                                                       [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                                 No. 05-14125           JANUARY 18, 2006
                             Non-Argument Calendar      THOMAS K. KAHN
                                                            CLERK
                           ________________________

                    D. C. Docket No. 02-00660-CV-J-16-MCR

ALTADIS USA, INC.,
individually for the
use and benefit of
Gulf Insurance Co.,

                                                        Plaintiff-
                                                        Counter-Defendant-
                                                        Appellant,

                                    versus

NPR, INC.,
d.b.a. Navieras de Puerto Rico,

                                                        Defendant-
                                                        Cross-Defendant-
                                                        Cross-Claimant-
                                                        Appellee,

B-RIGHT INTERMODAL
TRANSPORT, INC.,

                                                      Defendant-
                                                      Cross-Claimant-
                                                      Cross-Defendant,
B-RIGHT TRUCKING, INC.,

                                                             Defendant-
                                                             Cross-Defendant,

KEY BANK, N.A.,

                                                             Defendant-
                                                             Cross-Defendant-
                                                             Appellee,

NATIONAL UNION INSURANCE
COMPANY OF PITTSBURGH,

                                                            Defendant-
                                                            Cross-Defendant-
                                                            Counter-Claimant-
                                                            Cross-Claimant-
                                                            Appellee.


                           ________________________

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

                                 (January 18, 2006)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      This case arises out of the theft of a truckload of cigars under the control of

B-Right Intermodal, Inc. (“Intermodal”). Intermodal was transporting a cigar

shipment to Altadis, USA, Inc. (“Altadis”) when the shipment was stolen.

                                          2
National Union Insurance Company (“National”) insured Intermodal for the loss.

In paying the insurance claim, National, under instructions from Intermodal, paid

insurance funds of $375,012.22 1 to B-Right Trucking, Inc. (“Trucking”),

Intermodal’s sister company2 under control of the same officers and directors as

Intermodal and also insured by National. Ronald Vass, the controller/chief

financial officer of both Intermodal and Trucking, deposited these funds into an

Intermodal account and used them for paying Intermodal operating expenses,

rather than paying Altadis.

       The real parties at interest on this appeal are Appellant Altadis 3 and Appellee

National. Altadis appeals the district court’s grant of summary judgment as to

Count XV of the Second Amended Complaint and denial of Altadis’s Motion for

Judgment on the Pleadings. Additionally, Altadis appeals the district court’s

refusal to permit Altadis to amend the Second Amended Complaint to assert

alternative theories of liability.

       We review a grant of summary judgment de novo and the district court’s

findings of fact for clear error. Groupe Chegaray/V. De Chalus v. P&O


       1
           This represented the claim’s value minus the insured’s $10,000 deductible.
       2
         There is debate on appeal regarding whether Intermodal was a subsidiary of Trucking or
whether they were sister companies under a common parent. As will be discussed below, this
distinction is irrelevant because of the common officers and directors of the companies.
       3
           Altadis is primarily pursuing a subrogation claim for its insurer Gulf Life.

                                                    3
Containers, 251 F.3d 1359, 1362 (11th Cir. 2001). Summary judgment is proper

“if the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). While we review the district court’s denial of a

motion for leave to amend for abuse of discretion, we review de novo the denial of

a motion for leave to amend based on futility. Freeman v. First Union Nat’l, 329

F.3d 1231, 1234 (11th Cir. 2003) (per curiam).

      The district court properly granted summary judgment as to Count XV of the

Second Amended Complaint, in which Altadis asserted that National breached a

third party beneficiary contract with Altadis as beneficiary. Under Ohio law,

which controls this count, however, such a claim fails as a matter of law. In Ohio,

an injured party (i.e., Altadis) is not a third party beneficiary to the injuring party’s

liability insurance contract. Lawreszuk v. Nationwide Insurance Co., 392 N.E.2d

1094, 1096 (Ohio Ct. App. 1977) (“The injured plaintiff has no statutory or

common law right to recover directly on the insurance contract”); Chitlik v.

Allstate Ins. Co., 299 N.E.2d 295, 298 (Ohio Ct. App. 1973) (“in the absence of

statute or special provision in the policy, a standard liability insurance policy is not

a contract for the benefit of a third person”).



                                            4
       Count XV was National’s sole claim against Altadis. While Altadis has

attempted to get a judgment on other theories of liability, because National did not

plead these theories in the Second Amended Complaint, the district court properly

denied Altadis’s motion for entry of judgment with regard to these other theories.

We review only to see if the district court properly refused to permit Altadis to

amend its complaint to assert alternative theories. We hold that the district court

did not err because any such amendment would have been futile.

       Altadis contends that it can recover directly against National under Ohio

Rev. Code § 3929.06, which allows a judgment against an insurer after obtaining a

judgment against an insured.4 Although the parties disagree over whether this

statute can even apply to this type of case, such a disagreement is immaterial

because under the statute Altadis cannot recover against National if the insured

could also not recover against National. Ohio Rev. Code § 3929.06(C)(1) (“the

insurer has and may assert as an affirmative defense against the judgment creditor

any coverage defenses that the insurer possesses and could assert against the holder

of the policy”). In this case, because National already paid the insurance proceeds

to the insured, the insured would not be able to recover a second time against


       4
         Altadis believes it has claims under both Florida and Ohio law. Because the policy was
issued in Illinois for delivery in Ohio, however, Florida law does not apply. See, e.g., Fioretti v.
Mass. Gen. Life Ins. Co., 53 F.3d 1228, 1236 (11th Cir. 1995); Lumbermens Mut. Cas. Co. v.
August, 530 So. 2d 293, 295 (Fla. 1988).

                                                  5
National. Therefore, such a defense would defeat any claim that Altadis could

conceivably bring under this statute.

       Only if this defense were not available to National would any such

amendment have a chance at success. Despite Altadis’s assertions, however,

National’s payment of funds to Trucking, which deposited the funds for

Intermodal’s benefit and released National, keep this defense alive. Altadis

attempts to invalidate National’s release because of the fact that the proceeds were

paid initially to Trucking rather than Intermodal and because the release contained

several scrivener’s errors.5 Altadis makes too much of the fact that the proceeds

were paid to Trucking rather than Intermodal. The insurance funds ended up in an

Intermodal account, the companies had the same officers and directors, National

insured both companies, and at no point did National appoint either Trucking or

Intermodal as its agent to deliver the proceeds to Altadis.6 Altadis, in overly

focusing on the transaction’s form, ignores the fact that Intermodal ended up

receiving the insurance proceeds to which it was entitled.



       5
        The release technically released Lexington Insurance Co. rather than National (both are
AIG companies). According to deposition testimony from AIG, this was merely a misprint
because the form used was a standard one for all AIG companies.
       6
         An insurer paying insurance proceeds to the insured, who is the other party to the policy,
does not by itself create an agency relationship with that insured. To believe otherwise would
establish agency relationships any time a party to a contract paid money to another party to that
contract while a non-party to the contract had a claim against the party receiving the funds.

                                                 6
      Altadis also claims that National waived its coverage defenses by not

defending either Trucking or Intermodal, both of which defaulted in suits that

Altadis brought against them. This argument, even if correct, assumes that

National had a right or obligation to defend Trucking or Intermodal. National,

however, had no such duty because it had already satisfied its obligations to both

companies regarding this claim. As stated above , the only potentially viable claim

an amendment could bring is under Ohio Rev. Code § 3929.06, and under this

section, the injured party can only recover against the insurer what the insured

could recover. See also, Bennett v. Swift & Co., 163 N.E.2d 362, 364 (Ohio 1959).

The insured, however, already received payment from the insurer. Even assuming

arguendo that National waived its coverage defenses, it did not waive its defense of

having already paid the claim and satisfied its obligations under the policy.

Plaintiffs cannot sue insurance companies for obligations that do not exist, and

here, after National paid the claim, its obligations regarding this matter stopped.

      We sympathize with Altadis that Trucking and Intermodal converted the

insurance proceeds and did not pay them to Altadis. That, however, is a matter

among those parties and no longer concerns National, and the district court did not

err in refusing to allow Altadis to assert additional claims against National that

could not possibly succeed.



                                           7
AFFIRMED.




            8
