                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 08-12359                   MAY 4, 2009
                       ________________________           THOMAS K. KAHN
                                                              CLERK
                D. C. Docket No. 06-00439-CV-4-SPM-WCS

EMPIRE INDEMNITY INSURANCE COMPANY,


                                                           Plaintiff-Appellant,

                                  versus

ASHLEY WINSETT,
LINDSAY CARR,
CHRISTINA HARRIS,
MORGAN LYNCH,
ADAM LYNCH, et al.,


                                                        Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      _________________________

                              (May 4, 2009)

Before BIRCH, DUBINA and WILSON, Circuit Judges.
PER CURIAM:

      The Preserve at San Luis, LLC and The Housing Trust Group of Florida,

LLC (“Preserve”) were sued by Ashley Winsett and fifty-five other tenants

(“Renters”) who rented apartments at The Preserves in Tallahassee, Florida. The

Renters alleged, among other things, that the Preserve’s failure to build a vapor

barrier was both the direct and proximate cause of their mold-related damages and

injuries. That lawsuit has been settled.

      What has not been settled, however, is the insurance coverage dispute

between Preserve and its insurance provider, Empire Indemnity Insurance

Company (“Empire”). Before the Renters’ lawsuit against Preserve was settled,

Empire sought a declaratory judgment that it did not owe a duty to defend and

indemnify Preserve. Empire asserted, among other things, that the insurance

policy that it issued to Preserve excluded coverage for the Renters’ mold claims.

      Empire appeals the district court’s grant of summary judgment declaring that

Empire has a duty to defend and indemnify. It also appeals the court’s declaration

that Empire is liable for attorneys’ fees. For the reasons below, we reverse the

grant of summary judgment; vacate the declaration regarding attorneys’ fees; and

remand for further proceedings.

                               S TANDARD OF R EVIEW



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      We review de novo the district court’s grant of summary judgment. Lime

Tree Vill. Cmty. Club Ass’n v. State Farm Gen. Ins. Co., 980 F.2d 1402, 1405 (11th

Cir. 1993). Summary judgment is appropriate where “the pleadings, the discovery

and disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a matter

of law.” F ED. R. C IV. P. 56(c). “The interpretation of an insurance contract is also

a matter of law subject to de novo review.” LaFarge Corp. v. Travelers Indem.

Co., 118 F.3d 1511, 1515 (11th Cir. 1997) (per curiam).

                                     D ISCUSSION

      This is a diversity case in which Florida insurance law applies. We first

discuss the Renters’ mold claim. Then we briefly address the defenses raised by

Empire that the district court did not reach. Finally, we address attorneys’ fees.

                               A. Renters’ Mold Claim

       Empire’s general liability insurance policy contained a mold provision

excluding coverage for the following:

      a.     “Bodily injury” or “property damage” which would not
             have occurred, in whole or in part but for the actual,
             alleged or threatened inhalation of, ingestion of, contact
             with, exposure to, existence of, or presence of, any
             “fungi” or bacteria on or within a building or structure,
             including its contents, regardless of whether any other
             cause, event, material or product contributed
             concurrently or in any sequence to such injury or

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             damage.

      b.     Any loss, cost or expenses arising out of the abating,
             testing for, monitoring, cleaning up, removing,
             co n tain in g , treatin g , d eto xifying, neutralizin g ,
             remediating or disposing of, or in any way responding to,
             or assessing the effects of, “fungi” or bacteria, by any
             insured or by any insured or by any other person.

             This exclusion does not apply to any “fungi” or bacteria
             that are, are on, or are contained in, a good or product
             intended for consumption.

(Dist. Ct. Doc. 54-2).

      Empire argues that the district court erred twice, first, by applying Florida’s

efficient proximate cause doctrine to the policy and, second, by disregarding the

policy’s plain language against applying the doctrine and rendering the mold

exclusion meaningless. Preserve responds that the doctrine applies. It argues that

the district court properly found that the mold, the allegedly excluded cause, is

dependent on the negligent failure to construct a vapor barrier, a covered cause.

Preserve argues that because the negligent failure to construct a vapor barrier

caused the mold, Empire has a duty to defend and indemnify.

      Preserve’s argument accurately illustrates how the efficient proximate cause

doctrine works in Florida. The efficient proximate cause is “the one that sets

others in motion.” Hartford Accident & Indem. Co. v. Phelps, 294 So. 2d 362, 364

(Fla. 1st Dist. Ct. App. 1974). If the efficient proximate cause is covered, then the

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claim for damages will be covered even if the other causes are not covered. See id.

      But “the efficient cause doctrine cannot be incorporated into an insurance

policy if doing so would render part of the policy meaningless.” Arawak Aviation,

Inc. v. Indem. Ins. Co. of N. Am., 285 F.3d 954, 958 (11th Cir. 2002). Under

Florida law, “insurance contracts must be construed in accordance with the plain

language of the policy.” Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d

161, 165 (Fla. 2003). “[I]f a policy provision is clear and unambiguous, it should

be enforced according to its terms whether it is a basic policy provision or an

exclusionary provision.” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.

2d 528, 532 (Fla. 2005).

      However, “[i]f the relevant policy language is susceptible to more than one

reasonable interpretation, one providing coverage and [] another limiting coverage,

the insurance policy is considered ambiguous.” Auto-Owners Ins. Co. v. Anderson,

756 So. 2d 29, 34 (Fla. 2000). “Exceptions to coverage in an insurance policy are

strictly construed against the insurer and any doubt or ambiguity is resolved in

favor of the insured.” Hartford, 294 So. 2d at 364.

       Here, the district court agreed with Preserve that the negligent failure to

build a vapor barrier was the efficient proximate cause of the mold. It noted that

the failure to build a vapor barrier was a covered cause. It thus concluded that



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Empire had a duty to defend and indemnify even though the policy excluded

coverage for injury or damage caused by mold.

      The district court, however, overlooked the policy’s unambiguous language

against applying the efficient proximate cause doctrine to mold claims. Preserve

denies that the language is unambiguous because the mold exclusion does not

expressly prohibit coverage when damage is the result of causes dependent on each

other. We disagree with Preserve. The policy plainly excludes coverage for mold

“regardless of whether any other cause, event, material or product contributed

concurrently or in any sequence to such injury or damage.” (Dist. Ct. Doc. 54-2 at

30). By the plain language “in any sequence,” the policy was written to exclude

applying the efficient proximate cause doctrine. Overlooking that plain language,

the district court erroneously concluded that the efficient proximate cause doctrine

applies and triggers Empire’s duty to defend and indemnify Preserve.

Accordingly, we reverse the district court’s grant of summary judgment.

                            B. Empire’s Other Defenses

      The district court did not reach Empire’s other defenses to the Renters’

claims. The court properly recognized that, under Florida law, “[w]here the

complaint contains allegations partially within and partially outside the scope of

coverage, [Empire would be] required to defend the entire suit.” Tropical Park,



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Inc. v. U.S. Fid. & Guar. Co., 357 So. 2d 253, 256 (Fla. 3d Dist. Ct. App. 1978).

In reversing the district court’s declaratory judgment that Empire has a duty to

defend and indemnify Preserve based on the Renters’ mold claims, we do not reach

Empire’s other defenses. On remand, the district court will have the opportunity to

rule on them in the first instance.

                                   C. Attorneys’ Fees

       The district court concluded that Preserve is entitled to attorneys’ fees under

under Florida law. Florida law makes an insurer liable for trial and appellate

attorneys’ fees “[u]pon the rendition of a judgment or decree by any of the courts

of this state against an insurer and in favor of any named . . . insured . . . .” F LA.

S TAT. § 627.428(1). Since we reverse the district court’s grant of summary

judgment, we vacate the district court’s declaratory judgment that Preserve is

entitled to attorneys’ fees. The outcome of further proceedings will resolve which

party, if any, should be liable for attorneys’ fees.

                                      C ONCLUSION

       We would agree with Preserve that Empire had a duty to defend and

indemnify if the efficient proximate cause doctrine applied here. But according to

the policy’s unambiguous language, it does not. Therefore, we REVERSE the

district court’s grant of summary judgment; VACATE its declaratory judgment



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that Preserve is entitled to attorneys’ fees; and REMAND for further proceedings

consistent with this opinion.




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