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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13544 Non-Argument Calendar ________________________
D.C. Docket No. 0:16-cv-60379-WJZ
PORT CONSOLIDATED, INC.,
Plaintiff - Appellant,
versus
INTERNATIONAL INSURANCE COMPANY OF HANNOVER, PLC,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(September 8, 2020)
Before GRANT, LAGOA, and HULL, Circuit Judges.
LAGOA, Circuit Judge: Case: 19-13544 Date Filed: 09/08/2020 Page: 2 of 16
Port Consolidated, Inc. (“Port”), a Florida corporation, appeals the district
court’s order granting summary judgment in favor of International Insurance
Company of Hannover, PLC (“InterHannover”), a foreign corporation, on Port’s
breach of contract claim, as well as the district court’s final order dismissing the
remaining counts of Port’s complaint and the final judgment in favor of
InterHannover. For the reasons discussed below, we affirm both orders and the final
judgment.
I. FACTUAL AND PROCEDURAL HISTORY
Port is a fuel distribution company that operates a cardlock fuel facility at
6951 Garden Road, Riviera Beach, Florida (the “Garden Road Facility”). According
to the parties, cardlock facilities are “similar to traditional gas stations, but are
unattended fueling facilities at which only authorized customers who have a
preexisting contractual relationship can pump gasoline and diesel fuel.” For a
customer to be granted access to a cardlock facility, that customer must apply for
and then sign an agreement with the facility’s owner. If approved, the customer
receives a “CFN card,” which can be used to pump fuel at a cardlock facility, such
as Port’s Garden Road Facility. When a customer uses a CFN card at a cardlock
facility, a computer system records information about the transaction, which is used
to generate a weekly invoice that is issued to the customer. Customers can request
restrictions on their CFN cards, including limits on the gallons of fuel to be pumped
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per transaction, the frequency of transactions, and the hours during which fuel may
be pumped. These restrictions are “pegged” to the CFN card so that the facility’s
computer system can enforce the restrictions.
InterHannover issued a commercial property insurance policy (the “Policy”)
to Port, effective from January 1, 2014, to January 1, 2015. Under the Policy,
InterHannover provides coverage for “direct physical loss to covered property at a
‘covered location’ caused by a covered peril,” subject to a deductible. As to the
deductible, the Policy specifically states that “[InterHannover] pay[s] only that part
of ‘your’ loss over the deductible amount stated on the ‘schedule of coverages’ in
any one occurrence,” and the schedule of coverages form provides that the per
occurrence deductible is $1,000. The Policy’s general definitions section does not
contain a definition for “occurrence.” The supplemental coverages endorsement of
the Policy, however, contains three separate definitions of “occurrence”: one for
“Terminal Access Card” supplemental coverage,1 one for “Money and Securities”
supplemental coverage, and one for “Employee Dishonesty” supplemental coverage.
In February 2015, Port discovered that it had a fuel inventory shortage.
Port’s investigation concluded that an incorrectly programmed setting on its fuel
pumps at the Garden Road Facility, originating from a 2013 upgrade to that facility,
1 For example, in the Terminal Access Card supplemental coverage endorsement, “occurrence” is defined as “an unauthorized use or series of related unauthorized uses involving one or more persons.” 3 Case: 19-13544 Date Filed: 09/08/2020 Page: 4 of 16
had not enforced the CFN card fuel limitation requested by Allied Trucking of Palm
Beach (“Allied”), one of Port’s customers. Specifically, Allied had placed a fuel
purchase limitation of seventy-five gallons of fuel per transaction on its CFN cards.
The incorrect setting, however, allowed Allied’s affiliated drivers, who work as
independent contractors, to exceed the seventy-five-gallon limit by up to an extra
hundred gallons despite Allied only being invoiced for seventy-five gallons per
transaction. According to Port, Allied’s affiliated drivers engaged in thousands of
fuel-dispensing transactions during 2014 and early 2015 at Port’s Garden Road
Facility. Some of those drivers discovered the programming error at the Garden
Road Facility and exploited that error to steal fuel over Allied’s seventy-five-gallon
limitation. During the time period of the alleged thefts, the per-gallon price of
gasoline never exceeded four dollars. The fuel shortages at the Garden Road Facility
ended after the programming error was corrected. Port invoiced Allied for the extra
fuel taken by its drivers, and Allied refused to pay.
On February 19, 2015, Port informed InterHannover that it was asserting a
claim under the Policy for the loss resulting from the allegedly stolen fuel. After
InterHannover denied coverage, Port filed a Complaint against InterHannover in
Florida state court on December 28, 2015. On February 29, 2016, InterHannover
removed the case to the Southern District of Florida based on diversity jurisdiction.
On March 22, 2017, Port filed its Amended Complaint, asserting claims for: (1)
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declaratory judgment entitling it to coverage under the Policy; (2) breach of contract;
(3) reformation of the Policy to include “blanket coverage”; and (4) declaratory relief
regarding coverage limits, including whether there was a blanket policy limit for
Port’s loss of fuel contents. Port’s two claims regarding blanket coverage were not
included in its original Complaint.
On March 30, 2017, the parties filed a Stipulation, which memorialized their
agreement that the Policy’s business personal property limit of $23,015,224 was
intended to be written as a “blanket basis” and that required InterHannover to
withdraw its affirmative defenses seeking to limit the amount of coverage for Port’s
losses to either $5,000 or $71,095. Although filed after the Amended Complaint,
the parties executed the Stipulation before Port filed its Amended Complaint. On
April 5, 2017, InterHannover filed its Answer to the Amended Complaint,
withdrawing its affirmative defenses concerning the Policy’s blanket coverage
limits.
On June 11, 2018, InterHannover moved for summary judgment, arguing that
Port was not entitled to coverage because the alleged thefts were expressly excluded
under the Policy and that each alleged theft was a separate occurrence that did not
exceed the $1,000 deductible in the Policy. On March 21, 2019, the district court
granted InterHannover’s motion for summary judgment. Applying the Florida
Supreme Court’s decision in Koikos v. Travelers Insurance Co., 849 So. 2d 263 (Fla.
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2003), the district court observed that, “absent contrary language in the policy, each
act of fuel theft was a discrete occurrence for insurance purposes.” Reviewing the
Policy, the district court rejected Port’s argument that the specific definition of
“occurrence” used in three sections of the supplemental coverages endorsement
governed the entire Policy. The district court noted that “no language” was included
in these supplemental sections to state that “said definitions are intended to modify
anything in the core property coverage segment of the [P]olicy” and that
“occurrence” was not defined in other sections of the Policy. The district court also
rejected Port’s alternative argument that the Policy was ambiguous under Florida
law, finding that “the plain meaning of occurrence in the [P]olicy, where not
accompanied by a definition,” did not encompass the grouping together of “discrete
incidents with separate immediate causes” as a single occurrence and that “[t]he fact
that an alternative definition of occurrence is found in some segments of the [P]olicy
dealing with particular kinds of losses should not be read to make the meaning of
occurrence in the rest of the [P]olicy ambiguous.” Noting that it was undisputed that
Port’s losses from each individual act of theft did not exceed the Policy’s deductible,
the district court found that InterHannover was not required to cover Port’s losses
and granted summary judgment in favor of InterHannover on Port’s breach of
contract claim.
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The district court ordered supplemental briefing as to whether the remaining
counts concerning blanket coverage could stand alone without the breach of contract
claim and whether Port should be awarded attorney’s fees for those counts based on
the parties’ Stipulation. Following the supplemental briefing, the district court
entered an order dismissing Counts III and IV—the blanket coverage-related
counts—of Port’s Amended Complaint. The district court found that those counts
were now moot, as the parties “agree as to how their contract should read and be
interpreted on this point” and no case or controversy was present for the court to
resolve. The district court also entered final judgment in favor of InterHannover.
This appeal ensued.
II. STANDARD OF REVIEW
“We review a ‘district court’s grant of summary judgment de novo, applying
the same legal standards used by the district court.’” Hyman v. Nationwide Mut.
Fire Ins. Co., 304 F.3d 1179, 1185 (11th Cir. 2002) (quoting Gerling Glob.
Reinsurance Corp. of Am. v. Gallagher, 267 F.3d 1228, 1233 (11th Cir. 2001)).
Summary judgment is appropriate “if 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). “When deciding whether summary judgment is
appropriate, all evidence and reasonable factual inferences drawn therefrom are
reviewed in a light most favorable to the non-moving party.” Guideone Elite Ins.
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Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d 1317, 1325–26 (11th Cir.
2005) (quoting Witter v. Delta Air Lines, Inc., 138 F.3d 1366, 1369 (11th Cir. 1998)).
Additionally, the interpretation of an insurance policy’s provisions is a question of
law, which we review de novo. James River Ins. Co. v. Ground Down Eng’g, Inc.,
540 F.3d 1270, 1274 (11th Cir. 2008).
III. ANALYSIS
On appeal, Port argues that the district court erred in granting summary
judgment in favor of InterHannover by concluding that the alleged fuel thefts
constituted multiple “occurrences” under the Policy and that those thefts did not
exceed the Policy’s deductible. Port contends that, under Florida law, all of its losses
should be construed as a single “occurrence” or, alternatively, that there is a disputed
issue of material fact as to the definition of “occurrence” within the Policy that
precluded summary judgment in favor of InterHannover. We find Port’s arguments
without merit.
“Under Florida law,[2] insurance contracts are construed according to their
plain meaning.” Id. at 1274 (quoting Taurus Holdings, Inc. v. U.S. Fid. & Guar.
Co., 913 So. 2d 528, 532 (Fla. 2005)); accord Hyman, 304 F.3d at 1186; Auto-
Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000). An ambiguity in an
2 As this diversity action was initiated in Florida, we apply the substantive law of Florida. See James River, 540 F.3d at 1274 n.1. 8 Case: 19-13544 Date Filed: 09/08/2020 Page: 9 of 16
insurance policy’s language is “‘construed against the insurer’ in favor of coverage.”
James River, 540 F.3d at 1274 (quoting Deni Assocs. of Fla. v. State Farm Fire &
Cas. Ins. Co., 711 So. 2d 1135, 1140 (Fla. 1998)). In order for an insurance policy’s
provision to be ambiguous, “the provision must actually be ambiguous.” Taurus,
913 So. 2d at 532. If “the relevant policy language is susceptible to more than one
reasonable interpretation, one providing coverage and the [other] limiting coverage,
the insurance policy is considered ambiguous.” Id. (alteration in original) (quoting
Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla. 2003)).
“However, . . . ‘courts may not rewrite contracts, add meaning that is not present, or
otherwise reach results contrary to the intentions of the parties.’” James River, 540
F.3d at 1274 (quoting Taurus, 913 So. 3d at 532). Furthermore, “in construing
insurance policies, courts should read each policy as a whole, endeavoring to give
every provision its full meaning and operative effect.” U.S. Fire Ins. Co. v. J.S.U.B.,
Inc., 979 So. 2d 871, 877 (Fla. 2007) (quoting Auto-Owners, 756 So. 2d at 34).
The term “occurrence” is not defined in the general definitions section of the
Policy. Under Florida law, “when an insurance coverage term is not defined, the
term should be given its plain and ordinary meaning.” Barcelona Hotel, LLC v.
Nova Cas. Co., 57 So. 3d 228, 230–31 (Fla. Dist. Ct. App. 2011). “[I]n construing
terms appearing in insurance policies, Florida courts commonly adopt the plain
meaning of words contained in legal and non-legal dictionaries.” Id. at 231 (quoting
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Watson v. Prudential Prop. & Cas. Ins. Co., 696 So. 2d 394, 396 (Fla. Dist. Ct. App.
1997)).
Black’s Law Dictionary defines an “occurrence” as “an accident, event, or
continuing condition.” Occurrence, Black’s Law Dictionary (11th ed. 2019).
Additionally, the Florida Supreme Court in Koikos addressed what “occurrence”
means under Florida law in “occurrence-based” insurance policies. In Koikos, the
Florida Supreme Court answered a certified question from this Court about whether,
in the context of a negligent security claim, separate shootings of multiple victims
constituted multiple occurrences under an occurrence-based insurance policy. 849
So. 2d at 264. In answering the certified question, the Florida Supreme Court
adopted the “cause theory,” which looks to the cause of an injury in defining an
“occurrence” under an insurance policy. See id. at 271. The Florida Supreme Court
concluded that “consistent with the ‘cause theory,’ . . . in the absence of clear
language to the contrary, . . . ‘occurrence’ is defined by the immediate injury-
producing act.” Id. The Florida Supreme Court then examined “the independent
immediate acts that gave rise to the injuries” in the case and found that “each
shooting constitute[d] a separate occurrence” under the insurance policy as each
individual shooting was “distinguishable in time and space.” Id. at 272–73
(emphasis in original).
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In Guideone Elite Insurance Co., this Court applied Koikos to a declaratory
judgment action filed by an insurer seeking a determination regarding its duty to
defend or indemnify its insured from a state court negligence action arising from
claims involving sexual assault, kidnapping, battery, robbery, and false
imprisonment. 420 F.3d at 1323–26, 1329, 1331–32. This Court, in interpreting a
sexual misconduct exclusion contained in the insured’s general commercial liability
policy, found that the various injurious acts committed by the perpetrator “were
separated by sufficient ‘time and space’ so as to constitute separate occurrences
under Koikos” and further concluded that “[i]n an ‘occurrence-based’ policy, as
distinguished from a per person/per accident policy, the limits of liability are defined
by the occurrence and not on a per person basis.” Id. at 1331–32 (quoting Koikos,
849 So. 2d at 269).
Port argues that Koikos does not apply here as, unlike that case, the Policy’s
general definition section does not define the term “occurrence.” Port notes that a
definition of “occurrence” is contained within three sections of the supplemental
coverages endorsement (“Terminal Access Card” coverage, “Money and Securities”
coverage, and “Employee Dishonesty” coverage), which each define “occurrence”
to include multiple or “a series” of either unauthorized uses or actions. Port contends
that the supplemental coverage definitions for occurrence either should be applied
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to the Policy as a whole or demonstrate an ambiguity in the Policy that should be
interpreted in Port’s favor. We disagree.
Under Florida law, a contract should not “be read so as to make one section
superfluous, and so ‘[a]ll the various provisions of a contract must be so construed .
. . as to give effect to each,’” i.e., not “interpreted in such a way as to render a
provision meaningless when there is a reasonable interpretation that does not do so.”
Universal Prop. & Cas. Ins. Co. v. Johnson, 114 So. 3d 1031, 1036 (Fla. Dist. Ct.
App. 2013) (alteration in original) (quoting Univ. of Miami v. Frank, 920 So. 2d 81,
87 (Fla. Dist. Ct. App. 2006)). Here, the Policy only defines “occurrence” to include
multiple or a “series” of acts or unauthorized uses within a portion of the
supplemental coverages endorsement. Determining that specific definitions of
“occurrence” within certain supplemental coverages govern the entire Policy would
render the absence of “occurrence” from the core Policy’s general definitions section
meaningless. Rather, the reasonable interpretation of the Policy as a whole is that
the parties specifically expanded the scope of “occurrence” to include a series of
actions if, and only if, a claim was made under those specific supplemental coverage
provisions. An “ambiguity is not invariably present when a contract requires
interpretation.” Gas Kwick, Inc. v. United Pac. Ins. Co., 58 F.3d 1536, 1539 (11th
Cir. 1995). “The failure to define a term involving coverage does not necessarily
render the term ambiguous.” Barcelona, 57 So. 3d at 230. Thus, the fact that
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“occurrence” is defined in sections of the supplemental coverage endorsement, but
not in the Policy’s general definitions section, does not make the term ambiguous.
Because the Policy is not ambiguous and there is no “clear language to the
contrary,” we find that, under Florida law, an “occurrence” under the Policy is
defined by the “immediate injury-producing act.” See Koikos, 849 So. 2d at 271.
Here, the immediate injury-producing acts consist of numerous alleged fuel thefts
by several of Allied’s affiliated drivers from different fuel dispensers at the Garden
Road Facility on different days over the course of a year. Because each alleged fuel
theft was an act separated and distinguishable in “time and space,” we find that each
alleged act of fuel theft constituted a separate “occurrence” under the Policy. Cf.
Guideone, 420 F.3d at 1332; Koikos, 849 So. 2d at 272.
We now turn to whether any of these occurrences exceeded the Policy’s
$1,000 deductible. It is undisputed that the price of fuel when the alleged thefts
occurred did not exceed four dollars per gallon and that the additional gallons of
stolen fuel per transaction did not exceed one hundred gallons. Therefore, we
conclude that none of Port’s losses exceeded the Policy’s deductible and that
InterHannover was not required to pay Port under the Policy for those alleged fuel
thefts. Accordingly, the district court properly granted summary judgment in favor
of InterHannover on Port’s breach of contract claim.
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Finally, we address Port’s argument that the district court erred by dismissing
its blanket coverage-related claims and by not awarding Port attorney’s fees on those
claims. In its dismissal order, the district court noted that the parties had entered
into a Stipulation that covered the dispute regarding blanket coverage and that
neither party sought to withdraw the Stipulation. As such, the district court found
that there was no longer any justiciable issue regarding these claims and dismissed
them as moot. We agree with the district court.
“It is well established that ‘[u]nder Article III of the Constitution, federal
courts may adjudicate only actual, ongoing cases or controversies.’” Flanigan’s
Enters., Inc. of Ga. v. City of Sandy Springs, 868 F.3d 1248, 1255 (11th Cir. 2017)
(en banc) (alteration in original) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472,
477 (1990)). This actual controversy must exist at all stages of review, not just when
the complaint is filed. Id. “Thus, even a once-justiciable case becomes moot and
must be dismissed ‘when the issues presented are no longer “live” or the parties lack
a legally cognizable interest in the outcome.’” Id. (quoting Powell v. McCormack,
395 U.S. 486, 496 (1969)). Here, once the district court properly determined that
each alleged fuel theft was a separate occurrence that did not exceed the Policy’s
deductible, the blanket coverage-related claims no longer presented “live” issues for
the district court to resolve. See id. Additionally, the parties’ Stipulation fully
resolved the blanket coverage-related issues.
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We also find Port’s demand for attorney’s fees for these claims without merit.
Florida Statute § 627.428(1) provides for an insured’s entitlement to attorney’s fees
“[u]pon the rendition of a judgment or decree . . . against an insurer.” See also
Johnson v. Omega Ins. Co., 200 So. 3d 1207, 1219 (Fla. 2016) (“Section 627.428
provides that an incorrect denial of benefits, followed by a judgment or its equivalent
of payment in favor of the insured, is sufficient for an insured to recover attorney’s
fees.”). Here, no such judgment or decree was rendered against InterHannover.
While InterHannover agreed under the Stipulation that a blanket coverage amount
applied if it was required to pay Port’s claims under the Policy, 3 InterHannover
ultimately was not required to cover Port’s losses. We, therefore, find that district
court did not err by dismissing these claims and not awarding attorney’s fees to Port.
IV. CONCLUSION
Because each alleged fuel theft Port suffered constituted a separate occurrence
under the Policy and none of those alleged thefts exceeded the Policy’s deductible,
3 Port claims that the Stipulation should operate as a judgment against InterHannover, as the Stipulation resolved the “critical” blanket coverage issues in favor of Port and was filed after Port’s Amended Complaint that included the blanket coverage-related claims. As noted earlier, however, the Stipulation was signed and ready for filing before Port filed its Amended Complaint. Indeed, the parties’ discussions regarding a stipulation began more than a month prior to the filing of the final Stipulation on March 30, 2017. A review of the record shows that InterHannover had signed the final Stipulation, which was prepared by Port, and emailed the Stipulation to Port’s counsel on March 16, 2017—six days before Port filed its Amended Complaint. In a subsequent email two days prior to Port filing its Amended Complaint, InterHannover’s counsel confirmed with Port’s counsel that the Stipulation was ready to be filed. For whatever reason, Port did not file the Stipulation until eight days after it filed the Amended Complaint. 15 Case: 19-13544 Date Filed: 09/08/2020 Page: 16 of 16
the district court properly entered summary judgment in favor of InterHannover.
Accordingly, we affirm the district court’s final judgment in favor of InterHannover.
AFFIRMED.