                                                      [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT            FILED
                   ________________________ U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                                                         JUNE 28, 2011
                          No. 09-14856
                                                          JOHN LEY
                    ________________________
                                                           CLERK

               D. C. Docket No. 08-21544-CV-WMH



ARCH CREEK YACHT SALES, LLC,

                                                        Plaintiff-Appellant,

                               versus


GREAT AMERICAN INSURANCE
COMPANY OF NEW YORK,
a New York corporation,

                                                       Defendant-Appellee.


                    ________________________

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

                           (June 28, 2011)
Before EDMONDSON and PRYOR, Circuit Judges, and EVANS,* District Judge.



PER CURIAM:



       After business hours, a person employed by Arch Creek Yacht Sales (“Arch

Creek”) stole a boat from the company. This person ran the boat aground, and it

sank. Citing an insurance-policy exclusion for losses caused by “any dishonest act

on the part of the insured[’s] . . . employees,” Great American Insurance Company

denied coverage. The district court denied Arch Creek’s motion for summary

judgment for breach of contract and granted the insurer’s motion for summary

judgment on the applicability of the policy exclusion; we affirm the judgment.

       The issue in this case is whether under these facts the word “employee”--not

defined in the insurance-policy exclusion--covers a person whom the company has

in its service and pays a salary but who at the pertinent time is acting after business

hours and outside the scope of the business.

       For an insurance contract, interpreted under New York law as the parties’

contract requires, “unambiguous provisions must be given their plain and ordinary

meaning.” Sanabria v. Am. Home Assurance Co., 508 N.Y.S.2d 416, 416 (N.Y.


       *
       Honorable Orinda Evans, United States District Judge for the Northern District of
Georgia, sitting by designation.

                                               2
1986). Applying the tests of “common speech” and “the reasonable expectation

and purpose of the ordinary businessman,” MDW Enters., Inc. v. CNA Ins. Co.,

772 N.Y.S.2d 79, 82 (N.Y. 2004) (internal quotation marks omitted), we agree

with the district court that the word “employee” in the policy exclusion is

unambiguous and plainly describes the boat thief here. Both common speech and

the expectations of an ordinary businessman dictate that someone who was in fact

employed full time for a salary by Arch Creek would--at all times--be described

accurately as an Arch Creek “employee.”1

       AFFIRMED.




       1
          Arch Creek argues that different jurisdictions, other than New York, have interpreted
the word “employee” differently from one another where after-hours conduct is involved, thus
making “employee” ambiguous and requiring that that word’s meaning be construed against the
insurer/drafter. But under New York law, the mere existence of such a split in judicial authority
is not sufficient to create contract ambiguity. See Breed v. Ins. Co. of N. Am., 413 N.Y.S.2d
352, 355 (N.Y. 1978) (citing Hartigan v. Cas. Co. of Am., 124 N.E. 789, 790 (N.Y. 1919)).

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