               Case: 18-12972     Date Filed: 05/21/2019   Page: 1 of 10


                                                           [DO NOT PUBLISH]




                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 18-12972
                              Non-Argument Calendar
                            ________________________

                     D.C. Docket No. 8:16-cv-02111-CEH-MAP


MARK CHAPMAN,
individually and as personal representative of the Estate of
Gregory Chapman, deceased,
and the Estate of Barbara Chapman, deceased,
IRENE CHAPMAN,

                                                           Plaintiffs-Counter
                                                           Defendants-Appellants,


KATHY RUFF, et al.,
                                                           Plaintiffs-Counter
                                                           Defendants,

versus

ACE AMERICAN INSURANCE COMPANY,
a foreign corporation f.k.a. Cigna Insurance Company,

                                                           Defendant - Counter
                                                           Claimant - Appellee.
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                            ________________________

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

                                   (May 21, 2019)



Before TJOFLAT, JORDAN, and EDMONDSON, Circuit Judges.



PER CURIAM:


      In this insurance coverage dispute, Plaintiffs Mark Chapman -- individually

and as personal representative of the Estates of Barbara Chapman and of Gregory

Chapman -- and Irene Chapman appeal the district court’s grant of summary

judgment in favor of ACE American Insurance Company (“ACE”). The district

court concluded that ACE owed no duty to defend or to indemnify its insured,

Robert Taylor, against Plaintiffs’ claims in an underlying state court lawsuit (the

“Underlying Suit”). No reversible error has been shown; we affirm.

      Mark and Barbara Chapman’s ten-year old son, Gregory, was diagnosed with

Attention Deficit Hyperactivity Disorder (“ADHD”) and had a history of behavioral

problems, including stealing and a self-inflicted gunshot to the leg. After receiving a

referral from the Department of Children and Family Services, the Chapmans

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engaged Taylor to provide mental health counseling services to Gregory. Taylor

conducted counseling sessions with Gregory between January and May 1998. In

May 1998, Gregory committed suicide.

       In 1999, Taylor pleaded guilty in state court to four felony counts of

organized fraud and twenty felony counts of grand theft. Taylor’s offense conduct

included, among other things, providing -- and collecting payment for -- unlicensed

counseling services to patients, including Gregory.

       Shortly thereafter, Plaintiffs served Taylor with a Notice of Intent to Initiate

Litigation. Plaintiffs alleged that “Taylor was not a licensed drug abuse or mental

health counselor for minors such as Gregory Chapman.” Plaintiffs also alleged that

Gregory “suffered from mental problems which were aggravated by the treatment

provided by Robert Taylor” and that Taylor’s treatment “played a substantial part”

in Gregory’s death.

       Plaintiffs later filed the Underlying Suit against Taylor and his business,

Recovery Concepts. 1 Plaintiffs asserted claims for wrongful death, unjust


1
  Kathy and William Ruff and their daughter, Melissa LaGotte, were also plaintiffs in the
Underlying Suit. The Ruffs/LaGotte alleged injuries resulting from Taylor’s provision of
unlicensed counseling services to LaGotte. The Ruffs/LaGotte reached a settlement with ACE and
are not parties to this appeal.
        In deciding ACE’s motion for summary judgment, the district court limited its analysis to
the Chapmans’ claims and said that allegations about LaGotte were not pertinent to whether
coverage existed under the Policy for the Chapmans’ claims. Plaintiffs raise no challenge to that
ruling on appeal.
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enrichment, unfair and deceptive trade practices, and infliction of severe emotional

distress. Briefly stated, Plaintiffs alleged that Taylor held himself out to the public

as a licensed provider of mental health counseling and substance abuse services to

minors, when he was neither licensed nor qualified by education and experience to

provide such services. Plaintiffs contend that Taylor’s “counseling” contributed to

Gregory’s death and caused Plaintiffs emotional and financial injury.

         At all times pertinent to this appeal, Taylor was insured under an Allied

Health Care Provider Professional and Supplemental Policy issued by ACE

(“Policy”). ACE refused, however, to defend Taylor against the Underlying Suit.

ACE first determined that no coverage existed under the Policy because Plaintiffs’

alleged injuries did not arise from covered “professional services.” ACE also

determined that coverage was precluded by the Policy’s exclusion provisions.

         Following mediation, Plaintiffs and Taylor entered into an Agreement to Enter

into a Consent Judgment, also known as a Coblentz2 agreement (“Agreement”).

Pursuant to the Agreement, the parties agreed to the entry of a consent judgment in

excess of $5 million against Taylor and Recovery Concepts, to be collected from

available insurance proceeds. Taylor also assigned to Plaintiffs his rights under the

Policy. Plaintiffs then filed the instant lawsuit, seeking recovery from ACE.


2
    Coblentz v. Am. Sur. Co. of N.Y., 416 F.2d 1059 (5th Cir. 1969).
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      The district court granted summary judgment in favor of ACE. The district

court concluded that ACE owed no duty to defend against Plaintiffs’ claims in the

Underlying Suit because the acts or omissions alleged by Plaintiffs constituted no

“professional services” under the Policy. The district court also determined that

Plaintiffs’ allegations fell within the Policy’s exclusion provisions. Because ACE

had no duty to defend, the district court determined that ACE owed no duty to

indemnify.

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

same legal standards as the district court. Whatley v. CNA Ins. Cos., 189 F.3d 1310,

1313 (11th Cir. 1999). Summary judgment is appropriate when the evidence,

viewed in the light most favorable to the nonmoving party, presents no genuine issue

of material fact and compels judgment as a matter of law. Holloman v. Mail-Well

Corp., 443 F.3d 832, 836-37 (11th Cir. 2006).

      We are bound by the substantive law of Florida in deciding this diversity case.

See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). To recover under a Coblentz

agreement, “the injured party must bring an action against the insurer and prove

coverage, wrongful refusal to defend, and that the settlement was reasonable and

made in good faith.” Chomat v. Northern Ins. Co., 919 So. 2d 535, 537 (Fla. Dist.

Ct. App. 2006).

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      Under Florida law, an insurer owes a duty to defend its insured “when the

complaint alleges facts that fairly and potentially bring the suit within policy

coverage.” Jones v. Fla. Ins. Guar. Ass’n, Inc., 908 So. 2d 435, 442-43 (Fla. 2005).

“Any doubts regarding the duty to defend must be resolved in favor of the insured.”

Id. at 443. If the alleged facts and legal theories asserted in the complaint fall

outside a policy’s coverage, no duty to defend arises. See Chicago Title Ins. Co. v.

CV Reit, Inc., 588 So. 2d 1075, 1075-76 (Fla. Dist. Ct. App. 1991). Where there

exists no duty to defend, an insurer has no duty to indemnify. Wellcare of Fla., Inc.

v. Am. Int’l Specialty Lines Ins. Co., 16 So. 3d 904, 907 (Fla. Dist. Ct. App. 2009).

      When an insurance policy’s language is “clear and unambiguous,” it is

construed according to its plain language. Auto-Owners Ins. Co. v. Anderson, 756

So. 2d 29, 33 (Fla. 2000). In other words, “[i]f the language of an insurance policy

is clear, it must be construed to mean what it says and nothing more.” Gen. Sec. Ins.

Co. v. Barrentine, 829 So. 2d 980, 981 (Fla. Dist. Ct. App. 2002). “Courts have no

power to create insurance coverage, if it does not otherwise exist by the terms of the

policy.” Id.

      Under the Policy, ACE agreed to “pay all amounts up to the limit of liability,

which you become legally obligated to pay as a result of injury or damage to which

this insurance applies.” The Policy provides that Professional Liability Coverage is

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available only if the “injury or damage” was “caused by a medical incident arising

out of professional services by you . . ..” Likewise, Supplemental Liability

Coverage is available only for “injury or damage” that “occur[red] in the course of

providing your professional services.”

      The Policy defines the term “Medical Incident” as “any act, error or omission

in the providing of or failure to provide professional services by you.” The term

“Professional Services” “means those services you are licensed, trained, or being

trained to provide within the allied health field specified in your application and

approved by us for coverage.” The Policy identifies Taylor’s Professional

Occupation as “Drug & Alcohol Abuse Counselor.” (emphasis added).

      In the Underlying Suit, Plaintiffs made these factual allegations:

      10.    At all material times, Taylor held himself out to the public as
             properly licensed to provide mental health consulting to minors
             and adults, and family counseling, as required by Florida Statute
             491.012(2), when in fact he was not licensed to provide said
             services.
      19a. Mark and Barbara Chapman were having behavioral problems
           with their son, Gregory Chapman, which included stealing little
           items out of Barbara’s purse. . . . The Chapmans were . . . told
           that Taylor could help with Gregory’s behavioral problems and
           had ADHD training and could help treat Gregory’s ADHD
           problems.
      36.    Defendant Taylor was not qualified by education, experience or
             any license issued by the State of Florida to provide mental
             health counseling to juveniles or adults.

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       In support of their wrongful death claim, Plaintiffs also made these

allegations:

       43.     Taylor and Concepts breached their duties to the plaintiffs and
               are strictly liable for such breach, in that they concealed from
               Gregory Chapman and his parents that Taylor was not competent
               or licensed to provide mental health counseling to Gregory
               Chapman. In addition, at no time through the treatment course of
               Gregory Chapman did the Defendants refer Gregory Chapman to
               any qualified mental health provider or otherwise seek a qualified
               medical opinion as to Gregory Chapman’s mental condition and
               appropriate treatment therefore.

       49.     Defendants breached their duty to the Plaintiffs by failing to refer
               or suggest referral of Gregory Chapman to a qualified mental
               health provider.

       The amended complaint contained no allegations that Gregory struggled with

substance abuse, that Plaintiffs hired Taylor to provide substance abuse counseling

services for Gregory, or that Taylor provided substance abuse counseling for

Gregory. 3


3
  To the extent the amended complaint contained allegations about substance abuse counseling, we
read those allegations as pertaining only to claims asserted by the Ruffs/LaGotte. We have looked
at these words from paragraph 117 of the amended complaint: “. . . Defendants provided Plaintiffs
with mental health and substance abuse counseling . . ..”
Read in context, paragraph 117 refers plainly only to Taylor’s counseling of LaGotte and the
Ruffs. Paragraph 117 fell under the heading “Count VII, Negligence, Plaintiffs Kathy Ruff,
William Ruff and Melissa LaGotte.” The first paragraph under Count VII (paragraph 89) says
“Plaintiffs, Kathy Ruff, William Ruff and Melissa Lagotte sue Defendants and allege as follows.”
Paragraphs 91 through 115 then set forth factual allegations specific to Taylor’s conduct in relation
to the Ruffs and to LaGotte. Paragraph 116 alleged that, as mental health and substance abuse
counselors, Defendants owed Plaintiffs a duty of care and protection.
Paragraph 117 then reads: “Defendants failed to provide such care and protection to Plaintiffs
during such time Defendants provided Plaintiffs with mental health and substance abuse
counseling, and therefore, breached their duty of care.” (emphasis added). Paragraphs 118 and
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       Under Florida law, mental health counseling and substance abuse counseling

are treated as distinct professions, governed by different statutes, and licensing and

training requirements. Compare Fla. Stat. § 491.02, et seq. (mental health and

family counselors) with § 397.401, et seq. (substance abuse counselors). In the light

of Plaintiffs’ allegations in the Underlying Suit, Taylor’s complained-of conduct

falls clearly outside the Policy’s definition of “professional services.” Under the

plain language of the Policy, “professional services” means “Drug & Alcohol Abuse

Counsel[ing]” services for which Taylor was “licensed, trained, or being trained to

provide.” Plaintiffs alleged only that Taylor provided mental health counseling to

Gregory: not substance abuse counseling. Moreover, Plaintiffs’ allegations that

Taylor lacked the required licensure, education, or experience to provide mental

health counseling to Gregory compels a conclusion that Taylor’s complained-of

counseling services were no “professional services” under the Policy.

       Viewing the record in the light most favorable to Plaintiffs, no genuine issue

of material fact exists. Because Plaintiffs have failed to allege facts that “fairly and

potentially bring the suit within policy coverage,” the district court concluded

correctly -- as a matter of Florida law -- that ACE owed no duty to defend or to



119 then alleged that, as a direct and proximate result of Defendants’ actions, the Ruffs and
LaGotte suffered damages. Given the surrounding language of the amended complaint, the term
“Plaintiffs” in paragraph 117 refers only to the Ruffs and to LaGotte: not the Chapmans.
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indemnify Taylor against Plaintiffs’ claims in the Underlying Suit.4 See Jones, 908

So. 2d at 442-43; Wellcare of Fla., Inc., 16 So. 3d at 906.

       AFFIRMED. 5




4
  We reject Plaintiffs’ contention that the public policy, legislative intent, or language of Florida’s
statutes governing substance abuse services (Fla. Stat. § 397 et seq.) give rise to a statutorily-
mandated duty to defend in this case.
5
  Because we conclude that ACE owed no duty to defend or to indemnify Taylor, we do not reach
the district court’s alternative ruling that the Coblentz Agreement was unenforceable because it
failed to allocate the damages attributed to the covered and non-covered claims.
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