                 Case: 10-12613        Date Filed: 03/28/2014       Page: 1 of 6


                                                                                      [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                               ________________________

                                      No. 10-12613
                                ________________________

                        D.C. Docket No. 3:09-cv-00894-HES-JRK


INTERVEST CONSTRUCTION OF JAX, INC.,
et. al.

                                                                          Plaintiffs-Appellants,


                                              versus


GENERAL FIDELITY INSURANCE COMPANY,

                                                                           Defendant-Appellee.
                                ________________________

                       Appeal from the United States District Court
                           for the Middle District of Florida
                             ________________________
                                       (March 28, 2014)
Before CARNES, Chief Judge, TJOFLAT, Circuit Judge, and MICKLE, ∗ District
Judge.

∗
  The Honorable Stephan P. Mickle, United States District Judge for the Northern District of
Florida, sitting by designation. Judge Mickle did not participate in the decision; it is rendered by
quorum. See 28 U.S.C. § 46(d) (2012).
              Case: 10-12613     Date Filed: 03/28/2014   Page: 2 of 6




PER CURIAM:

                                          I.

      The controversy in this case is between an insurer, General Fidelity

Insurance Company, and its insureds, Intervest Construction of Jax, Inc. and ICI

Homes, Inc. (collectively “ICI”), regarding whether General Fidelity breached its

obligations under a general liability insurance policy held by ICI.

      The coverage dispute at issue arose from a personal injury suit brought

against ICI by Katherine Ferrin, who purchased and lived in a home built by ICI.

During the construction of Ferrin’s residence, ICI hired Custom Cuttings, Inc. to

install the attic stairway. Pursuant to its subcontract with ICI, Custom Cuttings

agreed to indemnify ICI from any damages or claims brought against ICI as a

result of Custom Cuttings’s negligence. In April 2007, Ferrin received serious

injuries from a fall while using the attic stairs installed by Custom Cuttings. She

brought suit solely against ICI. In turn, ICI sought indemnification from Custom

Cuttings pursuant to the terms of their subcontract. At the time of Ferrin’s

accident, ICI held a general liability insurance policy with General Fidelity (the

“General Fidelity Policy”) and Custom Cuttings held a general liability insurance

policy with North Pointe Insurance Company.




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       The terms of the General Fidelity Policy included a Self-Insured Retention

endorsement (“the SIR endorsement”), requiring ICI to pay $1 million towards its

own losses before General Fidelity had a duty to defend or indemnify ICI for any

occurrence or event.1 The General Fidelity Policy also contained a transfer-of-

rights provision giving General Fidelity subrogation rights over certain ICI

claims. 2

       On July 7, 2009 a mediation was held involving Ferrin, ICI, Custom

Cuttings, General Fidelity, and North Pointe. As a result of this mediation, a

settlement agreement was reached wherein ICI and General Fidelity agreed to pay

Ferrin $1.6 million as full and final settlement of her claims against ICI, Custom

Cuttings, General Fidelity, and North Pointe. As indemnity, Custom Cuttings and

North Pointe agreed to pay $1 million (the “Custom Cuttings Payment”) to ICI and

General Fidelity in exchange for a release from any liability arising under the

Ferrin lawsuit.

       A dispute arose between ICI and General Fidelity regarding to whom the

Custom Cuttings Settlement Payment should be payable and whether ICI could use

       1
        The full text of the SIR endorsement can be found at Intervest Constr. of Jax, Inc. v.
Gen. Fid. Ins. Co., 662 F.3d 1328, 1333–35 (11th Cir. 2011).
       2
           The transfer-of-rights provision found in the General Fidelity Policy reads as follows:
       If the insured has rights to recover all or part of any payment we have made under this
       Coverage Part, those rights are transferred to us. The insured must do nothing after loss
       to impair them. At our request, the insured will bring “suit” or transfer those rights to us
       and help us enforce them.

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the Custom Cuttings Payment to satisfy the SIR endorsement. In order to resolve

Ferrin’s claim, ICI and General Fidelity tabled their dispute and agreed to release

the Custom Cuttings Payment––which was being held in trust––to Ferrin and to

each fund $300,000 towards the $1.6 million settlement agreement. Both ICI and

General Fidelity reserved all claims and defenses against one another with respect

to the coverage provided by the General Fidelity Policy.

                                          II.

      After the full $1.6 million settlement payment was delivered to Ferrin, ICI

filed suit in the Circuit Court of the Fourth Judicial Circuit of Florida against

General Fidelity for breach of contract, requesting a declaratory judgment that its

claim to the Custom Cuttings payment is superior to General Fidelity’s and that it

is entitled to apply the Custom Cuttings payment towards the SIR endorsement in

the General Fidelity Policy. General Fidelity removed the case to the United States

District Court for the Middle District of Florida.

      After hearing arguments, the District Court found in favor of General

Fidelity, concluding that ICI had not satisfied the SIR obligation because the

payment had originated from another party. Intervest Constr. of Jax, Inc., v. Gen.

Fid. Ins. Co., No. 3:09-cv-00894-HES-JRK, Order at 8 (M.D. Fla. Apr. 22, 2010).

On appeal, we determined that the resolution of this dispute depends on

unanswered questions of Florida law. Intervest Constr. of Jax, Inc., v. Gen. Fid.


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Ins. Co., 662 F.3d 1328, 1332 (11th Cir. 2011). In light of the absence of

controlling precedent from the Supreme Court of Florida, we certified two

questions for resolution: 3 “1) Does the General Fidelity Policy allow the insured to

apply indemnification payments received from a third-party towards satisfaction of

its $1 million Self-Insured Retention? [and] 2) Assuming that funds received

through an indemnification clause can be used to offset the Self-Insured Retention,

does the transfer of rights provision found in the General Fidelity Policy grant

superior rights to be made whole to the insured or to the insurer?” Id.

       On February 6, 2014 the Supreme Court of Florida issued a decision

answering both of these questions. Intervest Constr. of Jax, Inc., v. Gen. Fid. Ins.

Co., No. SC11-2320 (Fla. 2014). In its decision, the Supreme Court of Florida

concluded that (1) “the General Fidelity policy allows the insured to apply

indemnification payments received from a third party towards satisfaction of its $1

million self-insured retention,” id. at *19, and (2) “the transfer of rights provision

in the policy does not abrogate the made whole doctrine, thereby preserving ICI’s

right of priority,” id. at *25.

       In light of the Supreme Court’s answers, the final judgment of the District

Court is

       3
         The Florida Constitution allows the Florida Supreme Court to consider a certified
question if it “is determinative of the cause and for which there is no controlling precedent of the
supreme court of Florida.” Fla. Const. art. V, § 3(b)(6); see also Stevens v. Battelle Mem’l Inst.,
488 F.3d 896, 904 (11th Cir. 2007).

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REVERSED.




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