                                                               [PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                            FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                        OCT 6, 2006
                      Nos. 05-13457 & 05-14671        THOMAS K. KAHN
                     ________________________             CLERK


                  D. C. Docket No. 04-60619-CV-JIC

ESSEX INSURANCE COMPANY,

                                                 Plaintiff-Appellant,

                              versus

MERCEDES ZOTA,
MIGUEL ZOTA,

                                                 Defendants-Third-Party
                                                 Plaintiffs-Appellees,


LIGHTHOUSE INTRACOASTAL, INC.,
JACK FARJI, an individual,
BROWARD EXECUTIVE BUILDERS, INC.,

                                                 Defendants-Appellees,

R.A. BRANDON & CO., INC.,

                                                 Third-Party
                                                 Defendant.
                               ________________________

                      Appeals from the United States District Court
                          for the Southern District of Florida
                            _________________________

                                     (October 6, 2006)

Before TJOFLAT and CARNES, Circuit Judges, and HODGES,* District Judge.

CARNES, Circuit Judge:

       This case involves an insurance coverage dispute arising in Florida, the

proper resolution of which depends on unsettled state law. The answers to the state

law questions at the core of the case are sufficiently unclear and difficult that we

think the proper course is to certify them to the Florida Supreme Court, which can

provide authoritative answers.

                                               I.

       Mercedes Zota was injured when she fell from scaffolding while painting a

mural on the second story ceiling of a home under construction in Lighthouse

Point, Florida. Zota was performing work as a salaried employee of Perla Lichi

Designs and the President of Trompe L’Oeils ‘R’ Us when she was injured.

Trompe L’Oeils and Perla Lichi Designs had contracted with Lighthouse

Intracoastal, Inc., the owner of the premises where Zota was injured, to paint the


       *
         Honorable William Terrell Hodges, United States District Judge for the Middle District
of Florida, sitting by designation.

                                               2
ceiling of that residence. After the incident, Zota and her husband, Miguel Zota,

brought a negligence action against: Lighthouse; Broward Executive Builders,

Inc., the general contractor for the project; and Jack Farji, a fifty percent

shareholder of Lighthouse and the owner of Broward. Lighthouse’s insurer, the

Essex Insurance Company, then filed this action seeking declaratory relief against

Lighthouse, Broward, Farji, and the Zotas. It sought a determination and

declaration of its rights and obligations with respect to the defendants in the

negligence action.

                                         II.

      The facts relevant to the insurance dispute are these. Lighthouse, which is in

the business of building “spec homes,” secured various types of insurance to cover

its activities as a home builder. Part of its insurance coverage is a surplus lines

insurance policy issued by MacDuff Underwriters, Inc. for Essex Insurance (Essex

policy). MacDuff is the surplus lines agent for Essex. The surplus lines policy in

question was delivered by MacDuff to R.A. Brandon & Company. Brandon is

Lighthouse’s producing agent, which means that it has undertaken to secure the

various types of insurance that Lighthouse wanted. When it secured insurance

policies for Lighthouse, Brandon received copies of the policies, reviewed them for

accuracy, and then provided them to Lighthouse. Brandon received a copy of the



                                               3
Essex policy, but Brandon, Essex and MacDuff all failed to provide a copy of it to

Lighthouse.

                                        III.

      In the district court, both Essex and the defendants filed motions for

summary judgment in this declaratory action. Essex contended that the terms of

Lighthouse’s policy preclude coverage. The defendants contended that Essex had

violated Florida Statutes §§ 626.922 and 627.421 by not delivering the policy to

Lighthouse and, therefore, Essex was precluded from denying coverage. As a

fallback position, the defendants contended that the Zota incident was covered

under the policy anyway. The district court agreed with the defendants’ first

contention and granted their motion for summary judgment, declaring that Essex

was precluded from denying coverage because it had failed to deliver the policy to

the insured, as required by Florida Statutes §§ 626.922 and 627.421.

      The defendants subsequently filed a motion for attorney’s fees under Florida

Statute § 627.428. The district court granted that motion and entered a judgment

for fees and costs against Essex and in favor of Lighthouse, Broward and Farji.

Essex has appealed both orders.



                                        IV.



                                          4
      Central to the legal dispute is Florida Statute § 626.922, which provides as

follows:

      Upon placing a surplus lines coverage, the surplus lines agent shall
      promptly issue and deliver to the insured evidence of the insurance
      consisting either of the policy as issued by the insurer or, if such
      policy is not then available, a certificate, cover note, or other
      confirmation of insurance. Such document shall be executed or
      countersigned by the surplus lines agent and shall show the
      description and location of the subject of the insurance; coverage,
      conditions, and term of the insurance; the premium and rate charged
      and taxes collected from the insured; and the name and address of the
      insured and insurer. If the direct risk is assumed by more than one
      insurer, the document shall state the name and address and proportion
      of the entire direct risk assumed by each insurer. A surplus lines
      agent may not delegate the duty to issue any such document to
      producing general lines agents without prior written authority from
      the surplus lines insurer. A general lines agent may issue any such
      document only if the agent has prior written authority from the surplus
      lines agent. The surplus lines agent must maintain copies of the
      authorization from the surplus lines insurer and the delegation to the
      producing general lines agent. The producing agent must maintain
      copies of the written delegation from the surplus lines agent and
      copies of any evidence of coverage or certificate of insurance which
      the producing agent issues or delivers. Any evidence of coverage
      issued by a producing agent pursuant to this section must include the
      name and address of the authorizing surplus lines agent.

Fla. Stat. § 626.922(1). Also relevant to the dispute is Florida Statute § 627.421,

which provides: “Subject to the insurer’s requirement as to payment of premium,

every policy shall be mailed or delivered to the insured or to the person entitled

thereto not later than 60 days after the effectuation of coverage.” Fla. Stat. §

627.421(1).

                                           5
      The district court interpreted these two statutory provisions to require

delivery of the policy directly to the insured. Because the policy was delivered

only to Lighthouse’s producing agent, Brandon, and never delivered directly to

Lighthouse, the court held that Essex had failed to comply with these statutes. The

court concluded that as a penalty or sanction for its failure to comply with the

delivery provisions Essex could not use the language of the policy against

Lighthouse to bar coverage.

      Section 626.922(1) requires that the surplus lines agent, MacDuff in this

case, deliver evidence of the insurance to the insured. Florida law appears to

provide that, “delivery of an insurance policy to an agent constitutes delivery to the

insured.” Reliance Ins. Co. v. D’Amico, 528 So. 2d 533, 534 (Fla. 2d DCA 1988);

see also Prudential Ins. Co. v. Latham, 207 So. 2d 733, 735 (Fla. 3d DCA 1968);

United Nat’l Ins. Co. v. Jacobs, 754 F. Supp. 865, 869 (M.D. Fla. 1990). However,

the district court noted that § 626.922 was amended in 1998 and it pointed out that

none of the relevant decisions addressed the post-amendment version of § 626.922.

The court then concluded that the plain language of § 626.922 requires delivery

directly to the insured, and delivery to the insured’s agent will suffice only where

there is a written delegation of authority to do that.

      By its terms, the first sentence of § 626.922(1) requires a surplus lines agent



                                            6
to issue and deliver evidence of insurance to the insured. Fla. Stat. § 626.922(1)

(“the surplus lines agent shall promptly issue and deliver to the insured evidence of

the insurance . . . .”). The fourth sentence (the written delegation rule) states that

the surplus lines agent may not delegate the duty to issue the evidence of insurance

without prior written authorization from the surplus lines insurer. Fla. Stat. §

626.922(1) (“A surplus lines agent may not delegate the duty to issue any such

document to producing general lines agents without prior written authority from

the surplus lines insurer.”). Finally, the next to last sentence of the subsection

provides that “[t]he producing agent must maintain copies of the written delegation

from the surplus lines agent and copies of any evidence of coverage or certificate

of insurance which the producing agent issues or delivers.” Fla. Stat. § 626.922(1)

(emphasis added).

      The parties in this case dispute the relevance of the amendment to § 626.922

and the legislative history behind that amendment. Before the 1998 amendment, §

626.922 provided:

      Upon placing a surplus lines coverage, the surplus lines agent shall
      promptly issue and deliver to the insured evidence of insurance
      consisting of either the policy as issued by the insurer or, if such
      policy is not then available, a certificate, cover note, or other
      confirmation of insurance.

As a result of the 1998 amendment, the section now reads:



                                            7
      A surplus lines agent may not delegate the duty to issue any such
      document to producing general lines agents without prior written
      authority from the surplus lines insurer. A general lines agent may
      issue any such document only if the agent has prior written authority
      from the surplus lines agent. The surplus lines agent must maintain
      copies of the authorization from the surplus lines insurer and the
      delegation to the producing general lines agent. The producing agent
      must maintain copies of the written delegation from the surplus lines
      agent and copies of any evidence of coverage or certificate of
      insurance which the producing agent issues or delivers.

Fla. Stat. § 626.922(1). The district court found that the 1998 amendment, which

added the written delegation rule to § 626.922, superceded the rule from Florida

case law that delivery to the insured’s agent constitutes delivery to the insured.

      The district court also found that § 627.421(1) applies to this case and

requires delivery to the insured. The parties dispute whether that provision, which

we have already quoted, applies to surplus lines insurers at all. Essex contends that

it is inapplicable but, argues that even if it does apply, the delivery requirement is

satisfied by the delivery of the policy to Lighthouse’s agent. The defendants argue

that § 627.421 does apply to surplus lines insurers and that, like § 626.922, it can

only be satisfied by delivery directly to the insured.

      If there was a violation of § 626.922 or § 627.421, the next question is

whether the appropriate remedy is to preclude the insurer from asserting lack of

coverage under the terms of the policy. One way to view such a remedy is as a

form of equitable estoppel. The general rule in Florida is that equitable estoppel

                                           8
may not be used affirmatively to create or extend coverage under an insurance

contract. Crown Life Ins. Co. v. McBride, 517 So. 2d 660, 661 (Fla. 1987).

Florida courts have recognized an exception and will apply estoppel “to create

insurance coverage where to refuse to do so would sanction fraud or other

injustice.” Id. at 662. However, in this case, the defendants do not allege that

Essex or MacDuff engaged in conduct that would amount to fraud.

      Essex relies on AIU Ins. Co. v. Block Marina Inv., Inc., 544 So. 2d 998 (Fla.

1989). In that case, the trial court held that the insurer was prohibited from

denying coverage under a Florida statute which stated that “liability insurer[s] shall

not be permitted to deny coverage based on a particular coverage defense” unless

the insurer complies with certain notice requirements. Id. at 998. The Florida

Supreme Court quashed the decision of the district court and held that non-

compliance with the statute only prohibited insurers from asserting defenses to

coverage that would otherwise exist; it did not preclude the insurer from denying

coverage “where the coverage sought is expressly excluded or otherwise

unavailable under the policy.” Id. at 1000. The opinion notes that the general rule

that estoppel may not be used to create coverage is a “long-standing rule” not

altered by the statute. Id. It also states that interpreting the statute to preclude

insurers from denying coverage based on an express coverage exclusion in the



                                            9
policy would have the effect of re-writing the policy and this would raise “grave

constitutional questions [regarding] the impairment of contracts and the taking of

property without due process of law.” Id.

      The defendants attempt to confine the scope of the AIU decision to

interpretation of the particular Florida statute at issue in that case. A strong

argument can be made, however, that the AIU decision evidences the Florida

Supreme Court’s reluctance to do what the defendants seek here, which would

have the effect of altering the terms of the insurance contract to create coverage

that is not provided for under the policy. See id.

      Two Florida decisions have addressed whether the appropriate remedy for a

violation of § 627.421 is to prevent the insurer from denying coverage. In ZC Ins.

Co. v. Brooks, the Fourth District Court of Appeal of Florida found that the insurer

had failed to comply with § 627.421 because it had not provided the insured with

any information on the exclusion at issue. 847 So. 2d 547, 550 (Fla. 4th DCA

2003). Because of that failure, the court held that the insurer could not rely on that

exclusion to deny coverage even though the claim at issue otherwise would have

been defeated by the exclusion if applied. Id. at 551. However, an important

consideration in the court’s analysis was the fact that the insurer had given

documents to the insured and those documents seemed to indicate that there was



                                           10
coverage. See id. The court held that providing the insured with documents that

defined the coverage without also defining the applicable exclusions was

tantamount to fraud by omission. Id. Because of that fraud, the court found that

the situation fell under the exception and applied promissory estoppel to create

coverage. Id. In the case before us no one contends that there was any fraud,

intentional or otherwise.

      In another case, the Fifth District Court of Appeal refused to extend

coverage despite the insurer’s violation of § 627.421. In T.H.E. Ins. Co. v. Dollar

Rent-A-Car Sys., Inc., 900 So. 2d 694 (Fla. 5th DCA 2005), the policy was not

delivered to the insured, but the exclusion at issue was for driving while

intoxicated and the rental agreement that the insured received clearly indicated that

driving the vehicle under the influence of alcohol would deprive the renter of

insurance coverage. Id. at 695. The court rejected the argument that the insurer’s

failure to deliver a copy of the policy prevented application of the exclusion. Id. It

reasoned that the purpose of the statute is to provide notice of exclusions to the

insured “and this was accomplished by placing the notice in large print, in plain

language, in the rental agreement.” Id. The court explained that “[p]rejudice to

the insured should be considered when imposing any sanction for failure to deliver

a policy of insurance as required by section 627.421.” Id. at 696. The insured was



                                          11
not prejudiced by the failure to deliver a copy of the policy in that case because the

rental agreement itself gave him notice of the exclusion. Id.

      If the district court erred in holding that Essex was precluded from asserting

lack of coverage because of its violation of Florida Statutes §§ 626.922 and

627.421, then the Court must determine whether Essex was entitled to judgment

based on two relevant coverage exclusions in the policy. The first is the contractor,

builder, or developer exclusion which provides:

      If you are a contractor, builder or developer, there is no coverage
      under this policy for . . .

      “Bodily injury,” “personal injury,” or “property damage” caused by
      acts of independent contractors/sub-contractors contracted by you or
      on your behalf unless you obtain Certificates of Insurance from them
      providing evidence of at least like coverage and limits of liability as
      provided by this policy and naming you as an additional insured.

      “Bodily injury,” “personal injury,” or “property damage” sustained by
      any independent contractor/sub-contractor, or any employee, leased
      worker, temporary or volunteer help of same, unless a Named Insured
      or employee of a Named Insured is on site, at the time of the injury or
      damage, and the Named Insured’s actions or inactions are the direct
      cause of the injury or damage, or the injury or damage is directly
      caused by an employee of the Named Insured.

Lighthouse did not obtain the required certificates of insurance covering Zota, so

there is no coverage under the first paragraph if Lighthouse is a “contractor, builder

or developer,” and there is none under the second paragraph unless an employee of

Lighthouse was on site at the time of Zota’s accident and directly caused her

                                          12
injuries. Although Lighthouse asserts that Jack Farji was on site at the time of the

Zota incident, it concedes that there is no evidence that Farji’s actions were the

direct cause of Zota’s injury. Therefore, there would be no coverage if Lighthouse

is a “contractor, builder or developer.”

      It is well-established in Florida that “an insurer, as the writer of an insurance

policy, is bound by the language of the policy, which is to be construed liberally in

favor of the insured and strictly against the insurer.” Berkshire Life Ins. Co. v.

Adelberg, 698 So. 2d 828, 830 (Fla.1997). Therefore, if there is an ambiguity in an

insurance policy, that ambiguity should be construed against the insurer. Purrelli

v. State Farm Fire & Cas. Co., 698 So. 2d 618, 620 (Fla. 2d DCA 1997). An

insurance policy is ambiguous “if it is susceptible to two or more reasonable

interpretations that can fairly be made.” Cont’l Cas. Co. v. Wendt, 205 F.3d 1258,

1261 (11th Cir. 2000). The court may look to parol evidence in interpreting an

insurance contract only if there is an ambiguity. Fireman’s Fund Ins. Co. v.

Tropical Shipping and Const. Co., 254 F.3d 987, 1003 (11th Cir. 2001).

      The parties dispute the role Lighthouse played with respect to the property

where the Zota incident occurred. The district court did not make any findings for

summary judgment or other purposes regarding the activity Lighthouse actually

conducted at this residence. Lighthouse contends that it was merely the owner of



                                           13
the land where the home was being constructed and that Broward was the

contractor. Lighthouse cites the Commercial Liability Declarations page of the

policy issued by Essex. On that page Essex describes Lighthouse’s business

activity as: “Owner of land where dwellings are being built.” Lighthouse also

argues that the terms are ambiguous because they are susceptible to more than one

reasonable interpretation and, therefore, the terms should be construed against

Essex as the drafter.

      Essex, of course, contends that the terms “builder, contractor and developer”

are plain and that Lighthouse fits within the plain and ordinary meaning of those

terms. Essex also submitted evidence of another policy that Lighthouse obtained

to cover the same property where Mercedes Zota was injured. On that policy

Lighthouse admitted that it was the “builder” and “contractor” for that property.

Essex also submitted evidence from other policies that Lighthouse had obtained in

the past where it had described itself as a “General Contractor–Home Builders”

and “General Contractor–Builder–Single family dwelling.” Essex contends that it

would be inappropriate for Lighthouse to now argue that it does not fit within the

definition of those terms or that they are ambiguous when it used the same terms to

describe its activities in other insurance policies.

      There is a second provision of the insurance contract which is relevant to



                                            14
this dispute. An exclusion in Lighthouse’s policy provides:

      This insurance does not apply to any claim, suit, cost or expense
      arising out of “bodily injury” to . . . any employee of a Named Insured
      arising out of and in the course of employment or while performing
      duties related to the conduct of the Insured’s business . . .

The parties dispute whether Zota was an employee of Lighthouse under the policy.

      Contending that Zota was an employee of Lighthouse, Essex points out that

in Lighthouse’s answer in the underlying negligence action it stated that it was the

statutory employer of Zota for purposes of the worker’s compensation laws of

Florida. Essex argues that even if this admission does not bind Lighthouse it raises

an issue of fact as to whether Zota was an employee of Lighthouse. The

defendants respond by citing the deposition testimony of the Associate Vice

President of Essex. They contend that in his testimony he admitted that Zota was

not an employee of Lighthouse as the term is defined in the policy. As Essex

apparently concedes, the Vice President stated in his deposition that Essex should

have admitted that Zota was not an employee as defined in the policy.

      If the party’s contrary admissions do not determine the factual issue then it

appears that neither party is entitled to summary judgment on this issue. The

parties rely solely on the other side’s admissions and do not offer any other

evidence regarding the particulars of the relationship between Zota and

Lighthouse. In fact, Essex concedes that if Lighthouse is not bound by its

                                          15
admission that it was the “statutory employer,” then the issue is a question of fact

for trial.

                                          III.

       If summary judgment for the defendants is due to be affirmed, or if they

otherwise obtain a judgment in their favor, there is an attorney’s fees issue that

must be decided. The district court awarded the defendants attorney’s fees under

Florida Statute § 627.428, which provides:

       Upon the rendition of a judgment or decree by any of the courts of this
       state against an insurer and in favor of any named or omnibus insured
       or the named beneficiary under a policy or contract executed by the
       insurer, the trial court or, in the event of an appeal in which the
       insured or beneficiary prevails, the appellate court shall adjudge or
       decree against the insurer and in favor of the insured or beneficiary a
       reasonable sum as fees or compensation for the insured’s or
       beneficiary’s attorney prosecuting the suit in which the recovery is
       had.

Fla. Stat. § 627.428(1). Section 627.428 is found in Part II of Chapter 627.

       Essex challenges the application of § 627.428 to surplus lines insurers,

arguing that under the plain language of Fla. Stat. § 627.021, none of Chapter 627

applies to them. Section 627.021 is found in Part I of Chapter 627 and is entitled

“Scope of this part.” Fla. Stat. § 627.021 (emphasis added). It states that:

       (2) This chapter does not apply to: . . .

       (a) Reinsurance, except joint reinsurance as provided in s. 627.311. . . .



                                                 16
        (e) Surplus lines insurance placed under the provisions of ss.

        626.913–626.937.

Fla. Stat. § 627.021(2) (emphasis added). Essex argues that no statutory

construction is necessary because the language of § 627.021(2)(e) is clear on its

face.

        The defendants respond with a number of arguments. First, they contend

that the title of § 627.021 indicates that the legislature intended that only Part I of

Chapter 627 not apply to surplus lines insurers. They cite Florida Statute §

627.401 in support of their position. That section is found in Part II of Chapter 627

and entitled “Scope of this part.” It provides:

        No provision of this part of this chapter applies to:

        (1) Reinsurance. . . .

Fla. Stat. § 627.401. The defendants argue that if § 627.021 did apply to the whole

chapter there would be no need for the legislature to include reinsurance in §

627.401 because it would already be excluded from all of chapter 627.

        Second, the defendants point to two Florida decisions that hold § 627.428

applies to surplus lines insurers. In English & Am. Ins. Co. v. Swain Groves, Inc.,

218 So. 2d 453 (Fla. 4th DCA 1969), the court held that § 627.0127 (which is now

§ 627.428) applied to a surplus lines insurer. Id. at 458. Thereafter, in 1988, the



                                            17
Florida legislature amended § 627.021 to add the provision: “This chapter does not

apply to . . . surplus lines insurance placed under the provisions of §§

626.913–626.937.”

      In 1995 the same intermediate appellate court was presented with the same

question. See Chacin v. Generali Assicurazioni Generali Spa, 655 So. 2d 1162

(Fla. 3d DCA 1995). In answering the question the same way it had in English

before the amendment, the court’s only discussion was to block quote the relevant

portion of the English decision. See id. at 1162. It did not mention the amendment

to § 627.021.

      Essex argues that Chacin is flawed because it relied on English without

taking note of the language of § 627.021 which excludes surplus lines insurance

from chapter 627. The defendants argue that Chacin is the law of Florida and must

be applied. They note that Chacin was decided more than ten years ago and there

has been no legislative action on the subject since then.

      The district court agreed with the defendants regarding the meaning of §

627.021. It reasoned:

      The titles of both sections, “Scope of this Part,” indicate that the
      exclusions only apply to each part, and not the entire chapter.
      Furthermore, had the legislature intended for § 627.021 to apply to the
      entire chapter, it would not have included “Reinsurance” under both
      sections §§ 627.[021] and 627.401. In other words, if the legislature
      had intended for § 627.[021] to apply to the entire chapter, the

                                          18
      legislature would only have excluded joint reinsurance under §
      627.401, rather than all reinsurance, since that was the only form of
      reinsurance permitted under § 627.[021]. The fact that the statute
      excludes “reinsurance” in two separate parts indicates that the first
      exclusion was not intended to apply to the entire chapter, but only to
      apply to the first part.

      This interpretation is also in accordance with the court’s decision in
      Chacin . . . . Plaintiff contends that the holding in Chacin is no longer
      applicable because it relied on the decision in English . . . which was
      based on § 627.021 prior to its amendment. . . .

      Plaintiff’s argument lacks merit, however, given that Chacin was
      decided after the amendment to Fla. Stat. § 627.021. . . . In Chacin,
      the court did not exclusively cite the decision in English, but made
      specific mention of the relevant statutes in their amended form.
      Therefore, the Court finds that the holding in Chacin is still good law.


      Essex contends that, although the title of § 627.021 might create some

ambiguity, the language of § 627.021(2)(e) is clear on its face. It cites Askew v.

MGIC Dev. Corp. of Fla., 262 So. 2d 227 (Fla. 4th DCA 1972), which interpreted

a Florida statute with conflicting language and section headings. The statutory

provision created a sixty day limitation on filing taxpayer suits for assessment,

while the title of the section indicated that the limitation applied only to appeals

from the decisions of the Board of Equalization. The court rejected the argument

that the limitation applied only to the Board’s decisions as “sophistry and

caution[ed] that the statutory section headings, inserted by the statutory revisors

and/or legislative service bureau as a convenient visual reference to the content, are

                                           19
not themselves a part of the statute.” Id. at 228.

      At least when we are dealing with federal law, the heading or title of a

statute cannot trump the plain meaning of the text. The Supreme Court has

instructed us that “the title of a statute and the heading of a section cannot limit the

plain meaning of the text. For interpretive purposes, they are of use only when

they shed light on some ambiguous word or phrase. They are but tools available

for the resolution of a doubt. But they cannot undo or limit that which the text

makes plain.” Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331

U.S. 519, 528–29, 67 S. Ct. 1387, 1392 (1947) (citations omitted). In accordance

with that mandate this Court has held repeatedly that section headings may only be

used to interpret a statute when the statute is ambiguous. See, e.g., United States v.

Ferreira, 275 F.3d 1020, 1029 (11th Cir. 2001); Scarborough v. Office of Personnel

Mgmt., 723 F.2d 801, 811 (11th Cir. 1984). If this were a question of federal law

and the interpretation of a federal statute, we would not hesitate to hold that the

district court had erred in using the heading of a statutory section to “undo . . . that

which the text makes plain.” See Brotherhood, 331 U.S. at 529, 67 S. Ct. at 1392.

But this case arises under Florida law and involves the interpretation of a Florida

statute, and there are no decisions of that state’s highest court precisely on point as

to the meaning and effect of Florida Statute § 627.428. Since we are certifying



                                           20
other issues of state law to the Florida Supreme Court, we think it prudent to send

this one along with them.1

                                                 IV.

       As we have explained, there are a number of unresolved issues of Florida

law in this case. The Florida Supreme Court is the only body that can definitively

decide them. Therefore, we certify the following questions to that Court:

1.     Whether Fla. Stat. § 626.922 or § 627.421, or both, require delivery of

       evidence of insurance directly to the insured, so that delivery to the insured’s

       agent is insufficient.

2.     Whether, if the delivery requirement of Fla. Stat. § 626.922 or § 627.421, or

       both, was not met in this case the appropriate remedy is to preclude the

       insurer from asserting lack of coverage under the terms of the policy.

3.     If either the first or second question is answered in the negative, whether

       Lighthouse is a “builder, contractor or developer” under the terms of the

       insurance contract, so that there is no coverage.



       1
         The final judgment issued by the district court included attorney’s fees and costs in
favor of Lighthouse, Farji and Broward. Broward was not insured under the Essex policy and,
therefore, is not eligible for attorney’s fees under § 627.428. Even if the district court did not err
in awarding attorney’s fees, both parties agree that it did err in awarding them in favor of
Broward. As a result, if the part of the final judgment awarding attorney’s fees is not to be set
aside in its entirety, it must be altered so that it is in favor of Lighthouse and Farji only. Essex
does not contend that this would affect the amount of the award.


                                                  21
4.     If either the first or second question is answered in the negative, whether

       Zota is an employee of Lighthouse under the policy.

5.     If Lighthouse is entitled to coverage, whether Fla. Stat. § 627.428 applies to

       surplus lines insurers.

Of course, our phrasing of the certified questions, as well as the order in which we

list them, is merely suggestive and not intended to restrict the Florida Supreme

Court in any way in its consideration of the relevant state law issues. Swire Pacific

Holdings Inc. v. Zurich Ins. Co., 284 F.3d 1228, 1234 (11th Cir. 2002). It may

restate the issues as it sees fit and is free to determine that a resolution of all the

issues we have posed is not necessary to dispose of the case. In short, we leave all

aspects of the state law issues in the Florida Supreme Court’s hands. That Court’s

assistance will be, as always, greatly appreciated.

       The entire record on appeal in this case, together with copies of the briefs of

the parties, is transmitted herewith.

       QUESTIONS CERTIFIED.




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