           Case: 17-15528   Date Filed: 10/22/2018   Page: 1 of 6


                                                         [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-15528
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:17-cv-60293-FAM



JARED G. ANTON,

                                                            Plaintiff-Appellant,

                                   versus

PHOENIX LIFE INSURANCE COMPANY,

                                                          Defendant-Appellee.

                      ________________________

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

                            (October 22, 2018)

Before ED CARNES, Chief Judge, WILLIAM PRYOR, and ANDERSON, Circuit
Judges.

PER CURIAM:
               Case: 17-15528     Date Filed: 10/22/2018    Page: 2 of 6


      Jared Anton appeals the district court’s grant of summary judgment to

Phoenix Life Insurance Company on his claim alleging that Phoenix improperly

terminated his life insurance policy.

                                           I.

      Anton purchased a life insurance policy from Phoenix’s predecessor

company in 1991. Anton’s contract refers to the policy as a “flexible premium

adjustable life insurance policy” because the contract did not require Anton to pay

fixed premiums at a specified time. Instead, Anton could choose both the amount

and timing of the premium payments, which the insurance company would place

into a policy account. But the contract required Anton to fund his policy account

with enough money to cover the costs of the insurance and monthly policy charges.

The contract explains that if Anton failed to adequately fund his account, the

policy would terminate after a 61-day grace period. The contract shows that Anton

decided to make quarterly payments of $540 to fund his policy account.

      In 1999 Phoenix sent Anton a certificate of insurance because Anton lost his

copy of the original contract. The certificate states that it “in no way changes or

modifies the terms of the conditions of the original [contract], but is evidence

solely that the . . . policy was issued.” But it also incorrectly states that Anton

would pay his $540 premium annually (rather than quarterly, as he had decided to

do in 1991).


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       The annual policy statements that Anton sent to Phoenix show that he did

not make a premium payment between May 1998 and July 2005, and that he made

payments sporadically after that. 1 But his irregular payments were enough to

cover the costs of insurance and the monthly policy charges, so Phoenix had no

problem with them. That changed in July 2016, when Anton received a letter from

Phoenix notifying him that his policy had entered the 61-day grace period because

there was not enough money in his policy account to cover the charges. Anton did

not make any payments during the grace period, so Phoenix terminated his policy

in September 2016.

           Anton sued Phoenix in state court and Phoenix removed the case to

federal court on the basis of diversity jurisdiction. Both parties moved for

summary judgment and disagreed about whether Phoenix terminated Anton’s

insurance policy in accordance with the terms of the contract. The district court

granted summary judgment to Phoenix, a decision that Anton now appeals.

                                             II.

       We review de novo a district court’s grant of summary judgment and its

interpretation of an insurance contract. See Zucker for BankUnited Fin. Corp. v.

U.S. Specialty Ins. Co., 856 F.3d 1343, 1348 (11th Cir. 2017). And “we view all

of the evidence in a light most favorable to the nonmoving party and draw all

       1
        Anton made a total of 18 premium payments of at least $540 over the course of the 134
months from August 2005 to October 2016.
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reasonable inferences in that party’s favor.” Procaps S.A. v. Patheon, Inc., 845

F.3d 1072, 1079 (11th Cir. 2016) (quotation marks omitted). Summary judgment

is appropriate if “there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Id. (quotation marks omitted).

      Anton contends that that the district court erred by granting summary

judgment to Phoenix. He argues that the conflicting language in the insurance

contract and the certificate about the timing of his $540 premium payments —

quarterly versus annually — created a contractual ambiguity as to how often those

payments were due. And that ambiguity, he continues, should be resolved in his

favor by interpreting the contract to require only annual premium payments. We

reject that argument.

      Anton and Phoenix agree that Florida law applies to this case. “Under

Florida law insurance contracts are construed according to their plain meaning.”

Taurus Holdings, Inc. v. U.S. Fidelity & Guar. Co., 913 So. 2d 528, 532 (Fla.

2005). While “[a]mbiguities are construed against the insurer and in favor of

coverage[,] . . . to allow for such a construction the provision must actually be

ambiguous.” Id. And a provision is ambiguous only if “the relevant policy

language is susceptible to more than one reasonable interpretation.” Swire Pac.

Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla. 2003) (quotation marks

omitted). That “insurance policies may be confusing to persons not trained or


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experienced in the form and language of insurance policies . . . does not make such

policies or language legally ambiguous.” Fla. Ins. Guar. Ass’n v. Sechler, 478 So.

2d 365, 367 (Fla. 5th DCA 1985). “[C]ourts may not rewrite contracts . . . .”

Taurus Holdings, Inc., 913 So. 2d at 532 (quotation marks omitted).

       With that law in mind we return to the language of the insurance contract.

The plain meaning of that language requires the insured to adequately fund his

policy account to cover the costs of the insurance and the policy’s monthly

charges. 2 The contract states that if the insured fails to do that the policy will

terminate after the conclusion of a 61-day grace period.3 And while “[t]he amount

and timing of premium payments will affect” the total funds in the policy account,

the insured “may pay premiums when and in the amount [he] chooses.” The point

is that the amount and timing of premium payments is discretionary; the adequate

funding of the policy account is not.

       Here, Anton failed to do what the insurance contract unambiguously

requires: adequately fund his policy account. The contract’s and certificate’s

conflicting language about the timing of Anton’s premium payments does not

       2
        With respect to the policy account, the contract says that “[t]he premiums you pay are
added to your Policy Account after we deduct any applicable premium expense charges. We
make a monthly deduction from the Policy Account to pay the cost of insurance, the cost of any
additional benefit riders and certain monthly charges.”
       3
          With respect to policy termination, the contract says that “this policy will
terminate . . . by the end of the [61-day] grace period” if, on the policy’s monthly anniversary,
“the Cash Value of this policy is less than the monthly deduction for the policy month then
starting.”
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make the contract’s funding requirement susceptible to more than one reasonable

interpretation. Regardless of whether Anton made premium payments quarterly or

annually, he had to ensure that he put enough money in his policy account to cover

the insurance and policy’s monthly charges. No one disputes that he failed to do

that, so Phoenix properly terminated his policy after the grace period ended. The

district court did not err in granting summary judgment to Phoenix.

      AFFIRMED.




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