           Case: 17-11907   Date Filed: 04/16/2018   Page: 1 of 12


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-11907
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:16-cv-21704-MGC


KEN CAMERON,
MICHELLE CAMERON,

                                                          Plaintiffs-Appellants,

                                  versus

SCOTTSDALE INSURANCE COMPANY,

                                                           Defendant-Appellee.

                       ________________________

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

                              (April 16, 2018)

Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Appellants Ken and Michelle Cameron (the “Camerons”) own a residential

rental dwelling in Miami Beach, Florida. On January 2, 2016, a pipe in the

plumbing system of the dwelling collapsed, causing water damage to interior

surfaces and necessitating additional damage to access and repair the affected

plumbing. The cause of the plumbing problem was an age-related “acute pipe

failure” of one of the building’s sanitary lines, which carried wastewater out of the

building. The pipe failure was discovered when a tenant reported an overflow of

water from a kitchen-sink drain. After the incident, the Camerons reported the loss

to their commercial property insurer, Scottsdale Insurance Company, which

investigated and then denied the claim. Thereafter, the Camerons filed this lawsuit

challenging the denial of coverage.

      The Camerons’ policy covered some but not all water damage. So the issue

is whether the claimed loss was the type of water damage covered by the policy. It

was, according to the Camerons, because the policy covers the “[a]ccidental

discharge or leakage of water . . . as the direct result of the breaking apart or

cracking of a plumbing . . . system . . . that is located on the described premises.”

Scottsdale disagrees, asserting that the loss was excluded under the policy’s Water

Exclusion Endorsement (“Water Exclusion”), which excludes coverage for

damages caused by “[w]ater that backs up or overflows or is otherwise discharged

from a sewer, drain, sump, sump pump or related equipment.”


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      The district court, reasoning that there was a backup and overflow from a

drain, found that the plain terms of the Water Exclusion applied and that the policy

language cited by the Camerons did not limit the applicable language of the Water

Exclusion. So the court granted Scottsdale summary judgment, and the Camerons

appealed.    Because we find that the district court’s decision is contrary to

controlling Florida precedent, specifically the Third District Court of Appeal’s

decision in Cheetham v. Southern Oak Ins. Co., 114 So. 3d 257 (Fla. Dist. Ct. App.

2013), we vacate and remand.

                                          I.

      We review de novo the district court’s grant of summary judgment, applying

the same standards as the district court. Southern-Owners Ins. Co. v. Easdon

Rhodes & Assocs. LLC, 872 F.3d 1161, 1163 (11th Cir. 2017). We also review de

novo the district court’s interpretation of contract language. Id. at 1164.

      In this diversity action, we apply the substantive law of the forum state,

which is Florida. Mid-Continent Cas. Co. v. Am. Pride Bldg. Co., LLC, 601 F.3d

1143, 1148 (11th Cir. 2010). “Our objective is to determine the issues of state law

as we believe the Florida Supreme Court would.” State Farm Fire & Cas. Co. v.

Steinberg, 393 F.3d 1226, 1231 (11th Cir. 2004). We are, therefore, bound by

decisions of the Florida Supreme Court, as well as decisions from Florida’s




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intermediate appellate courts absent some persuasive indication that the Florida

Supreme Court would decide the issue differently. Id.

       “In Florida, the terms used in an insurance contract are given their ordinary

meaning, and the policy must be construed as a whole to give every provision its

full meaning and operative effect.”           Southern-Owners Ins., 872 F.3d at 1164

(internal quotation marks omitted). Unambiguous policy provisions are enforced

according to their terms.       Id.     “If policy language is susceptible to multiple,

reasonable interpretations, however, the policy is considered ambiguous and must

be interpreted liberally in favor of the insured and strictly against the drafter who

prepared the policy.” Id. (internal quotation marks omitted). But “[t]he mere fact

that an insurance provision is ‘complex’ or ‘requires analysis’ does not make it

ambiguous.” Id.

                                              II.

       The Camerons’ policy broadly covers “direct physical loss of or damage to”

the property that is not otherwise excluded. ECF No. 14-4 at 3. Ordinarily,

damages arising from “[w]ear and tear” or “[r]ust or other corrosion, decay, [or]

deterioration” are excluded, but this exclusion contains an exception for damages

resulting from a “specified cause of loss,” which includes “water damage.” 1 Id. at


       1
         When “water damage” is covered, the policy extends to cover “the cost to tear out and
replace any part of the building or structure to repair damage to the system or appliance from
which the water or other substance escapes.”
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40, 47. The policy defines “water damage” as the “[a]ccidental discharge or

leakage of water . . . as the direct result of the breaking apart or cracking of a

plumbing . . . system . . . that is located on the described premises and contains

water.” Id. at 47. Thus, the policy covers an “[a]ccidental discharge or leakage of

water” caused by “the breaking apart or cracking” of the premises’ “plumbing . . .

system” due to “deterioration.” We refer to these policy provisions collectively as

the “coverage provision.”

      However, “water damage does not include loss or damage otherwise

excluded under the terms of the Water Exclusion.” Id. at 47. The Water Exclusion

specifically excludes coverage for damages resulting from the following:

      1. Flood, surface water, waves (including tidal wave and tsunami),
         tides, tidal water, overflow of any body of water, or spray from any
         of these, all whether or not driven by wind (including storm surge);

      2. Mudslide or mudflow;

      3. Water that backs up or overflows or is otherwise discharged from a
         sewer, drain, sump, sump pump or related equipment;

      4. Water under the ground surface pressing on, or flowing or seeping
         through: a. Foundations, walls, floors, or paved surfaces; b.
         Basements, whether paved or not; or c. Doors, window or other
         openings; or

      5. Waterborne material carried or otherwise moved by any of the water
         referred to in Paragraph 1., 3. or 4., or material carried or otherwise
         moved by mudslide or mudflow.




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Id. at 48. According to Scottsdale, the claimed loss falls within Paragraph 3:

“Water that backs up or overflows or is otherwise discharged from a sewer, drain,

sump, sump pump or related equipment.”

       The plain terms of the coverage provision apply to the claimed loss. The

Camerons’ premises suffered damage from the “[a]ccidental discharge or leakage

of water” as a direct result of “the breaking apart or cracking” of the premises’

“plumbing . . . system” due to age-related “deterioration.”2 So the Camerons’ loss

falls within the definition of “water damage” unless it is “otherwise excluded under

the terms of the Water Exclusion.” We therefore must decide whether the Water

Exclusion applies to exclude coverage for the claimed loss because the pipe

collapse caused water to backup through a drain in the plumbing system and into

the premises.

       Our resolution of this issue is fairly straightforward. The Florida appellate

court in Cheetham addressed a nearly identical situation and found that a water-

damage exclusion, which is indistinguishable from the Water Exclusion here, did

not apply. See 114 So. 3d at 262–63. Because we find no material differences

between the facts of this case and Cheetham, we follow Cheetham.

                                              A.

       2
         Scottsdale does not directly raise the issue, but we note that the sanitary line that
collapsed appears to be a part of the premises’s “plumbing system.” See Cheetham, 114 So. 3d
at 259 n.1 (noting that a pipe that “is designed to carry waste water and/or material away from
[the premises] and is located on the insured premises” is “a part of the ‘plumbing system’”).
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      In Cheetham, a pipe located within the insured premises’s plumbing system

broke due to age and deterioration, resulting in a blockage which caused

wastewater to back up through the blocked pipe and into the premises through the

drains.   114 So. 3d at 260.        The insureds’ policy covered “the ‘accidental

discharge’ of water ‘within a . . . plumbing . . . system . . . on the ‘residence

premises’ caused by ‘deterioration.’” Id. at 261. But it also contained a water-

damage exclusion, which excluded coverage for damages caused by “[w]ater or

water-borne material which backs up through sewers or drains or which overflows

or is discharged from a sump, sump pump or related equipment.” Id. at 262. Like

Scottsdale here, the insurer in Cheetham argued that the water-damage exclusion

applied to the loss, and it prevailed on that issue before the trial court.

      On appeal, the Florida appellate court in Cheetham framed the issue as

      whether the exclusion applies when a pipe located within the
      plumbing system of the “residence premises” breaks due to
      deterioration, causing debris to enter the pipe and forming a blockage,
      and as a result of the blockage, waste water and/or material backed up
      through the blocked pipe “within” the “plumbing system” and then
      into the “residence premises” through drains.

Id. at 261 (emphasis omitted). Stating that the “accidental discharge” of water

from the plumbing system caused by deterioration was a covered loss, “unless the

loss [was] otherwise excluded,” the court turned to evaluate the water damage

exclusion. Id. at 262. That provision excluded coverage for damages resulting

from the following:
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       a. Flood, surface water, waves, tidal water, overflow of a body of
          water, or spray from any of these, whether or not driven by wind;

       b. Water or water-borne material which backs up through sewers or
          drains or which overflows or is discharged from a sump, sump
          pump or related equipment; or

       c. Water or water-borne material below the surface of the ground,
          including water which exerts pressure on or seeps or leaks through
          a building, sidewalk, driveway, foundation, swimming pool or
          other structure[.]

Id.

       The Florida appellate court found that both “[p]aragraphs a. and c. of the

water damage exclusion reflect that there will be no coverage for water damage to

the residence premises, which were caused by outside forces unrelated to the

residence premises’ plumbing system.” Id. In light of that finding, and construing

all three provisions together, the court likewise concluded that paragraph b.

“pertain[ed] to damage caused by water not originating from the residence

premises’ plumbing system even though the water or water-borne material

eventually backs up through a pipe and/or drain within the plumbing system of the

residence premises.” See id. at 262–63 (emphasis in original). 3

       Thus, according to Cheetham, the water-damage exclusion in that case

applied only “to damage caused by water originating from somewhere other than


       3
          In its analysis on page 263, the Florida appellate court appears to have referred to
paragraph b. as “paragraph c.,” and vice-versa. In context, however, it’s clear what paragraphs
the court is referring to. See Cheetham, 114 So. 3d at 262–63.
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the residence premises’ plumbing system.” Id. at 263. And because the claimed

loss was caused “by the deterioration of a pipe within the plumbing system, which

caused water or water-borne material emanating from the residence premises’

plumbing system to back up into the residence premises,” the court concluded that

the loss was unambiguously covered under the policy. Id. at 263–64.

                                         B.

      Despite its apparent similarities to this case, the district court distinguished

Cheetham on the ground that this case does not involve, as Cheetham did, “another

policy provision [that] specifically covered the overflow of water from the

property’s internal plumbing system.” ECF No. 27 at 3. Scottsdale likewise

asserts that the Camerons’ policy did not “specifically contain[] language which

provided coverage for leakage or failures of the internal plumbing system.”

Appellee’s Br. at 21. But it is difficult to reconcile those statements with the plain

terms of the Camerons’ policy. The policy specifically covered an “[a]ccidental

discharge or leakage of water” resulting from “the breaking apart or cracking” of

the premises’ “plumbing . . . system” due to “deterioration.” Besides a few minor

and inconsequential variations in language, that coverage provision is virtually

identical to the coverage provision in Cheetham. Compare ECF. No. 14-4 at 40,

47, with Cheetham, 114 So. 3d at 259, 261.




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       Nor is there any material difference between the water damage exclusion in

Cheetham and the Water Exclusion here.              Apart from the Water Exclusion’s

addition of “[m]udslide or mudflow,” the two exclusionary provisions, set out

above, are substantially the same. Paragraphs 1, 2, and 4 of the Water Exclusion,

like paragraphs a. and c. of the water damage exclusion in Cheetham, relate to

water damage “caused by outside forces unrelated to the residence premises’

plumbing system,” such as weather-induced flooding.4 Cheetham, 114 So. 3d at

262.   Reading the provisions of the Water Exclusion together, therefore, we

conclude that Paragraph 3 of the Water Exclusion, like paragraph b. of the water-

damage exclusion in Cheetham, “pertains to damage caused by water not

originating from the residence premises’ plumbing system even though the water

or water-borne material eventually backs up through a pipe and/or drain within the

plumbing system of the residence premises.” See id. at 262–63.

       That interpretation, moreover, is reinforced by other language in the policy.

The policy’s definition of “water damage” provides the following guidance to help

determine when the Water Exclusion applies:

       [F]or example, there is no coverage under this policy in the situation
       in which discharge or leakage results from the breaking apart or
       cracking of a pipe which was caused by or related to weather-induced
       flooding, even if wear and tear contributed to the breakage or
       cracking. As another example, and also in accordance with the terms

       4
         Paragraph 5 of the Water Exclusion does not operate independently, but rather depends
on the application of one of Paragraphs 1–4.
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      of the Water Exclusion, there is no coverage for loss or damage
      caused by or related to weather-induced flooding which follows or is
      exacerbated by pipe breakage or cracking attributable to wear and
      tear.

These examples reflect the key distinction made by Cheetham and adopted here,

which is that the Water Exclusion relates to water damage caused in part by

outside forces, such as weather-induced flooding, but not to damage caused by a

failure of the premises’s plumbing system due to age or deterioration.

      For the foregoing reasons, we conclude that Cheetham is directly on point.

And we see no indication that the Florida Supreme Court would decide the issue

differently from the court in Cheetham, as that decision is consistent with prior

decisions from the Florida appellate courts, including Old Dominion Insurance Co.

v. Elysee, Inc., 601 So. 2d 1243 (Fla. Dist. Ct. App. 1992), and Hartford Accident

& Indemnity Co. v. Phelps, 294 So. 2d 362 (Fla. Dist. Ct. App. 1974). See

Steinberg, 393 F.3d at 1231 (“Our objective is to determine the issues of state law

as we believe the Florida Supreme Court would.”).

      Consequently, in light of Cheetham, the district court erred in granting

summary judgment to Scottsdale on the basis of the Water Exclusion. Under the

coverage provision, the Camerons’ claimed loss was covered as “water damage”

unless it was “otherwise excluded under the terms of the Water Exclusion.” Cf.

Cheetham, 114 So. 3d at 262 (explaining that the policy covered the accidental

discharge of water from the plumbing system caused by deterioration “[u]nless the
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loss [was] otherwise excluded”). Although the district court found that it was, that

decision is inconsistent with Cheetham, which interpreted materially similar

exclusionary policy language and concluded that it applied only “to damage caused

by water originating from somewhere other than the residence premises’ plumbing

system.” Id. at 263. Because the claimed loss in this case was caused not by water

originating from somewhere other than the premises’s plumbing system but rather

by the age-related deterioration of the plumbing system, the Water Exclusion does

not apply.

      While Cheetham suggests that the Camerons’ claimed loss is unambiguously

covered under their policy, see id. at 264 (finding no ambiguity), we recognize that

the Camerons did not move for summary judgment and that the district court did

not reach all of the grounds on which Scottsdale moved for summary judgment.

Accordingly, we vacate the grant of summary judgment in favor of Scottsdale and

remand for proceedings consistent with this opinion.

      VACATED AND REMANDED.




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