                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________
                                                              FILED
                                                     U.S. COURT OF APPEALS
                                 No. 09-12463          ELEVENTH CIRCUIT
                          ________________________      FEBRUARY 8, 2010
                                                            JOHN LEY
                   D.   C. Docket No. 07-00286-CV-BBM-1   ACTING CLERK


THE INSURANCE HOUSE, INC.,
a Georgia Corporation,

                                                             Plaintiff-Appellant,

                                    versus

INSURANCE DATA PROCESSING, INC.,
a Pennsylvania Corporation,

                                                            Defendant-Appellee.

                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________
                             (February 8, 2010)

Before CARNES, HULL and ANDERSON, Circuit Judges.


PER CURIAM:

     After oral argument and careful consideration, we conclude that the
particular arguments made by Appellant in the district court and in its initial brief

on appeal failed to persuade us that the district court erred. Pursuant to 28 U.S.C.

§1292(b), the district court certified, and this Court accepted, the following issue

for interlocutory appeal: Whether Insurance House may recover actual and

consequential damages for alleged breaches of §1.2 of the Delivery Agreement by

IDP. The district court held that §1.6 of the Delivery Agreement was a liquidated

damages provision which precluded recovery of actual and consequential

damages. In its initial brief on appeal, appellant Insurance House makes three

arguments: (1) that §1.6 is not a liquidated damages clause because it is not thus

labeled, does not disclaim other damages, and, pursuant to the general rule of the

applicable Pennsylvania law, a specification of certain damages does not exclude

other legally recognized remedies; (2) that §1.6 is ambiguous, and parol evidence

should have been admitted and considered; and (3) that §1.6 cannot be considered

the exclusive remedy because that would render §5.10 surplusage.

      With respect to the first of these arguments, Appellant’s initial brief on

appeal has failed to persuade us that the district court erred. Although it is true

that §1.6 of the Delivery Agreement does not label itself as a “liquidated damages”

provision, and although it does not otherwise expressly use language which

precludes recovery of actual or consequential damages, Pennsylvania case law

                                           2
does not require such labeling. See Holt’s Cigar Co. v. 222 Liberty Ass’n, 591

A.2d 743, 749 n.5 (Pa. Super. Ct. 1991). Thus, the absence of such labeling is not

dispositive. As part of this argument, Appellant cites a general contractual

principal of law to the effect that the specification of a particular remedy does not

necessarily exclude others. In support of this general proposition, Appellant relies

heavily upon Cedrone v. Unity Sav. Ass’n, 609 F.Supp. 250 (E.D. Pa. 1985).

However, as the district court pointed out, the Cedrone case did not involve the

issue of whether the provision was a liquidated damages clause. As the district

court pointed out, under Pennsylvania law, the issue of whether a contract

provision is a liquidated damages provision is an inquiry distinct from whether an

ordinary contract provision provides an exclusive remedy. Because a liquidated

damages provision is by definition a good faith effort to estimate in advance the

actual damage that will probably ensue, there cannot also be recovery of actual

damages. See Pantuso Motors, Inc. v. Corestates Bank, N.A., 798 A.2d 1277,

1282 (Pa. 2002); Carlos R. Leffler, Inc. v. Hutter, 696 A.2d 157, 162 (Pa. Super.

Ct. 1997). This is clear as a matter of Pennsylvania case law, and also as a matter

of common sense. Thus, Appellant’s argument in its initial brief on appeal is not

persuasive.

      With respect to Appellant’s argument that §1.6 is ambiguous, thus

                                          3
permitting parol evidence, Appellant’s argument in its initial brief on appeal fails

to cite persuasive reasons why the provision is ambiguous. Accordingly, we

cannot conclude that the district court erred in excluding parol evidence.

      Appellant’s initial brief on appeal makes a final argument. Appellant argues

that §1.6 cannot be construed as an exclusive remedy because that would render

§5.10 of the Delivery Agreement surplusage. Appellant’s argument in this regard

is flawed for at least three reasons. First, as the district court noted, a liquidated

damages clause does not preclude all other remedies. The district court held only

that it precluded recovery of actual or consequential damages, precisely the kind

of damages that a liquidated damages clause attempts to estimate. Second,

Pennsylvania case law has expressly contemplated the availability of more than

one liquidated damage provision. See Allied Fire & Safety Equip. Co. v. Dick

Enter., Inc., 972 F. Supp. 922, 934-35 (E.D. Pa. 1997). Finally, in any event,

§5.10 is clearly not a liquidated damage provision. Rather, it acknowledges that

IDP owes Appellant reimbursement for a bonus previously paid but not earned,

and provides for release of IDP’s obligation to reimburse if IDP completes

delivery in a timely manner.




                                            4
        For the foregoing reasons,1 the judgment of the district court is

        AFFIRMED.




        1
                   We note that several arguments were made for the first time in Appellant’s reply brief.
Although it is doubtful that the arguments would be successful in making additional remedies available
to Appellant, we decline to address such belated arguments, pursuant to our well-established precedent.
See United States v. Levy, 379 F.3d 1241, 1242-43 (11th Cir. 2004) (holding that claims not raised in the
initial brief are deemed waived).


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