         Case: 19-10503    Date Filed: 10/21/2019   Page: 1 of 8


                                                    [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-10503
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:17-cv-00430-PAM-CM



RELIABLE MARINE TOWING AND SALVAGE LLC,

                                   Plaintiff - Cross Claimant-Appellant,

versus

JOHN THOMAS,
in personam,

                                   Defendant - Appellee,

STATE FARM FIRE AND CASUALTY
COMPANY,
a foreign corporation,

                                   Defendants - Cross Defendant – Appellees.

                      ________________________

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

                           (October 21, 2019)
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Before ED CARNES, Chief Judge, TJOFLAT, and JORDAN, Circuit Judges.

PER CURIAM:

       John Thomas’ boat partially sank in a storm off the coast of Florida.

Reliable Marine Towing and Salvage, LLC, sent an employee to provide rescue

services. Thomas and his boat made it to shore and he later filed a claim with his

marine insurer, State Farm Fire and Casualty Company.

       Thomas’ insurance policy with State Farm covered up to $6,750.00 worth of

damage to the boat under “Coverage A.” It also covered “wreck removal.” But

wreck removal was included in the Coverage A policy limit. If the combined cost

of the repairs to the boat and the wreck removal exceeded $6,750.00, the policy

provided additional coverage for a maximum of 5% over the Coverage A limit, or

$337.50. The policy provided an additional $500 payment, not included in

Coverage A, for “emergency services.”

       Because of the extent of the damage, State Farm considered Thomas’ boat a

total loss and paid him the Coverage A policy limit.1 At the time of that payment

State Farm had not received any proof of Reliable Marine’s services and had no

reason to provide any coverage for wreck removal or emergency services.




       1
         State Farm actually paid slightly less than $6,750.00 because Thomas kept the remains
of the boat. Following the terms of the policy, State Farm subtracted the salvage value from the
Coverage A payout. There is no dispute that State Farm met its Coverage A limit requirements
under the policy.
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       Two weeks after State Farm sent Thomas the Coverage A payment, Reliable

Marine faxed State Farm an invoice. The invoice billed Thomas $3,109.84 for the

rescue services.2 State Farm classified Reliable Marine’s rescue services as both

emergency services and wreck removal. It determined that the policy covered

$500 for emergency services. Because it had already paid Thomas the policy limit

under Coverage A, the policy also covered $337.50 based on the 5% additional

coverage for wreck removal, making the total for emergency services and wreck

removal $837.50. The invoice did not include an assignment of insurance benefits

from Thomas to Reliable Marine. Because the policy required State Farm to pay

Thomas directly unless another party was “legally entitled to receive payment,”

State Farm sent Thomas the $837.50 check. But Thomas didn’t pay Reliable

Marine. And in July 2017 Reliable Marine sued Thomas and State Farm.

       In its complaint, Reliable Marine alleged that State Farm had breached the

insurance policy it had with Thomas, and it claimed that it was a third party

beneficiary to that policy. It asserted a separate claim against Thomas for salvage.

Thomas consented to judgment and assigned to Reliable Marine any claims he


       2
          There is a lack of clarity in the record about what services Reliable Marine actually
provided. The parties agree that Reliable Marine “raised” Thomas’ boat by pumping the water
out of it so that it would float. Thomas testified in his deposition that the engine in his boat was
still working, so he navigated the boat to shore on his own after Reliable Marine raised it.

       Reliable Marine asserts that it towed Thomas’ boat to shore. The invoice that it later
submitted to State Farm sought payment of $3,109.84 for two hours and forty-eight minutes of
towing and other “salvage services.” State Farm did not contest the charges.
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might have against State Farm. Reliable Marine then filed a cross-complaint

against State Farm standing in Thomas’ shoes. It alleged that State Farm had

breached the insurance policy by not reimbursing Thomas for the cost of Reliable

Marine’s services. The district court denied Reliable Marine’s motion for

summary judgment and granted summary judgment to State Farm.

      Reliable Marine appeals that judgment, raising two contentions. It first

contends that because State Farm had an invoice showing that Thomas owed

Reliable Marine for rescue services, the insurer should have paid the $837.50

directly to Reliable Marine. Second, Reliable Marine contends that State Farm is

liable for the full cost of the rescue services — above and beyond the policy

limit — under both Florida insurance law and what it asserts is the policy’s “sue

and labor” clause.

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

v. Unifund CCR Partners, 601 F.3d 1185, 1189 (11th Cir. 2010). Interpretation of

the terms of an insurance policy is a matter of law that is also subject to de novo

review. Hegel v. First Liberty Ins. Corp., 778 F.3d 1214, 1219 (11th Cir. 2015)

(applying Florida law).

                                          I.

      Reliable Marine first contends that State Farm should have paid it, not

Thomas, the $837.50. Reliable Marine asserts that the district court committed an


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“error in findings and fact” by concluding that “State Farm did not know that

[Thomas] had assigned any rights to Reliable Marine.” According to Reliable

Marine, because State Farm had the invoice it must have known about the rescue

services when it sent the second payment to Thomas. It is difficult to tell from

Reliable Marine’s briefs exactly how that argument supports its allegation that the

insurance policy was breached or even what remedy it is seeking. Happily it does

not matter.

           State Farm indisputably did know that Reliable Marine provided rescue

services. That’s why it wrote the check. It wrote the check to Thomas because the

plain language of the policy required State Farm to pay Thomas directly unless

another party was “legally entitled to receive payment.”

           Reliable Marine did not provide any evidence that Thomas assigned to it

his right to the insurance payments. 3 Nor did it cite any authority indicating that an

invoice establishes “legal entitle[ment]” to receive payment, which the policy

required for a direct payment. Reliable Marine has not established the existence of


       3
          Thomas did assign any claims he might have against State Farm to Reliable Marine.
But that assignment was part of his consent to judgment in this lawsuit; it took place after the
insurance proceeds for rescue services had already been paid to Thomas. There is no evidence
that Thomas had assigned to Reliable Marine his right to receive payment from State Farm
before it paid Thomas the rescue services payment.

       In its brief to this Court, Reliable Marine points out that oral contracts are enforceable
under maritime law. But because it points to no evidence that Thomas orally assigned it any
insurance proceeds that he was entitled to recover under the policy, the rules of oral contracts in
maritime law have no bearing on this case.
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a genuine issue of material fact about whether State Farm violated the terms of the

policy by sending the $837.50 directly to Thomas. Id. Indeed, the plain language

of the policy establishes that State Farm was obligated to do just that.

                                               II.

       Reliable Marine next contends that even though State Farm has already paid

out the maximum coverage limit it must also pay the full cost of Reliable Marine’s

services, which it asserts amounts to $3,109.84. 4 Reliable Marine argues that full

payment is required both under Florida law and under the terms of the insurance

policy.

                                               A.

       Reliable Marine relies on Government Employees Insurance Co. v. Macedo,

228 So. 3d 1111 (Fla. 2017), to argue that Florida insurance companies must

reimburse insureds for expenses that the insurance company requires them to

incur.5 And because under his policy Thomas had to “protect the property from

further loss,” Reliable Marine argues that State Farm must reimburse it for the full

cost of the rescue services. But that is not what Macedo holds. The insurance


       4
           In its complaint Reliable Marine claimed that State Farm owes Reliable Marine money
as a third party beneficiary to the policy. In its cross-complaint Reliable Marine claimed that
State Farm owed it money because Thomas assigned it his right to sue. It does not matter which
theory Reliable Marine uses because, as we will explain, State Farm had no duty to pay anything
above the maximum coverage limit.
         5
           If there is no “judicially established federal admiralty rule,” we rely on state law to
interpret a marine insurance policy. See AIG Centennial Ins. Co. v. O’Neill, 782 F.3d 1296,
1302 (11th Cir. 2015).
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company in Macedo had to reimburse the insured’s expenses because the policy

was ambiguous about whether it would reimburse those expenses. Id. at 1113.

       Under Florida law if an insurance contract is unambiguous the plain

language controls. Id. And Thomas’ State Farm policy is unambiguous. It paid

the full Coverage A limit because the boat was declared a total loss. And State

Farm paid another 5% over that policy limit plus $500 for the services that

Reliable Marine provided. It is clear from the plain language of the policy that is

all Thomas could expect from State Farm. And as a result, that’s all Reliable

Marine could expect.

                                              B.

       Reliable Marine also contends that the district court erred in finding that the

State Farm policy did not include a sue and labor clause. Under a sue and labor

clause the insured is required “to sue, labor and travel for, in and about the defense,

safeguard and recovery of” the boat. Reliance Ins. Co. v. The Escapade, 280 F.2d

482, 484 n.4 (5th Cir. 1960). 6 In exchange the insurance company agrees to

reimburse the cost to the insured. Munson v. Standard Marine Ins. Co., 156 F. 44,

47 (1st Cir.1907) (holding that if an insurer does not expressly agree to reimburse

the insured for sue and labor expenses it is not a “true ancient sue and labor



6
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
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clause,” and the insurer has no duty to reimburse those expenses). Reliable argues

that Thomas’ policy contains a sue and labor clause that obligates State Farm to

reimburse it for the full cost of raising Thomas’ boat.

      We agree with the district court that there is no sue and labor clause in the

State Farm policy. The policy has a clause that requires Thomas to “protect the

property from further loss.” But the clause does not require Thomas to go to the

great lengths to protect the boat than a sue and labor clause would require. The

clause in Thomas’ policy does not require him to sue anyone; nor does he have to

travel. And State Farm did not promise to reimburse Thomas for expenses he

incurred “protect[ing] the property from further loss.” Under Florida law

insurance contracts are interpreted according to their plain language, Macedo, 228

So. 3d at 1113, and the plain language in Thomas’ policy does not include a sue

and labor clause.

      AFFIRMED.




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