Amerisure Insurance Company, et al. v. Landmark American Insurance Company

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14136
____________________
AMERISURE INSURANCE COMPANY,
AMERISURE MUTUAL INSURANCE COMPANY,
Plaintiffs-Counter Defendants-Appellees,
versus
THE AUCHTER COMPANY, et al.,
Defendants,
LANDMARK AMERICAN INSURANCE COMPANY,
Defendant-Cross Claimant-Appellant.
____________________
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2 Opinion of the Court 22-14136
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:16-cv-00407-BJD-LLL
____________________
Before B RANCH, L UCK , and TJOFLAT, Circuit Judges.
B RANCH, Circuit Judge:
This appeal involves an insurance dispute concerning
coverage for defects and delays in the construction of an office
building in Jacksonville, Florida. After reviewing the record and
with the benefit of oral argument, we conclude that we lack
jurisdiction and dismiss the appeal.
I. Background
Riverside Avenue Partners, Ltd. (“RAP”) contracted with
the Auchter Company to build a 13-story office building. Plagued
by delays and water intrusion, RAP eventually filed a lawsuit in
Florida state court. RAP sought a declaratory judgment
establishing Auchter’s liability (as well as that of Arch Insurance
Company, Auchter’s surety), and sought damages for breach of
the contract and performance bond.
Arch filed a counterclaim against RAP, seeking payment of
the construction contract balance and for approved change orders,
as well as for payment of additional disputed charges and delay
damages. Arch and Auchter also filed a third-party complaint
against TSG Industries, Inc., the window subcontractor, and other
subcontractors as third-party defendants for contractual indemnity
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22-14136 Opinion of the Court 3
and breach of contract, alleging that RAP’s claims implicated their
scope of work on subcontracts.
Landmark American Insurance Company, TSG’s insurer,
acknowledged Auchter as an additional insured under TSG’s
contractually-mandated policy, but ultimately refused to defend
Auchter. As a result, Amerisure,1 Auchter’s primary insurance
provider, defended Auchter under a reservation of rights.
After a trial, the state court entered judgment (1) in favor of
RAP against Auchter and Arch; (2) in favor of Arch against TSG;
and (3) in favor of Auchter and Arch against B&B of Duval
Companies, Inc., the subcontractor responsible for curbs, storm
drainage, and landscaping.
After the state court judgment was entered, Amerisure filed
this lawsuit in federal court. Amerisure sued Landmark, Auchter,
Arch, RAP, TSG, and B&B, seeking a declaration that it owed no
duty to indemnify Auchter and Arch, and demanding
reimbursement from Landmark for the cost of defending Auchter.
The parties asserted numerous crossclaims and counterclaims,2
1 The pleadings refer to Amerisure Insurance Company and Amerisure Mutual
Insurance Company collectively as “Amerisure,” so we do the same.
2 Specifically,
• Arch filed a counterclaim against Amerisure, seeking a declaration that
Amerisure had a duty to indemnify Arch as an assignee and/or
subrogee of Auchter in connection with the underlying state court
lawsuit;
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4 Opinion of the Court 22-14136
notably including Landmark’s crossclaim against TSG, seeking a
declaration that, under TSG’s policy with Landmark, Landmark
had no duty to defend or to indemnify TSG in connection with the
underlying state court lawsuit.
Years later, after numerous summary judgment motions
and orders, and following a settlement between Arch and
Amerisure, the district court granted Amerisure’s motion for entry
of final judgment against Landmark—and only Landmark—finding
• Arch, as an assignee and/or subrogee of Auchter, also asserted a
breach of contract counterclaim against Amerisure for the settlement
amounts paid in satisfaction of the underlying state court final
judgment;
• Arch, as assignee and/or subrogee of Auchter, filed a crossclaim
against Landmark, seeking a declaration that Arch is entitled to
indemnity and to damages for breach of contract as a third-party
beneficiary;
• Landmark asserted crossclaims against Auchter, Arch, and TSG
seeking a declaration that Landmark had no duty to defend or to
indemnify them in connection with the underlying lawsuit; and,
finally,
• Landmark brought a counterclaim against Amerisure, seeking a
declaration that it owed no payment to Amerisure relating to the
underlying state court lawsuit and Auchter’s defense costs.
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22-14136 Opinion of the Court 5
that Amerisure was entitled to attorney’s fees and costs.3 The
district court purported to enter a final judgment in the case.4
This appeal followed.
II. Standard of Review
When appropriate, we review a district court’s ruling on a
motion for summary judgment de novo, viewing the record and
drawing all reasonable inferences in the light most favorable to the
non-moving party. Stephens v. Mid-Continent Cas. Co., 749 F.3d
1318, 1321 (11th Cir. 2014). But we also have an independent
obligation to determine whether appellate jurisdiction exists in
each case, regardless of whether the parties raised that issue. Reaves
v. Sec’y, Fla. Dep’t of Corr., 717 F.3d 886, 905 (11th Cir. 2013).
3 The district court also granted a motion to substitute Amerisure in place of
Arch following a settlement and assignment of claims and dismissed Arch
from the action.
4 Before oral argument, we ordered the parties to file supplemental briefs
addressing whether the district court had entered a final, appealable order—
including whether all claims against Auchter, TSG, and B&B had been
resolved. The parties responded jointly, arguing that appellate jurisdiction
exists under 28 U.S.C. § 1291 because TSG and B&B are merely “nominal
parties to be bound” since, “in the Underlying Action, they were found to be
liable to Arch and Auchter[.]” The parties further submit that there are no
remaining claims against Auchter because it assigned away its rights to Arch,
who later assigned them to Amerisure, who then took Arch’s place in the
lawsuit, and then won the judgment it sought in this case.
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6 Opinion of the Court 22-14136
III. Discussion
“Federal appeals courts have jurisdiction over final decisions
of the district courts.” Supreme Fuels Trading FZE v. Sargeant, 689
F.3d 1244, 1245 (11th Cir. 2012). The statute conferring that
jurisdiction provides that “[t]he courts of appeals . . . shall have
jurisdiction of appeals from all final decisions of the district courts
of the United States . . . except where a direct review may be had
in the Supreme Court.” 28 U.S.C. § 1291. “There are [some]
exceptions to the final judgment rule,” but the parties here “do[ ]
not argue . . . that any of the exceptions apply.” Supreme Fuels, 689
F.3d at 1245 n.1 (citing Haney v. City of Cumming, 69 F.3d 1098, 1101
n.5 (11th Cir. 1995)).
“A ‘final decision’ generally is one which ends the litigation
on the merits and leaves nothing for the court to do but execute
the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945).
“‘[A]n order adjudicating fewer than all the claims in a suit . . . is
not a final judgment from which an appeal may be taken,’ unless
‘the district court properly certifies as “final” under Rule 54(b), a
judgment on fewer than all claims or parties.’” Supreme Fuels, 689
F.3d at 1246 (alteration in original) (quoting Lloyd Noland Found.,
Inc. v. Tenet Health Care Corp., 483 F.3d 773, 777 (11th Cir. 2007));
see also Fed R. Civ. P. 54.
The purported final judgment here does not dispose of all
claims against all parties, so it is not final. “We have repeatedly
held that the entry of judgment is not enough to supply
jurisdiction—even when that judgment is labeled a ‘final’
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22-14136 Opinion of the Court 7
judgment—where a district court failed to dispose of all claims.”
Gov’t Emps. Ins. Co. v. Glassco, Inc., 58 F.4th 1338, 1345 (11th Cir.
2023). Landmark asserted, in its crossclaim against TSG, that it had
no duty to defend or indemnify TSG in the underlying action. The
various summary judgment orders do not dispense with that claim.
The purported final judgment contains no disposition of that claim.
Id. at 1346 (“Looking to the substance,” there is “no final order
here.”). And, despite the absence of any disposition on this claim,
there is no Rule 54(b) order authorizing an appeal. See Supreme
Fuels, 689 F.3d at 1246.
Amerisure suggests, in post-argument briefing, that the
declaratory judgments issued below fully answered any questions
relating to Landmark’s obligations to TSG. But even if Landmark’s
duty to indemnify other parties effectively answered the question of
its duty to indemnify TSG—a premise Amerisure has not
explained—its reasoning still confuses resolving abstract issues with
tangible claims. See id. (An order is not a final judgment if it
“adjudicat[es] fewer than all the claims in a suit[.]” (emphasis
added)).5 Thus, the claims against TSG remain pending.
5 Amerisure further contends that any deficiency was cured at oral argument
in this court, on appeal, when Landmark represented that it would abandon
its claim against TSG. We disagree. We have never held that a promise at
oral argument to abandon a claim can finalize an order that was not final when
the appeal was taken. But even if we could credit Landmark’s purported
abandonment of its claim against TSG at oral argument, see Tiernan v. Devoe,
923 F.2d 1024, 1031 (3d Cir. 1991) (concluding that the court had jurisdiction
following the plaintiffs’ intention to renounce any further action against a
defendant, even though “at the time [the] appeal was filed, jurisdiction under
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8 Opinion of the Court 22-14136
“With claims outstanding, we lack jurisdiction” and must
dismiss. See Id. at 1246.6
APPEAL DISMISSED.
28 U.S.C. § 1291 was lacking”), “[w]e are not bound by [Landmark’s]
concession, and we [would] decline to accept it.” United States v. Colston, 4
F.4th 1179, 1187 (11th Cir. 2021). “[I]t is well settled in this Circuit that parties
to a suit cannot agree to grant this Court appellate jurisdiction.” State Treasurer
of Mich. v. Barry, 168 F.3d 8, 13 (11th Cir. 1999) (citing Constr. Aggregates, Ltd. v.
Forest Commodities Corp., 147 F.3d 1334, 1336 (11th Cir.1998)).
And, to the extent that the parties are suggesting that Landmark somehow
abandoned its claim against TSG below, “abandonment” is not the way to
dismiss a party from an action. Federal Rule of Civil Procedure 41(a) is the
proper vehicle to dismiss “all of [a plaintiff’s] claims against a particular
defendant.” Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir.
2004); Rosell v. VMSB, LLC, 67 F.4th 1141, 1144 (11th Cir. 2023). The plaintiff
can do so in one of three ways: (1) by filing “a notice of dismissal before the
opposing party serves either an answer or a motion for summary judgment,”
(2) by filing “a stipulation of dismissal signed by all parties who have
appeared,” or (3) by obtaining a court order. Fed. R. Civ. P. 41(a). Landmark
did not do any of these things.
6 Though Landmark’s pending claim against TSG suffices to resolve this case,
we note that there is also no disposition on the record as to Auchter and B&B.
The Clerk entered a default against Auchter and TSG, but not B&B, and
default judgment was not entered against any of them. Arango v. Guzman
Travel Advisors, 761 F.2d 1527, 1530–31 (11th Cir. 1985) (explaining that a
clerk’s entry of default is not a final judgment and is not the same as the entry
of a default judgment). The parties suggest that B&B is merely a “nominal
part[y] to be bound,” and that there are no substantive claims pending against
Auchter, see supra, note 4. We express no opinion on the merits of those
arguments, but instead commend them to the district court’s attention on
remand.
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