           Case: 12-12327   Date Filed: 02/06/2013   Page: 1 of 17

                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-12327
                       ________________________

                 D.C. Docket No. 8:10-cv-02387-JSM-EAJ

AUTO-OWNERS INSURANCE COMPANY,
a Michigan corporation,


                                         Plaintiff-Counter Defendant-Appellee,


                                  versus


E.N.D. SERVICES, INC.,
a Florida corporation,
SOOSIE L. LAZENBY,
GEORGE W. SPOWART,


                                    Defendants-Counter Claimants-Appellants.

                       ________________________

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

                            (February 6, 2013)
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Before DUBINA, HULL, and ALARCÓN, ∗ Circuit Judges.

HULL, Circuit Judge:

       Defendants-Appellants E.N.D. Services, Inc. (“E.N.D.”), Soosie Lazenby,

and George W. Spowart appeal the district court’s order granting summary

judgment in favor of Plaintiff-Appellee Auto-Owners Insurance Co. (“Auto-

Owners”). In this declaratory judgment action, Plaintiff Auto-Owners sought a

ruling as to what, if any, obligations it owed its insured, the Defendant, E.N.D.

       Prior to this action, Defendants Lazenby and Spowart had received a default

judgment against the insured, E.N.D., in a separate underlying state court action.

Defendant E.N.D. then assigned its rights under its Auto-Owners insurance policy

to Defendants Lazenby and Spowart. In this declaratory judgment action,

Defendants moved for summary judgment, claiming coverage under the policy.

       The district court held that, because of a coverage exclusion, Plaintiff Auto-

Owners was not obligated to cover or defend Defendant E.N.D. in connection with

Defendants Lazenby and Spowart’s claims against E.N.D. After review, we affirm

the district court’s decision.




       ∗
        Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
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                                I. BACKGROUND

A.     The Policy

       In 2007, Dominic Minicozzi formed Defendant E.N.D., serving as its sole

owner and employee. At that time, Defendant E.N.D. began offering home

inspection services in the area around Spring Hill, Florida. Also in 2007, E.N.D.

purchased a commercial general liability insurance policy from Auto-Owners (the

“policy”).

       The policy contains several exclusions from coverage. The exclusion at

issue here is prominently labeled, “EXCLUSION--INSPECTION, APPRAISAL

AND SURVEY COMPANIES,” (the “exclusion”). This exclusion provides that

the policy “does not apply to ‘bodily injury,’ ‘property damage,’ ‘personal injury,’

or ‘advertising injury’ for which the insured may be held liable because of the

rendering or failure to render professional services in the performance of any . . .

inspection . . . .”

B.     The Underlying State Court Action

       On April 9, 2007, Defendant E.N.D. entered into an agreement (the

“Inspection Agreement”) with Defendant Lazenby to inspect a home located at 647

Ponce De Leon Boulevard, Belleair, Florida that Defendants Lazenby and Spowart

planned to purchase (the “Lazenby Property”). In the Inspection Agreement,

E.N.D. promised that it would perform an inspection in accordance with certain


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professional standards, as discussed below. Thereafter, E.N.D. completed the

inspection.

       Defendants Lazenby and Spowart then finalized their purchase of the

Lazenby Property. Upon moving into the home, they discovered structural defects

caused by insect infestation and water damage. Convinced that these defects

existed when E.N.D. performed its inspection, Defendants Lazenby and Spowart

concluded that E.N.D. had failed to fulfill its obligations under the Inspection

Agreement.

       On May 6, 2009, Lazenby and Spowart filed a complaint in the Sixth

Judicial Circuit Court of Florida against E.N.D. and other defendants (the

“underlying state court action”). Lazenby and Spowart brought claims against

E.N.D. for breach of contract, negligence, and a violation of the Florida Deceptive

and Unfair Trade Practices Act (“FDUTPA”). They based each claim on E.N.D.’s

inspection of the Lazenby property.

       Initially, Auto-Owners, pursuant to the policy, defended E.N.D. in the state

court action. However, soon after the underlying state court action began, Auto-

Owners determined that because of the professional services exclusion, it was not

obligated to defend E.N.D. or to indemnify it for any adverse judgment levied by

the state court.




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       After Auto-Owners withdrew its defense, E.N.D. did not obtain its own

counsel or make any further effort to defend itself. Accordingly, on February 11,

2010, the state court entered a default judgment against E.N.D., awarding Lazenby

and Spowart $245,940.00 in damages. Instead of immediately attempting to

collect this judgment from E.N.D., Lazenby and Spowart then accepted an

assignment of E.N.D.’s rights and claims against Auto-Owners under the policy. 1

C.     Auto-Owners’s Declaratory Judgment Action

       On October 22, 2010, Plaintiff Auto-Owners commenced this declaratory

judgment action against Defendants E.N.D., Lazenby, and Spowart. Auto-Owners

asked the district court to declare that the policy does not afford E.N.D. coverage

for Lazenby and Spowart’s claims and that Auto-Owners is therefore not required

to pay Lazenby and Spowart any portion of the state court’s judgment.

       On March 18, 2011, Defendants moved for summary judgment, arguing that

the professional services exclusion applies exclusively to inspection services that

can only be performed by those who have specialized training, knowledge, and

skill. Because Minicozzi (the owner and only employee of E.N.D.) received

minimal specialized training and had no experience inspecting homes when he




       1
        When they accepted the assignment, Lazenby and Spowart reserved their right to
attempt to obtain any deficiency from E.N.D. after exhausting all means of collecting from Auto-
Owners.
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formed E.N.D., Defendants asked the district court to find that the exclusion does

not apply to E.N.D.’s inspection of the Lazenby Property.

      The district court denied Defendants’ motion. It concluded that the

exclusion’s plain language made clear that the policy does not provide coverage

for home inspections like E.N.D.’s inspection of the Lazenby Property. The

district court first noted that the language in the exclusion applies broadly to “the

performance of any . . . inspection . . . .” It then observed that the phrase

“inspection, appraisal, [or] survey” indicates that the parties intended the exclusion

to specifically apply to real estate services. Based on this language, the district

court determined that the exclusion covers services rendered in the performance of

a home inspection “as a home inspection is undeniably both a type of inspection

and related to the real estate business.”

      Next, the district court concluded that such home inspection services are

inherently “professional,” and therefore covered by the exclusion. The district

court articulated these five reasons for its conclusion: (1) the parties to the

Inspection Agreement “clearly provided for the deliverance of professional

services . . .”; (2) after the events at issue occurred, Florida’s legislature enacted a

statute requiring specific training for, and licensing of, home inspectors; (3) “home

inspections require specialized skills and knowledge unavailable to the general

public”; (4) various professional organizations have long promulgated professional


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standards for the home inspection industry; and (5) courts construing similar

exclusions have held such CGL policy provisions to apply to “non-traditional

professional[s] as long as the exclusion of such services was fairly encompassed by

the policy.”

       After determining that Defendants were not entitled to summary judgment,

the district court informed the parties that it was considering sua sponte entering

summary judgment in favor of Plaintiff Auto-Owners. Defendants received 14

days to file a response stating why Plaintiff Auto-Owners was not entitled to

summary judgment, in light of the district court’s conclusion regarding the

exclusion. The district court cautioned Defendants that it “[would] not entertain

any further arguments purporting to show that the [exclusion] is inapplicable.”

       Defendants did not heed the district court’s admonition. In response to the

order, they filed a motion requesting that the district court reconsider its decision

regarding the exclusion’s applicability. Accordingly, the district court denied the

motion for reconsideration and sua sponte entered summary judgment in favor of

Plaintiff Auto-Owners on all counts.

       Defendants timely appealed the district court’s order. 2


       2
          We review a district court’s declaratory judgment ruling de novo where, as here, the
district court adjudicated a question of law based on its interpretation of an insurance policy. See
Royal Ins. Co. of Am. v. Whitaker Contracting Corp., 242 F.3d 1035, 1040 (11th Cir. 2001). In
addition, in this diversity case, we apply the substantive law of the forum state, Florida. See id.;
see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822 (1938). The parties
agree that Florida law applies to this insurance dispute.
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                                     II. DISCUSSION

       On appeal, we consider whether the district court erred in finding that

E.N.D. rendered a professional service in the inspection of the Lazenby Property. 3

       Under Florida law, insurance contracts like the one at issue here “are

construed according to their plain meaning, with any ambiguities construed against

the insurer and in favor of coverage.” U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.

2d 871, 877 (Fla. 2007); see also Penzer v. Transp. Ins. Co., 29 So. 3d 1000, 1005

(Fla. 2010); Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla.

2003) (“An ambiguous provision is construed in favor of the insured and strictly

against the drafter.”). An insurance contract is ambiguous when “the language is

susceptible to more than one reasonable interpretation, one providing coverage and

the other limiting coverage.” State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So.

3d 566, 570 (Fla. 2011) (internal quotations omitted); see also Garcia v. Fed. Ins.

Co., 969 So. 2d 288, 291 (Fla. 2007) (same). However, “simply because a

provision is complex and requires analysis for application, it is not automatically

rendered ambiguous.” Swire Pac. Holdings, 845 So. 2d at 165. When a policy

provision is unambiguous, the provision is given its plain meaning. See, e.g.,

Penzer, 29 So. 3d at 1005.


       3
        On appeal, Defendants do not claim lack of adequate notice before the district court’s
summary judgment ruling, but instead focus on the merits of the coverage issue involving the
exclusion.
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      Florida courts narrowly construe policy provisions that purport to exclude

coverage. See Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000)

(“[E]xclusionary clauses are construed even more strictly against the insurer than

coverage clauses.”); see also Chandler v. Geico Indem. Co., 78 So. 3d 1293, 1300

(Fla. 2011). Nevertheless, “if a policy provision is clear and unambiguous, it

should be enforced according to its terms whether it is a basic policy provision or

an exclusionary provision.” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913

So. 2d 528, 532 (Fla. 2005); see also Am. Equity Ins. Co. v. Van Ginhoven, 788

So. 2d 388, 390 (Fla. 2001) (“Clearly worded exclusions in an insurance policy are

to be enforced as long as they are clear, unambiguous and do not violate public

policy.”).

      We agree with the district court that the term “professional services” as used

in the exclusion is unambiguous. Giving the term its plain meaning, we conclude

that the district court did not err when it determined: (1) that E.N.D. was not

entitled to coverage under the policy for damages that resulted from E.N.D.’s

inadequate inspection of the Lazenby Property; and (2) that, thus, Lazenby and

Spowart, as assignees of E.N.D., have no claim against Auto-Owners under the

policy.

      Here, the CGL policy exclusion uses but does not define “professional

services.” Florida’s Third District Court of Appeal (“Florida DCA”) recently


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confronted similar circumstances in Aerothrust Corp. v. Granada Insurance Co.,

904 So. 2d 470 (Fla. 3d Dist. Ct. App. 2005). 4 There, a CGL policy contained a

similar professional services exclusion. Aerothrust, 904 So. 2d at 471–72. The

insured inspected and maintained hoists at a manufacturer’s plant. Id. at 471.

Five months after the insured inspected a hoist, the hoist failed while the

manufacturer was using it to lower a jet engine. Id. The failure caused damage to

the jet engine, resulting in financial losses to the manufacturer. Id. The

manufacturer sued the insured, alleging that the insured’s negligent inspection of

the hoist proximately caused its losses. Id. The insurer then sought a declaratory

judgment that it had no duty to defend or indemnify its insured, based in part on

the professional services exclusion. Id.5

       In Aerothrust, the Florida trial court entered summary judgment in favor of

the insurer based on the professional services exclusion. Id. at 472. The Florida

       4
         The Supreme Court of Florida has not considered this precise issue. Therefore, in this
diversity case, we must predict how that court would rule. Molinos Valle Del Cibao, C. por A. v.
Lama, 633 F.3d 1330, 1348 (11th Cir. 2011). Although we are not bound by decisions of the
Florida District Courts of Appeal, those courts’ decisions “provide data for this prediction.” Id.
Accordingly, we apply the intermediate appellate courts’ decisions unless we find “persuasive
evidence that the highest state court would rule otherwise.” Bravo v. United States, 577 F.3d
1324, 1325 (11th Cir. 2009) (per curiam) (internal quotation omitted). We find no such evidence
here.
       5
         The professional services exclusion at issue in Aerothrust provided, in part, “that the
insurance does not apply to property damage that occurs ‘due to the rendering or failing to render
any professional services or treatments.’” 904 So. 2d at 472. The professional services
exclusion featured “a non-exclusive list of [professional] services . . . .” Id. The list included:
“legal, accounting, or advertising services; engineering, drafting, surveying, or architectural
services; supervisory, inspection, or appraisal services; medical services; cosmetic services;
testing or consulting services; and data processing or computer programming services.” Id.
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DCA reversed as to the professional services exclusion. Id. 6 The Florida DCA

began by noting that the CGL policy at issue did not define the term “professional

services.” Id. Thus, the Florida DCA turned to the dictionary definition of

“professional,” given as, “[a] person who belongs to a learned profession or whose

occupation requires a high level of training and proficiency.” Id. (quoting Black’s

Law Dictionary 1246 (8th ed. 2004) (alteration in original)).

       In light of this definition, the Florida DCA concluded that, although the

professional services exclusion at issue referred to “inspection . . . services,” “only

those inspection services which require specialized training should be considered

professional services.” Id. The hoist inspection services at issue did not meet

these criteria. Id. The Florida DCA stressed that: (1) the insured inspection firm

did not require its inspectors “to have any specialized training or experience”; (2)

there was “no entity that certifie[d] or accredit[ed] people who perform[ed] such

[hoist] inspections, or that regulate[d] or set[] forth standards for such personnel”;

and (3) this suggested that hoist inspecting did not require “a high level of training

and proficiency” and therefore was not a “professional service.” Id.

       Like the Florida DCA in Aerothrust, we consider whether, at the time that

the events occurred here, a Florida home inspector like E.N.D performs a

professional service and receives “specialized training” before inspecting a home.

       6
        The Florida DCA affirmed the trial court’s conclusion as to a separate policy exclusion,
and therefore did not remand. Id. at 472–73.
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       First, during the relevant period, industry standards existed for home

inspectors. The American Society of Home Inspectors, Inc. (the “ASHI”), formed

in 1976, describes itself as a “not-for-profit professional association for home

inspectors” and states that its purpose is “to establish and advocate high standards

of practice and a strict code of ethics for [its] member community.” See About the

American Society of Home Inspectors, Inc., American Society of Home

Inspectors, http://www.ashi.org/about/ (last visited Feb. 5, 2013) (emphasis

added). 7 The ASHI Standards of Practice (the “ASHI Standards”) became

effective on October 15, 2006 and set forth precise requirements for the competent

performance of a home inspection. See American Society of Home Inspectors,

Inc., ASHI Standards of Practice (2006), available at

http://www.homeinspector.org/docs/standards.pdf (last visited Feb. 5, 2013). To

comply with these ASHI Standards, a home inspector needs specialized skills and

training. This contrasts with Aerothrust, where no entity set forth standards for

hoist inspection. See 904 So. 2d at 472.

       Second, E.N.D. specifically promised Lazenby and Spowart that its

inspection of the Lazenby Property would comply with the ASHI Standards. 8 In


       7
           We take judicial notice of these facts. See Fed. R. Evid. 201(b).
       8
        We do not treat the Inspection Agreement as controlling our analysis. Rather, we treat it
is as merely one factor among many suggesting that E.N.D.’s inspection of the Lazenby
Property, like all home inspections, was a “professional service,” within the meaning of the
exclusion. The Inspection Agreement merely confirms that Defendants Lazenby and Spowart,
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the Inspection Agreement, E.N.D. and Lazenby and Spowart “understood and

agreed that [E.N.D.’s] inspection [would] be performed according to the

STANDARDS OF PRACTICE of the AMERICAN SOCIETY OF HOME

INSPECTORS, INC. . . . .” Moreover, in promotional materials that Lazenby and

Spowart received before they contracted with E.N.D., E.N.D. informed consumers

that “[a] close look by a knowledgeable professional [could] provide a wealth of

valuable information . . . .” E.N.D. then purported to be “a truly professional

property inspection firm . . . .”

       Third, in the underlying state court action, Lazenby and Spowart alleged that

E.N.D. breached the Inspection Agreement by failing to provide them with an

inspection report “prepared by a knowledgeable professional inspector” and

“completed in a manner which exceeded the stringent requirements of . . . the

[ASHI].” As for the negligence claim, Lazenby and Spowart alleged that E.N.D.

“undertook a duty to [them] to conduct an inspection . . . and to prepare an accurate

report of its inspection in a manner exceeding the stringent requirements of ASHI .

. . .” Lazenby and Spowart alleged that E.N.D. negligently breached this duty of

care. 9 The fact that E.N.D. ultimately failed to comply with the ASHI Standards


before E.N.D. inspected the Lazenby Property, were aware that home inspections generally are
“professional services.”
       9
        As for the FDUTPA claim, Lazenby and Spowart alleged that E.N.D. made false
representations to them regarding its ability to “provide a report exceeding the stringent
requirements of ASHI as a result of a thorough inspection of readily accessible areas of the
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does not change the fact that, in 2007, the ASHI Standards existed to ensure that

home inspectors like Minicozzi, who voluntarily chose to be governed by them,

had adequate training and skills.

       It is true that, in 2007, the State of Florida did not require home inspectors to

be licensed. Only in 2010 did Florida’s statutes regulating the home inspection

industry take effect. See Fla. Stat. §§ 468.83–468.8325.10 We view the State’s

decision to formally regulate the home inspection industry as an acknowledgement

of the industry’s preexisting character as one that provides services that are

professional in nature and is therefore in need of state regulation. 11

       Fourth, we also recognize that E.N.D.’s Minicozzi stated that, before he

began inspecting homes for E.N.D., he received “on-the-job training” from an

experienced home inspector to “acquaint [him] with the business.” Defendants

argue that, because Minicozzi received only on-the-job training, he did not render a

[Lazenby] Property . . . .” This false representation “amount[ed] to unfair methods of
competition, or unconscionable, deceptive, or unfair acts or practices . . . in violation of the
[FDUTPA].”
       10
          The Florida Legislature enacted these provisions during its 2007 session, and the
governor of Florida approved them on June 27, 2007. See Act of June 27, 2007, No. 2234, 2007
Fla. Sess. Laws Serv. 235 (2007). However, the enacting legislation provided that the statutes
would not take effect until July 1, 2010. Id. The provisions require anyone who wishes to
perform home inspections in Florida to obtain a license, which the State will issue only after the
applicant completes certain coursework. Fla. Stat. §§ 468.8313–14. Moreover, the provisions
impose continuing education requirements on licensed home inspectors. Fla. Stat. § 468.8316.
       11
         Significantly, Florida law now defines “[h]ome inspection services” as “a limited visual
examination of [certain] readily accessible installed systems and components of a home . . . for
the purposes of providing a written professional opinion of the condition of the home.” Fla. Stat.
§ 468.8311(4).
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“professional service” when he inspected homes for E.N.D. Defendants are wrong.

Courts construing similar provisions have repeatedly held that a service is

“professional” even though the skills that it demands can be acquired primarily

through work experience. See, e.g., Nat’l Ben Franklin Ins. Co. of Ill. v. Calumet

Testing Servs., Inc., 60 F. Supp. 2d 837, 845 (N.D. Ind. 1998) (“For [a professional

services] exclusion to apply, the activity need not be one for which traditional

professional training, e.g. doctor, lawyer or engineer, is required.”); Hollingsworth

v. Commercial Union Ins. Co., 256 Cal. Rptr. 357, 362 (Cal. Ct. App. 1989) (ear-

piercing constituted the rendering of professional services, although “the activity . .

. did not require extensive training or technical skill” and the only training that the

insured and her employees received was a brief “instruction in the use of the ear-

piercing instrument by a manufacturer’s representative”).

      Perhaps Minicozzi was inadequately trained or would have benefitted from

additional training before he began performing home inspections unassisted.

However, in concluding that E.N.D. rendered “professional services,” we “focus[]

upon the particular act itself, as opposed to the character of the individual engaging

in the act.” Estate of Tinervin v. Nationwide Mut. Ins. Co., 23 So. 3d 1232, 1237

(Fla. 4th Dist. Ct. App. 2009). The act undertaken by E.N.D., through

Minicozzi—inspecting a home—required specialized skills and training in order to




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be completed effectively. Minicozzi’s alleged shortcomings simply prove this

proposition.

      E.N.D. cannot take refuge in Minicozzi’s alleged incompetence in home

inspections. A source provider’s incompetence does not render “professional

services” exclusions, like the one here, inapplicable. In effect, Defendants ask us

to construe the professional services exclusion so that the least competent home

inspector, i.e., one who was not adequately trained in the first place, would receive

coverage from a CGL policy for a work-related activity, but a competent, well-

trained home inspector would not. The test is not Minicozzi’s level of competence

but whether home inspections require specialized skills and training. They do and

thus the professional services exclusion applies.

                                III. CONCLUSION

      E.N.D. rendered a “professional service” when it inspected the Lazenby

Property. The exclusion’s plain language establishes that Auto-Owners owed no

duty to defend E.N.D. in the underlying state court litigation where Lazenby and

Spowart alleged that E.N.D. failed to competently inspect the Lazenby Property.

Because Auto-Owners owed no duty to defend E.N.D., it does not owe any duty to

indemnify E.N.D. for the adverse monetary judgment rendered by the state court.

See WellCare of Fla., Inc. v. Am. Int’l Specialty Lines Ins. Co., 16 So. 3d 904, 906

(Fla. 2d Dist. Ct. App. 2009) (explaining that “because the duty to indemnify is


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narrower than the duty to defend[,]” it “cannot exist if there is no duty to defend”).

Accordingly, Auto-Owners was entitled to summary judgment on all counts.

      In light of the foregoing, we affirm the district court’s order granting Auto-

Owners summary judgment on all counts.

      AFFIRMED.




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