                                                 [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT            FILED
                    ________________________ U.S. COURT OF APPEALS
                                                 ELEVENTH CIRCUIT
                          No. 09-15396            SEPTEMBER 8, 2011
                    ________________________          JOHN LEY
                                                       CLERK
              D. C. Docket No. 05-00401-CV-3-LAC-MD



LANDMARK AMERICAN INSURANCE COMPANY,
ARCH INSURANCE GROUP,

                                                   Plaintiffs-Counter
                                                Defendants-Appellees
                                                   Cross-Appellants,

ARCH SPECIALTY INSURANCE COMPANY,

                                                      Plaintiff-Appellee,

                             versus

MOULTON PROPERTIES, INC.,
MOULTON BROTHERS, INC.,
THE MOULTON TRUST,

                                                  Defendants-Counter
                                                Claimants-Appellants,
                                                     Cross-Appellee.
                           ________________________

                   Appeals from the United States District Court
                       for the Northern District of Florida
                         _________________________

                                (September 8, 2011)

Before DUBINA, Chief Judge, EDMONDSON and WILSON, Circuit Judges.



PER CURIAM:



      This case, involving appeals of summary judgments, is an insurance dispute

over a group of properties that were damaged by two hurricanes occurring less than

one year apart.

      In the time between the two hurricanes, the properties’ owners -- Moulton

Properties, Inc., Moulton Brothers, Inc., and the Moulton Trust (collectively “the

Moultons”) -- changed insurers. The question at the center of this appeal is

whether the Moultons made misrepresentations to their new insurers -- Landmark

American Insurance Company and Arch Specialty Insurance Company

(individually, “Landmark” and “Arch”; collectively, “the Insurers”) -- about the

extent to which damage caused by the first hurricane had been repaired. Because

we conclude that issues remain for the district court to consider, we vacate the



                                          2
district court’s judgment in part and remand for further proceedings.



                                I. BACKGROUND



      The Moultons own several properties in and around Pensacola, Florida. In

September 2004, some of these properties were damaged by Hurricane Ivan. The

Moultons’ insurer at the time, St. Paul/Travelers Insurance Company (“St. Paul”),

began investigating and processing the claims, but also informed the Moultons that

it would not renew their insurance policy after that policy’s expiration. The

Moultons enlisted their insurance broker, Fisher-Brown, Inc. (“Fisher-Brown”), to

secure new coverage. Fisher-Brown, in turn, sought the assistance of Peachtree

Special Risk Brokers, LLC (“Peachtree”), an independent wholesale insurance

broker, to procure coverage from surplus-line carriers.

      Before seeking coverage for the Moultons, Peachtree corresponded with

Fisher-Brown to learn certain details about the Moultons’ insurance history.

Peachtree first asked about the Moultons’ five-year loss history and about their

current carrier. Fisher-Brown responded that St. Paul was the current carrier, and

then explained the Moultons’ loss history this way:

             The only property losses would be Ivan and all their properties
      sustained damage. The damage has been fixed other than cosmetic work

                                          3
      on some properties.     Until Ivan their property loss experience was
      excellent.

      Peachtree then asked for the dollar amount of the damage caused by

Hurricane Ivan. A Fisher-Brown employee replied this way:

              We don’t have any specific figures. St. Paul is handling the claim
      on all the properties (not just what we have submitted to you) and they
      are still working it out. When I spoke to the St. Paul underwriter when
      we were discussing the non-renewal [of the Moultons’ coverage,] he did
      mention that they had reserve set up of 2.2 million for all the properties.

      Based in part on this information, Peachtree prepared a Property Summary

that it distributed to ten insurers -- including Landmark and Arch -- in June 2005.

The Property Summary specifically addressed the damage that Hurricane Ivan had

caused, making this statement: “IVAN -- all repairs have been completed, the total

loss (on the master program which includes several buildings that are not on our

schedule -- total loss was estimated @ $2.2MM).”

      In response to the Property Summary, Landmark sent Peachtree a quote for a

primary insurance policy; and Arch sent a quote for an excess policy. The

Moultons purchased both the primary policy and the excess policy; their coverage

under these policies began on 1 July 2005.

      On 10 July 2005, Hurricane Dennis struck the Pensacola area. The next day,

the Moultons reported hurricane-related damage at the three properties at issue in

this appeal.

                                          4
      The Insurers sent an independent adjuster to inspect the three properties.

This adjuster reported that damage existed at all three properties that had not been

caused by Hurricane Dennis, but that was instead unrepaired or partially repaired

damage from Hurricane Ivan. Landmark sent the Moultons one letter requesting

documentation about their Ivan-related claims and repairs and, then, a second letter

indicating Landmark’s belief that the Moultons had made misrepresentations about

the Ivan-related repairs. The Moultons, through their lawyer, denied Landmark’s

accusation.

      Rejecting the Moultons’ denial -- and concluding that the Moultons had

made misrepresentations about the Ivan-related damage -- Landmark rescinded the

Moultons’ coverage in October 2005. Arch did the same in November 2005.

      Procedural History. Landmark then filed this lawsuit seeking a declaratory

judgment on its right to rescind the policy. Arch intervened and sought similar

relief. The Moultons filed several counterclaims, including a counterclaim against

the Insurers for breach of contract based on the Insurers’ failure to cover the

Moultons’ losses stemming from Hurricane Dennis.

      The Moultons filed a motion for judgment on the Insurers’ pleadings and a

separate motion for partial summary judgment on the Moultons’ counterclaim.

The Insurers each responded with their own summary-judgment motions.



                                           5
      The district court rejected all of the Insurers’ arguments in support of

rescission, including their claim that the Moultons had made misrepresentations

during the application process. The court thus granted the Moultons’ motion for

partial summary judgment to the extent that the court dismissed the Insurers’

complaints for declaratory relief.

      But the district court also concluded that the Moultons’ counterclaim for

breach of contract was not ripe because the Insurers should be given an opportunity

to administer the Moultons’ claims. So, the court granted summary judgment for

the Insurers on this breach-of-contract issue and dismissed the Moultons’

counterclaim in its entirety. The district court denied the Insurers’ motions for

summary judgment in all other respects and also denied the Moultons’ motion for

judgment on the pleadings. The Moultons, Landmark, and Arch then filed these

cross-appeals of the district court’s summary judgments.1

      We review the district court’s decision on cross-motions for summary

judgment de novo, viewing the evidence -- and drawing all factual inferences -- in

the light most favorable to the non-moving party. Am. Bankers Ins. Grp. v. United

States, 408 F.3d 1328, 1331 (11th Cir. 2005).




      1
          The Moultons do not appeal the denial of their motion for judgment on the pleadings.

                                                6
                                  II. DISCUSSION



       A.     The Insurers’ Motion for Summary Judgment



       The Insurers raise three arguments in support of their appeal from the district

court’s denial of their motions for summary judgment: that the Moultons breached

a condition precedent of their insurance contracts; that the Moultons made

misrepresentations in the insurance application process; and that the Moultons

made additional misrepresentations after obtaining coverage. We take up these

issues in turn.



              1.    Breach of a Condition Precedent



       The Moultons’ contract with Landmark stated -- in what the parties refer to

as “Endorsement No. 1” -- that “coverage from this policy is subject to all damage

from Hurricane Ivan being completed prior to inception of policy”; and the

Moultons’ contract with Arch was “subject to the same warranties, terms and

conditions” as the Landmark policy. The Insurers argue that Endorsement No. 1

required the Moultons actually to repair all Ivan-related damage before the



                                           7
inception of their new coverage and that the Moultons breached this condition

precedent by failing to repair fully that damage.

       The Insurers effectively ask us to read Endorsement No. 1, which requires

“all damage” to have been “completed,” to instead require that “all repairs” of

Ivan-related damage have been “completed.” We cannot read the words that way.

Under Florida law (which applies to this diversity action), we must construe

Endorsement No. 1 in accordance with its plain language. See Swire Pac.

Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla. 2003).2

       The word “damage” means “[i]njury, harm; . . . physical injury to a thing,

such as impairs its value or usefulness.” IV O XFORD E NGLISH D ICTIONARY 224

(2d ed. 1989). For damage to be complete, then, the impairment of a property’s

value or usefulness must have been fully and finally inflicted. Damage may not be

complete if some ongoing condition remains that continues to impair further a

property’s value or usefulness: for example (as the district court suggested), an

undetected mold that develops in parts of a property after a storm has passed

through. But the Insurers have not shown that any such ongoing damage was

happening to the Moultons’ properties as a result of Hurricane Ivan; and so we



       2
          The Insurers do not argue that Endorsement No. 1’s language is ambiguous -- and even if
it were, this ambiguity would require us to construe the endorsement’s language in favor of the
Moultons and against the Insurers (who drafted the language). Id.

                                               8
reject the argument that the Ivan-related “damage” was not “complete”: the

Moultons did not breach Endorsement No. 1.



             2. Misrepresentations in the Application Process



      The Insurers argue that they were entitled to rescind the Moultons’ coverage

because the Moultons made material misrepresentations during the application

process. The Insurers point to communications between Fisher-Brown and

Peachtree (in preparation for Peachtree’s soliciting insurance for the Moultons),

and also to communications between Peachtree and the Insurers, in the form of the

Property Summary that Peachtree submitted and that resulted in the Insurers

providing coverage for the Moultons.

      The district court, in analyzing this issue, considered only whether Fisher-

Brown made misrepresentations to Peachtree. The court specifically declined to

consider possible misrepresentations in the Property Summary that Peachtree

prepared; the court said that the Insurers “do not seriously contend” that Peachtree

was an agent for the Moultons.

      We conclude the district court erred in this statement. Both of the Insurers




                                          9
did make that contention before the district court,3 and they continue to raise that

contention on appeal. So, we must decide whether Peachtree was acting as the

Moultons’ agent, in which case the representations in the Property Summary

prepared by Peachtree would be attributable to the Moultons.

       The Moultons argue that an earlier order of the district court, disposing of

several counterclaims the Moultons had filed against the Insurers and against

Peachtree (but not the Moultons’ breach-of-contract counterclaim that is at issue in

this appeal), operates as res judicata to bar the Insurers from arguing that Peachtree

was the Moultons’ agent. On the Moultons’ counterclaim alleging that Peachtree

had negligently conveyed inaccurate information to the Insurers, the district court

noted that, although the Moultons alleged that Peachtree acted as an agent for the

Insurers, the Moultons had “fail[ed] to identify” any duty of care Peachtree owed

to the Moultons. The court thus dismissed this counterclaim against Peachtree.

Having also dismissed the Moultons’ other counterclaims against Peachtree, the

district court, subsequently and in a separate order, granted Peachtree’s motion for

entry of final judgment, ending Peachtree’s involvement in the case.

       According to the Moultons, this entry of final judgment precludes the


       3
          Landmark argued, to the district court, that the Moultons were wrong to assert that
“Peachtree is the agent for Landmark, as opposed to the Moultons”; Landmark argued that Peachtree
was an agent for the Moultons. In the same way, Arch argued, to the district court, that Peachtree’s
representations should be attributed to the Moultons.

                                                10
Insurers from arguing that Peachtree was an agent for the Moultons. We disagree.

Res judicata requires, among other things, that the allegedly preclusive order

involve the same parties (or their privies) as the present action. Shurick v. Boeing

Co., 623 F.3d 1114, 1116-17 (11th Cir. 2010). But the district court’s order

granting final judgment for Peachtree did not involve the Insurers: that order

disposed only of the Moultons’ counterclaims against Peachtree. Nor have the

Moultons shown that the Insurers are privies of Peachtree. So, nothing in the order

granting final judgment for Peachtree operates as res judicata to preclude the

Insurers from arguing that Peachtree was the Moultons’ agent.4

        We thus must decide whether Peachtree acted as the Moultons’ agent when

it submitted the Property Summary. Under Florida law, an insurance broker

employed to procure insurance is presumed to act as an agent for the insured unless

“special circumstances” indicate that a different relationship existed. Essex Ins.

Co. v. Zota, 985 So. 2d 1036, 1046 (Fla. 2008) (internal quotation marks and

citation omitted); Almerico v. RLI Ins. Co., 716 So. 2d 774, 776-77 (Fla. 1998).


        4
         We also reject the Moultons’ argument that, by not appealing the district court’s order
entering final judgment for Peachtree, the Insurers forfeited the right to argue the issue now.
Because the Insurers were not aggrieved by the entry of final judgment for Peachtree, the Insurers
had no standing to appeal that order. Wolff v. Cash 4 Titles, 351 F.3d 1348, 1354 (11th Cir. 2003).
Also, given that the Insurers could not have appealed the order entering final judgment for
Peachtree, we reject the Moultons’ reliance on the law-of-the-case doctrine. See United States v.
Escobar-Urrego, 110 F.3d 1556, 1560 (11th Cir. 1997) (law-of-the-case doctrine applies where a
party attempts to argue a point that was decided at an earlier stage in the litigation and that the party
“had the opportunity to appeal” at that time).

                                                   11
So, we begin with the presumption that Peachtree was the Moultons’ agent.

      The Moultons can rebut this presumption by “presenting some indicia of

agency” showing that Peachtree was actually acting as an agent for the Insurers

and not for the Moultons. Zota, 985 So. 2d at 1048. The Moultons rely on

brokerage contracts between Peachtree and each of the Insurers, but those contracts

expressly state that Peachtree was not an agent of either Landmark or Arch. So,

these contracts, even when viewed in the light most favorable to the Moultons, do

not establish that Peachtree was acting as an agent for the Insurers when Peachtree

sought to -- and did -- procure insurance for the Moultons. Nor have the Moultons

offered anything else to overcome the presumption that Peachtree was acting as the

Moultons’ agent. Thus, statements Peachtree made in the Property Summary are

attributable to the Moultons.

      Because Peachtree was the Moultons’ agent, communications between

Peachtree and Fisher-Brown -- who, as the district court noted, the parties do not

dispute was also an agent for the Moultons -- are not important to the question of

whether the Moultons made misrepresentations to the Insurers. Instead, the key

issue is whether the Property Summary that Peachtree submitted to the Insurers

contained misrepresentations: an issue the district court did not consider. We thus

remand for the district court to decide this question in the first instance.



                                           12
               3. Post-Coverage Misrepresentations



       The Insurers also argue that the Moultons made misrepresentations in the

claims process after their coverage with the Insurers began and after Hurricane

Dennis struck. The district court concluded that this claim was no basis for

summary judgment because the Insurers had not properly pleaded claims of post-

coverage misrepresentations.

       We agree. Neither Landmark nor Arch, in their complaints for declaratory

relief, presented any claim based on alleged post-coverage misrepresentations;

instead, both of the Insurers claimed that the Moultons made misrepresentations

only during the process of applying for coverage. So, the district court was correct

in declining to consider alleged post-coverage misrepresentations.5

       To summarize, we reject two of the Insurers’ arguments in support of their

motions for summary judgment: that the Moultons breached Endorsement No. 1 of



       5
         This point is not to say that the issue of post-coverage misrepresentations is entirely
disposed of in this litigation. The Insurers argue -- and the Moultons agree -- that the Insurers
pleaded post-coverage misrepresentations as an affirmative defense to the Moultons’ counterclaim
for breach of contract. So, while post-coverage misrepresentations are no basis for granting
summary judgment for the Insurers on their claims for declaratory relief, such misrepresentations
might stand as a defense for the Insurers against the Moultons’ breach-of-contract counterclaim.
        We do not today decide whether the Insurers did, in fact, properly plead post-coverage
misrepresentations as an affirmative defense; we note only that the issue may require analysis at
some future point, if the Moultons’ counterclaim for breach of contract is later considered on the
merits.

                                               13
their policies, and that the Moultons made misrepresentations after Hurricane

Dennis struck that entitled the Insurers to rescind coverage. But because we

conclude that the district court must itself consider whether the Insurers were

entitled to rescind coverage based on misrepresentations in the Property Summary,

we vacate the denial of summary judgment for the Insurers and remand for the

court to consider that issue.

       We turn to the Moultons’ arguments in support of their own motion for

summary judgment.



       B.      The Moultons’ Counterclaim for Breach of Contract



       The Moultons argue that the district court erred in dismissing their

counterclaim for breach of contract as not ripe. The basis for the court’s ruling was

its determination that the Insurers should be given an opportunity to administer the

Moultons’ insurance claims, in the light of the court’s conclusion that the Insurers

were not entitled to rescind the Moultons’ coverage.6



       6
         The Moultons argue that, by stating that “the parties are positioned to properly administrate
the [Moultons’] Hurricane Dennis claim,” the district court improperly entered a mandatory
injunction that no party had sought. The court did no such thing: at no point did the court order any
injunctive relief or otherwise suggest that the parties were equitably bound to administer the
Moulton’s claims.

                                                 14
       The district court did not err in dismissing the Moultons’ counterclaim as

unripe. Because we today remand for the district court to analyze further the issue

of whether the Moultons made misrepresentations to the Insurers, it remains

unclear now whether the Insurers were ever obligated to administer the Moultons’

claims or were instead entitled to rescind the Moultons’ coverage. It would be

premature to decide the issue of the Insurers’ liability under the contract without

first deciding whether the Insurers had acted permissibly in rescinding the contract.

See, e.g., Pittman v. Cole, 267 F.3d 1269, 1278 (11th Cir. 2001) (noting that

“claims are less likely to be considered fit for adjudication when they venture

beyond purely legal issues or when they require speculation about contingent

future events”) (internal quotation marks and citation omitted). So, we affirm the

district court’s dismissal of the Moultons’ counterclaim.7




       7
          A dismissal on ripeness grounds is ordinarily a dismissal without prejudice. See Ga.
Advocacy Office, Inc. v. Camp, 172 F.3d 1294, 1299 (11th Cir. 1999). In entering a judgment of
dismissal on the Moultons’ counterclaim, the district court Clerk of Court stated that the Moultons
“shall take nothing further by this action and shall go without day.” The Moultons argue that this
language connotes a dismissal with prejudice, which -- they say -- would be in error. We understand
the dismissal to be without prejudice. The Moultons’ worries are misplaced: the phrase “go without
day” has no bearing on whether a dismissal is with or without prejudice; this phrase means only that
the parties were “finished with legal proceedings without any further settings on the court’s
calendar.” BLACK’S LAW DICTIONARY 760 (9th ed. 2009).

                                                15
                               III. CONCLUSION



      Because the district court did not consider whether the Insurers were entitled

to rescind coverage based on misrepresentations in the Property Summary, we

VACATE the court’s dismissal of the Insurers’ complaints, and its entry of partial

summary judgment for the Moultons on the issue of misrepresentations in the

Moultons’ insurance application; we REMAND for further proceedings. But we

AFFIRM the district court’s dismissal of the Moultons’ counterclaim and also its

entry of summary judgment for the Insurers on the issue of the Moultons’

counterclaim.

      AFFIRMED in part, VACATED in part, and REMANDED.




                                         16
