Auto-Owners Insurance Company v. Southeast Floating Docks, Inc.

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 5, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-15846
________________________
D. C. Docket No. 05-00334-CV-ORL-31-GJK
AUTO-OWNERS INSURANCE COMPANY,
Plaintiff-Appellee,
versus
SOUTHEAST FLOATING DOCKS, INC.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 5, 2012)
Before WILSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:

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The instant appeal involves a fee dispute arising from Auto-Owners’ suit
against Southeast based on a written indemnity contract. Southeast prevailed, and
filed a motion for attorney’s fees and costs pursuant to Fla.Stat. §768.79. The
district court denied the motion, and Southeast appealed to this court. We certified
questions to the Supreme Court of Florida, including the following question:1
DOES FLORIDA STATUTE §768.79 APPLY TO CASES THAT
ARE GOVERNED BY THE SUBSTANTIVE LAW OF ANOTHER
JURISDICTION; AND, IF SO, IS THIS STATUTE APPLICABLE
EVEN TO CONTROVERSIES IN WHICH THE PARTIES HAVE
CONTRACTUALLY AGREED TO BE BOUND BY THE
SUBSTANTIVE LAWS OF ANOTHER JURISDICTION?
In the indemnity contract, the parties agreed that the substantive law of
Michigan would apply. The Supreme Court of Florida answered the certified2
question in the negative, holding that §768.79 is substantive in nature for conflict
of laws purposes, that no sufficient public policy concerns override the parties’
right to choose the law of a particular forum that governs the substantive portions
Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 632 F.3d 1195 (11th Cir.1
2011).
The parties stipulated that no comparable statute exists under Michigan law.2
2

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of their contract, and thus that §768.79 simply does not apply. The Florida3
Supreme Court also disapproved of BDO Seidman, LLP v. British Car Auctions,
Inc., 802 So.2d 366, 368 (Fla. 4th DCA 2001).
Although the judgment of the district court denying attorney’s fees and costs
was based upon a different ground, we affirm on the ground articulated by the
Supreme Court of Florida.
AFFIRMED.
Southeast Floating Docks, Inc. v. Auto-Owners Ins. Co., ___ So.3d ___, 2012 WL3
301029 (Fla. 2012).
3

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