         Case: 15-10314   Date Filed: 03/01/2016    Page: 1 of 19


                                                                    [PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-10314
                     ________________________

              D.C. Docket No. 3:10-cv-00471-MCR-CJK



PAYROLL MANAGEMENT, INC.,
a Florida Corporation,
PAYROLL MANAGEMENT, INC. OF DELAWARE,
a Delaware corporation,
YOOHOO CAPITAL, LLC,
a Georgia limited liability company,

                                              Plaintiffs - Appellants,

versus

LEXINGTON INSURANCE COMPANY,

                                              Defendant - Appellee.

                     ________________________

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

                            (March 1, 2016)
                Case: 15-10314        Date Filed: 03/01/2016       Page: 2 of 19


Before TJOFLAT and ROSENBAUM, Circuit Judges, and RESTANI,∗ Judge.

PER CURIAM:

       This case, which primarily concerns the scope of an insurance policy under

Florida law, is before this court for a second time. The first time this case was

before us, we remanded to the District Court for additional fact-finding to establish

complete diversity of citizenship between all plaintiffs and all defendants with

instructions to reenter summary judgment if federal subject-matter jurisdiction

could be properly established. After dismissing a nondiverse plaintiff it found was

not a real party in interest to this case, the District Court reentered its earlier grant

of summary judgment in favor of the insurer on all claims. With the benefit of

thorough briefing and oral argument, we affirm the District Court.

                                                 I.

       Payroll Management, Inc. (“PMI Florida”) and Payroll Management, Inc. of

Delaware (“PMI Delaware”) are related “employee-leasing companies.”1 PMI

Florida, a Florida corporation, is responsible for the companies’ leased employees

who work in Florida. PMI Delaware, a Delaware corporation, is responsible for all
       ∗
         The Honorable Jane A. Restani, Judge for the United States Court of International
Trade, sitting by designation.
       1
         Employee-leasing companies hire employees and then “lease” them out to clients.
Under such an arrangement, the clients, in exchange for a fee, get the benefit of the leased
employees’ labor and are spared the attendant administrative, financial, and legal responsibilities.
Relevant here, these responsibilities often include the employee-leasing companies’ provision of
healthcare coverage for their employees.

                                                 2
             Case: 15-10314    Date Filed: 03/01/2016   Page: 3 of 19


other employees. Both PMI Florida and PMI Delaware are headquartered in the

same physical location in Fort Walton Beach, Florida.

      PMI Florida and PMI Delaware entered into a contract with Lexington

Insurance Company (“Lexington”), a Delaware corporation, for a PEO Plus

Employment Practices Liability Insurance Policy (“Insurance Policy”) providing

coverage from January 26, 2010 to January 26, 2011. The relevant language of the

Insurance Policy provides:

      B.  COVERAGE B – PROFESSIONAL/EMPLOYMENT
      PRACTICES LIABILITY – (CLAIMS MADE) LIABILITY

      We will pay on behalf of the Insured all sums that the Insured shall
      become legally obligated to pay as Loss Amounts resulting from any
      Claim first made against an Insured and reported to Us in writing
      during the Policy Period (or any applicable extended reporting
      period) for any Wrongful Professional Act, or Wrongful
      Employment Practice Act, which takes place anywhere and on or
      after the applicable retroactive date as indicated in the Declarations
      next to the type of Wrongful Act involved and before the end of the
      Policy Period.
      ...
      II. Definitions
      ...
      Definitions for Coverage B.
      ...
      H. Loss Amount means all forms of compensatory damages,
      monetary damages, statutory damages, multiplied damages, punitive
      or exemplary damages, judgments, settlements, statutory attorney




                                         3
                Case: 15-10314       Date Filed: 03/01/2016       Page: 4 of 19


       fees, and Defense Costs arising out of Claim(s) alleging Wrongful
       Employment Practice Acts.2
       ...
       O. Wrongful Act means: a) a Wrongful Employment Practice
       Act, or b) a Wrongful Professional Act.
       ...
       Q. Wrongful Professional Act means any breach of duty, neglect,
       error, misstatement, misleading statement or omission in performing
       or failing to perform services for others for a fee in the administration
       of Leased Employees assumed from the Client.
       ...
       III. Exclusions
       ...
       In addition to the exclusions applicable to all Wrongful Acts under
       Coverage B., the following exclusions shall apply to all Wrongful
       Professional Acts:
       This insurance does not apply to any Claim against an Insured:
       ...
       D. arising out of liability the Insured assumed under any contract or
       agreement. This exclusion will not apply to liability which would
       arise against the Insured in the absence of the contract or agreement.

       PMI Florida and, to an extent disputed by the parties on appeal,3 PMI

Delaware also entered into a contract with Blue Cross Blue Shield of Florida, Inc.

and Health Options, Inc. (collectively, “Blue Cross”) to secure healthcare coverage

for their employees. After receiving no payments for the prior five months, Blue


       2
          This definition of “Loss Amount” was adopted as part of a later endorsement, effective
January 26, 2010.
        3
          The parties dispute whether any of PMI Delaware’s leased employees received
healthcare coverage under the Blue Cross contract and whether the other named party to the
contract, “PMI Inc. Group Health Plan,” should be understood to include PMI Delaware in
addition to PMI Florida. Because the answers to those questions do not affect our disposition of
this case, we decline to speculate as to their resolution and will assume that PMI Delaware was a
party to the Blue Cross contract.

                                                4
               Case: 15-10314        Date Filed: 03/01/2016      Page: 5 of 19


Cross cancelled coverage effective January 31, 2010. Three months later, on April

9, 2010, Blue Cross filed suit to recover the missed payments, naming as

defendants PMI Florida and “PMI Inc. Group Health Plan,” the other named party

to the Blue Cross contract.

       In May 2010, PMI Florida submitted a claim to Lexington pursuant to the

Insurance Policy seeking coverage for the costs that it would incur from the Blue

Cross suit. On July 16, 2010, Lexington denied coverage for the Blue Cross suit.

After receiving a request to reconsider its decision, Lexington affirmed its denial of

coverage on September 28, 2010.

       Before its initial decision to deny coverage, Lexington was contacted by

Yoohoo Capital, LLC (“Yoohoo Capital”) on May 4, 2010, the first of several

contacts. Yoohoo Capital, 4 which was considering the purchase of PMI Florida

and PMI Delaware stock, wanted assurances that Lexington would cover any

losses incurred by PMI Florida in the Blue Cross suit. In an email sent on June 15,

2010, Stephen Burwell, a claims examiner for Lexington, relayed the following to

Donna Mickle-Bee, then a consultant with Yoohoo Capital performing due

diligence on the potential acquisition of PMI Florida: “As we discussed, there

appears to be coverage for this matter under Policy No. 20432538 but, as we also

       4
          On remand from this court, the District Court determined that Yoohoo Capital is a
citizen of Florida and Georgia for purposes of diversity jurisdiction.

                                                5
              Case: 15-10314       Date Filed: 03/01/2016   Page: 6 of 19


discussed, I must review with my supervisor.” Hearing nothing further from

Burwell, Yoohoo Capital acquired PMI Florida and PMI Delaware that same day.

      After Lexington denied coverage, PMI Florida, PMI Delaware, and Yoohoo

Capital filed suit against Lexington in the Okaloosa County Circuit Court on

September 21, 2010. PMI Florida and PMI Delaware alleged claims against

Lexington for breach of contract and declaratory judgment, contending that there

was coverage for the Blue Cross suit under the Insurance Policy. Yoohoo Capital

alleged a claim of negligent misrepresentation, contending that it purchased PMI

Florida and PMI Delaware in reliance on false assurances that Lexington owed

coverage for the Blue Cross suit. Lexington answered on November 5, 2010,

denying liability on all claims.

      On November 16, 2010, Lexington removed the case to the United States

District Court for the Northern District of Florida on the basis of diversity

jurisdiction. See generally 28 U.S.C. §§ 1332(a), 1441(b), 1446. After a period of

discovery, the District Court entered two orders granting summary judgment to

Lexington. On March 22, 2012, the court granted summary judgment to Lexington

on Yoohoo Capital’s claim for negligent misrepresentation. On September 17,

2013, the court granted summary judgment to Lexington on PMI Florida and PMI

Delaware’s claims for breach of contract and declaratory relief.


                                            6
                Case: 15-10314       Date Filed: 03/01/2016       Page: 7 of 19


       On appeal, this court vacated the two summary-judgment orders and

remanded for additional fact-finding because the basis for federal diversity

jurisdiction had not been properly established. See Payroll Mgmt., Inc. v.

Lexington Ins. Co., 566 F. App’x 796, 797–98 (11th Cir. 2014) (per curiam). We

directed the District Court to reenter its grant of summary judgment if the court

found that PMI Delaware could be dismissed from the case and that Yoohoo

Capital is not a citizen of either Delaware or Massachusetts. 5 Id.

       On remand and after limited discovery for the purpose of establishing

diversity jurisdiction, the District Court held that PMI Delaware was not a “real

and substantial party” to the litigation but rather was a “nominal or formal party”

whose absence from the proceedings would not prejudice the parties. Accordingly,

the District Court dismissed PMI Delaware and reentered summary judgment in

favor of Lexington on all counts. This appeal timely followed.




       5
           For purposes of diversity jurisdiction, Lexington is a citizen of Delaware and
Massachusetts. Because 28 U.S.C. § 1332(a) requires complete diversity of citizenship between
all plaintiffs and all defendants, there would be no basis for federal jurisdiction if any of the
plaintiffs allowed to remain in the case were also a citizen of Delaware or Massachusetts. See,
e.g., Owen Equip. and Erection Co. v. Kroger, 437 U.S. 365, 373–74, 98 S. Ct. 2396, 2402–03,
57 L. Ed. 2d 274 (1978). As PMI Florida, PMI Delaware, and Yoohoo Capital seek millions of
dollars in damages, the amount-in-controversy requirement is satisfied, and no party contends
otherwise.

                                                7
              Case: 15-10314     Date Filed: 03/01/2016   Page: 8 of 19


                                             II.

      The existence of subject-matter jurisdiction is a question of law, which we

review de novo. Nat’l Mar. Servs., Inc. v. Straub, 776 F.3d 783, 786 (11th Cir.

2015). We review for clear error district courts’ findings of facts necessary to

establish subject-matter jurisdiction. Id.

      A district court’s grant of summary judgment, as a question of law, is

reviewed de novo, viewing all the evidence in the light most favorable to the

nonmoving parties and drawing all reasonable inferences in their favor. Flowers v.

Troup Cty. Sch. Bd., 803 F.3d 1327, 1335 (11th Cir. 2015). Summary judgment is

appropriate only if “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

                                         III.

      On their second go-around before this court, PMI Florida, PMI Delaware,

and Yoohoo Capital press three alleged errors as follows. First, all three parties

assert that the District Court erred by dismissing PMI Delaware from the litigation

because PMI Delaware is a real party in interest. As a result, there is not complete

diversity between the parties and thus no basis for federal jurisdiction. Second,

PMI Florida and PMI Delaware assert that even if jurisdiction had been properly

established, the District Court erred by determining that no coverage for the Blue

Cross suit existed under the Insurance Policy issued by Lexington. Finally,
                                             8
                Case: 15-10314       Date Filed: 03/01/2016      Page: 9 of 19


Yoohoo Capital asserts that the District Court erred by granting summary judgment

to Lexington on its negligent-misrepresentation claim. We take each contention in

order.

                                               A.

         First, we turn to the District Court’s order dismissing PMI Delaware as a

“nominal or formal party.” As we cautioned in our previous decision to remand

this case, because the only possible federal jurisdictional basis for these

proceedings is diversity and because PMI Delaware and Lexington are both

citizens of Delaware, jurisdiction would be proper only if PMI Delaware could be

dismissed from this case without prejudicing the parties.6 See Payroll Mgmt., Inc.,

566 F. App’x at 797–98, 800–02. We continued that if PMI Delaware could be

dismissed from the case, the District Court’s grant of summary judgment to

Lexington should be reentered. Id.

         The District Court, with these instructions in mind, determined that PMI

Delaware was not a real party in interest to the litigation. The court found that

though PMI Delaware was a named insured on the Insurance Policy, PMI


         6
          Likewise concerned about the possible nonexistence of complete diversity, we also
instructed the District Court to determine the citizenship of Yoohoo Capital. The District Court
determined that Yoohoo Capital is a citizen of both Florida and Georgia. Thus, Yoohoo Capital
is diverse from Lexington, a citizen of Delaware and Massachusetts. No party disputes this
finding on appeal.

                                                9
               Case: 15-10314        Date Filed: 03/01/2016       Page: 10 of 19


Delaware would not be entitled to any portion of a successful judgment against

Lexington because PMI Florida, not PMI Delaware, was the party against whom

Blue Cross had filed suit and PMI Florida, not PMI Delaware, was the only party

that made a claim for coverage to Lexington. Over PMI Delaware’s objections to

the contrary, the District Court also found that “[t]he evidence in this case

suggests” that PMI Delaware was not even a party to the underlying Blue Cross

contract, which provided healthcare coverage only to PMI Florida’s leased

employees.7 After concluding that “PMI Delaware does not have a real and

substantial stake” in the litigation and thus “is not a real party in interest,” the

District Court held that PMI Delaware’s dismissal from the case would not

prejudice the parties because a victory for PMI Florida would ensure the exact

same relief—coverage from Lexington for the Blue Cross suit—that PMI

Delaware was seeking. Accordingly, the court dismissed PMI Delaware pursuant

to Rule 21 of the Federal Rules of Civil Procedure. 8



       7
         PMI Delaware was not a named party to the Blue Cross contract; PMI Florida and “PMI
Inc. Group Health Plan” were the only named parties. PMI Florida, PMI Delaware, and Yoohoo
Capital maintain here, as they did below, that “other facts” beyond the face of the Blue Cross
contract support the conclusion that PMI Delaware was a party to the Blue Cross contract.
       8
         Rule 21 provides, “Misjoinder of parties is not a ground for dismissing an action. On
motion or on its own, the court may at any time, on just terms, add or drop a party. The court
may also sever any claim against a party.” Fed. R. Civ. P. 21. It is firmly established that Rule
21 “invests district courts with authority to allow a dispensable nondiverse party to be dropped at
any time,” such as when necessary to establish federal subject-matter jurisdiction. See, e.g.,

                                                10
               Case: 15-10314        Date Filed: 03/01/2016       Page: 11 of 19


       PMI Florida, PMI Delaware, and Yoohoo Capital contend that dismissing

PMI Delaware constitutes reversible error. They argue that the record

demonstrates that PMI Delaware would be entitled to share in any judgment

against Lexington; therefore, PMI Delaware is a real party in interest. In support

of this position, they point to evidence allegedly showing that some leased

employees of PMI Delaware were covered by the Blue Cross contract, PMI

Delaware suffered its own pecuniary harms that could be recovered from

Lexington, and PMI Delaware had been joined as a defendant in the Blue Cross

suit as of April 2010. 9

       We disagree that these assertions are sufficient to contradict the District

Court’s factual findings, which are not plainly erroneous. Nor do they show that

PMI Delaware is a real party in interest in this case as a matter of law. 10 This is so




Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832, 109 S. Ct. 2218, 2223, 104 L. Ed.
2d 893 (1989).
        9
          PMI Florida, PMI Delaware, and Yoohoo Capital briefly argue that there is evidence in
the record to suggest, contrary to the District Court’s findings, that PMI Delaware had been sued
by Blue Cross at the same time as PMI Florida and that PMI Delaware had made a demand for
coverage to Lexington. Specifically, they point to the complaint filed by Blue Cross against PMI
Florida and the complaint filed by PMI Florida against Lexington that make reference to “PMI”
generally and “PMI Inc. Group Health Plan,” references that allegedly were meant to include
PMI Delaware as well as PMI Florida.
        Because the District Court’s findings regarding these questions were not plainly
erroneous, we defer to that court’s factual determinations.
        10
           Rule 17 of the Federal Rules of Civil Procedure requires that an action “be prosecuted
in the name of the real party in interest.” Fed. R. Civ. P. 17(a)(1). An action brought by the real

                                                11
               Case: 15-10314       Date Filed: 03/01/2016      Page: 12 of 19


for at least two reasons. First, as the District Court found, PMI Delaware had not

yet been named as a defendant in the Blue Cross lawsuit at the time PMI Florida

made its demand for coverage against Lexington. Second and relatedly, the

District Court also found that PMI Delaware did not, consistent with its obligations

under the Insurance Policy, make an independent demand for coverage against

Lexington. As a result, there was no basis for PMI Delaware to seek coverage

from Lexington for the Blue Cross suit. The fact that PMI Delaware was later

named as a defendant is of no moment. Lexington thus did not owe any duty to

defend or indemnify PMI Delaware in the Blue Cross suit that would be implicated

in the present proceedings.

       We find no basis to disturb the District Court’s decision to dismiss PMI

Delaware pursuant to Rule 21, and therefore affirm that court’s finding of subject-

matter jurisdiction.




party in interest is one “brought by the person who, according to the governing substantive law,
is entitled to enforce the right.” 6A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane,
Richard L. Marcus & Adam N. Steinman, Federal Practice and Procedure § 1543 (3d ed. 2015).

                                              12
              Case: 15-10314       Date Filed: 03/01/2016      Page: 13 of 19


                                              B.

       Next we turn to the merits of PMI Florida’s claims for breach of contract

and declaratory judgment. 11 In its order of September 17, 2013, 12 the District

Court found that the Insurance Policy issued by Lexington did not cover losses

arising from a breach of contract, such as the failure to make scheduled payments

to Blue Cross, and granted summary judgment to Lexington. Relying on Waste

Corporation of America, Inc. v. Genesis Insurance Company, 382 F. Supp. 2d

1349 (S.D. Fla. 2005), and Ranger Insurance Company v. Bal Harbour Club, Inc.,

549 So. 2d 1005 (Fla. 1989), the District Court noted that under Florida law when

no express provision is made for coverage of breach-of-contract claims on the face

of an insurance policy, the decision to read into the insurance contract such

coverage is based on (1) the policy’s definitions of “loss” and “wrongful act” and

(2) public-policy considerations. After weighing these factors, the District Court

concluded that the failure to make payments under the Blue Cross contract was not

a “wrongful professional act” under the policy. In a footnote at the end of its

order, the court, with an eye toward this appeal, also stated that the Insurance


       11
           Having determined that PMI Delaware was properly dismissed from this case, we will,
for the ease of the reader, refer to the claims brought on appeal by both PMI Florida and PMI
Delaware as PMI Florida’s alone.
        12
           The District Court reinstated its 2013 order granting summary judgment on December
31, 2014, after PMI Delaware had been dismissed from the case.

                                              13
             Case: 15-10314     Date Filed: 03/01/2016   Page: 14 of 19


Policy’s exclusion for contractual liability did not apply “because there is no

indication that [PMI Florida and PMI Delaware] ‘assumed’ liability to [Blue

Cross] under a contract or agreement.”

      PMI Florida asserts that these determinations were error. First, PMI Florida

alleges that the “wrongful professional act” for which it seeks coverage was not the

failure to make payments under the Blue Cross contract, but rather was the

wrongful diversion of funds committed by its former president in conjunction with

her “inexperience, lack of education, incompetence, and negligence.” Even if the

“wrongful professional act” in question were the failure to make payments under

the Blue Cross contract, PMI Florida contends in the alternative that the Insurance

Policy’s language is sufficiently capacious to cover breach-of-contract claims and

that there are sufficient factual disputes concerning the relevant conduct to

preclude a grant of summary judgment.

      We reject all of these arguments and affirm the District Court’s holding that

Lexington owed no coverage to PMI Florida, albeit on slightly different grounds.

See Allen v. USAA Cas. Ins. Co., 790 F.3d 1274, 1278 (11th Cir. 2015) (“This

Court may affirm for any reason supported by the record, even if not relied upon

by the district court.” (citing United States v. $121,100.00 in U.S. Currency, 999

F.2d 1503, 1507 (11th Cir. 1993))). Under Florida law, “‘Insurance contracts are

construed according to their plain meaning. Ambiguities are construed against the
                                          14
             Case: 15-10314     Date Filed: 03/01/2016   Page: 15 of 19


insurer and in favor of coverage.’ However, courts only look to the rules of

construction ‘when a genuine inconsistency, uncertainty, or ambiguity in meaning

remains after resort to the ordinary rules of construction.’” Intervest Constr. of

Jax, Inc. v. Gen. Fid. Ins. Co., 133 So. 3d 494, 497 (Fla. 2014) (quoting Taurus

Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005)).

      Here, we see no contractual ambiguity; the Insurance Policy issued by

Lexington explicitly excludes the coverage sought by PMI Florida. As an initial

matter, the relevant part of the policy provides for coverage for “all sums which the

Insured shall become legally obligated to pay as Loss Amounts resulting from

any Claim … for any Wrongful Professional Act.” “Wrongful Professional

Act” is in turn defined as “any breach of duty, neglect, error, misstatement,

misleading statement or omission in performing or failing to perform services for

others for a fee in the administration of Leased Employees assumed from the

Client.” The claim in question, the Blue Cross suit, seeks damages for missed

payments pursuant to PMI Florida and Blue Cross’s contract to provide healthcare

coverage for PMI Florida’s leased employees; the Blue Cross suit does not seek

damages for the wrongful diversion of funds, even if that wrongful diversion

directly resulted in the missed payments. That is, the Blue Cross suit is a run-of-

the-mill breach-of-contract claim brought by a third party distinct from any of PMI

Florida’s client service agreements. The Blue Cross suit is not a claim brought by
                                          15
               Case: 15-10314       Date Filed: 03/01/2016       Page: 16 of 19


PMI Florida’s leased employees or clients.13 If PMI Florida’s proposed

understanding of the policy’s scope were correct, Lexington would likewise be

obligated to cover PMI Florida’s failure to pay any of its contractually obligated

debts—including its rent and utilities bills. It is hard to see how the policy, given

the language quoted above, could be read faithfully to include such coverage.

       Any remaining doubts, however, are clearly resolved by the policy’s

exclusion of contractual liability, 14 which provides: “This insurance does not

apply to any Claim against an Insured … arising out of liability the Insured

assumed under any contract or agreement.” To the extent the contractual-liability

exclusion may prove ambiguous in other circumstances, as may be the case in suits

brought pursuant to contracts PMI Florida entered with its employees or clients, we

hold that it squarely applies to bar coverage for the Blue Cross suit. Though the


       13
            Because the cases PMI Florida relies upon involve claims brought by parties to the
underlying insurance policy, they are inapposite here. See Republic Franklin Ins. Co. v.
Albemarle Cty. Sch. Bd., 670 F.3d 563 (4th Cir. 2012); MarineMax, Inc. v. Nat’l Union Fire Ins.
Co. of Pittsburgh, No. 8:10-cv-1059-T-33AEP, 2013 WL 425832 (M.D. Fla. Feb. 4, 2013), aff’d,
616 F. App’x 417 (Mem.) (11th Cir. 2015).
         14
            Though we strongly suspect that the District Court’s thorough analysis of Florida’s
public policy is correct, there is no reason to undertake that analysis when the language of the
Insurance Policy is clear on its face. Presumably, the court engaged in its public-policy analysis
because of the factual disputes surrounding PMI Delaware’s uncertain involvement in the Blue
Cross contract, as it found that “there is no indication that [PMI Florida and PMI Delaware]
‘assumed’ liability to [Blue Cross] under a contract or agreement.” There is no question that
PMI Florida “assumed liability” for making payments to Blue Cross, as it is undisputed that PMI
Florida is a named party to the Blue Cross contract. Now that PMI Delaware has been dismissed
from the case, we hold that PMI Florida’s remaining claims are barred by the contractual-
liability exclusion.

                                               16
              Case: 15-10314       Date Filed: 03/01/2016      Page: 17 of 19


parties could have allocated the risk so that Lexington would have been on the

hook for PMI Florida’s failure to pay Blue Cross in theory, the contractual-liability

exclusion makes clear that they did not do so in fact.

       We therefore affirm the District Court’s grant of summary judgment to

Lexington on PMI Florida’s claims for breach of contract and declaratory

judgment.

                                              C.

       Finally, Yoohoo Capital contends that the District Court improperly granted

summary judgment to Lexington on its claim of negligent misrepresentation. In its

order of March 22, 2012,15 the District Court dismissed Yoohoo Capital’s

negligent-misrepresentation claim as a matter of law. The statement in question

was made, via email, by Burwell, a representative of Lexington, to an official of

Yoohoo Capital to the effect that “it appeared to him that coverage was available

under the policy but that he would have to review the matter with his supervisor.”16

The District Court, after considering both Florida common law and the

Restatement (Second) of Torts, determined that Yoohoo Capital would, at a


       15
           The District Court reinstated its 2012 order granting summary judgment on December
31, 2014, after PMI Delaware had been dismissed from the case.
        16
           As mentioned above, the exact content of that communication is as follows: “As we
discussed, there appears to be coverage for this matter under Policy No. 20432538 but, as we
also discussed, I must review with my supervisor.”

                                              17
             Case: 15-10314     Date Filed: 03/01/2016   Page: 18 of 19


minimum, have to show that Lexington made a misrepresentation or false

statement upon which Yoohoo Capital justifiably relied. Because of its “equivocal

nature” and the lack of any “evidence in the record to suggest that” the statement

“was false in any way,” the District Court concluded that “no jury could

reasonably find that Yoohoo justifiably relied on [the statement] as an indication

that there would be coverage under the policy.”

      Yoohoo Capital asserts that the District Court’s analysis “ignores other

evidence related to the misrepresentation,” including various testimony and

affidavits concerning other statements made to Yoohoo Capital by Lexington that

suggest Lexington believed there would be coverage for the Blue Cross suit.

Yoohoo Capital also points our attention to the allegedly excessive length of time it

to took Lexington to determine whether coverage existed, as well as the

“reasonable inference” that Burwell’s disclaimer that he needed to review coverage

with his supervisor “was itself false or misleading” because the representative

“himself is an attorney and a relatively senior claims adjustor.”

      We fail to see how the additional facts Yoohoo Capital highlights, to the

extent they may be relevant at all, could, as a matter of law, support a reasonable

jury finding Burwell’s inherently equivocal statement—that “there appears to be

coverage” but he “must review” that determination with his supervisor—to be both

false and capable of being justifiably relied on.
                                          18
            Case: 15-10314    Date Filed: 03/01/2016   Page: 19 of 19


      We therefore affirm the District Court’s grant of summary judgment to

Lexington on Yoohoo Capital’s claim for negligent misrepresentation.

                                       IV.

      Accordingly, the District Court’s dismissal of PMI Delaware and its grant of

summary judgment to Lexington on all claims are

      AFFIRMED.




                                       19
