           Case: 13-10490   Date Filed: 07/26/2013   Page: 1 of 18




                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10490
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:12-cv-60497-RSR



CLIFFORD B. ORETSKY,

                                                            Plaintiff-Appellant,

                                   versus

INFINITY INSURANCE COMPANY,

                                                           Defendant-Appellee.

                       ________________________

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

                              (July 26, 2013)

Before HULL, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
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       Clifford Oretsky appeals the district court’s grant of summary judgment in

favor of Infinity Insurance Company (“Infinity”) in his diversity lawsuit alleging a

breach of an insurance contract. After review, we affirm.

                            I.      BACKGROUND FACTS 1

       In August 2010, plaintiff Oretsky bought a new Maserati Quattroporte

vehicle for approximately $110,000 from a dealership. Immediately after

purchasing the Maserati, plaintiff Oretsky called Infinity and asked an Infinity

agent to obtain the same insurance coverage for the Maserati as for Oretsky’s other

vehicles, which were insured under Infinity’s standard automobile policy. The

insurance agent faxed Oretsky the insurance forms and documents, indicating with

handwritten arrows the places Oretsky had to sign or initial. Without reading any

of the forms or documents, Oretsky signed and initialed them, and faxed them back

to the insurance agent. At the agent’s request, Oretsky also emailed Infinity

photographs of his Maserati.

       Because Oretsky did not read the policy documents, he did not know that the

insurance policy he actually obtained on the Maserati was not a standard auto

policy, but a “Classic Collector’s” policy, generally intended for classic or exotic




       1
        We construe all facts and reasonable inferences in the light most favorable to plaintiff
Oretsky, the non-movant. See Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292,
1314 (11th Cir. 2011).
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vehicles. 2 As described in more detail below, this policy placed certain restrictions

on vehicle usage, requiring, among other things, that the car (1) be kept in a locked

garage when not in use; (2) not be driven more than 5,000 miles a year; and (3) not

be used for backup transportation.

       Believing that his Maserati was covered by a standard auto policy, Oretsky

did not comply with all the policy restrictions. For example, he used the car for

general purposes, such as golfing, going out to dinner, or “traveling around town.”

For the first year he owned the Maserati, Oretsky drove approximately 13,000

miles in the car. Although Oretsky usually parked the Maserati in a locked garage

attached to his residence, he occasionally would leave the car in the driveway

overnight if he had to drive somewhere early in the morning. As Oretsky

explained at his deposition, he left the car outside because the Maserati had

“special mufflers” that made a lot of noise, and he did not want to wake his son

sleeping in the house.

       On July 20, 2011, nearly a year after purchasing the Maserati, Oretsky

picked up the car after service at the dealership. Upon arriving home, Oretsky

parked it in his driveway in front of the garage. Oretsky intended to drive the



       2
         Oretsky did not allege in the district court, and does not argue on appeal, that Infinity
failed to provide him with the insurance policy in a timely manner. Rather, Oretsky admits he
did not read the policy documents. At his deposition, Oretsky testified that he was not sure
when, or if, Infinity had mailed him the insurance policy, as he had not looked at the policy until
the day of the deposition.
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Maserati to a restaurant that evening, and he left the keys on a table inside the

garage in plain view. Oretsky’s plans later changed, and he decided to stay home

for the night. Before going to bed, Oretsky did not park the car inside the garage,

and did not bring the keys inside the house. Thus, the car remained parked in the

driveway during the night, with the keys still on the table inside the garage.

      Early on the morning of July 21, 2010, Oretsky discovered that his Maserati

was stolen and that the keys inside the garage had disappeared. There was no

damage to the garage doors, and no other signs of a forcible entry, even though the

entrances from the garage to the outside remained locked throughout the night.

Upon discovering the theft, Oretsky immediately called the police and filed a

police report, but neither the thieves nor the Maserati were found.

      Oretsky also contacted Infinity, seeking reimbursement for the Maserati

pursuant to the insurance policy. After investigating the theft and questioning

Oretsky, Infinity denied coverage for the Maserati. In its denial letter, Infinity

explained that Oretsky violated the terms of the insurance policy by failing to keep

the Maserati “inside a fully enclosed garage at the time it was stolen from [his]

residence.”

                        II.    THE INSURANCE POLICY

A.    Insurance Application




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       When Oretsky requested insurance on the Maserati, Infinity’s insurance

agent faxed him a form entitled “Applicant Questionnaire.” This questionnaire

contained arrows, handwritten by the agent, pointing to places where Oretsky had

to sign or initial.

       One section on the questionnaire, entitled “Program Requirements,”

contained six statements that Oretsky was required to initial. This section

provided:

       (INITIAL INDICATING THAT YOU WILL COMPLY WITH
       THESE REQUIREMENTS.)

       1. ___Each licensed driver in household has a regularly daily-use
             vehicle.
       ....

       3. ___Vehicles insured under this policy will be kept in a permanent
             enclosed and locked garage at all times when not in use.
       ....

       5. ___Vehicles usage will not exceed the mileage plan selected.

       6. ___Vehicles insured under this policy will not be used for
             commuting to work or school, business use, daily transportation
             or as a substitute for another auto.

Oretsky placed his initials on the blanks next to each statement.

B.     Declarations Page

       The declarations page of the policy, titled “Declarations – Classic

Collectors,” named the Maserati as the insured vehicle and provided for a “mileage

plan” of 5,000 miles. The declarations page also listed, by number, various
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applicable “Endorsements” that were then described in the main body of the

policy. These endorsements supplied changes or additions to the general

provisions listed in the main body of the policy.

C.    Collectible Vehicle Endorsement

      One of the endorsements listed on the declarations page was the Collectible

Vehicle Endorsement (“CV Endorsement”). The CV Endorsement, which also

cross-referenced the vehicle listed on the declarations page (the Maserati), changed

the general policy provisions in several pertinent ways.

      First, the CV Endorsement redefined the term “your covered auto” as “[a]ny

vehicle shown in the policy Declarations” that “also meet[s] the terms of

acceptable vehicle usage as defined in Section F.”

      The CV Endorsement also changed the definition of “newly acquired auto”

as follows:

      K.      newly acquired auto means any of the following types of
              vehicles you become an owner of during the policy period:

              1.     A collectible vehicle for which no other insurance policy
                     provides coverage . . . .
              ....

      The CV Endorsement then added the following definitions:

      L.      Collectible vehicle means an antique, Classic, modified or
              exotic vehicle.

       ....


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      P.    Exotic vehicle means a private passenger vehicle or truck
            which:

            1.    Is not mechanically or cosmetically altered from its
                  original condition.

            2.    Is manufactured as a limited production vehicle.

      The CV Endorsement further changed “Part F – General Provisions” of the

main policy by adding the following provision imposing restrictions on usage of

“your covered auto”:

      ACCEPTABLE VEHICLE USAGE

      In consideration of the premiums charged under this policy, you agree
      that your covered auto:

      1.    will be used for exhibitions, club activities, parades, [and]
            other functions of public interest or an occasional pleasure
            drive;

      2.    will be kept in a completely enclosed, locked, and permanent
            garaging facility when not in use [hereinafter, the “garage
            requirement”];

      3.    will not be driven more than the mileage plan selected during
            the policy period, and;

      4.    will not be used for:

            a.    backup transportation
            b.    commuting (driving to and from school or work);
            c.    business or commercial purposes;
            d.    any utility use including towing, hauling, or off road use;
            e.    participating in, practicing or testing for any racing,
                  speed contest, time trial or track event of any kind.



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      Violation of above limitations without prior consent or
      acknowledgment from the company void[s] all coverage provided
      under this policy.

                        III.    PROCEDURAL HISTORY

A.    Complaint and Motions for Summary Judgment

      Oretsky sued Infinity in Florida state court for breach of the insurance

contract, and attached the insurance policy to his complaint. Based on diversity

jurisdiction, Infinity removed the lawsuit to the U.S. District Court for the

Southern District of Florida.

      After discovery, Infinity moved for summary judgment. Infinity argued that

coverage was rightfully denied because Oretsky violated three terms of the

insurance policy by (1) failing to keep the Maserati in a locked garage when the car

was not in use; (2) driving the Maserati more than the allotted 5,000 miles per

year; and (3) using the Maserati as his primary means of transportation.

      Oretsky responded to Infinity’s motion and filed his own motion for

summary judgment, raising five main arguments as to why Infinity wrongly denied

coverage. First, Oretsky contended that the CV Endorsement, which contained the

pertinent restrictions on vehicle usage, did not apply to the Maserati because the

Maserati was not a “collectible” vehicle as defined in the policy. Second, Oretsky

argued that the garage requirement did not bar coverage because the Maserati was

“in use” at the time it was stolen, and, alternatively, the term “not in use” was


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ambiguous and should be construed against Infinity. Third, Infinity was not

prejudiced by the alleged breach of the garage requirement because the Maserati

would have been stolen even if it was parked in the garage, given that the thieves

broke into the garage anyway to steal the keys. Fourth, Infinity should be estopped

from raising any defense to coverage other than Oretsky’s alleged violation of the

garage requirement, as Infinity did not mention any other grounds for denying

coverage in its initial denial letter. Fifth, Oretsky contended that the mileage

limitation provision was unenforceable because the policy contained no references

to the 5,000 mile limit other than on the declarations page.

B.    District Court’s Order

      The district court granted summary judgment in favor of Infinity. The

district court determined that the CV Endorsement unambiguously applied to the

Maserati because the insurance policy’s declarations page expressly referenced the

CV Endorsement, and the CV Endorsement, in turn, expressly referenced the

vehicle listed on the declarations page, i.e., the Maserati. Thus, the Maserati did

not have to be a “collectible” vehicle for the endorsement to apply. The district

court also observed that Oretsky must have known of the restrictions on the use of

the Maserati, as those restrictions were listed on the insurance application that he

signed and initialed.




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      As to the garage requirement, the district court concluded that the term

“when not in use” was not ambiguous, and that Oretsky’s Maserati was not “in

use” when it was stolen, which meant that Oretsky breached the policy by failing

to keep the Maserati inside the garage. The district court reasoned that leaving the

Maserati parked in the driveway overnight was not merely incidental to the car’s

use, and was not a temporary stop.

      Regarding prejudice, the district court determined that Infinity did not need

to show prejudice under Florida law because (1) the garage requirement was a

condition precedent to coverage, rather than a condition subsequent; and (2) the

insurance policy expressly voided coverage if the policy requirements were

violated. In any event, the district court concluded, Infinity had shown prejudice

because the theft of the Maserati would have been less likely had Oretsky kept it

inside the garage.

      The district court further determined that, in addition to violating the garage

requirement, Oretsky breached the condition that the Maserati not be used for

backup transportation. The district court rejected Oretsky’s argument that Infinity

had waived, or should be estopped from using, this defense. The district court

explained, inter alia, that Infinity expressly reserved all of its defenses prior to suit,

and also raised the backup-transportation defense in its answer to Oretsky’s

complaint.


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                                    IV.    DISCUSSION

A.     Applicability of the Collectible Vehicle Endorsement

       On appeal, Oretsky first argues that the CV Endorsement did not apply to

the Maserati because the car was not “exotic” and, thus, did not qualify as a

collectible vehicle.3

       Under Florida law, a “clear and unambiguous” policy provision “should be

enforced according to its terms.” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co.,

913 So. 2d 528, 532 (Fla. 2005) (internal quotation marks omitted). “[C]ourts may

not rewrite contracts, add meaning that is not present, or otherwise reach results

contrary to the intentions of the parties.” Id. (internal quotation marks omitted).

       Here, the CV Endorsement unambiguously applied to the Maserati because

the declarations page expressly listed the CV Endorsement by number, and the CV

Endorsement cross-referenced to the vehicle listed on the declarations page.

       Moreover, even assuming the Maserati did not fit the definition of a

“collectible vehicle,” nothing in the insurance policy required the covered vehicle

to be a collectible vehicle. The CV Endorsement defined “your covered auto” as

       3
         “We review a district court’s grant of summary judgment de novo, applying the same
legal standard used by the district court.” Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir.
2008). A district court shall grant summary judgment “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). “We draw all factual inferences in a light most favorable to the non-
moving party.” Shiver, 549 F.3d at 1343. Nevertheless, the non-moving party cannot create a
genuine issue of material fact through speculation, id., or evidence that is “merely colorable” or
“not significantly probative,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct.
2505, 2511 (1986).
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the vehicle listed on the declarations page, i.e., the Maserati. Neither the CV

Endorsement nor any other policy provision required “your covered auto” to be a

collectible vehicle. The CV Endorsement mentioned the term “collectible vehicle”

only with respect to the “newly acquired auto” provision.

      As his next argument, Oretsky contends that Infinity committed an

underwriting error by insuring his Maserati under the Classic Collectors’ policy,

and, therefore, Infinity should be estopped from denying coverage. This argument

fails in two respects.

      First, under Florida law, “in the absence of ambiguous language, a court may

not look to parol evidence in ascertaining the intent of the parties to an insurance

contract.” Fireman’s Fund Ins. Co. v. Tropical Shipping & Constr. Co., 254 F.3d

987, 1003 (11th Cir. 2001); see also Essex Ins. Co. v. Zota, 466 F.3d 981, 987

(11th Cir. 2006) (“The court may look to parol evidence in interpreting an

insurance contract only if there is an ambiguity.”). As discussed above, the CV

Endorsement unambiguously applied to the Maserati, and nothing in the insurance

policy required the Maserati to be a collectible vehicle. Thus, Infinity’s

underwriting guidelines, which were not a part of the insurance contract, are

irrelevant in determining the scope of coverage under the policy.

      Second, even if Infinity committed an underwriting mistake in issuing the

Classic Collectors policy on the Maserati, Infinity was not estopped from denying


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coverage. “The essential elements of estoppel are (1) a representation as to a

material fact that is contrary to a later-asserted position, (2) reliance on that

representation, and (3) a change in position detrimental to the party claiming

estoppel, caused by the representation and reliance thereon.” Lloyds Underwriters

at London v. Keystone Equip. Fin. Corp., 25 So. 3d 89, 93 (Fla. 4th DCA 2009)

(internal quotation marks omitted).

      Oretsky cannot show the first element of misrepresentation—that Infinity

misrepresented to Oretsky that the policy it issued for the Maserati did not contain

the restrictions set forth in the CV Endorsement. To the contrary, Infinity made it

abundantly clear that the CV Endorsement would apply. Infinity asked Oretsky to

fill out and sign an application questionnaire listing each of the usage requirements

contained in the CV Endorsement, including the garage requirement. To obtain

coverage, Oretsky had to place his initials next to each requirement, thereby

certifying that he had read the requirement and would comply with it. Thus,

Infinity in no way misrepresented what vehicle usage restrictions came with the

policy. And Oretsky’s alleged failure to read either the questionnaire or the policy

is of no moment. See Baum v. Allstate Ins. Co., 496 So. 2d 201, 204 (Fla. 4th

DCA 1986) (“It is axiomatic that absent unusual circumstances . . . one cannot

claim ignorance of the contents of a written instrument which one signs.”).

B.    Garage Requirement


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      Oretsky next argues that, even if the CV Endorsement applied, Infinity

wrongfully denied coverage because he had complied with the requirement that the

Maserati be kept in a garage “when not in use.” Oretsky contends that his Maserati

was “in use” when it was stolen because parking the car in the driveway was

essentially a temporary stop between outings, rather than a cessation of use.

Alternatively, he argues, the term “when not in use” is ambiguous and should be

construed against Infinity.

      “In accordance with well-established rules of interpretation, terms utilized in

an insurance policy should be given their plain and unambiguous meaning as

understood by the ‘man-on-the-street.’” State Farm Fire & Cas. Co. v. Castillo,

829 So. 2d 242, 244 (Fla. 3d DCA 2002). “An ambiguity arises when more than

one interpretation may fairly be given to a policy provision.” Id. at 245 (internal

quotation marks omitted). However, “[a] provision is not ambiguous simply

because it is complex or requires analysis.” Garcia v. Fed. Ins. Co., 969 So. 2d

288, 291 (Fla. 2007).

      In this case, the term “when not in use” is not ambiguous. Regardless of

whether this term may be ambiguous in other contexts, we have little trouble

concluding that, under this particular set of facts, Oretsky’s Maserati was not in use

when it was stolen. After having the Maserati serviced on July 20, 2011, Oretsky

parked the car at his residence, next to the garage where it was usually kept. At the


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time Oretsky went to bed the evening of July 20, he did not intend to use the

Maserati until the next morning. Under any reasonable construction of the term,

the Maserati was not “in use” while it was sitting in the driveway during the night

and while Oretsky slept in the house. Thus, Oretsky violated the policy’s garage

requirement by failing to park the Maserati in the garage on the night it was

stolen.4

C.      Prejudice

        Oretsky argues that, even if he violated the garage requirement, Infinity

should not have denied coverage because it suffered no prejudice from the

violation. Oretsky asserts that the Maserati would have been stolen even if it had

been parked in the garage, given that the thieves broke into the garage and stole the

keys.

        To support his argument, Oretsky relies on § 627.409(2) of the Florida

Statutes, also known as the “anti-technical statute,” which provides:

        A breach or violation by the insured of any warranty, condition, or
        provision of any wet marine or transportation insurance policy,
        contract of insurance, endorsement, or application therefor does not
        void the policy or contract, or constitute a defense to a loss thereon,
        unless such breach or violation increased the hazard by any means
        within the control of the insured.

        4
         Because we find the term “not in use” to be unambiguous in this case, we decline
Oretsky’s invitation to certify the question of the term’s meaning to the Florida Supreme Court.
See Ruderman ex rel. Schwartz v. Wash. Nat’l Ins. Corp., 671 F.3d 1208, 1212 (11th Cir. 2012)
(stating that federal courts should certify questions to the state supreme court for “truly debatable
questions”).
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Fla. Stat. § 627.409(2). This statute “is designed to prevent the insurer from

avoiding coverage on a technical omission playing no part in the loss.” Pickett v.

Woods, 404 So. 2d 1152, 1153 (Fla. 5th DCA 1981). Otherwise, if the insured

breached some condition of the policy not pertinent to the loss, “the insurer would

collect a premium but would have no exposure to risk because the policy would no

longer be effective.” Id.

      As an initial matter, § 627.409(2) likely does not apply to motor vehicle

casualty insurance policies. First, by its terms, the statute only applies to “wet

marine or transportation” policies, and not to other types of insurance. See Fla.

Stat. § 627.409(2); Indep. Fire Ins. Co. v. Paulekas, 633 So. 2d 1111, 1113 (Fla. 3d

DCA 1994) (stating that § 627.409(2) did not apply to a homeowner’s insurance

policy). Second, the term “transportation,” as used in the statute, generally refers

to the transport or shipment of goods in commerce, not to the use of motor vehicles

for personal conveyance. See Fla. Stat. § 624.607(2) (defining the term “wet

marine and transportation insurance” as “that part of marine insurance which

includes,” among other things, “[i]nsurance of personal property and interests

therein, in course of exportation from or importation into any country, or in course

of transportation coastwise or on inland waters . . . by land, water, or air . . . in

connection with any and all risks or perils of navigation, transit, or

transportation”).
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      But even if § 627.409(2) applied to motor vehicle policies, such as the one in

this case, Infinity has shown prejudice from Oretsky’s violation of the garage

requirement. Common sense dictates that a car parked in a closed and locked

garage is less likely to be stolen than a car parked in an open driveway, and that the

garage requirement was designed at least in part to avoid loss through theft.

      Oretsky does not challenge these common-sense conclusions. Rather, he

asserts that the Maserati would have been stolen even if it had been parked inside

the garage, as the thieves were familiar with Oretsky’s routine, knew that he kept

the keys inside the garage, and knew how to access the garage when locked. This

assertion is pure speculation and finds no support in the record. See Shiver v.

Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008) (“Speculation does not create a

genuine issue of fact.” (internal quotation marks omitted)). And indulging

Oretsky’s theory would not change the outcome. At a deposition, Oretsky himself

testified that he left the Maserati in the driveway because starting the car in the

garage could wake his son sleeping in the house. If the thieves were indeed

familiar with Oretsky and his Maserati, they certainly would have been more

hesitant to steal the car if it had been parked inside the garage, for fear of waking

the occupants.

      Furthermore, by its plain terms, § 627.409(2) does not require a policy

violation to be the sole cause of the loss, but only requires the violation to


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“increase[] the hazard by any means within the control of the insured.” See Fla.

Stat. § 627.409(2); see also Eastern Ins. Co. v. Austin, 396 So. 2d 823, 825 (Fla.

4th DCA 1981) (holding that § 627.409(2) did not void coverage after a boat wreck

where the insured violated the insurance policy by occasionally selling fish caught

from the boat, because “the occasional sale of fish caught on a pleasure fishing trip

[had no] relevancy whatsoever” to the hazard encountered by the boat). Here, even

if parking the Maserati in the garage ultimately would not have prevented the theft,

Oretsky’s failure to do so certainly increased the danger of theft. Thus,

§ 627.409(2), if applicable at all, does not prevent Infinity from denying coverage

based on the garage requirement.5

       In light of the foregoing, we affirm the district court’s grant of summary

judgment to Infinity.

       AFFIRMED. 6




       5
        Because we conclude that Infinity properly denied coverage based on the garage
requirement, we do not consider whether Oretsky violated other requirements of the CV
Endorsement, or whether Infinity could have denied coverage based on those violations.
       6
        Oretsky moved this Court for an award of attorney’s fees under Florida law “[i]n the
event he prevails on appeal.” Given our affirmance, we DENY Oretsky’s motion as moot.
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