                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________          FILED
                                               U.S. COURT OF APPEALS
                            No. 09-16489         ELEVENTH CIRCUIT
                                                     JULY 21, 2010
                        Non-Argument Calendar
                                                      JOHN LEY
                      ________________________
                                                        CLERK
                   D.C. Docket No. 08-10085-CV-JLK

AMICA MUTUAL INSURANCE CO.,

                                               Plaintiff-Counter-Defendant-
                                               Appellee,

                                 versus

DAVID G. MOROWITZ,

                                               Defendant-Cross-Claimant-
                                               Appellant,

JOSE H. GUTIERREZ,

                                          Defendant.
                      ________________________

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

                             (July 21, 2010)

Before EDMONDSON, BIRCH and COX, Circuit Judges.

PER CURIAM:
      Amica Mutual Insurance Co. issued a Florida Boat Policy to David Morowitz.

While fishing on his boat with Jose Gutierrez, a friend, Morowitz fell overboard and

was injured by the boat’s propeller. Morowitz filed suit against Gutierrez in Florida

state court alleging that Gutierrez was operating the boat at the time and that his

negligent operation caused Morowitz’s injury. Amica brought this declaratory

judgment action in federal district court seeking a determination that it had no

obligation to provide coverage to Gutierrez for his potential liability to Morowitz.

Morowitz filed an amended counterclaim against Amica seeking a determination that

Amica’s Boat Policy covered Gutierrez’s potential liability. Amica filed a motion for

summary judgment. The district court entered summary judgment in favor of Amica,

concluding that the Boat Policy provided no coverage for Gutierrez’s liability to

Morowitz. Morowitz appeals.

      The relevant language from the Policy provides: “We will pay for bodily injury,

property damage or pollution damage an insured becomes legally obligated to pay

because of the ownership, maintenance or use of the boat.” (R.1-7, Ex. A, Boat

Policy at 14) (emphasis in original). The Policy defines “you” and “your” as “the

person named in the Declarations and spouse if a resident of the same household.”

(Id at 9.) In this case “you” means Morowitz. “Insured” is defined as “you, a family

member and any other person or organization using the boat with your permission,

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free of charge.” (Id.). The Policy includes the following exclusions: “We do not

provide liability coverage for: . . . others to cover their liability to you.” (Id. at 15)

(emphasis in original).

      The issue presented on this appeal is the meaning of the term “others” as used

in this exclusionary clause. Morowitz argues that the Policy defines “others” in the

General Limitations and Exclusions section as anyone operating the boat for pay.

(Appellant’s Br. at 19.) And, because Gutierrez was using Morowitz’s boat with

permission free of charge, Gutierrez was an “insured” and a person cannot be both an

“insured” and an “other.” Morowitz also contends that the exclusionary clause is

ambiguous and should be construed against Amica because it drafted the agreement.

Amica counters that the Policy unambiguously excludes liability coverage for any

liability Gutierrez may have to Morowitz. Basically, Amica contends that “others”

means anyone other than the persons named in the Declarations – in this case

Morowitz.

      We assume for purposes of this appeal that Gutierrez was using Morowitz’s

boat with permission. Thus, we assume that Gutierrez is an “insured.” But coverage

for Gutierrez may be excluded even though he is an “insured.” In the exclusions

section, the Policy states: “We do not provide liability coverage for: . . . others to

cover their liability to you.” (R.1-7, Ex. A, Boat Policy at 15) (emphasis in original).

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If Gutierrez is an “other,” the Policy does not cover any liability he may have to

Morowitz. On the other hand, if Gutierrez is not an “other,” the Policy covers his

liability to Morowitz.

      On appeal, Morowitz contends that the General Limitations and Exclusions

section of the Policy defines “others” as anyone operating the boat for pay.

(Appellant’s Br. at 19.) This argument is based upon a section entitled “Benefit to

Others” that says “[n]o person or organization having custody of your insured

property and being paid for services, shall benefit from this insurance.” (R.1-7, Ex.

A, Boat Policy at 11) (emphasis in original). Amica contends that Morowitz’s

agrument that the Policy defines “others” has been waived because Morowitz did not

present that argument to the district court. And, Amica contends, the argument is

meritless. We agree with both of Amica’s contentions. In the district court,

Morowitz argued that the term is “undefined,” and as a result, is ambiguous. The

argument that the term was defined has been waived, but the argument is also

meritless. The General Limitations and Exclusion section is not intended to provide

definitions of terms contained in the Policy. The Policy contains a Definitions section

in which “others” is not defined. So, because the insurer chose to not define “[others,]

the common definition of the term should prevail.” Auto-Owners Ins. Co. v. Above

All Roofing, LLC, 924 So. 2d 842, 847 (Fla. 2d DCA 2006) (citation omitted).

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      The district court held that the term “others” is not ambiguous, as used here,

and clearly means anyone other than Morowitz. (R.3-74 at 11-12.) We agree with

the district court’s analysis and conclusion that the exclusion applies to Morowitz’s

claim against Gutierrez.

      AFFIRMED.




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