Federal Deposit Insurance Corporation v. Certain Underwriters at Lloyd's of London

USCA11 Case: 20-13604 Date Filed: 08/19/2022 Page: 1 of 18
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13604
____________________
FEDERAL DEPOSIT INSURANCE CORPORATION,
as receiver for Omni National Bank,
Plaintiff-Appellant,
versus
CERTAIN UNDERWRITERS AT LLOYD’S OF LONDON,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-03127-TCB
____________________
USCA11 Case: 20-13604 Date Filed: 08/19/2022 Page: 2 of 18
2 Opinion of the Court 20-13604
Before ROSENBAUM, TJOFLAT, Circuit Judges, and STEELE,* District
Judge.
TJOFLAT, Circuit Judge:
This appeal requires us to decide when a plaintiff must de-
mand prejudgment interest to be timely under Georgia law. In a
prior case, a federal district court decided in a declaratory judgment
action that an insurance policy issued by Certain Underwriters at
Lloyd’s, London (“Underwriters”) covered certain negligent ac-
tions undertaken by the former directors and officers of Omni Na-
tional Bank (“Omni”) during the 2008 banking crisis. Following
this declaration, the Federal Deposit Insurance Corporation
(“FDIC”), acting in Omni’s name as Omni’s receiver, demanded
payment and prejudgment interest from Underwriters under the
insurance policy for a stipulated judgment previously entered
against three of Omni’s former directors and officers for $10 mil-
lion, the limit of Underwriters’ insurance policy. Underwriters
paid the $10 million once the Supreme Court denied certiorari for
its appeal from the declaratory judgment but refused to pay pre-
judgment interest, causing the FDIC to institute this action.
The District Court ruled that the FDIC’s demand for pre-
judgment interest was untimely under Georgia law because the
FDIC made its demand after the declaratory judgment was entered
* The Honorable John Steele, United States District Judge for the Middle Dis-
trict of Florida, sitting by designation.
USCA11 Case: 20-13604 Date Filed: 08/19/2022 Page: 3 of 18
20-13604 Opinion of the Court 3
and liability determined. On appeal, the FDIC argues that de-
mands for prejudgment interest are timely under Georgia law so
long as they are made before the entry of a coercive final judgment,
which declaratory judgments are not. We agree and, accordingly,
reverse the District Court.
I.
In 2007, the United States Office of the Comptroller of the
Currency (“OCC”) began investigating the low-income real estate
loan practices of Omni, which were found to violate both internal
policies and federal regulations.1 After this investigation began,
Omni secured a policy with a $10 million liability limit from Un-
derwriters to cover its directors and officers for wrongful conduct
occurring between June 9, 2008, and June 9, 2009. During that pe-
riod, Omni began foreclosing on many of the low-income proper-
ties that had been subject to its bad loan practices. However, in-
stead of selling these low-income properties to recoup its losses,
Omni began investing money to renovate them, even after receiv-
ing a CAMELS5 rating from the OCC in September 2008. 2 The
1 The OCC is tasked with implementing the National Bank Act. NationsBank
of N.C. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 256, 115 S. Ct. 810, 813
(1995). As a result, it has broad powers over banks in the United States, in-
cluding the ability to appoint a receiver for a regulated national bank. 12
U.S.C. § 191(a).
2 The OCC ranks banks based on a CAMELS system of one through five, with
one being the most stable and five being the least stable. The acronym CAM-
ELS derives from the various aspects of a bank that the OCC considers in
USCA11 Case: 20-13604 Date Filed: 08/19/2022 Page: 4 of 18
4 Opinion of the Court 20-13604
OCC declared Omni insolvent on March 27, 2009, and appointed
the FDIC as Omni’s receiver. As Omni’s receiver, the FDIC was
tasked with marshalling Omni’s assets, including any claims it had
against its former directors and officers for negligence. Pursuant to
this obligation, the FDIC sued Omni’s former directors and officers
for negligence on March 16, 2012. In December 2013, Omni’s for-
mer CEO Stephen Klein settled with the FDIC under the following
terms: (1) a $10 million stipulated judgment would be entered
against Klein; (2) the FDIC would only seek to recover the stipu-
lated judgment against Klein through the Underwriters insurance
policy; and (3) Klein would assign his rights under the Underwriters
insurance policy to the FDIC. In May 2015, two more of Omni’s
former directors and officers, Benjamin Cohen and Constance Per-
rine, also entered into a settlement agreement with the FDIC un-
der the same terms.
Meanwhile, on May 18, 2012, Underwriters initiated its own
lawsuit against the FDIC and Omni’s former directors and officers3
seeking a declaration that Underwriters’ 2008–2009 insurance
assessing risk, which are capital adequacy (C), assets (A), management capa-
bility (M), earnings (E), liquidity (L), and sensitivity to market risk (S). Lewis
Gaul & Jonathan Jones, CAMELS Ratings and Their Informational Content 5
(Off. of the Comptroller of the Currency, WP-2021-01, 2021), available at
https://occ.gov/publications-and-resources/publications/economics/work-
ing-papers-banking-perf-reg/pub-econ-working-paper-camels-ratings.pdf.
3 These former directors and officers included Klein, Cohen, and Perrine, but
also included many more of Omni’s former directors and officers.
USCA11 Case: 20-13604 Date Filed: 08/19/2022 Page: 5 of 18
20-13604 Opinion of the Court 5
policy did not cover the negligence of Omni’s former directors and
officers during the policy period. 4 In response, Klein filed four
counterclaims against Underwriters. Counts I and II of Klein’s
counterclaims sought declarations that Underwriters’ policy cov-
ered the directors’ and officers’ wrongful acts alleged in the lawsuit.
Count III sought damages for Underwriters’ breach of contract in
failing to pay for his legal fees and expenses under the insurance
policy. Count IV sought a declaration that Underwriters acted in
bad faith by denying coverage to Klein. Klein also filed a separate
lawsuit against Underwriters alleging the same four claims. Klein
did not make a demand for prejudgment interest in either his coun-
terclaims or his separate lawsuit. As part of his settlement with the
FDIC in December 2013, Klein voluntarily dismissed his counter-
claims and separate lawsuit against Underwriters.
Ultimately, the district court in Underwriters’ suit issued a
declaration that the insurance policy covered the negligence of
Omni’s former directors and officers to the tune of the policy lim-
its: $10 million. Underwriters appealed the district court’s judg-
ment and we affirmed. Certain Underwriters at Lloyd’s of London
v. FDIC, 723 F. App’x 764 (11th Cir. 2018). Underwriters petitioned
the Supreme Court for certiorari, which the Court denied in May
2018. Certain Underwriters at Lloyd’s of London v. FDIC, 138 S.
Ct. 2584 (2018).
4 Pls.’ Compl. Decl. J., Certain Underwriters at Lloyd’s, London v. FDIC, 2012
WL 6196558, No. 1:12-cv-01740-RLV (N.D. Ga May 18, 2012).
USCA11 Case: 20-13604 Date Filed: 08/19/2022 Page: 6 of 18
6 Opinion of the Court 20-13604
Just before the Supreme Court denied certiorari, the FDIC
sent a demand letter to Underwriters on April 2, 2018, demanding
Underwriters pay the FDIC $10 million for the stipulated judgment
and $3,004,287.67 in prejudgment interest under Georgia law. The
FDIC concedes that this was the first time a demand for prejudg-
ment interest was made against Underwriters. In a reply letter on
April 11, Underwriters disputed that it owed prejudgment interest
because neither the FDIC nor any former director or officer de-
manded prejudgment interest before the entry of final judgment in
the declaratory judgment lawsuit. However, it conceded that it
would pay the principal if the Supreme Court denied certiorari. In
July 2018, after certiorari was denied, Underwriters paid the princi-
pal of $10 million and roughly $115,000 of postjudgment interest at
the federal rate but refused to pay prejudgment interest at the
Georgia law rate.
In response, the FDIC sued Underwriters on July 9, 2019, in
the Northern District of Georgia to collect prejudgment interest.
On March 13, 2020, the parties filed cross-motions for summary
judgment. On August 24, 2020, the District Court granted Under-
writers’ motion for summary judgment and denied the FDIC’s mo-
tion for summary judgment. The Court held that the FDIC’s re-
quest for prejudgment interest in April 2018 was untimely because
Georgia law requires a demand for interest “before the entry of a
final judgment as to the principal amount due.” The Court also
held that the declaratory judgment issued in October 2016 in the
second lawsuit was a “final judgment as to the principal amount
USCA11 Case: 20-13604 Date Filed: 08/19/2022 Page: 7 of 18
20-13604 Opinion of the Court 7
due” for purposes of Georgia law. In so doing, the Court rejected
the FDIC’s argument that the declaratory action only resolved Un-
derwriters’ liability to pay under its insurance policy. The FDIC
timely appealed the Court’s judgment on September 22, 2020.
II.
On summary judgment, we review the lower court’s deci-
sion de novo. Tana v. Dantanna’s, 611 F.3d 767, 772 (11th Cir.
2010). We view all the evidence and draw all reasonable inferences
in favor of the non-moving party. Id. A grant of summary judg-
ment is proper where there is “no genuine issue as to any material
fact and . . . the movant is entitled to summary judgment as a mat-
ter of law.” Fed. R. Civ. P. 56(a).
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. Both the
availability and amount of prejudgment interest is a substantive is-
sue under the Erie doctrine. AIG Baker Sterling Heights, LLC v.
Am. Multi-Cinema, Inc., 508 F.3d 995, 1001 (11th Cir. 2007). In
determining the meaning of state law, we defer to the state su-
preme court’s interpretation of its own law. LaFrere v. Quezada,
582 F.3d 1260, 1263–64 (11th Cir. 2009). If the state supreme court
has not issued an opinion, we defer to the state’s intermediate ap-
pellate courts “absent some persuasive indication that the state’s
highest court would decide the issue otherwise.” People’s Gas Sys.
v. Posen Constr., Inc., 931 F.3d 1337, 1339 (11th Cir. 2019).
USCA11 Case: 20-13604 Date Filed: 08/19/2022 Page: 8 of 18
8 Opinion of the Court 20-13604
III.
Georgia law provides for prejudgment interest on certain
demands for debts or claims to money where the amount owed is
sufficiently certain, i.e., liquidated. O.C.G.A. §§ 7–4–15, 7–4–16.
Georgia law states,
All liquidated demands, where by agreement or oth-
erwise the sum to be paid is fixed or certain, bear in-
terest from the time the party shall become liable and
bound to pay them; if payable on demand, they shall
bear interest from the time of the demand.
O.C.G.A. § 7–4–15. This law compensates the creditor for the de-
lay in receiving monetary damages when a debtor delays payment
of a liquidated claim. 5 Crown Series, LLC v. Holiday Hospitality
Franchising, LLC, 851 S.E.2d 150, 158 (Ga. Ct. App. 2020). “Pre-
judgment interest is not premised on bad faith but rather on the
principle that when a debt is owed and demand for the funds is
made, interest accrues from the time entitlement attached.” Int’l
Indemnity Co. v. Terrell, 344 S.E.2d 239, 242 (Ga. Ct. App. 1986).
In other words, Georgia’s policy is that defendants litigate at their
own risk if liquidated claims are involved.
To recoup prejudgment interest, claimants must: (1) make a
demand for prejudgment interest; (2) on a liquidated claim; (3)
5 Where the rate of prejudgment interest is not otherwise established by con-
tract, Georgia law prescribes seven percent per annum. O.C.G.A. § 7–4–
2(a)(1)(A).
USCA11 Case: 20-13604 Date Filed: 08/19/2022 Page: 9 of 18
20-13604 Opinion of the Court 9
before the entry of a final judgment for the liquidated claim. See
Crisler v. Haugabrook, 725 S.E.2d 318, 319 (Ga. 2012). First, the
party seeking interest must make a demand for interest. A demand
may be made formally, such as by including a request for prejudg-
ment interest in a complaint, see Ga. Lottery Corp. v. Vasaya, 836
S.E.2d 107, 112–13 (Ga. Ct. App. 2019), or informally, such as by
sending a letter to the other party. Gwinnett Cnty. v. Old
Peachtree Partners, 764 S.E.2d 193, 200 (Ga. Ct. App. 2014).
Second, the claim underlying the demand must be “liqui-
dated,” which means the amount owed is sufficiently “fixed and
certain.” Est. of Callaway v. Garner, 772 S.E.2d 668, 671 (Ga. Ct.
App. 2015). A demand is certain when “there is no bona fide con-
troversy over the amount” claimed, id. (alterations omitted), like,
for example, when a contract provision provides for liquidated
damages. Sovereign Healthcare, LLC v. Mariner Health Care
Mgmt. Co., 766 S.E.2d 172, 176 (Ga. Ct. App. 2014). A claim is liq-
uidated even if actual liability is disputed so long as the amount of
loss or damages suffered by the claimant is not contested. Enfinger
v. Int’l Indem. Co., 359 S.E.2d 884, 885 (Ga. 1987) (“[W]hen the
only issue contested by the insurer is the exist[e]nce of coverage
and not the amount of the claim then the claim is properly consid-
ered liquidated.”); see also Nat’l Fire Ins. Co. v. Thompson, 181
S.E. 101, 103 (Ga. Ct. App. 1935) (claim of damage over insurance
policy limits is liquidated). And where a party pays the amount
owed, it cannot later contend that the amount was not liquidated.
See Terrell, 344 S.E.2d at 242 (“Since appellant ultimately tendered
USCA11 Case: 20-13604 Date Filed: 08/19/2022 Page: 10 of 18
10 Opinion of the Court 20-13604
the $45,000, there could be no dispute as to the amount of the
claim. . . . Appellant cannot now contend that the claim was
unliquidated.”).
Third and finally, a demand must be made before the entry
of a final “judgment for a liquidated amount.” Crisler, 725 S.E.2d
at 319. Specifically, the Georgia Supreme Court has stated that,
Under this statute, prejudgment interest—which
flows automatically from a liquidated demand—is to
be awarded upon a judgment for a liquidated
amount. Thus, as long as there is a demand for pre-
judgment interest prior to the entry of final judgment,
a trial court should award it.
Id. Although not expressly included in the prejudgment interest
provision, O.C.G.A. § 7–4–15, the Georgia Supreme Court requires
a demand before judgment to allow the other party an opportunity
to litigate liability for interest. Id. (citing O.C.G.A. § 9–11–54(c)(1)).
However, interest under § 7–4–15 runs from the time the party is
“liable and bound to pay” the liquidated claim, not from the date
the party demands prejudgment interest. 6 Id.
6 Georgia law allows a liquidated claim to accrue interest from the due date
of the principal, even if a demand for interest is during the middle of a lawsuit
years later. See Old Peachtree, 764 S.E.2d at 197–201; Crisler, 725 S.E.2d at
319. We note that this policy may incentivize plaintiffs to delay their own
cases in some instances to attain a seven percent interest rate in the interim.
However, we are required to defer to the Georgia courts’ interpretation of
Georgia law.
USCA11 Case: 20-13604 Date Filed: 08/19/2022 Page: 11 of 18
20-13604 Opinion of the Court 11
Critically for this case, the Georgia courts have held that a
mere determination of liability does not preclude the recovery of
prejudgment interest because a full and fair opportunity to litigate
liability for interest remains until the entry of a coercive final judge-
ment. See id.; Old Peachtree, 764 S.E.2d at 196. So, a “judgment
for a liquidated amount” must be a coercive final judgment order-
ing the payment of liquidated amount, not a judgment or order
declaring liability. See Crisler, 725 S.E.2d at 319.
In Crisler, the Georgia Court of Appeals reversed the denial
of a plaintiff’s motion for summary judgment by a trial court as to
liability on a liquidated claim. 725 S.E.2d at 318–19. After the trial
court entered summary judgment for the plaintiff on remand, the
plaintiff moved to amend his complaint to add a request for pre-
judgment interest, which the trial court allowed. Id. The trial
court then awarded prejudgment interest on the claim with the fi-
nal judgment. Id. at 319. The Georgia Supreme Court affirmed,
even though the entry of summary judgment decided liability, be-
cause the defendant “was given an opportunity to contest the
award by opposing [the plaintiff’s] amendment [to his complaint]
and motion for the entry of final judgment.” See id. 7
7 Underwriters argues that in Crisler the summary judgment motion was not
a final judgment because the plaintiff’s other theories for the same money
were still pending. 725 S.E.2d at 318 n.1. While that is true, whether other
claims were pending is not the point. The point is that the grant of summary
judgment did not constitute a final judgment despite determining liability.
That is, the defendants had some opportunity, no matter how small, to litigate
USCA11 Case: 20-13604 Date Filed: 08/19/2022 Page: 12 of 18
12 Opinion of the Court 20-13604
In Old Peachtree, the Georgia Court of Appeals reversed a
denial of summary judgment on interlocutory review and held as
a matter of law that a contract for the sale of land was enforceable.
764 S.E.2d at 195–96. On remand, the defendant sent two letters
to the plaintiff demanding prejudgment interest on its counter-
claim for breach of the land sale contract. Id. The trial court
awarded specific performance and prejudgment interest, which ran
from the date in 2009 on which the closing of the property should
have occurred under the contract until its order in 2013, totaling
$1.45 million in interest. Id. at 197–201. 8 The Court of Appeals
affirmed the award of prejudgment interest on interlocutory re-
view, finding that the demand letters for interest were timely be-
cause they were sent before the final judgment ordering specific
performance of the contract was entered. Id. at 196–97.
So, a demand that is made before the entry of a coercive final
judgment ordering a party to pay a liquidated claim is timely. Id.
at 196. The coercive judgment is critical because interest is merely
a monetary award added to a judgment. See Crisler, 725 S.E.2d at
their liability for prejudgment interest. In Crisler, that opportunity was a sin-
gle motion following entry of summary judgment; here, it was an entire case.
8 Underwriters argues that Old Peachtree demanded statutory interest as part
of its 2009 counterclaim before the appeal, and so Old Peachtree is not on
point. However, the court explicitly relied on the 2013 demands for interest
after the first appeal, and it decided that the requirement of a timely demand
was satisfied solely because the defendant had an opportunity to litigate its
liability for prejudgment interest after the first appeal, which determined the
defendant’s liability. 764 S.E.2d at 200.
USCA11 Case: 20-13604 Date Filed: 08/19/2022 Page: 13 of 18
20-13604 Opinion of the Court 13
157 (noting that “prejudgment interest—which flows automati-
cally from a liquidated demand—is to be awarded upon a judgment
for a liquidated amount” (emphasis added)). Thus, interest is al-
ways awarded with a judgment or not at all. See id.; Cooney v.
Burnham, 657 S.E.2d 239, 241 (Ga. 2008) (stating in the context of
O.C.G.A. § 7–4–16, a neighboring provision for prejudgment inter-
est on commercial accounts, that “prejudgment interest . . . is to-
tally dependent on the judgment being rendered in the main
claim”).
On appeal, the parties do not dispute that the FDIC made a
demand for prejudgment interest under Georgia law in April 2018.
Rather, they argue about (1) whether the claim was liquidated; (2)
whether the declaratory judgment in the prior case was a coercive
final judgment under O.C.G.A. § 7–4–15; and (3) whether claim
preclusion bars the FDIC’s claim for interest. 9 If Underwriters is
correct on any point, then the FDIC may not obtain prejudgment
interest. Unfortunately for Underwriters, we agree with the FDIC
on all points. However, we note that the issue of when interest
9 Underwriters also argues that § 7–4–15 does not provide a stand-alone cause
of action for prejudgment interest. Because the FDIC only asserts a claim for
interest, Underwriters contends that the FDIC’s suit is barred.
To the extent it argues that payment of the principal bars recovery of
interest under Georgia law, Underwriters is incorrect. The Georgia courts
have held that if prejudgment interest is a creature of statute, “payment of the
entire principal does not defeat the subsequent recovery of accrued interest.”
Rice-Stix Dry Goods Co. v. Friedlander Bros., 117 S.E. 762, 763 (Ga. Ct. App.
1923), aff’d, 122 S.E. 890 (Ga. 1924).
USCA11 Case: 20-13604 Date Filed: 08/19/2022 Page: 14 of 18
14 Opinion of the Court 20-13604
started to run is not before us on appeal. See Terrell, 344 S.E.2d at
242.
A.
First, the parties dispute whether the claim was liquidated.
Underwriters argues that the $10 million amount was not liqui-
dated because there was uncertainty about the amount Underwrit-
ers owed to Omni’s former directors and officers and the FDIC un-
der their settlement. Underwriters relies on a “recovery” provision
of the settlement which provided that the former directors and of-
ficers would receive a portion of the recovery from Underwriters
to pay for their legal fees. 10
Underwriters’ argument is unconvincing. What the FDIC
thought that it might be able to recover later does not make the
$10 million claim unliquidated. See Hampshire Homes v. Espinosa
10 Those provisions in Klein’s settlement, for example, stated that
If FDIC-R recovers less than $250,000 from any settlement or
judgment on Defendant’s Assigned Claims, FDIC-R shall not
owe any reimbursement to Defendant. If FDIC-R recovers
$250,000 or more but less than $500,000 from any settlement
or judgment on Defendant’s Assigned Claims, FDIC-R shall re-
imburse Defendant up to $25,000. If FDIC-R recovers
$500,000 or more from any settlement or judgment on De-
fendant’s Assigned Claims, FDIC-R shall reimburse Defendant
up to $50,000.
The agreement also made clear that the purpose of reimbursement was “for
actually incurred and documented attorneys’ fees and costs incurred by
[Klein].”
USCA11 Case: 20-13604 Date Filed: 08/19/2022 Page: 15 of 18
20-13604 Opinion of the Court 15
Constr. Servs., 655 S.E.2d 316, 320 (Ga. Ct. App. 2007) (noting that
the ultimate recovery, which may be set off by counterclaims, does
not determine whether a claim is liquidated). The FDIC’s demand
was for $10 million, the limit under the insurance policy and the
amount Underwriters ultimately paid. That amount is “fixed and
certain,” and Underwriters does not claim that the former direc-
tors’ and officers’ negligence caused any damage to Omni less than
the $10 million policy limit. See Garner, 772 S.E.2d at 671; Thomp-
son, 181 S.E. at 103. The only thing left to dispute, then, was
whether Underwriters’ policy covered the wrongful renovations
done by Omni at all; but a dispute as to liability does not make a
claim unliquidated. Enfinger, 359 S.E.2d at 885. And given that
Underwriters did in fact pay the full $10 million, it cannot seriously
assert that the claim was unliquidated. 11 Terrell, 344 S.E.2d at 242.
B.
Next, the parties dispute whether the declaratory judgment
in the second lawsuit is a coercive final judgment for a liquidated
claim, which controls whether the FDIC’s demand for interest was
timely. Underwriters argues that the declaratory judgment was a
11 Underwriters argues that it could have disputed the amount of liability be-
cause the directors may have settled in bad faith. But what Underwriters could
have done no longer matters; under Georgia law, Underwriters’ payment of
$10 million to the FDIC was an admission of the amount of the claim. See
Terrell, 344 S.E.2d at 242 (“Since appellant ultimately tendered the $45,000,
there could be no dispute as to the amount of the claim. . . . Appellant cannot
now contend that the claim was unliquidated.”).
USCA11 Case: 20-13604 Date Filed: 08/19/2022 Page: 16 of 18
16 Opinion of the Court 20-13604
“final judgment as to the amount due.” Underwriters argues that
this lawsuit does not provide it the “full and fair opportunity” to
contest the claim for interest as mandated by Georgia law because
its liability was all but certain after the declaratory judgment. It
also argues that the timing of the demand prevented Underwriters
from making an informed judgment about how to litigate and
whether to settle.
Underwriters is obviously wrong. Declaratory judgments
are not coercive. Sinclair Oil Corp. v. Amoco Prod. Co., 982 F.2d
437, 439–40 (10th Cir. 1992) (explaining that declaratory judgments
declare the rights of the parties but do not seek execution or order
the defendant to act). Underwriters’ argument that it lacked a full
and fair opportunity to litigate the issue of prejudgment interest, as
§ 9–11–54(c)(1) requires, is false on its face. This entire lawsuit has
been dedicated to extensively litigating prejudgment interest.
Compared to Crisler and Old Peachtree, this opportunity clearly
suffices under Georgia law.
C.
Finally, Underwriters argues that claim preclusion bars this
lawsuit. Underwriters argues that the FDIC could have proceeded
on Klein’s counterclaims in the declaratory judgment suit or on
Klein’s separate suit against Underwriters. Asserting the FDIC
gave up that opportunity by conditioning Klein’s settlement on dis-
missing his counterclaims and his separate lawsuit, Underwriters
argues that the FDIC’s prejudgment interest claim is now barred.
We disagree.
USCA11 Case: 20-13604 Date Filed: 08/19/2022 Page: 17 of 18
20-13604 Opinion of the Court 17
Under Federal Rule of Civil Procedure 13(a) 12 and Georgia
claim preclusion principles, a party is only required to assert a claim
that it has at the time of pleading or actually files in supplemental
pleadings. Baker v. Gold Seal Liquors, Inc., 417 U.S. 467, 469 n.1,
94 S. Ct. 2504, 2506 n.1 (1974); Karan, Inc. v. Auto-Owners Ins. Co.,
629 S.E.2d 260, 262 (Ga. 2006) (“Three prerequisites must be satis-
fied before res judicata applies—(1) identity of the cause of action,
(2) identity of the parties or their privies, and (3) previous adjudica-
tion on the merits by a court of competent jurisdiction.”). So, we
must look at whether the claims that Underwriters argues are
barred by claim preclusion (1) were brought or (2) could have been
brought in a previous lawsuit.
No such claim was brought in an earlier proceeding. Under-
writers only points to Klein’s counterclaims and claims in his sepa-
rate lawsuit against Underwriters as barring FDIC’s current claim
for breach of contract. Klein’s Counts I and II sought a declaration
that the insurance policy covered the wrongful renovations he had
approved. Count III alleged a claim for breach of contract against
12 Rule 13(a)(1) states,
A pleading must state as a counterclaim any claim that—at the
time of its service—the pleader has against an opposing party
if the claim:
(A) arises out of the transaction or occurrence that is
the subject matter of the opposing party’s claim; and
(B) does not require adding another party over whom
the court cannot acquire jurisdiction.
USCA11 Case: 20-13604 Date Filed: 08/19/2022 Page: 18 of 18
18 Opinion of the Court 20-13604
Underwriters for failing to pay for the costs of litigation for Klein
when the FDIC sued him—but that is different from the failure to
pay for the resulting settlement and stipulated judgment related to
the wrongful renovations he oversaw. Count IV alleged a claim
for declaratory relief, seeking to establish that Underwriters acted
in bad faith in denying coverage for the wrongful renovation that
he oversaw. None of these claims are the same as the FDIC now
asserts.
Moreover, the FDIC could not have brought its current
claim, which is for breach of the Underwriters’ insurance policy re-
quiring that it pay for losses, in its answer to the May 2012 declara-
tory judgment action because it had no claim against Underwriters
until the December 2013 settlement and stipulated judgment. So,
the FDIC’s claim is not barred.
IV.
We conclude that the District Court erred by granting sum-
mary judgment for Underwriters. We remand for the determina-
tion of when prejudgment interest began to run. Accordingly, the
judgment of the District Court is
REVERSED and REMANDED.