USCA11 Case: 22-13455 Document: 24-1 Date Filed: 03/30/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13455
Non-Argument Calendar
____________________
SOUTHERN-OWNERS INSURANCE COMPANY,
Plaintiff-Counter Defendant
Appellee,
versus
TASMAN SERVICES LLC,
JAMIE LYNN BAUMGARTNER,
Defendants-Counter Claimants
Appellants.
____________________
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2 Opinion of the Court 22-13455
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:21-cv-01510-VMC-TGW
____________________
Before WILLIAM PRYOR, Chief Judge, and NEWSOM and GRANT, Cir-
cuit Judges.
PER CURIAM:
Tasman Services LLC and Jamie Lynn Baumgartner appeal
the summary judgment in favor of Southern-Owners Insurance
Company. Southern-Owners obtained a declaratory judgment that
it owed no duty to defend or indemnify Tasman in a state negli-
gence action brought by Baumgartner. Tasman and Baumgartner
challenge the ruling that the policy’s exclusion clause applied be-
cause two other insurance policies provided “similar coverage,” a
phrase that they contend is ambiguous and must be construed in
their favor. Because our precedent holds that the “similar cover-
age” provision at issue is unambiguous and applies when other in-
surance covers similar types of risks, even if it does not provide
similar policy limits, see S.-Owners Ins. Co. v. Easdon Rhodes &
Assocs.,
872 F.3d 1161, 1170 (11th Cir. 2017), we affirm.
I. BACKGROUND
Tasman purchased a commercial general liability policy
from Southern-Owners, which excluded coverage for bodily injury
and property damage arising out of the use of an automobile. Tas-
man also purchased a commercial general liability plus
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22-13455 Opinion of the Court 3
endorsement, which expanded coverage to include bodily injury
and property damage arising out of the use of an automobile that
Tasman does not own and is used in its business. The endorsement
policy stated that coverage applied so long as Tasman “do[es] not
have any other insurance available to [it] which affords the same or
similar coverage.” The policy limit was $1 million.
In August 2016, Tasman employee Kasey Mitchell collided
head-on with Baumgartner while driving a U-Haul truck leased to
Tasman, causing Baumgartner to sustain severe and permanent in-
juries. At the time of the accident, Mitchell was insured under a
GEICO insurance policy, which provided coverage for bodily in-
jury and property damage arising out of her use of an automobile.
The GEICO policy limit per occurrence was $20,000 for bodily in-
jury, or $10,000 per person, and $25,000 for property damage. The
U-Haul lease agreement also afforded Tasman and any authorized
driver with “the minimum limits required by the . . . compulsory
insurance law of the jurisdiction in which the accident occurs,”
which in Florida was $20,000 for bodily injury, or $10,000 per per-
son, and $10,000 for property damage.
Baumgartner sued Mitchell and Tasman in a Florida court
and alleged that Tasman was vicariously liable for Mitchell’s negli-
gence. Tasman sought a defense and indemnity from South-
ern-Owners, which agreed to provide a defense under reservation.
Southern-Owners then filed a complaint in the district court for a
declaratory judgment that it owed no duty to defend or indemnify.
Tasman counterclaimed for an opposite declaratory judgment.
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4 Opinion of the Court 22-13455
Southern-Owners and Tasman both moved for summary
judgment. Southern-Owners argued that it had no duty to defend
or indemnify because the GEICO policy and the U-Haul agreement
constituted “other insurance . . . which afford[ed] . . . similar cov-
erage,” so the exclusion clause applied. Southern-Owners argued
that this case was indistinguishable from our holding in Easdon
Rhodes that the “similar coverage” provision, within the same en-
dorsement policy from Southern-Owners, was unambiguous and
triggered whenever another policy was available to pay for the
same liability claimed. See Easdon Rhodes,
872 F.3d at 1170.
Tasman and Baumgartner argued that Easdon Rhodes was
incorrectly decided and that, because the phrase “similar coverage”
was ambiguous, Florida law required it to be construed in favor of
coverage. In support, Tasman proffered expert testimony from Jef-
frey Posner. According to Posner, interpreting whether different
insurance policies offered “similar coverage” required analyzing
both the specific insurable risks and the applicable coverage terms,
including coverage limits, deductibles, and premiums. Tasman ar-
gued that Posner’s report was evidence of one reasonable interpre-
tation of “similar coverage” that required the policies at issue to
also have similar policy limits. Southern-Owners moved to exclude
Posner’s report because it provided a legal opinion that conflicted
with our decision in Easdon Rhodes.
The district court entered summary judgment in favor of
Southern-Owners. The district court ruled that, under Easdon
Rhodes, “similar coverage” unambiguously referred to “the
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22-13455 Opinion of the Court 5
inclusion of a specific risk in an insurance policy.”
Id. at 1166. The
district court ruled that because the GEICO policy, U-Haul agree-
ment, and endorsement policy all covered the same specific insur-
able risks of bodily injury and property damages, the GEICO policy
and U-Haul agreement provided “similar coverage.” The district
court granted the motion to exclude Posner’s expert testimony that
“similar coverage” was ambiguous. The district court stated that,
because “similar coverage” was unambiguous as a matter of law
and there was no issue of fact in dispute that extrinsic evidence
would help clarify, Posner’s report was unhelpful and could not be
used to “manufacture ambiguity.”
II. STANDARD OF REVIEW
We review de novo a summary judgment. Newcomb v.
Spring Creek Cooler Inc.,
926 F.3d 709, 713 (11th Cir. 2019). “We
must view all of the evidence in a light most favorable to the non-
moving party and draw all reasonable inferences in that party’s fa-
vor.”
Id. Summary judgment is appropriate when “the movant
shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). We review the decision to exclude expert testimony for
abuse of discretion. Williamson Oil Co. v. Philip Morris USA,
346
F.3d 1287, 1298 (11th Cir. 2003).
III. DISCUSSION
Eason Rhodes controls this appeal. Tasman and Baumgart-
ner argue, as the insureds did in Easdon Rhodes, that “similar
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6 Opinion of the Court 22-13455
coverage” is ambiguous and must be construed in its favor. We
considered in Easdon Rhodes the meaning of “similar coverage” in
the context of this same endorsement policy and discerned only
one reasonable interpretation—that “similar coverage” unambigu-
ously referred to “another policy . . . [that] is available to pay for
the same [or similar] liability claimed under the policy at issue.”
872
F.3d at 1168 (alterations in original). We concluded that “the term
‘coverage’ [was] intended to reference particularized risks included
within a policy rather than the entire scope of protection the policy
offers.”
Id. at 1166. We explained that, although Florida law re-
quires that ambiguities within a policy be resolved in favor of cov-
erage, “[t]o allow for such a construction, the insurance policy
‘must actually be ambiguous.’”
Id. at 1164 (quoting Taurus Hold-
ings, Inc. v. U.S. Fid. and Guar. Co.,
913 So. 2d 528, 532 (Fla. 2005).
For the reasons we articulated in Easdon Rhodes, we disagree with
Tasman and Baumgartner that “similar coverage” is ambiguous.
See id. at 1165-70; United States v. Martinez,
606 F.3d 1303, 1305
(11th Cir. 2010) (“[U]nder the prior precedent rule, we are bound
to follow a prior binding precedent unless and until it is overruled
by this court en banc or by the Supreme Court.”).
Moreover, a Florida intermediate appellate court has ap-
proved our reasoning in Easdon Rhodes and held that the same en-
dorsement policy did not extend coverage when other insurance
was available to cover the same risk. See Walls v. S. Owners Ins.
Co.,
321 So. 3d 856, 859-60 (Fla. Dist. Ct. App. 2021). As Tasman
and Baumgartner acknowledge, when sitting in diversity we are
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bound to follow an intermediate Florida appellate court decision
unless we conclude that there is persuasive evidence that the Flor-
ida Supreme Court would rule otherwise. See Bravo v. United
States,
577 F.3d 1324, 1326 (11th Cir. 2006). But Tasman and Baum-
gartner have failed to identify persuasive evidence that the Florida
Supreme Court would rule otherwise.
Tasman and Baumgartner argue that “similar coverage”
plainly means that the comparable policy must provide similar lim-
its, but we have rejected this argument too. See Easdon Rhodes,
872 F.3d at 1169-70 (“[The] argument that differences in policy lim-
its between the [auto] policy and the Endorsement indicates the
coverages are not similar is likewise unavailing.”). We explained
that the term “coverage” was used throughout the endorsement in
the context of specific types of risk for which coverage was pro-
vided.
Id. at 1166. We reasoned that interpreting “coverage” to re-
fer to the full scope of protection provided by a policy would effec-
tively read out the “any other insurance” phrase and render it “es-
sentially meaningless since only a very specific type of insurance
would ever fall within the exclusion clause’s purview.”
Id. at 1167.
We considered the “substantial discrepancy in cost and policy
limit”—that the endorsement cost about $400 less per year than the
auto policy, yet the endorsement provided a policy limit 40 times
higher—and reasoned that “[s]uch a low price for such expansive
coverage is only adequately explained by the presence of an exclu-
sion clause which routinely applies, since the specific risks dealt
with by the Endorsement would almost always be covered by
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8 Opinion of the Court 22-13455
some other auto policy.”
Id. at 1168. We remain “satisfied that the
plain meaning of the Endorsement’s exclusion clause is concerned
only with the type rather than amount of available ‘similar [insur-
ance] coverage.’”
Id. at 1170 (emphasis added, alteration in origi-
nal); see Martinez,
606 F.3d at 1305.
Tasman and Baumgartner erroneously argue that their prof-
fered expert testimony distinguishes their case from Easdon
Rhodes by establishing that “similar coverage” is subject to more
than one reasonable interpretation, so it should not have been ex-
cluded by the district court. Expert testimony is admissible if the
expert is qualified to testify competently regarding the matters he
intends to address, the methodology by which the expert reaches
his conclusions is sufficiently reliable, and the testimony assists the
trier of fact to determine a fact in issue. Daubert v. Merrell Dow
Pharmaceuticals, Inc.,
509 U.S. 579, 593 (1993); Fed. R. Civ. P. 702.
Under Florida law, construction of an insurance policy is a question
of law, as is the issue of whether an ambiguity exists. Jones v. Utica
Mut. Ins. Co.,
463 So. 2d 1153, 1157 (Fla. 1985); Wheeler v.
Wheeler, Erwin & Fountain, P.A.,
964 So. 2d 745, 749 (Fla. Dist.
Ct. App. 2007). The district court did not abuse its discretion in ex-
cluding the proffered expert testimony because there was no issue
of fact that needed to be resolved. The district court, consistent
with our precedent and state law, Easdon Rhodes,
872 F.3d at 1165;
Walls, 321 So. 3d at 859-60, correctly determined that “similar cov-
erage” was unambiguous as a matter of law. Because there was no
ambiguity to resolve, the proffered testimony would not assist the
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22-13455 Opinion of the Court 9
court in deciding the case. Daubert,
509 U.S. at 593; Williamson
Oil,
346 F.3d at 1298.
IV. CONCLUSION
We affirm the summary judgment in favor of South-
ern-Owners.
