USCA11 Case: 20-12970 Date Filed: 04/06/2022 Page: 1 of 20
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12970
____________________
LIBERTY MUTUAL FIRE INSURANCE COMPANY,
Plaintiff-Counter Defendant-Appellee
Cross Appellant,
versus
STATE FARM FLORIDA INSURANCE COMPANY,
Defendant-Counter Claimant-Appellant
Cross Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:15-cv-20941-JAL
____________________
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2 Opinion of the Court 20-12970
____________________
No. 20-13637
____________________
LIBERTY MUTUAL FIRE INSURANCE COMPANY,
Plaintiff-Counter Defendant-Appellee,
versus
STATE FARM FLORIDA INSURANCE COMPANY,
Defendant-Counter Claimant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:15-cv-20941-JAL
____________________
Before BRANCH, GRANT, and BRASHER, Circuit Judges.
BRASHER, Circuit Judge:
The question in this appeal is which of two insurance com-
panies must pay to settle a lawsuit. The first insurance company is
Liberty Mutual. It contracted with a company called Riteway to
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20-12970 Opinion of the Court 3
perform repairs on a house that it had insured. As a condition of
hiring Riteway, Liberty required Riteway to purchase liability in-
surance that named Liberty as an additional insured.
Riteway purchased two policies from a second insurance
company, State Farm: a contractors policy and an umbrella policy.
State Farm sent Liberty a certificate of insurance referencing both
policies. But State Farm failed to draft an accompanying endorse-
ment to formally list Liberty as an additional insured on the poli-
cies.
Unfortunately for everyone, instead of repairing the house,
Riteway destroyed it. So the insureds sued Riteway and Liberty.
They brought direct negligence claims against Riteway, vicarious
liability claims against Liberty based on Riteway’s negligence, a di-
rect liability claim against Liberty for breaching its contract by fail-
ing to repair the house, and other direct liability claims against Lib-
erty as well. State Farm settled the direct claims against Riteway
and the vicarious liability claims against Liberty, but it refused to
defend or settle the direct claims against Liberty.
That refusal brings us to our current dispute. Liberty settled
the insureds’ remaining claims against it—specifically allocating
the entire settlement amount to the breach of contract claim—and
sued State Farm for indemnification of the settlement amount.
State Farm denied that it had to cover Liberty because it had never
issued an endorsement to Riteway’s policy. Citing the certificate of
insurance, the district court held that, despite the missing endorse-
ment, Liberty had coverage under the umbrella policy but did not
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4 Opinion of the Court 20-12970
have coverage under the contractors policy. And coverage under
the umbrella policy, the district court said, was limited to Liberty’s
vicarious liability for Riteway’s negligence. Liberty appealed, and
we affirmed in part and vacated in part. See Liberty Mut. Fire Ins.
Co. v. State Farm Fla. Ins. Co., 770 F. App’x 475 (11th Cir. 2019).
We concluded that the certificate of insurance referenced both the
contractors policy and the umbrella policy. On remand, the district
court—now analyzing the contractors policy—determined that
Liberty had the same coverage as Riteway and that State Farm had
a corresponding duty to defend and indemnify. Accordingly, it
granted summary judgment for Liberty.
Now State Farm has appealed, presenting us with this case
for a second time. After careful consideration and with the benefit
of oral argument, we affirm. We conclude that: (1) Liberty’s certif-
icate of insurance entitled it to the same coverage as Riteway under
the contractors policy; (2) the breach of contract claim against Lib-
erty in the underlying lawsuit (Count Two) was a covered claim;
(3) Liberty’s settlement sufficiently allocated the settlement funds
to require State Farm to indemnify the full amount; (4) State Farm
waived any defense based on the exhaustion of its policy limits; and
(5) the settlement amount is within the contractors policy’s limit
because Count Two alleged multiple occurrences that caused the
property damage.
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20-12970 Opinion of the Court 5
I. BACKGROUND
As we explained above, this case begins with Liberty’s agree-
ment with Riteway to perform repairs as part of Liberty’s Contrac-
tor Network Referral Program. That agreement required Riteway
to purchase liability insurance and name Liberty as an additional
insured “against liability arising out of the work or operations per-
formed by or on behalf of [Riteway].” Riteway fulfilled its obliga-
tions by purchasing both a contractors policy and an umbrella pol-
icy from State Farm. Important to this appeal, the contractors pol-
icy covered “those sums that the insured becomes legally obligated
to pay as damages because of . . . property damage caused by an
occurrence. . . .” The policy defined property damage to include
“physical injury to or destruction of tangible property, including all
resulting loss of use of that property,” as well as “loss of use of tan-
gible property that is not physically injured or destroyed, provided
such loss of use is caused by physical injury to or destruction of
other tangible property.” It defined an occurrence to be “an acci-
dent, including continuous or repeated exposure to the same gen-
eral harmful conditions which result in . . . property damage.”
State Farm issued Liberty a certificate of insurance in Janu-
ary 2009 that referenced both policies, identified Liberty as an ad-
ditional insured, and contained specific disclaimer language claim-
ing that it was “not a contract of insurance.” Despite issuing the
certificate, State Farm failed to issue an additional insured endorse-
ment adding Liberty to the policy until 2014, when Liberty prof-
fered its certificate as part of a renewed demand for a defense.
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Liberty’s demand came in response to an underlying lawsuit
from two of Liberty’s insureds, Regina Suarez and Jorge Sosa. Lib-
erty tasked Riteway with performing repairs on Suarez and Sosa’s
home. But rather than repair the home, Riteway only caused addi-
tional damage, damage so severe that the house eventually had to
be razed to the ground. Out of a home, Suarez and Sosa filed suit
against Liberty in February 2010. They eventually amended their
complaint to add Riteway as a defendant and include a vicarious
liability claim against Liberty based on Riteway’s acts. Only Count
Two of Suarez and Sosa’s third amended complaint, which alleged
that Liberty breached its contract with the plaintiffs to repair their
home, is relevant on appeal.
Liberty first demanded a defense in the Suarez-Sosa suit on
June 28, 2011, but State Farm refused on grounds that Liberty was
not an additional insured. On April 17, 2014, and after two more
demands and two more refusals, Liberty produced its certificate of
insurance and State Farm finally agreed to defend. Just over a year
later, State Farm settled Suarez and Sosa’s claims against Riteway
as well as their vicarious liability claims against Liberty. A month
after that, State Farm notified Liberty that having settled those
claims, it no longer believed that it owed Liberty a defense. Liberty
then settled the rest of the Suarez-Sosa claims itself. Critically, Lib-
erty allocated all of the settlement funds to Count Two, the cover-
age status of which was disputed, and zero dollars to the remaining
claims, which the parties agree were uncovered. Liberty sued State
Farm in the Southern District of Florida for breach of an insurance
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20-12970 Opinion of the Court 7
contract and a declaratory judgment. State Farm answered the
complaint, including an affirmative defense that “assert[ed] that
[State Farm’s] duties to reimburse and indemnify Liberty Mutual
with respect to any alleged loss, if any, are subject to . . . the limit
of liability stated in the [c]ontractors [p]olicy . . . and to all other
limitations of liability contained in the policies.”
After discovery, the district court ruled on the parties’ cross-
motions for summary judgment. It held that Liberty’s certificate of
insurance entitled it to the same coverage as Riteway, but only un-
der the umbrella policy. The court further concluded that although
the umbrella policy covered Liberty’s vicarious liability for Rite-
way’s conduct, it did not cover direct liability for Liberty’s own bad
acts. On appeal, we affirmed in part and vacated and remanded in
part, determining that the district court had made a factual mistake
about which policies were referenced by Liberty’s certificate of in-
surance. Liberty Mut. Fire Ins. Co. v. State Farm Fla. Ins. Co., 770
F. App’x 475. On remand, the district court, analyzing the contrac-
tors policy, again held that Liberty was entitled to the same cover-
age as Riteway based on its certificate of insurance. It also con-
cluded that Count Two of the Suarez-Sosa complaint was a cov-
ered claim that triggered State Farm’s duty to defend and indem-
nify. The parties disputed damages, although they agreed that the
damages issues were essentially legal rather than factual. The dis-
trict court adopted a magistrate judge’s report holding that Lib-
erty’s settlement with Suarez and Sosa bound State Farm. It also
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8 Opinion of the Court 20-12970
held that State Farm had waived any affirmative defense based on
the exhaustion of policy limits. State Farm timely appealed.
II. DISCUSSION
A. Choice of Law and Erie
To begin, we describe the choice of law principles that de-
termine which state’s law governs the dispute. As an appellate
court reviewing a district court action sounding in diversity of citi-
zenship, we apply the substantive law of the district court’s home
state, including its choice of law rules. Erie R.R. v. Tompkins,
304
U.S. 64, 78 (1938); Klaxon Co. v. Stentor Elec. Mfg. Co.,
313 U.S.
487, 496 (1941). Because Liberty sued in the Southern District of
Florida, we apply Florida’s choice of law rules. And because neither
party disputes that Florida substantive law governs under those
choice of law rules, we apply Florida law on insurance and contract
interpretation to the parties’ disputes about coverage under the
policies and the availability of damages.
B. Liberty Was Entitled to the Same Coverage as Riteway un-
der the Contractors Policy
Having identified the proper state’s substantive law, we turn
to the merits. State Farm first argues that its provision of a certifi-
cate of insurance naming Liberty as an additional insured, without
more, did not provide Liberty the same coverage as Riteway, the
company that purchased the policy. Applying Florida insurance
law, we disagree.
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20-12970 Opinion of the Court 9
When a federal court sitting in diversity applies the law of
the relevant state, it looks to the law as declared by that state’s
courts and its legislature. Erie,
304 U.S. at 78. That means that
“[o]ur objective is to determine the issues of state law as we believe
the Florida Supreme Court would.” State Farm Fire & Cas. Co. v.
Steinberg,
393 F.3d 1226, 1231 (11th Cir. 2004). “In the absence of
definitive guidance from the Florida Supreme Court, we follow rel-
evant decisions of Florida’s intermediate appellate courts.”
Id. If
even the intermediate appellate courts fail to answer the question,
we make an Erie guess that “attempt[s] to prognosticate how [Flor-
ida] state courts would resolve the . . . issue.” Fioretti v. Mass. Gen.
Life Ins. Co.,
53 F.3d 1228, 1235 (11th Cir. 1995).
The specific question of Florida law at issue is whether a cer-
tificate of insurance labeling a third party as an additional insured,
standing alone, entitles that third party to the same coverage as the
primary insured. Although the Florida courts have not directly ad-
dressed this question, they have addressed a very similar one in a
line of precedents about group insurance policies.
In Moore v. Peninsular Life Insurance Company, a Florida
intermediate appellate court held that a certificate of insurance ref-
erencing a group health policy became a contract between the in-
surance company and the recipient, entitling that recipient to no-
tice of a change in the master policy.
213 So. 2d 721, 722 (Fla. Dist.
Ct. App. 1968). Four years later, another Florida court explained
that “[w]hile the authorities are divided on the question, we believe
the better view to be the one which holds that under group life
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10 Opinion of the Court 20-12970
insurance policies there is a contract between the insurer and the
individual insured, that the contract consists of both the master pol-
icy and the certificate of insurance construed together, and that am-
biguities [o]r conflicts between the two must be resolved so as to
provide the broadest coverage.” Equitable Life Assur. Soc. of U.S.
v. Wagoner,
269 So. 2d 747, 748 (Fla. Dist. Ct. App. 1972). We have
relied on these precedents to decide similar issues. See Davis v.
Crown Life Ins. Co.,
696 F.2d 1343, 1345–47 (11th Cir. 1983) (failure
to recite a controlling provision from a master group life insurance
policy in the certificate of insurance created an ambiguity to be re-
solved in favor of coverage).
There are two main differences between the policies here
and those in the Florida cases discussed above. First, the contrac-
tors and umbrella policy were not group policies. They were issued
to Riteway alone. Second, Liberty never paid premiums on Rite-
way’s policies, unlike the recipients of a group health or life insur-
ance policy. We can see no reason, however, for these differences
to override Florida’s general rule construing ambiguities in insur-
ance contracts against insurers and in favor of broad coverage. See
Wagoner,
269 So. 2d at 748; DaCosta v. Gen. Guar. Ins. Co. of Fla.,
226 So. 2d 104, 107 (Fla. 1969). Thus, our Erie guess is that, under
Florida law, Liberty’s certificate of insurance entitled it to the same
coverage as Riteway under the contractors policy. That coverage
was unmodified by State Farm’s 2014 issuance of an additional in-
sured endorsement because the endorsement issued years after
Suarez and Sosa first filed suit in 2010. Such retroactive alterations
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20-12970 Opinion of the Court 11
to limit coverage are forbidden by Florida law. Sec. Ins. Co. of Hart-
ford v. Baad,
657 So. 2d 10, 10 (Fla. Dist. Ct. App. 1995).
C. Liberty Was Entitled to Damages Equal to the Full
Amount of its Settlement
State Farm next argues that, even if Liberty had the same
coverage as Riteway under the contractors policy (i.e., coverage for
its own acts), it was still not entitled to damages stemming from its
settlement. That argument consists of four sub-arguments. First,
that Count Two of the Suarez-Sosa complaint, a claim for breach
of a contract to repair, was not a covered claim under the policy.
Second, that even if Count Two were a covered claim, Liberty’s
allocation of all settlement funds to that claim prevented the settle-
ment from binding State Farm. Third, that even if the settlement
were binding, State Farm’s policy limits had been exhausted long
before Liberty’s settlement. And fourth, that Liberty’s settlement
exceeded the policy’s limits even if prior exhaustion of those limits
were unavailable as a defense. We conclude that each of State
Farm’s arguments is unavailing in the face of the applicable Florida
law.
1. The Contractors Policy Covered Count Two of the Suarez-
Sosa Suit
State Farm first argues that Count Two of the Suarez-Sosa
suit, which alleged that Liberty breached its contract to repair their
home, was not a covered claim implicating its duty to indemnify
under the contractors policy. We disagree.
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12 Opinion of the Court 20-12970
Under Florida law, “[t]he duty to defend depends solely on
the facts and legal theories alleged in the pleadings and claims
against the insured.” Laws. Title Ins. Corp. v. JDC (Am.) Corp.,
52
F.3d 1575, 1580 (11th Cir. 1995) (citing Nat’l Union Fire Ins. Co. v.
Lenox Liquors, Inc.,
358 So. 2d 533, 536 (Fla. 1977)). “The duty
arises when the relevant pleadings allege facts that ‘fairly and po-
tentially bring the suit within policy coverage.’”
Id. (citing Lime
Tree Vill. Cmty. Club Ass’n, Inc. v. State Farm Gen. Ins. Co.,
980
F.2d 1402, 1405 (11th Cir. 1993) (applying Florida law)). “If an ex-
amination of the allegations of the complaint leaves any doubt re-
garding the insurer’s duty to defend, the issue is resolved in favor
of the insured.”
Id. at 1580–81. “Unlike the duty to defend, . . . an
insurance company’s duty to indemnify an insured party ‘is nar-
rower and is determined by the underlying facts adduced at trial or
developed through discovery during the litigation.’” Stephens v.
Mid-Continent Cas. Co.,
749 F.3d 1318, 1324 (11th Cir. 2014) (quot-
ing U.S. Fire Ins. Co. v. Hayden Bonded Storage Co.,
930 So. 2d
686, 691 (Fla. Dist. Ct. App. 2006)). The duty to indemnify “is pred-
icated upon a final judgment, settlement, or other final resolution
of the underlying claims.” Evanston Ins. Co. v. Gaddis Corp.,
145
F. Supp. 3d 1140, 1153 (S.D. Fla. 2015).
The contractors policy covered “those sums that the insured
becomes legally obligated to pay as damages because of . . . prop-
erty damage caused by an occurrence. . . .” Property damage in-
cluded “physical injury to or destruction of tangible property, in-
cluding all resulting loss of use of that property,” as well as “loss of
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20-12970 Opinion of the Court 13
use of tangible property that is not physically injured or destroyed,
provided such loss of use is caused by physical injury to or destruc-
tion of other tangible property.” An occurrence was defined as “an
accident, including continuous or repeated exposure to the same
general harmful conditions which result in . . . property damage.”
Under the policy, State Farm retained “the right and duty to defend
any claim or suit seeking damages payable under this policy even
though the allegations of the suit may be groundless, false, or fraud-
ulent.”
First, we address the duty to defend. Suarez and Sosa’s first
amended complaint alleged that Liberty’s negligence in making re-
pairs severely damaged their home. These allegations “fairly and
potentially [brought] the suit within policy coverage,” which trig-
gered State Farm’s duty to defend. Liberty’s complaint sought de-
fense fees and costs beginning on June 28, 2011, and neither party
has challenged the district court’s holding that June 28 was the
proper time to start the clock, so we leave that holding in place.
Next, we address the duty to indemnify. Here, the question
is whether Count Two of Suarez and Sosa’s third amended com-
plaint, a claim for breach of a contract to repair, is a covered claim
under the contractors policy. We hold that it is. State Farm argues
that the breach of a contract to repair is not an “occurrence” and
that the damages flowing from that breach are not “property dam-
age” under the policy. But Count Two was based on property dam-
age. It alleged that “[p]laintiffs have suffered damages as a result of
[Liberty’s] breach of its contract to repair the damages to Plaintiffs’
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14 Opinion of the Court 20-12970
home. These damages include the damages and special damages in
paragraphs 99-100 herein which are incorporated by reference.”
Paragraph ninety-nine alleged damages including “[t]he cost to re-
place the entire structure and adjoining structures.” And paragraph
one hundred explained those damages, alleging that “[a]s a result
of the actions/inactions of Liberty . . . [p]laintiffs have suffered a
complete loss of the use of their home. The home is uninhabitable.
. . . [and] must be razed completely. . . .” Count Two also incorpo-
rated the complaint’s broader factual allegations, which alleged in
gory detail the string of “occurrences” by which Liberty’s contract
to repair the insureds’ home ended up destroying it. These ranged
from unpermitted demolitions and caving in the kitchen floor to
unnecessarily removing core components of the home and system-
atically destroying floor joists. Such allegations and consequences
fit under the labels of “occurrences” and “property damage” as de-
fined by the policy.
Finally, State Farm argues that, as a matter of public policy,
liability insurance policies cannot cover breach of contract claims
in Florida as a general matter. We disagree. Florida’s public policy
is against allowing liability coverage for certain intentional acts.
Whatever the scope of this public policy, it is clear that uninten-
tional breaches of contract may be covered by liability insurance.
See U.S. Fire. Ins. Co. v. J.S.U.B., Inc.,
979 So. 2d 871, 884 (Fla.
2007). The district court opinion State Farm cites to support its ar-
gument that public policy precludes reading the insurance policy
to cover this contract claim, Waste Corp. of Am., Inc. v. Genesis
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20-12970 Opinion of the Court 15
Ins. Co., speaks in terms of “intentional breach of contract.”
382 F.
Supp. 2d 1349, 1354 (S.D. Fla. 2005) (citing Nutmeg Ins. Co. v.
Clear Lake City Water Auth.,
229 F. Supp. 2d 668, 695 (D. Tex.
2002)). And Count Two is anything but an intentional breach of
contract claim, relying as it does on Riteway’s parade of negligent
acts during the repair to establish its claim for breach against Lib-
erty. Thus, we agree with the district court that Count Two was a
covered claim and State Farm owed Liberty a corresponding duty
to indemnify.
2. Liberty’s Settlement of the Suarez-Sosa Suit Bound State
Farm
Second, State Farm argues that, even if Count Two were a
covered claim, it is not bound to pay the amount in Liberty’s set-
tlement agreement because Liberty allocated the entire sum of the
settlement to Count Two. Again, we disagree.
Under Florida law, an insured that an insurer improperly
fails to defend may settle the claims against it and sue its insurer for
indemnification of the settlement amount. But if an insured enters
a settlement that includes both covered and noncovered claims, it
must allocate the settlement amount among the various claims to
bind the insurer. See Keller Indus., Inc. v. Emps. Mut. Liab. Ins. Co.
of Wisc.,
429 So. 2d 779, 780 (Fla. Dist. Ct. App. 1983); see also
Highland Holdings, Inc. v. Mid-Continent Cas. Co., Case No. 8:14-
cv-1334-T-23TBM,
2016 WL 3447523, at *4 (M.D. Fla. June 23,
2016), aff’d, 687 F. App’x 819 (11th Cir. 2017). So when an insured
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16 Opinion of the Court 20-12970
categorically fails to allocate funds when entering into a mixed set-
tlement, the insured will be unable to recover.
State Farm would have us extend these precedents to pro-
vide that, in addition to allocating generally, an insured must allo-
cate at least some funds to each claim in the settlement. That is,
State Farm argues that an insured may only seek indemnification
of a settlement if more than zero dollars is allocated to each claim
in a complaint. This argument is not persuasive. There is no sup-
port for it in Florida law or any other state’s law. And it makes very
little practical sense and does little to protect insurers from collu-
sive settlements. State Farm’s rule, for example, would render Lib-
erty’s settlement non-binding as is, but not if Liberty had allocated
one hundred dollars, or ten dollars, or even as little as one dollar to
each non-covered claim. And an insurer can always challenge a col-
lusive settlement by showing bad faith on the part of the settling
insured, but that is something State Farm has not alleged in this
case. See Shawnee Auto Serv. Ctr., Ltd. v. Cont’l Cas. Co.,
782 F.
Supp. 1503, 1504–06 (D. Kan. 1992).
State Farm tries to support its proposed rule with Wells v.
Tallahassee Memorial Regional Medical Center., Inc.,
659 So. 2d
249, 253–4 (Fla. 1995). But that decision is inapposite. Wells stands
for the general proposition that a non-settling joint tortfeasor is not
bound by the settlement of another joint tortfeasor as to the allo-
cation of non-economic versus economic damages. But that has
nothing to do with the circumstances of this case—when an insurer
wrongfully fails to defend its insured and the insured reaches a
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20-12970 Opinion of the Court 17
settlement with a plaintiff. In this situation, Florida courts have
been clear, the insurer must pay the settlement so long as the in-
sured makes an allocation between the various covered and non-
covered claims and did not act in bad faith. See Gallagher v.
Dupont,
918 So. 2d 342, 347–48 (Fla. Dist. Ct. App. 2005); Keller
Indus., Inc.,
429 So. 2d at 780; Universal Underwriters Ins. Corp. v.
Reynolds,
129 So. 2d 689, 691–92 (Fla. Dist. Ct. App. 1961). Because
Liberty has done exactly that, its allocation of damages in the set-
tlement binds State Farm.
3. State Farm Waived the Affirmative Defense of Exhaustion
of Policy Limits
Third, State Farm argues that, even if Count Two were cov-
ered and the settlement binding, it had exhausted the limits of the
contractors policy by settling Suarez and Sosa’s claims against Rite-
way and vicarious liability claims against Liberty. We disagree.
Under Florida and federal law, a failure to plead an affirma-
tive defense generally waives the defense. Jones v. Fla. Ins. Guar.
Ass’n Inc.,
908 So. 2d 435, 452 (Fla. 2005); Latimer v. Roaring Toyz,
Inc.,
601 F.3d 1224, 1239 (11th Cir. 2010). And although no Florida
court has expressly held exhaustion to be an affirmative defense
that must be pleaded or waived, the courts have consistently
named it as such. See Sheldon v. United Servs., Auto Ass’n,
55 So.
3d 593, 594–95 (Fla. Dist. Ct. App. 2010); Diamond State Ins. Co. v.
Fla. Dep’t of Child. and Fams.,
305 So. 3d 59, 61 (Fla. Dist. Ct. App.
2019). Thus, we conclude that exhaustion was an affirmative de-
fense that State Farm had to plead or waive.
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18 Opinion of the Court 20-12970
The next question is whether State Farm’s fifth affirmative
defense adequately pleaded exhaustion. We conclude that it did
not. We have explained that “a defendant raising an affirmative de-
fense must ‘affirmatively state it.’” MidAmerica C2L Inc. v. Sie-
mens Energy Inc.,
25 F.4th 1312, 1337 (11th Cir. 2022) (quoting
FED. R. CIV. P. 8(c)). That standard “requires, at the minimum, put-
ting the plaintiff on notice of the nature of the defense.”
Id. State
Farm agrees, arguing in its brief that its fifth affirmative defense
“set out the factual basis for the defense, thus providing fair notice,”
But State Farm’s fifth affirmative defense did nothing of the sort.
Instead, the defense asserted only that State Farm’s liability was
“subject to . . . the limit of liability stated in the [c]ontractors [p]ol-
icy . . . and to all other limitations of liability contained in the poli-
cies.” This boilerplate reference to the policy does not mention ex-
haustion, cite any policy language, or identify the settlement pay-
ments to Suarez and Sosa that would have constituted exhaustion.
In other words, it does not set out the factual basis for an exhaus-
tion defense or provide the plaintiff with fair notice of such a de-
fense. Thus, State Farm waived any defense of its prior exhaustion
of the policy limits.
4. The Contractors Policy’s Aggregate Limit Applies
Finally, State Farm argues that even if it loses on all of the
arguments above, Liberty’s settlement alone exceeds the contrac-
tors policy’s limits. Without an allegation or finding of bad faith,
State Farm contends, a judgment against an insurer may not exceed
its policy limits. This is a correct statement of Florida law, State
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20-12970 Opinion of the Court 19
Farm Mut. Auto Ins. Co. v. Goddard,
936 So. 2d 5, 9–10 (Fla. Dist.
Ct. App. 2006) (“in the absence of a judicial finding of bad faith, in
an action against an insurer for damages under a policy of insur-
ance, a final judgment against the insurer cannot exceed the stated
policy limits”), but one that is inapplicable here because Count
Two of the Suarez-Sosa complaint alleged multiple “occurrences,”
triggering the contractors policy’s aggregate limit. Because the
higher aggregate limit was equal to Liberty’s settlement, its opera-
tion prevented an excess judgment.
Under Florida law, the “cause theory” determines the num-
ber of “occurrences” under an insurance policy. Koikos v. Travel-
ers Ins. Co.,
849 So. 2d 263, 269–270 (Fla. 2003). The Florida Su-
preme Court has explained that an “occurrence” under the cause
theory “is the act that causes the damage, which is neither expected
nor intended from the standpoint of the insured.”
Id. at 271. And
the “act” is a distinct concept from a plaintiff’s underlying legal the-
ory.
Id.
Count Two of the Suarez-Sosa complaint alleged that Lib-
erty breached its contract to repair their home. But beyond that
cause of action, Count Two also incorporated allegations of four
distinct groupings of misconduct over the course of the disastrous
repair that allegedly constituted breach and contributed to the
overall damage to the home. Nor were the various instances of al-
leged misconduct so temporally close as to blend into a single “oc-
currence.” Instead, one was pegged to a single day and three others
to separate time-periods between five and twelve days. Among all
USCA11 Case: 20-12970 Date Filed: 04/06/2022 Page: 20 of 20
20 Opinion of the Court 20-12970
the allegations, there were only two days of overlap. Thus, Count
Two of the Suarez-Sosa suit alleged multiple “occurrences,” which
triggered the contractors policy’s aggregate limit. That higher limit
meant that the district court’s judgment was not in excess of the
contractors policy’s stated limits.
III. CONCLUSION
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
