Tiara Condominium Association, Inc. v. Marsh & McLennan Companies, Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 16, 2013
• Docket: 09-11718
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEAL ELEVENTH CIRCUIT _____________ APRIL 16, 2013 No. 09-11718 JOHN LEY _____________ CLERK D. C. Docket No. 08-80254-CV-DTKH

TIARA CONDOMINIUM ASSOCIATION, INC., A Florida non-profit corporation, In its own name and as agent for all owners of record of all individual condominium parcels with the Tiara Condominium,

Plaintiff-Appellant,

versus

MARSH & MCLENNAN COMPANIES, INC., a Delaware Corporation, MARSH, INC., MARSH, USA, INC.,

Defendants-Appellees.

______________

Appeal from the United States District Court for the Southern District of Florida ______________

(April 16, 2013) Before DUBINA, Chief Judge, KRAVITCH, Circuit Judge, and EDENFIELD, * District Judge.

DUBINA, Chief Judge:

As we stated in our earlier opinion reported at Tiara Condominium

Association, Inc., v. Marsh & McClennan Companies, Inc., 607 F.3d 742 (11th Cir.

2010), this appeal arises from a contract between an insurance broker and the

association responsible for managing the condominium tower located on Singer

Island, Florida. The tower suffered extensive wind damage from two hurricanes in

September 2004. The condominium association claimed that the broker caused

part of its losses by failing to procure an adequate insurance policy for the

condominium. In our earlier opinion, we were able to resolve the issues raised on

appeal with respect to the association’s claims for breach of contract, breach of the

implied covenant of good faith and fair dealing, and negligent misrepresentation.

We affirmed the district court’s grant of summary judgment on all of those claims.

Concerning the claims for negligence and breach of fiduciary duty, because we

concluded that Florida law was unclear, we certified the following question to the

Supreme Court of Florida concerning Florida’s application of the economic loss

rule:

* Honorable B. Avant Edenfield, United States District Judge for the Southern District of Georgia, sitting by designation. 2 CERTIFICATION FROM THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT

OF FLORIDA, PURSUANT TO FLA. R. APP. P. 9.150(a). TO THE

SUPREME COURT OF FLORIDA AND ITS HONORABLE JUSTICES:

DOES AN INSURANCE BROKER PROVIDE A “PROFESSIONAL

SERVICE” SUCH THAT THE INSURANCE BROKER IS UNABLE TO

SUCCESSFULLY ASSERT THE ECONOMIC LOSS RULE AS A BAR TO

TORT CLAIMS SEEKING ECONOMIC DAMAGES THAT ARISE FROM THE

CONTRACTUAL RELATIONSHIP BETWEEN THE INSURANCE BROKER

AND THE INSURED?

In certifying our question, we noted that the Supreme Court of Florida

retains the discretion to restate the issue and to answer the question in the manner it

chooses. See Stevens v. Battelle Mem’l Inst., 488 F.3d 896, 904 (11th Cir. 2007).

The Supreme Court of Florida did precisely that. It restated the certified question

as follows:

DOES THE ECONOMIC LOSS RULE BAR AN INSURED’S SUIT

AGAINST AN INSUANCE BROKER WHERE THE PARTIES ARE IN

CONTRACTUAL PRIVITY WITH ONE ANOTHER AND THE DAMAGES

SOUGHT ARE SOLELY FOR ECONOMIC LOSSES?

3 The Supreme Court of Florida answered its question in the negative and held

that the application of the economic loss rule was limited to products liability

cases. Accordingly, based on the opinion the Supreme Court of Florida filed with

the Eleventh Circuit Court of Appeals on March 11, 2013, and attached hereto as

“Appendix I,” we vacate the district court’s grant of summary judgment in favor

of Marsh on Tiara’s claims for negligence and breach of fiduciary duty and remand

those claims for the district court to reconsider them in light of the Supreme Court

of Florida’s opinion.

VACATED and REMANDED.