Medmarc Casualty Insurance Company v. Peter J. Yanowitch

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 28, 2023
• Docket: 22-11092
• Status: Unpublished

Opinion

USCA11 Case: 22-11092 Document: 50-1 Date Filed: 08/28/2023 Page: 1 of 4

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-11092 Non-Argument Calendar ____________________

MEDMARC CASUALTY INSURANCE COMPANY, PROASSURANCE SPECIALTY INSURANCE COMPANY, d.b.a. Noetic Specialty Insurance, Plaintiffs-Counter Defendant-Appellants, versus PETER J. YANOWITCH,

Defendant-Counter Claimant-Appellee,

JUAN POCH VIVES, YANOWITCH LAW PA, A Florida for profit corporation, USCA11 Case: 22-11092 Document: 50-1 Date Filed: 08/28/2023 Page: 2 of 4

2 Opinion of the Court 22-11092

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:20-cv-22822-DPG ____________________

Before WILLIAM PRYOR, Chief Judge, and ROSENBAUM and JILL PRYOR, Circuit Judges. PER CURIAM: Medmarc Casualty Insurance Company and Noetic Spe- cialty Insurance appeal the partial summary judgment and judg- ment on the pleadings against them and in favor of their insureds, Peter Yanowitch and Yanowitch Law, P.A. The insurers sought a declaratory judgment that they owed no duty to defend or indem- nify the insureds in a state-court action. The district court ruled that the insurers owed a duty to defend but declined to rule on the duty to indemnify until the state action was resolved. After the insurers filed this interlocutory appeal challenging the ruling on the duty to defend, the state court dismissed its action with prejudice. The insureds move to dismiss this interlocutory appeal as moot. They explain that the only issue on appeal is whether the insurers owe a duty to defend them in a state action that is no longer pending. And they contend that the dismissal of the state action with prejudice makes any question about its defense moot. USCA11 Case: 22-11092 Document: 50-1 Date Filed: 08/28/2023 Page: 3 of 4

22-11092 Opinion of the Court 3

They also explain that the district court granted a joint motion to dismiss the federal action as moot. The insurers argue that this appeal is not moot, but they do not dispute that they owe the insureds no duty to defend after the state action has been dismissed with prejudice. Nor do they deny that the district court dismissed the action from which this appeal arose. The insurers instead speculate that if the interlocutory order is not reversed, the district court may later award the insureds at- torneys’ fees under Florida law. We agree with the insureds that this interlocutory appeal is moot. We cannot provide meaningful relief when the insurers have already provided a defense and the underlying state and federal ac- tions have since been dismissed. See Al Najjar v. Ashcroft, 273 F.3d 1330, 1335–36 (11th Cir. 2001). If the district court later were to award the insureds attorneys’ fees, we could entertain an appeal of the award and review any jurisdictional or other error. But a hypo- thetical fee award does not create a controversy about the insurers’ duty to defend, which is now moot. See Lewis v. Continental Bank Corp., 494 U.S. 472, 480–81 (1990) (emphasis added) (“Where it ap- pears on the face of the record that the only concrete interest in the controversy has terminated, reasonable caution is needed to be sure that mooted litigation is not pressed forward.”). Because we lack jurisdiction to decide moot questions, Zinni v. ER Sols., 692 F.3d 1162, 1166 (11th Cir. 2012), we must dismiss this appeal. And we need not vacate the challenged order when the underlying action has since been dismissed. See Democratic Exec. USCA11 Case: 22-11092 Document: 50-1 Date Filed: 08/28/2023 Page: 4 of 4

4 Opinion of the Court 22-11092

Comm. of Fla. v. Nat’l Republican Senatorial Comm., 950 F.3d 790, 795 (11th Cir. 2020) (quotation marks omitted) (“In the case of interloc- utory appeals . . . the usual practice is [] to dismiss the appeal as moot and not vacate the order appealed from.”). We GRANT the motion to DISMISS this appeal as moot.