also unambiguously refers to the federal mul-
tiengine rating. We also express no opinion on the reasoning of the district
court’s initial discussion of whether § 627.409(2) applies to exclusions.
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21-12101 Opinion of the Court 13
Second, the insurers argue that even if the statute applies,
they prevail. But this, also, is a matter for the district court in the
first instance.
We, therefore, vacate the grant of summary judgment for
the insurers and remand for the district court to consider the appli-
cation of the anti-technicality statute.
AFFIRMED in part, VACATED in part, and REMANDED.
