National Casualty Company v. Georgia School Board Association-Risk Management Fund ( 2022 )

USCA11 Case: 19-14729 Date Filed: 06/14/2022 Page: 1 of 17
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-14729
____________________
NATIONAL CASUALTY COMPANY,
Plaintiff-Counter Defendant-Appellant,
versus
GEORGIA SCHOOL BOARD ASSOCIATION-
RISK MANAGEMENT FUND,
Defendant-Counter Claimant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:16-cv-00691-LMM
____________________
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2 Opinion of the Court 19-14729
Before ROSENBAUM, LUCK, and JULIE CARNES, Circuit Judges.
LUCK, Circuit Judge:
National Casualty Company and the Georgia School Board
Association-Risk Management Fund disagreed about who bore the
primary duty to insure Georgia educators whom they mutually in-
sured. After the district court granted partial summary judgment
in the Fund’s favor, the parties prepared a stipulation as to dam-
ages, reserved their right to appeal, and asked the district court to
enter final judgment. But the district court didn’t enter final judg-
ment. Instead, a deputy clerk entered a document titled “final judg-
ment” for the Fund. After careful review and with the benefit of
oral argument, we conclude that the document entered by the dep-
uty clerk isn’t a final decision. And because there’s no final deci-
sion, we do not have appellate jurisdiction over National Casualty’s
appeal.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Negligence Suits Against Two Georgia Educators
C.M. was a first grader at Cedar Ridge Elementary School in
Grovetown, Georgia. On May 20, 2013, while C.M. was playing
on the “horizonal loop ladder” in the school’s playground, he fell
and hit “his head on the hard packed surface and rocks below caus-
ing him to sustain an epidural hematoma.” C.M. alleged that the
“surface material of the playground on the premises of Cedar Ridge
Elementary School was in an inadequate and unsafe condition
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19-14729 Opinion of the Court 3
allowing rocks to protrude to the surface.” C.M. also alleged that
the “surface material” on the playground “was unsafe and of inad-
equate depth.” C.M. sued Sarah Walls, the school’s principal, for
negligently “failing to keep and maintain” the playground “in a safe
condition,” “failing to remove rocks from the playground,” and
“failing [to] keep and maintain the adequate depth of the play-
ground surfacing material to prevent children . . . from suffering
serious injuries.”
O.J. was a twelfth grader at Chapel Hill High School in
Douglasville, Georgia. On October 3, 2013, O.J. and a teacher at
her school, Ashley Mathieson, were conducting a chemistry exper-
iment involving liquid methanol and an open flame. Ms.
Mathieson had O.J. “hold a lighter with a flame over a crucible con-
taining a solid substance, while” the teacher “poured liquid [m]eth-
anol into the crucible.” While Ms. Mathieson was pouring the
methanol “over the open flame, the liquid [m]ethanol gushed out
of the container in an excess quantity and ignited the flame, causing
a flash fire that engulfed” O.J. “in a ball of flames.” O.J.’s “clothing,
hands, arms, breasts, chest, neck, face, ears, back, and hair caught
fire and she was tragically and catastrophically burned before the
fire was extinguished.” O.J. sued Ms. Mathieson for negligently
failing “to adhere to and follow all available policies and procedures
for chemistry experiments.”
The Coverage Dispute
Ms. Walls and Ms. Mathieson were insured by two entities:
National Casualty and the Fund. National Casualty is an insurance
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4 Opinion of the Court 19-14729
company that provides policies to the Professional Association of
Georgia Educators. The Fund is an agency created by Georgia law
so that boards of education can share liability risk. The Fund “is
not an insurance company or an insurer.” O.C.G.A. § 20-2-2004.
Rather, its members share risk as set out in coverage agreements
and are jointly and severally liable for the legal obligations arising
under the agreements.
National Casualty and the Fund disagreed about which of
them had to defend Ms. Walls in C.M.’s lawsuit and Ms. Mathieson
in O.J.’s lawsuit and which of them had to pay any judgments that
resulted from the lawsuits. So National Casualty sued the Fund,
seeking a declaratory judgment that the Fund had “the primary
duty to defend and indemnify” Ms. Walls and Ms. Mathieson. Na-
tional Casualty alleged that its policy was “specifically excess if” Ms.
Walls and Ms. Mathieson had “other insurance of any kind what-
soever, whether primary or excess,” or if they were “entitled to de-
fense or indemnification from any other source whatsoever,” in-
cluding state pools and programs of self-insurance. Ms. Walls and
Ms. Mathieson, National Casualty alleged, were also insured by the
Fund for C.M. and O.J.’s lawsuits.
The Fund filed three counterclaims against National Casu-
alty. First, the Fund sought its own declaratory judgment that Na-
tional Casualty was primarily responsible for defending and indem-
nifying Ms. Walls and Ms. Mathieson, and the Fund was only re-
sponsible for any excess liability once National Casualty reached its
policy limits. The Fund was on the hook for only the excess, it
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19-14729 Opinion of the Court 5
alleged, because its policy said that if Ms. Walls and Ms. Mathieson
had “available” “valid and collectible insurance” for a covered loss,
the Fund’s obligations were “excess over the available and collect-
ible insurance.” Alternatively, the Fund sought a declaratory judg-
ment that its “excess” insurance clause and National Casualty’s “ex-
cess” insurance clause were “mutually repugnant because they
both attempt to place their respective coverage excess over any
other insurance.” Once the excess insurance clauses canceled each
other out, the Fund alleged that it was entitled to recover from Na-
tional Casualty its “pro-rata” share of the costs to defend and in-
demnify Ms. Walls and Ms. Mathieson.
Second, the Fund counterclaimed against National Casualty
for breach of contract and legal contribution to recover the
amounts it paid to defend and indemnify Ms. Walls and Ms.
Mathieson. National Casualty, the Fund alleged, was primarily li-
able for defending and indemnifying Ms. Walls and Ms. Mathieson,
while the Fund had to provide only excess coverage. But, the Fund
alleged, National Casualty “did not honor its insurance obliga-
tions” to Ms. Walls and Ms. Mathieson. So the Fund paid the costs
to defend and indemnify Ms. Walls in C.M.’s lawsuit and Ms.
Mathieson in O.J.’s lawsuit. In exchange, Ms. Walls and Ms.
Mathieson assigned their defense and indemnification rights
against National Casualty to the Fund, and the Fund subrogated
their defense and indemnification claims against National Casualty.
The Fund, based on its “legal contribution rights, in addition to the
contractual rights received via assignment and subrogation,”
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6 Opinion of the Court 19-14729
sought “to recover all defense and indemnification expenditures” it
paid “due to” National Casualty’s “failure to defend and indemnify
its insureds.” Alternatively, if the Fund’s “excess” insurance clause
and National Casualty’s “excess” insurance clause were “mutually
repugnant because they both attempt[ed] to place their respective
coverage excess over any other insurance,” the Fund sought to re-
cover from National Casualty its “‘pro-rata’ share of all amounts
incurred by” the Fund to defend and indemnify Ms. Walls and Ms.
Mathieson.
Third, the Fund counterclaimed against National Casualty
for unjust enrichment and equitable contribution for the amounts
it paid to defend and indemnify Ms. Walls and Ms. Mathieson. Na-
tional Casualty, the Fund alleged, had an obligation under its policy
to defend and indemnify Ms. Walls and Ms. Mathieson “either en-
tirely primarily or, in the alternative, shared pro-rata with” the
Fund. But, because National Casualty refused to defend and in-
demnify them, the Fund picked up the tab to defend and indemnify
Ms. Walls and Ms. Mathieson. National Casualty, the Fund al-
leged, was “unjustly enriched in the amount that” the Fund paid
for Ms. Walls and Ms. Mathieson’s defense and indemnification
that National Casualty was obligated “to pay either entirely on a
primary basis or, in the alternative, on shared pro-rata basis.” The
Fund, it said, was “equitably entitled to contribution from” Na-
tional Casualty “for amounts that it has paid and continues to pay
toward the defense” and indemnity of National Casualty’s in-
sureds.
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The Partial Summary Judgment Order
National Casualty moved for summary judgment as to its
claim for a declaratory judgment. National Casualty argued that
any coverage of Ms. Walls and Ms. Mathieson under its policy was
“excess to the coverage available to them” from the Fund “based
on a straightforward reading” of the excess insurance clauses.
Thus, it reasoned, it was entitled to a declaration that any coverage
afforded to Ms. Walls and Ms. Mathieson under National Casu-
alty’s policy was “excess to that available to them under” the
Fund’s policy. In National Casualty’s view, the Fund, “and not Na-
tional Casualty, has the primary duty to defend and indemnify”
Ms. Walls in C.M.’s lawsuit and Ms. Mathieson in O.J.’s lawsuit.
The Fund cross-moved for partial summary judgment on its
declaratory judgment claim. The Fund argued that National Cas-
ualty was responsible for providing “primary coverage” for defend-
ing and indemnifying the educators, while the Fund was responsi-
ble for only “excess” liability over National Casualty’s policy limits.
The Fund alternatively argued that the parties’ excess insurance
clauses were “mutually repugnant because they both state[d] that
they [were] excess the liability coverage provided by the other.”
Because the clauses could not be reconciled, the Fund argued, they
canceled each other out and, under Georgia law, the policies “pro-
vide[d] coverage on a pro rata basis for defense costs and indemnity
obligations to jointly covered persons.”
The district court denied National Casualty’s motion for
summary judgment and granted the Fund’s motion for partial
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8 Opinion of the Court 19-14729
summary judgment. The district court rejected the Fund’s argu-
ment that National Casualty had the duty to provide primary cov-
erage because the Fund provided coverage entitling its members to
defense or indemnification. But the district court concluded that
the parties’ conflicting coverage provisions couldn’t be reconciled.
So the district court applied a Georgia rule providing that where
two insurance policies covering the same risk are irreconcilable,
the insurers must share the liability. The district court concluded
that the parties had to share defense and indemnity costs on a pro
rata basis.
The Certification to the Georgia Supreme Court
Both parties moved for reconsideration. The district court
concluded that “the irreconcilable provisions rule”—the Georgia
rule it relied on to grant partial summary judgment for the Fund—
had been applied “only in cases involving conflicts between com-
mercial insurance policy provisions.” Because the Fund wasn’t a
commercial insurance company, the district court certified to the
Supreme Court of Georgia the question of whether the irreconcil-
able provisions rule applied to “an entity entrusted with public
funds.”
The Supreme Court of Georgia answered the certified ques-
tion and concluded that state law didn’t require the Fund’s money
to be used “only in excess of any available commercial insurance.”
Nat’l Cas. Co. v. Ga. Sch. Bds. Ass’n-Risk Mgmt. Fund, 818 S.E.2d
250, 255 (Ga. 2018). “Insurance contracts are properly construed
and applied as written unless prohibited by law or public policy,”
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19-14729 Opinion of the Court 9
the court explained, and “no law or public policy” prohibited the
application of the irreconcilable provisions rule simply because the
Fund was a risk management fund created by statute rather than a
commercial insurance company. Id. at 255–56.
In response, the district court denied the parties’ motions for
reconsideration. The Fund then amended its counterclaims to
“set[] forth . . . outstanding matters in dispute,” to relabel its “equi-
table contribution” claim as an “equitable subrogation” claim, and
to add allegations about other mutually covered educators.
The Deputy Clerk’s Document Titled “Final Judgment”
The parties filed a joint status report and request for confer-
ence with the district court concerning the “correct structure” of a
consent judgment. They told the district court that they agreed to
resolve the claims not resolved by the partial summary judgment—
the Fund’s outstanding counterclaims—“by [s]tipulated [f]inal
[j]udgment,” and that they intended to preserve their rights to ap-
peal the partial summary judgment order, which, they said, would
“become[] a final judgment upon entry of the [s]tipulated [f]inal
[j]udgment.” The parties “agree[d] on the substantive content of
the stipulations” but requested a conference to determine the “ap-
propriate structure” for the stipulations.
The district court held a conference with the parties to dis-
cuss the proposed stipulations. The parties agreed to submit “stip-
ulated facts . . . contain[ing] a withdrawal of [their] jury demand
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10 Opinion of the Court 19-14729
and language about allowing the [district court] to proceed on the
undisputed facts.”
Following the conference, the parties filed a joint notice of
stipulated facts and requested that the district court enter final judg-
ment. They withdrew their jury trial demands, and the Fund stip-
ulated to the dismissal of its attorney’s fees counterclaim. The par-
ties said that they had “reached a compromise agreement as to how
defense costs and indemnity obligations” would be shared on a pro
rata basis to comply with the district court’s partial summary judg-
ment order. They stipulated to the facts necessary to calculate
damages—the amounts of the payments made by the Fund for ac-
tions related to mutually covered educators—and agreed that Na-
tional Casualty’s pro rata share of the expenses “to date” for these
actions totaled $481,231.84. The parties reserved their rights to ap-
peal the partial summary judgment order.
Although the parties asked the district court to enter final
judgment, it did not do so. Rather, a deputy clerk, on behalf of the
clerk of the court, entered a document titled “final judgment.” The
deputy clerk wrote that the Fund was “entitled to final judgment
consistent with the parties’ stipulations,” which “include[d], but
[was] not limited to, . . . $481,231.84” (National Casualty’s total pro
rata share as of the date of the stipulations). The deputy clerk di-
rected the clerk of the court to close the case. There is no indica-
tion that the district court accepted the parties’ stipulated facts or
otherwise directed the deputy clerk to enter final judgment for the
Fund.
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19-14729 Opinion of the Court 11
National Casualty appealed the district court’s grant of par-
tial summary judgment for the Fund. We directed the parties to
address whether the deputy clerk had the authority “to enter judg-
ment on behalf of the court,” and whether the document titled “fi-
nal judgment” entered by the deputy clerk “constituted a final judg-
ment for purposes of appeal.”
DISCUSSION
“Federal courts are courts of limited jurisdiction. They pos-
sess only that power authorized by Constitution and statute.” Kok-
konen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
“It follows from this principle of limited jurisdiction that a federal
court has an independent obligation to review its authority to hear
a case before it proceeds to the merits.” Mirage Resorts, Inc. v.
Quiet Nacelle Corp., 206 F.3d 1398, 1400–01 (11th Cir. 2000).
“[E]ven if the litigants do not question the court’s jurisdiction, the
court must inquire into its jurisdictional basis sua sponte.” Id. at
1401 (emphasis omitted); Reaves v. Sec’y, Fla. Dep’t of Corr., 717
F.3d 886, 905 (11th Cir. 2013) (“Although neither party contests our
jurisdiction, we are obligated to address jurisdictional questions sua
sponte whenever jurisdiction may be lacking.” (cleaned up)).
Here, the parties’ arguments on appeal focus on the merits
of the district court’s partial summary judgment order, but we can-
not review that order until we are satisfied that we have jurisdic-
tion. Having carefully reviewed the complex procedural history of
this case, we conclude that we lack jurisdiction. Here’s why.
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We “have jurisdiction of appeals from all final decisions of
the district courts.” 28 U.S.C. § 1291. “[I]n evaluating whether a
district court’s order is final and appealable, we look to the sub-
stance of the order—not the label.” Young v. Prudential Ins. Co.
of Am., 671 F.3d 1213, 1215 (11th Cir. 2012). A final judgment is a
judgment that “ends the litigation on the merits and leaves nothing
for the court to do but execute the judgment.” CSX Transp., Inc.
v. City of Garden City, 235 F.3d 1325, 1327 (11th Cir. 2000) (quot-
ing Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir.
1983)).
Two requirements of the final judgment rule are at issue
here. First, there are no magic words necessary to make a judg-
ment final, but “a final judgment for money must, at least, deter-
mine, or specify the means for determining, the amount.” United
States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 233 (1958).
Second, an “order that disposes of fewer than all the claims of all
the parties is not final and appealable unless the district court certi-
fies the order for immediate review under” rule 54. Freyre v. Chro-
nister, 910 F.3d 1371, 1377 (11th Cir. 2018); Fed. R. Civ. P. 54(b)
(“When an action presents more than one claim for relief . . . or
when multiple parties are involved, the court may direct entry of a
final judgment as to one or more, but fewer than all, claims or par-
ties only if the court expressly determines that there is no just rea-
son for delay. Otherwise, any order or other decision, however
designated, that adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties does not end the action
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19-14729 Opinion of the Court 13
as to any of the claims or parties and may be revised at any time
before the entry of a judgment adjudicating all the claims and all
the parties’ rights and liabilities.”).
Here, the district court’s partial summary judgment order
did not comply with these two requirements. First, the order dis-
posed of National Casualty’s declaratory judgment claim and
found for the Fund on its declaratory judgment counterclaim, but
the order wasn’t final because it did not “determine, or specify the
means for determining, the amount” of damages to which the
Fund was entitled. See F. & M. Schaefer, 356 U.S. at 233. Second,
the partial summary judgment order did not address the Fund’s re-
maining counterclaims and therefore “dispose[d] of fewer than all
the claims of all the parties.” See Freyre, 910 F.3d at 1377. Because
the partial summary judgment order did not resolve the damages
on the declaratory judgment counterclaim and did not address the
Fund’s remaining counterclaims, more remained for the district
court to do before it could “execute the judgment.” See CSX
Transp., 235 F.3d at 1327. Thus, the partial summary judgment
order wasn’t a “final decision” under section 1291.
The parties told the district court in a joint status report that
the partial summary judgment order wasn’t final. They said that
the partial summary judgment order would become final once the
district court entered a stipulated final judgment. And National
Casualty concedes on appeal that the district court’s partial sum-
mary judgment order “was not final or immediately appealable in
its own right.”
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14 Opinion of the Court 19-14729
Rather than rely on the partial summary judgment order as
the final judgment necessary for appellate jurisdiction, the parties
rely on the document titled “final judgment” entered by the deputy
clerk. The Fund argues that, after the district court granted partial
summary judgment, the parties stipulated to “the amount of [the
Fund’s] damages” while preserving National Casualty’s right “to
seek appeal of the [d]istrict [c]ourt’s” summary judgment order.
This stipulation, the Fund maintains, “allowed the [d]istrict [c]ourt
to enter a [f]inal [j]udgment against National Casualty.” National
Casualty likewise argues that the document entered by the deputy
clerk “disposed of all claims as between all parties” and made the
district court’s partial summary judgment order “final as a matter
of law.”
We conclude that the “final judgment” document entered
by the deputy clerk was not a final decision for purposes of section
1291 because it wasn’t entered with the approval or at the direction
of the district court. “Courts render judgments; clerks only enter
them on court records.” Pure Oil Co. v. Boyne, 370 F.2d 121, 123
(5th Cir. 1966) (quoting Burke v. Comm’r, 301 F.2d 903, 903 (1st
Cir. 1962)). The clerk can enter a judgment without the district
court’s approval or direction in only three scenarios. See Fed. R.
Civ. P. 58(b)(1). The clerk “must” enter judgment “without await-
ing the court’s direction” when: “(A) the jury returns a general ver-
dict; (B) the court awards only costs or a sum certain; or (C) the
court denies all relief.” Id. Otherwise, the district court must ap-
prove the judgment for it to be entered. See Fed. R. Civ. P.
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19-14729 Opinion of the Court 15
58(b)(2)(B) (“[T]he court must promptly approve the form of the
judgment . . . when . . . the court grants other relief not described
in this subdivision (b).”). None of these three scenarios apply here.
Neither party argues that Rule 58(b)(1)’s first and third sce-
narios apply here. That’s because they don’t apply. As to the first
scenario, there was no jury trial and therefore no general verdict.
See Fed. R. Civ. P. 58(b)(1)(A). As to the third scenario, the district
court didn’t deny all relief. It instead found for the Fund on the
declaratory judgment counterclaim and granted partial relief. See
Fed. R. Civ. P. 58(b)(1)(C). That leaves Rule 58(b)(1)’s second sce-
nario—whether the “court award[ed] only costs or a sum certain.”
Fed. R. Civ. P. 58(b)(1)(B).
National Casualty argues that the deputy clerk’s “final judg-
ment” document was “a ministerial act” authorized by Rule
58(b)(1)(B) because the district court’s partial summary judgment
order requiring the parties to “share defense and indemnity cover-
age on a pro rata basis” was, alongside the parties’ stipulations as
to damages, a “judgment for a sum certain.” We disagree for three
reasons.
First, the district court did not accept or ratify the parties’
stipulations as to damages. In the absence of an order accepting
the stipulated damages, it cannot be said that the “court” awarded
the Fund a “sum certain,” as required by Rule 58(b)(1)(B).
Second, the “final judgment” document entered by the dep-
uty clerk—who was not “the court” for purposes of Rule 58(b)(1)—
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16 Opinion of the Court 19-14729
did not award a sum certain. Rather, the deputy clerk ordered “fi-
nal judgment consistent with the parties’ stipulations . . . that in-
clude[d], but [was] not limited to, an award in the amount of
$481,231.84.” The “not limited to” language establishes that the
judgment amount was not “fixed, settled, or exact”; thus, it was not
a “sum certain.” See Sum Certain, Black’s Law Dictionary (11th
ed. 2019).
And third, the final judgment entered by the clerk didn’t di-
rect that a particular pro rata formula be used to calculate the on-
going costs. It therefore failed to satisfy the minimum requirement
of a final judgment for money—“determin[ing], or specify[ing] the
means for determining, the amount.” See F. & M. Schaefer, 356
U.S. at 233.
In sum, none of Rule 58(b)(1)’s three scenarios apply here.
Because the deputy clerk lacked the authority to enter judgment
under Rule 58(b)(1), and because the district court did not give the
clerk approval or direction to enter judgment, there is no final de-
cision for purposes of section 1291. See Diaz-Reyes v. Fuentes-
Ortiz, 471 F.3d 299, 301 (1st Cir. 2006) (“[T]he clerk’s entry of judg-
ment . . . is without effect. Accordingly, there is no judgment un-
der [rule] 54(a), and we lack jurisdiction under 28 U.S.C. [section]
1291.” (citation omitted)); see also Butler v. Stover Bros. Trucking
Co., 546 F.2d 544, 548 (7th Cir. 1977) (“If the clerk fails to stay
within authority given him by statute, entry of judgment by the
clerk is void.”). Without a final decision, we have no jurisdiction.
The appeal must be dismissed.
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CONCLUSION
We end with a suggestion about how the parties on remand
can resolve the absence of a final decision. Given the procedural
history of this case and the parties’ jury trial waiver, Federal Rule
of Civil Procedure 52 could yield a valid final judgment. Rule 52
provides that in an action tried without a jury, the district court
“must find the facts specially and state its conclusions of law sepa-
rately.” Fed. R. Civ. P. 52(a)(1). These findings and conclusions
“may appear in an opinion or a memorandum of decision filed by
the court,” while “[j]udgment must be entered under Rule 58.” Id.Here, to achieve the result the parties sought to achieve—
creating a final judgment while preserving the right to appeal—the
district court could issue an order adopting the parties’ stipulated
facts as its findings, provide its conclusions of law, and direct the
clerk to enter a final judgment under Rule 58(b)(2) for the Fund.
See id. This procedure, rather than relying on a document entered
by a deputy clerk without the district court’s approval, would sat-
isfy the final judgment rule.
DISMISSED.