Navigators Insurance Company v. Markel American Insurance Company

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12681 MAY 18, 2012
________________________ JOHN LEY
CLERK
D. C. Docket No. 8:10-cv-00266-RAL-TBM
NAVIGATORS INSURANCE COMPANY,
Plaintiff – Appellant,
versus
MARKEL AMERICAN INSURANCE COMPANY,
ELTON PORTER MARINE INSURANCE AGENCY,
Defendants – Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 18, 2012)
Before WILSON, ANDERSON, and HIGGINBOTHAM,* Circuit Judges.
PER CURIAM:
*
Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth
Circuit, sitting by designation.
We have had the benefit of oral argument and have considered the briefs
and relevant portions of the record. We conclude that the judgment of the district
court should be affirmed.
With respect to Plaintiff’s negligent misrepresentation claim against Elton
Porter, we agree with the district court that Plaintiff cannot demonstrate
reasonable reliance. With respect to the negligent misrepresentation claim brought
on behalf of Powerboat Magazine, the claim fails because (1) Powerboat
Magazine was not a party to any communications upon which it might have relied;
and (2) once Powerboat Magazine received the certificate of insurance, which
clearly indicated that Powerboat Magazine and Bob Teague had not been made
additional insureds, Powerboat Magazine could not have reasonably relied upon
the alleged representations of Collier in his discussions with Mornes or Pyburn.
With respect to the negligent misrepresentation claim brought on behalf of
Teague, the claim fails because Teague was not a party to—or was even aware of
(until after the accident)—any communications made by Defendants upon which
he could have reasonably relied.1 Accordingly, Plaintiff failed to demonstrate the
element of justifiable reliance required for a claim of negligent misrepresentation
1
In response to a deposition question about whether he anticipated that Elton Porter
would have been providing insurance for him in connection with driving the Skater, Teague
responded: “I’m not even sure why I would be even thinking about Elton Porter.”
2
under Florida law. See Coral Gables Distrib., Inc. v. Milich, 992 So. 2d 302, 303
(Fla. Dist. Ct. App. 2008).
With respect to Plaintiff’s other claim against Elton Porter, a claim of
negligent failure to procure insurance, we also agree with the district court’s grant
of summary judgment. We agree with the district court that Plaintiff failed to
demonstrate that Elton Porter had a duty to procure insurance for Plaintiff’s
insureds. Assuming arguendo that Plaintiff’s insureds were intended to be third-
party beneficiaries of Elton Porter’s undertaking on behalf of others to provide
insurance—although there is some doubt that Plaintiff properly preserved this
argument—Plaintiff failed to demonstrate the reliance necessary to establish a
duty on the part of the agent. See Klonis for Use & Benefit of Con. Am. Ins. Co.
v. Armstrong, 436 So. 2d 213, 217-18 (Fla. Dist. Ct. App. 1983) (concluding that
where there is no reliance by the putative insured upon agent’s gratuitous
undertaking, there consequently is no legal duty owed to the putative insured);
Sheridan v. Greenberg, 391 So. 2d 234, 236 (Fla. Dist. Ct. App. 1980) (“Reliance
by the putative insured on the insurance agent’s undertaking, even if that
undertaking is gratuitous, is sufficient to trigger a duty upon the agent to exercise
the reasonable skill and care to obtain the appropriate coverage.”). For the same
reasons noted above, Plaintiff has failed to demonstrate reasonable reliance upon
3
any undertaking to procure insurance. Therefore, we affirm the district court’s
grant of summary judgment with respect to the claim of negligent failure to
procure insurance.
Because we find that Plaintiff failed to establish the elements of its claims
against Elton Porter, any claims against Markel based on vicarious liability
necessarily fail. Furthermore, with respect to the claims for declaratory relief and
equitable subrogation, we affirm the district court’s grant of summary judgment in
favor of Markel.
Although there may be other, independent grounds upon which affirmance
would be appropriate, the foregoing provide an ample basis.
AFFIRMED.
4