            Case: 17-10488   Date Filed: 10/19/2017   Page: 1 of 7


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-10478
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:16-cv-20484-FAM



WITKIN DESIGN GROUP, INC.,

                                                           Plaintiff - Appellant,

                                   versus

TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA,

                                                        Defendant - Appellee.

                       ________________________

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

                             (October 19, 2017)

Before TJOFLAT, MARCUS, and FAY, Circuit Judges.

PER CURIAM:
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       Witkin Design Group, Inc. (“Witkin”) appeals the decision of the District

Court, which held that Travelers Property Casualty Company of America

(“Travelers”) need not defend or indemnify a wrongful death action against

Witkin. We hold that the District Court did not err in determining that the

professional services exclusion applies and covers the allegations against Witkin in

the wrongful death action. Therefore, Travelers need neither defend nor indemnify

Witkin. We affirm.


                                                  I.


       The present case arises out of a traffic accident at an intersection in a

residential community known as “Vizcaya” located in Broward County, Florida.

The accident caused the death of an eleven-year-old boy, Jose A. Scott. The estate

of Scott brought a wrongful death action against multiple defendants, including

Witkin.1 The wrongful death complaint lists Witkin as the “landscape architect” for

Vizcaya. Witkin seems to have designed and constructed the intersection where

the accident occurred, tasks which Witkin allegedly performed in a negligent

manner. See Id. at 154–56. It is unclear from the record when Witkin constructed

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         Scott’s estate also brought claims against Lakisha D. Coney (the driver of the car),
Kevin S. Coney (the owner of the car), Vizcaya Community Association (the residential
community where the accident took place), Calvin Giordano & Associates, Inc. (a company who
helped engineer, survey, and plan Vizcaya), Southern Homes of Broward IV, LLC (the owner
and developer for Vizcaya), Yates & Company, LLC. (the development consultant for Vizcaya),
BGA Design Group (the architect for Vizcaya), and Keith & Ballbe, Inc. (the civil engineers for
Vizcaya).
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the intersection and what, if anything, Witkin did other than design and build the

intersection.

      In response to the wrongful death action, Witkin wanted its insurer,

Travelers, to either defend or indemnify the claim. Witkin has two insurance

policies with Travelers. The first is a Commercial General Liability Policy (“CGL

Policy”). The second is a Commercial Excess Liability Insurance Policy

(“Umbrella Policy”). Both policies provide coverage for products-completed

operations (“PCO”) claims, with the limitations for such claims listed on the

declarations pages. 2 The policies also both contain professional service exclusions

for any “[b]odily injury or property damage arising out of the rendering of or

failure to render any professional services.” The policies define “professional

services” as “any service requiring specialized skill or training.”

      Travelers refused to defend or indemnify the wrongful death action. It based

this refusal the professional services exclusions, arguing that the designing and

construction of the intersection constituted a professional service. Displeased with

this, Witkin filed a declaratory judgment action in state court seeking a declaration

that Travelers must defend or indemnify the wrongful death action under the

insurance policies. Travelers removed to federal district court. The parties filed

cross-motions for summary judgment. After reviewing the motions, a Magistrate

      2
        The CGL Policy limits PCO coverage to $2,000,000. The Umbrella Policy limits PCO
coverage to $1,000,000.
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Judge determined that the design and construction of the intersection constituted a

professional service under the policies, and thus that Travelers did not have a duty

to defend or indemnify the suit. The District Court adopted the Magistrate Judge’s

determination and dismissed the case. Witkin appealed.

                                         II.

      We review the grant or denial of a motion for summary judgment on a de

novo basis. Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1307 (11th Cir.

2012). In reviewing summary judgments, we draw all reasonable inferences in

favor of the nonmoving party. Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318,

1321 (11th Cir. 2014). We also review de novo the interpretation of an insurance

contract. Vector Products, Inc. v. Hartford Fire Ins. Co., 397 F.3d 1316, 1318

(11th Cir. 2005) (quoting LaFarge Corp. v. Travelers Indem. Co., 118 F.3d 1511,

1515 (11th Cir. 1997)). Because this case arises as a diversity action, we apply

Florida law. See Erie Railroad v. Tompkins, 304 U.S. 64, 78 (1938); Klaxon Co. v.

Stentor Electric Manufacturing Co., 313 U.S. 487, 496 (1941); Keller v. Miami

Herald Publishing Co., 778 F. 2d 711, 714–15 (11th Cir. 1985).

      Under Florida law, courts construe insurance contracts on their plain

meaning. Garcia v. Fed. Ins. Co., 969 So. 2d 288, 291–92 (Fla. 2007) (quotations

omitted). However, insurance policies that are “ambiguous or otherwise

susceptible to more than one meaning must be construed in favor of the insured.”


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State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So. 2d 1245, 1248 (Fla. 1986). In

determining whether ambiguities exist, courts must constrain themselves to the

language in the agreement; they cannot consider the subjective intent of the parties.

See Harrington v. Citizens Prop. Ins. Corp., 54 So. 3d 999, 1001–02 (Fla. 4th

DCA 2010) (citing State Farm Fire & Cas. Ins. Co. v. Deni Assocs. of Fla., Inc.,

678 So. 2d 397, 403 (Fla. 4th DCA 1996)). Lastly, in carrying out this analysis,

Florida courts must “read each policy as a whole, endeavoring to give every

provision its full meaning and operative effect.” Auto-Owners Ins. Co. v.

Anderson, 756 So. 2d 29, 34 (Fla. 2000).


      The insurance policies are not ambiguous. As the Magistrate Judge pointed

out, the PCO coverage does not exist as a separate policy. It forms part of the CGL

and Umbrella Agreements. Thus, the professional services exclusions apply to the

PCO claims.


      The CGL and Umbrella policies contain nearly identical language in their

respective professional service exclusions. They both exclude bodily injury or

property damage “arising out of the rendering of or failure to render any

‘professional service.’” Both policies define professional services to mean “any

service requiring specialized skill or training.” They then provide the following

examples of a professional service:


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              a. Preparation, approval, provision of or failure to
              prepare, approve, or provide any map, shop drawing,
              opinion, report, survey, field order, change order, design,
              drawing, specification, recommendation, warning, permit
              application, payment request, manual or inspection;

              b. Supervision, inspection, quality control, architectural,
              engineering or surveying activity or service, job site
              safety,    construction     contracting,      construction
              administration, construction management, computer
              consulting or design, software development or
              programming service, or a selection of a contractor or
              subcontractor; or

              c. Monitoring, testing, or sampling service necessary to
              perform any of the services included in a. or b. above.

       These provisions are clear. The professional service exclusion applies to any

service requiring specialized skill or training, such as the services listed above.

There is no “genuine inconsistency, uncertainty, or ambiguity” as to what counts as

a professional service. Taurus Holdings, Inc. v. U.S. Fidelity and Guar. Co., 913

So. 2d 528, 532 (2005) (quotation omitted).

       The conduct of Witkin in designing and constructing the intersection falls

squarely within the professional services exclusions. Presumably, the developer of

Vizcaya – Southern Homes of Broward IV, LLC (“Southern Homes”) – hired

Witkin to design and construct the intersection at S.W. 135th Terrace and 136th

Avenue in Broward County. 3 Such architecture and construction services require

       3
          It is Witkin’s negligence in designing and constructing the intersection that would
render Southern Homes liable. The record does not identify who hired Witkin for its professional
services. We assume that the developer, Southern Homes, employed the firm.
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“specialized skill or training,” and thus qualify as professional services. Thus, the

professional services exclusions apply, and Travelers need not defend or indemnify

the wrongful death action.

      AFFIRMED.




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