                                                      [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________           FILED
                                                  U.S. COURT OF APPEALS
                               No. 11-11781         ELEVENTH CIRCUIT
                                                    SEPTEMBER 30, 2011
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                          CLERK

                      D.C. Docket No. 1:08-cv-22302-WJZ


CREATIVE HOSPITALITY VENTURES, INC.,

                                                                Plaintiffs, et al.,

E.T. LIMITED, INC.,
                                                            Plaintiff-Appellant,

                                   versus

UNITED STATES LIABILITY INSURANCE COMPANY,
d.b.a. United States Liability Insurance Group, et al.,

                                                                    Defendants,

ESSEX INSURANCE COMPANY,

                                                          Defendant-Appellee.
                         ________________________

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

                             (September 30, 2011)
Before HULL, WILSON, and BLACK, Circuit Judges.

PER CURIAM:

       Plaintiff–appellant E.T. Limited, Inc., (“ETL”) appeals the district court’s

grant of summary judgment to Defendant–appellee Essex Insurance Company

(“Essex”). The district court concluded that Defendant Essex’s commercial

general liability policy (the “Policy”) imposed no duty to defend Plaintiff ETL in

the underlying litigation in state court. In the state court litigation, several

consumers filed a class action against ETL and others for violating the Fair and

Accurate Credit Card Transaction Act (“FACTA”), 15 U.S.C. § 1681c(g)(1), by

issuing receipts revealing more than five digits of the consumer’s credit card

number or the card’s expiration date.1

       More specifically, the district court concluded that Defendant Essex owed

no duty to defend Plaintiff ETL under the Policy because ETL’s issuance of a

credit card receipt does not constitute a “publication” as required under the

Policy’s coverage for personal and advertising injury. We agree with the district

court that “publication” as used in the Policy is unambiguous and that the

       1
         Enacted as an amendment to the Fair Credit Reporting Act, 15 U.S.C. § 1681, FACTA
requires a merchant to truncate the credit or debit card number on a customer’s receipt. FACTA
provides, “Except as otherwise provided in this subsection, no person that accepts credit cards or
debit cards for the transaction of business shall print more than the last 5 digits of the card
number or the expiration date upon any receipt provided to the cardholder at the point of the sale
or transaction.” 15 U.S.C. § 1681c(g)(1).

                                                2
provision of a receipt to a customer involves no “publication” within the meaning

of the Policy. Accordingly, we affirm.

             I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Policy

      Plaintiff ETL operates a restaurant in Miami, Florida. During 2008, ETL

was the named insured on the Policy issued by Defendant Essex. The Policy

covers sums ETL must pay because of “advertising injury,” defined as follows:

      COVERAGE B PERSONAL AND ADVERTISING INJURY
      LIABILITY

      1. Insuring Agreement

             a. We will pay those sums that the insured becomes legally
             obligated to pay as damages because of “personal and
             advertising injury” to which this insurance applies. We will
             have the right to defend the insured against any “suit” seeking
             those damages. . . .

      ....

      2. Exclusions

      This insurance does not apply to:

             a. Knowing Violation Of Rights Of Another
             “Personal and advertising injury” caused by or at the direction
             of the insured with knowledge that the act would violate the
             rights of another and would inflict “personal and advertising
             injury”.


                                          3
      ....

      SECTION V - DEFINITIONS

      ....

      14. “Personal and advertising injury” means injury, including
      consequential “bodily injury,” arising out of one or more of the
      following offenses:

      ....

             d. Oral or written publication, in any manner, of material that
             slanders or libels a person or organization or disparages a
             person’s or organization’s goods, products or services;

             e. Oral or written publication, in any manner, of material that
             violates a person’s right of privacy . . . .

B. Underlying State Court Litigation

      In February 2008, ETL was sued in state court in Florida. In state court, the

class action complaint alleges violations of FACTA and seeks to recover on behalf

of “all persons who . . . had more than the last five digits of their payment card’s

account number or expiration date printed on the receipt provided to the

Cardholder.” The complaint alleges that ETL “willfully violated [FACTA] and

failed to protect the Cardholder and the purported class against identity theft and

credit and debit card fraud by printing more than the last five digits of the card

number and/or the expiration date on the consumer receipts it provided to the



                                          4
Cardholder and the purported class.” The complaint seeks actual damages or

statutory damages,2 and punitive damages, costs, and attorney’s fees.

       ETL requested that Essex defend and indemnify ETL in this state court

litigation, but Essex denied coverage. Although our record contains no evidence

of the disposition of the state court litigation, the parties apparently agree that the

state court case was dismissed in April 2009.

B. Federal Court Litigation

       Initially, this federal court case was brought by another insured party, as a

prospective class action, on behalf of all persons and entities that have been sued

under FACTA and were denied insurance coverage by United States Liability

Insurance Company (“USLI”) “or other insurance companies.” The complaint

sought declaratory judgments that the insurers were obligated to defend and

indemnify their insureds against lawsuits asserting violations of FACTA.

       An October 2008 amended complaint added ETL as a prospective class

plaintiff and added Essex as a defendant. Moving to dismiss the complaint, Essex

argued, among other things, that it owed no duty to defend ETL because the


       2
       The statute permits a consumer injured by a person who “willfully fails to comply” with
FACTA to recover “any actual damages sustained by the consumer as a result of the failure or
damages of not less than $100 and not more than $1,000.” See 15 U.S.C. § 1681n(a). A
consumer injured by “negligent noncompliance” with FACTA may recover only actual damages.
See 15 U.S.C. § 1681o.

                                              5
printing of a credit card receipt involved no “publication” within the meaning of

the Policy. USLI also moved to dismiss on similar grounds. After ordering

supplemental briefing on the defendants’ motions to dismiss, the district court

referred the motions to the magistrate judge.

      In a lengthy report and recommendation, the magistrate judge concluded

that the underlying state court complaint against Essex “can fairly be read to

include both negligent and willful noncompliance” with FACTA, but that the

underlying complaint against USLI alleged only willful noncompliance with

FACTA. Turning to interpretation of the insurance policies at issue here, the

magistrate judge concluded that the phrase “publication, in any manner” was

broad enough to include the provision to a customer of a credit card receipt

containing more than five digits of the credit card number or the card’s expiration

date. The magistrate judge further concluded that FACTA created a “right to

privacy” within the meaning of the insurance policies and that the underlying

complaints therefore alleged “injury” as defined by the policies.

      Addressing the pertinent exclusions, the magistrate judge concluded that,

because the underlying state court complaint against USLI sought damages only

for willful violations of FACTA, the exclusion for “knowing violations of rights of

another” precluded coverage. However, because the underlying state court

                                         6
complaint against Essex fairly included allegations of both willful and negligent

violations of FACTA, this exclusion did not justify Essex’s denial of coverage.

Accordingly, the magistrate judge recommended dismissal of the claims against

USLI but recommended denial of Essex’s motion to dismiss.

      Timely objecting to the magistrate judge’s report, Essex argued that the

magistrate judge erred by concluding that the underlying state court complaint

against ETL alleged both negligent and willful violations of FACTA and by

concluding that the provision of a receipt constituted a “publication” within the

meaning of the Policy. Neither the plaintiffs nor USLI objected to the magistrate

judge’s report. Accordingly, the district court adopted the report with respect to

the claims against USLI and granted USLI’s motion to dismiss. However, the

district court reserved ruling on Essex’s motion to dismiss and Essex’s objections

to the magistrate judge’s report.

      At a subsequent status conference, the parties informed the district court

that the underlying state court case against ETL had been dismissed, and the

parties agreed to convert Essex’s motion to dismiss into a motion for summary

judgment. The district court ordered further briefing and subsequently denied

Essex’s motion to dismiss and converted the motion to dismiss into a motion for

summary judgment.

                                         7
       Following further briefing, the district court granted summary judgment to

Essex. The district court concluded that “publication” as used in the Policy was

not ambiguous and that the term did not cover the FACTA violations alleged in

the underlying state court complaint. The district court noted that the Florida

Supreme Court recently defined “publication” as “communication (as of news or

information) to the public: public announcement.” See Penzer v. Transp. Ins. Co.,

29 So. 3d 1000, 1005 (Fla. 2010) (internal quotation marks omitted). Relying on

this definition, the district court concluded that “[p]rinting a non-truncated credit

card receipt and providing it to the cardholder does not constitute publication

because there is no dissemination of information to the public.” The district court

acknowledged that the Policy included the phrase “publication, in any manner,”

but concluded that the modifying phrase merely clarified the categories of

publication covered by the Policy. Because the underlying state court complaint

alleged no “publication” at all, Essex properly denied coverage and had no duty to

defend ETL in the underlying state court case. ETL3 timely appealed the district

court’s order.


       3
        The notice of appeal is from the district court’s March 23, 2011 order, which addresses
only ETL’s claims against Essex. Although the notice of appeal references Creative Hospitality
Ventures, Inc. as the appellant, it is clear that the intent of the notice of appeal is to appeal the
claims in the district court’s March 23, 2011 order. Thus, we construe the notice of appeal to
include ETL as the plaintiff–appellant. See Fed. R. App. P. 3(c)(4).

                                                  8
                                       II. DISCUSSION

       On appeal, Plaintiff ETL argues that the district court erred by granting

summary judgment based on a narrow construction of “publication, in any

manner” as used in the Policy. Although acknowledging the Florida Supreme

Court’s definition of “publication” in Penzer, ETL notes that the policy at issue in

Penzer did not include the modifying phrase “in any manner.” ETL contends that

this modifying phrase broadens the scope of “publication” to include a written

credit card receipt. ETL further argues that “publication” is not defined in the

Policy and is ambiguous, as evidenced by the fact that the magistrate judge and the

district court reached differing conclusions about the scope of the term. Because

the term is ambiguous, ETL asserts that the Policy must be construed against

Essex and that Essex therefore breached the Policy by denying a defense to ETL in

the underlying state court case.

A. Insurance Policy Interpretation Under Florida4 Law

       “Under Florida law, insurance contracts are construed according to their

plain meaning.” Garcia v. Fed. Ins. Co., 969 So. 2d 288, 291 (Fla. 2007)


       4
          In this diversity case, we apply the substantive law, including the choice-of-law rules, of
the forum state, in this case Florida. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct.
817, 822 (1938); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021
(1941). The parties agree that Florida’s choice-of-law rules require the application of Florida law
to this insurance dispute.

                                                 9
(quotation marks omitted). Nevertheless, if the relevant policy language is

susceptible to more than one reasonable interpretation, one providing coverage

and another limiting coverage, the insurance policy is ambiguous. Auto-Owners

Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000). An ambiguity in an insurance

contract is interpreted against the insurer and in favor of the insured. Swire Pac.

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

construing a provision against the insurer, however, the provision must actually be

ambiguous. Garcia, 969 So. 2d at 291.

      In determining the plain meaning of provisions in an insurance policy,

Florida courts may consult references commonly relied upon to supply the

accepted meaning of words. Id. at 292. A provision is not rendered ambiguous

merely because it is complex or requires analysis. Swire Pac. Holdings, 845 So.

2d at 165. The “mere failure to provide a definition for a term involving coverage

does not necessarily render the term ambiguous.” Cont’l Cas. Co. v. Wendt, 205

F.3d 1258, 1262 (11th Cir. 2000) (quotation marks omitted). “[I]f a policy

provision is clear and unambiguous, it should be enforced according to its terms

whether it is a basic policy provision or an exclusionary provision.” Garcia, 969

So. 2d at 291 (quotation marks omitted).




                                         10
B. Defining “Publication”

       In this appeal, we must decide whether “publication” as used in the Policy

includes a merchant’s provision of a receipt to a customer during a retail

transaction. Fortunately, our review is aided by the Florida Supreme Court’s

recent decision in Penzer.

       In Penzer, an insured sued his commercial general liability (“CGL”) insurer

in federal district court, seeking a declaratory judgment that the insurer was

obligated to defend an action against the insured for violating the Telephone

Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, by sending unsolicited

facsimile advertisements.5 29 So. 3d at 1003. In Penzer, the policy provided

coverage for personal or advertising injury, which included injury arising out of

“[o]ral or written publication of material that violates a person’s right to privacy.”

Id. The district court concluded that this provision was unambiguous and that the

insurer owed no duty to defend the TCPA claims because coverage arose only if

the content of the published material (in this case, the faxed advertisements)




       5
        The TCPA prohibits the use of “any telephone facsimile machine . . . to send, to a
telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C).



                                               11
violated a person’s right to privacy. Id. at 1004. The insured appealed, and we

certified the following question to the Florida Supreme Court:

      DOES A COMMERCIAL LIABILITY POLICY WHICH PROVIDES
      COVERAGE FOR “ADVERTISING INJURY,” DEFINED AS
      “INJURY ARISING OUT OF . . . ORAL OR WRITTEN
      PUBLICATION OF MATERIAL THAT VIOLATES A PERSON’S
      RIGHT OF PRIVACY,” SUCH AS THE POLICY DESCRIBED HERE,
      PROVIDE COVERAGE FOR DAMAGES FOR VIOLATION OF A
      LAW PROHIBITING USING ANY TELEPHONE FACSIMILE
      MACHINE TO SEND UNSOLICITED ADVERTISEMENT TO A
      TELEPHONE FACSIMILE MACHINE WHEN NO PRIVATE
      INFORMATION IS REVEALED IN THE FACSIMILE?

See Penzer v. Transp. Ins. Co., 545 F.3d 1303, 1312 (11th Cir. 2008) (alteration in

original).

      Responding in the affirmative to the certified question, the Florida Supreme

Court (in a five-justice majority) held that the policy language was unambiguous

and provided coverage “for blast-faxing in violation of the TCPA.” Penzer, 29 So.

3d at 1008. Importantly, for our purposes, the Florida Supreme Court majority

adopted a plain-meaning, dictionary definition of “publication” as used in the CGL

policy in Penzer:

            The . . . term[] “publication” is defined as “communication (as of
      news or information) to the public: public announcement” or as “the act
      or process of issuing copies (as a book, photograph, or musical score)
      for general distribution to the public.” WEBSTER’S THIRD NEW
      INTERNATIONAL DICTIONARY 1836 (1981). The definition also refers the
      reader to the definition of “publish.” Id. To publish is “to place before

                                         12
       the public (as through a mass medium): DISSEMINATE.” Id. at 1837.
       Here, sending 24,000 unsolicited blast-facsimile advertisements to Mr.
       Penzer and others is included in the broad definition of “publication”
       because it constitutes a communication of information disseminated to
       the public and it is “the act or process of issuing copies . . . for general
       distribution to the public.”

Id. at 1005-06.6

       C. Is Providing a Receipt to a Customer “Publication, in Any Manner”?

       We agree with the district court that the provision of a receipt to a customer

fails to constitute a “publication” within the meaning of Essex’s Policy. In

particular, we reject ETL’s argument that the language of “publication, in any

manner” is ambiguous, and we apply the dictionary definition of “publication” as

used by the Florida Supreme Court in Penzer. Specifically, “publication” means



       6
         Although two of the seven Florida justices wrote separate concurrences and would have
decided that the policy provision was ambiguous, only one concurring justice concluded that
“publication” was ambiguous. See Penzer, 29 So. 3d at 1008-10 (Pariente and Canady, J.J.,
concurring only in the result). However, Justice Canady—who concluded that “publication”
might be ambiguous—found that the “right to privacy” language in the policy was ambiguous
because it reasonably could be construed to cover either an invasion of privacy caused by the
content of the published material or an invasion of privacy caused by the act of sending the
facsimile (in other words, a violation of the right to seclusion, or to be left alone). Justice
Canady argued that “publication” may refer to either dissemination of information or to the
“process of producing and issuing printed or reproduced matter, a definition which focuses on the
physical object disseminated.” Id. at 1010 (emphasis added). But in defining the scope of the
right to privacy under the policy language, even Justice Canady assumed that “publication”
required some dissemination—a matter that was not in dispute in Penzer because the insured had
“disseminated” 24,000 unsolicited advertisements by facsimile. See id. at 1007 (majority
opinion). In any event, Justice Canady’s distinction between content-based and seclusion-based
violations is irrelevant to this particular case because the district court concluded that the FACTA
violations at issue constituted a violation of a person’s right to privacy.

                                                13
“communication (as of news or information) to the public: public announcement”

or “the act or process of issuing copies . . . for general distribution to the public.”

Penzer, 29 So. 3d at 1005-06 (quoting WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY 1836 (1981)).

      In this case, ETL allegedly violated FACTA by issuing a credit card receipt

to a customer that contained more than five digits of the consumer’s credit card

number or the card’s expiration date. The receipt is a contemporaneous record of

a private transaction between ETL and the customer, and ETL neither broadcasted

nor disseminated the receipt or the credit card information to the general public.

Indeed, ETL provided the receipt only to the customer (who already knows the

credit card number and its expiration date). Additionally, unlike the unsolicited

“blast-faxes” at issue in Penzer, the aggrieved customer initiated the transaction by

paying for his meal with a credit card. In sum, providing a customer a

contemporaneous record of a retail transaction involves no dissemination of

information to the general public and does not constitute publication within the

meaning of Essex’s Policy. See Whole Enchilada, Inc. v. Travelers Prop. Cas. Co.

of Am., 581 F. Supp. 2d 677, 697, 706 (W.D. Pa. 2008) (concluding, under

Pennsylvania law, that FACTA violations were not covered under a CGL policy

covering advertising injury; the issuance of a receipt involved no “publication”

                                           14
because “the printed receipts are not made generally known, publicly announced,

nor dissminated to the public”).

      Although ETL argues that “publication” must be ambiguous because the

magistrate judge and the district court reached differing conclusions on the scope

of the term, we note that the magistrate judge issued her report before the Florida

Supreme Court’s decision in Penzer and therefore lacked the benefit of the Florida

Supreme Court’s binding, plain-meaning definition of the term. We likewise

reject ETL’s argument that the phrase “in any manner” expands the definition of

“publication” to include the provision of a written receipt. As the district court

noted, the phrase “in any manner” merely expands the categories of publication

(such as e-mail, handwritten letters, and, perhaps, “blast-faxes”) covered by the

Policy. But the phrase cannot change the plain meaning of the underlying term

“publication.”

      AFFIRMED.7




      7
          ETL’s request for oral argument is DENIED.

                                              15
