                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 11-15610            ELEVENTH CIRCUIT
                                        Non-Argument Calendar           MAY 25, 2012
                                      ________________________           JOHN LEY
                                                                          CLERK
                            D.C. Docket No. 6:11-cv-00807-GKS-GJK



EDITH SHERMAN,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellant,

                                              versus

TRANSAMERICA LIFE
INSURANCE COMPANY,

llllllllllllllllllllllllllllllllllllllll                         Defendant - Appellee.

                                     ________________________

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

                                           (May 25, 2012)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      Plaintiff Edith Sherman appeals from the district court’s order dismissing her

complaint in favor of Defendant Transamerica Life Insurance Company. In the

complaint, Sherman alleged that Transamerica breached her long term care insurance

policy (the “Policy”) because even though she selected long term care coverage at her

home instead of a facility, the assisted living facility (“ALF”) she moved into is her

home and her care should therefore be covered under the Policy. Based on the

unambiguous language of the Policy, the district court disagreed. On appeal,

Sherman argues that the district court erred because the Policy violates Florida law

by excluding ALFs from the definition of “home” and by failing to recognize the

broad public policy under Florida law in favor of “home health care” being provided

by ALFs, and because she is only seeking coverage for her “home care,” not for the

rent and other non-care charges of the ALF. After thorough review, we affirm.

      We review the district court’s order granting a motion to dismiss de novo.

Redland Co. v. Bank of Am. Corp., 568 F.3d 1232, 1234 (11th Cir. 2009).

      The relevant facts are these. In applying for the Policy, Sherman had the option

of choosing from one of three types of policies: (1) “Integrated Facility and Home

Care Insurance”; (2) “Faci1ity Only Insurance”; and (3) “Home Care Only

Insurance.” The “integrated” policy provides coverage whether the insured is

receiving care in a nursing home, assisted living facility (“ALF’‘), or at home. The

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“facility only” policy provides coverage in either a nursing home or ALF, and the

“home-care only” policy provides coverage only in the insured’s own home.

Sherman chose to purchase the home-care only policy. On her application, Sherman

expressly acknowledged that she was applying for home-care only coverage and that

she understood that the “coverage is designed to provide benefits for home health

care services and does not provide coverage for confinement in any nursing home or

assisted living facility.” Where the application required her to provide, in her own

handwriting, the reason she was choosing a home care only policy, Sherman wrote

that the premiums associated with the policies that cover care in a facility are “too

high” for someone at her age.

      Sometime after purchasing the Policy, Sherman moved into The Heritage at

Lake Forest, an ALF, where she has been receiving care.            Sherman sought

reimbursement from Transamerica for the “the cost of the ‘Home Care”’ she has

received while living at the facility. Transamerica denied her claim, explaining

that the Policy excludes the coverage she seeks. Sherman sued, alleging breach of

contract. The district court dismissed the complaint, and this timely appeal follows.

      We are unpersuaded by Sherman’s claim that Florida law dictates that the

definition of”Home” in the Policy must include ALFs. As an initial matter, there is

no dispute that the Policy’s provisions plainly and unambiguously provide coverage

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only when the insured resides “at Home,” and not when residing at an ALF. The

Policy expressly provides that both “home care services” and “home health care

services” (the only two services at issue here) must be provided in the insured’s

“Home” to be covered. The Policy then defines “Home” as “any place where [the

insured] reside[s] other than a nursing facility, Alzheimer’s facility, Hospital, hospice

facility, assisted livingfacility, congregate care or any other similar residential care

facility.” Thus, the Policy unambiguously excludes ALFs from the definition of

“Home” and does not cover expenses incurred while the insured resides in an ALF.1

       We recognize, as Sherman argues, that under Florida law, applicable statutory

regulations surrounding insurance contracts in effect at the time the contract is formed

are deemed by law to be incorporated into the contract. Auto-Owners Ins. Co. v.

DeJohn, 640 So. 2d 158, 161 (Fla. 5th DCA 1994); see also Fla. Stat.§ 627.418(1)

(2003) (providing that any insurance policy that is otherwise valid but contains a

provision not in compliance with the requirements of the Insurance Code must be

harmonized with the Code). However, as the district court found, none of the statutes

or regulations Sherman cites conflicts with the terms of the Policy. Nor, more

       1
          Not only does the policy expressly exclude the coverage Sherman seeks, but plaintiff
expressly acknowledged in her Application, by her initials, the intention to purchase “Home Care
Only coverage” that “does not provide coverage for confinement in any . . . assisted living
facility.” In addition, plaintiff expressly explained in her own handwriting, that she did not
purchase a policy type that included facilities coverage because she determined that the
premiums for that policy type were “too high.”

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specifically, do they prohibit an insurance contract from covering health care services

provided only at an insured’s home, as opposed to a facility. Indeed, Sherman admits

in her brief that “the cited statutes may not directly prohibit an insurer from excluding

an ALF from the definition of home.” Gray Br. at 4. Thus, for example, while

Florida Administrative Code § 58A-2.002(7) includes ALFs in the definition of

“home,” as it is used in Chapter 400, Part IV (“Hospices”), this rule does not prohibit

insurance policies from limiting coverage to circumstances where the insured resides

outside of such a facility.

      Sherman also argues that Florida public policy disfavors limited benefit

long-term care policies that exclude ALF coverage, and that the Policy creates

disincentives for moving into an ALF. However, the fact that Florida Administrative

Code § 69O-157.301-.304 prescribes the maximum rates an insurer may charge for

a “home health care only” policy, as opposed to maximum rates for “facility only”or

“comprehensive” policies, belies her argument. If a home health care only policy

were illegal under Florida law, there would be no reason to prescribe rates separate

from those for institution only or comprehensive plans. Thus, as another district

court has held in a case very similar to this one, Florida law “goes no further than

establishing that assisted living facilities are welcome in Florida, and that the state

will establish a set of guidelines to ensure that those facilities are adequate and

                                           5
desirable to their residents. Nothing in that section declares that the policy issued by

the Defendant is illegal, or that Florida law requires that insurers pay for their

policyholders’ decision to relocate to an assisted living facility.”               Sawyer v.

Transamerica Life Ins. Co., 2010 WL 1372447, at *9 (S.D. Fla. 2010).2

       Indeed, “Florida’s public policy is that contracts, including insurance contracts,

must be enforced as written.” Id. at *10; see also Excelsior Ins. Co. v. Pomona Park

Bar & Package Store, 369 So. 2d 938, 942 (Fla. 1979) (Unless there is a genuine

ambiguity, the rules of contract construction do “not allow courts to re-write

contracts, add meaning that is not present, or otherwise reach results contrary to the

intentions of the parties.”) Despite the availability of policies that cover care

associated with living in a facility, Sherman knowingly purchased an insurance policy

that covers only health care services provided in her home. Sherman has failed to cite




       2
         As for Sherman’s claim that she is not seeking coverage for room and board, but only
for the “home care” she receives at the ALF, we are unpersuaded. Because she is not receiving
this “home care” at her home, as required by the Policy, she cannot receive coverage under the
Policy. Moreover, ALF care is not merely “home care” that is provided in a facility. Rather, the
law makes a significant distinction between services provided in an ALF and services provided at
home. An ALF is a highly-regulated environment with access to round-the-clock care services, as
necessary. See, e.g., Fla. Admin. Code Ch. 58A-5 (discussing inter alia ALF licensing and
inspection requirements, residential care standards, staffing standards, food service standards,
and physical plant standards, and emergency management). In her home, plaintiff’s living
arrangements are not regulated by the Department of Elder Affairs, and she had only part-time
access to a home health aide on a pre-arranged schedule.

                                               6
to any law that would justify altering the express language of the Policy to create

coverage where none exists. Accordingly, we affirm.

      AFFIRMED.




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