27
Fla. L. Weekly Fed. C564a

Insurance
— Commercial general liability — Coverage — Bodily injury or property damage
— Duty to defend — Suit — Claim that notice and repair process for resolving
construction disputes between property owners and contractors, subcontractors,
suppliers or design professionals set forth in Chapter 558, Florida Statutes,
constitutes a suit under insured’s commercial general liability insurance
policy, so as to trigger the insurer’s duty to defend — Under Florida law, the
notice and repair process set forth in Chapter 558 is included in the CGL
policy’s definition of “suit” as an alternative dispute resolution proceeding
to which the insurer’s consent is required to invoke the insurer’s duty to
defend

ALTMAN CONTRACTORS, INC., a Florida
corporation, Plaintiff-Appellant, v. CRUM & FORSTER SPECIALTY INSURANCE
COMPANY, an Arizona company, Defendant-Appellee. 11th Circuit. Case No.
15-12816. January 26, 2018. Appeal from the U.S. District Court for the
Southern District of Florida (No. 9:13-cv-80831-KAM).

(Before JORDAN and FAY, Circuit
Judges, and FRIEDMAN,* District Judge.)

(PER CURIAM.) This case returns to
us after our certification of a dispositive question of state law to the
Florida Supreme Court. For background, we refer the reader to our previous
opinion in this case, Altman Contractors, Inc. v. Crum & Forster
Specialty Ins. Co., 832 F.3d 1318 (11th Cir. 2016) [26 Fla. L. Weekly Fed.
C588a]. In that opinion, we certified the following question:

Is the
notice and repair process set forth in Chapter 558 of the Florida Statutes a
“suit” within the meaning of the CGL policies issued by C&F to ACI?

Id.
at 1326. The Florida Supreme Court answered this question in the affirmative,
explaining that “[a]lthough the chapter 558 process does not constitute a
‘civil proceeding,’ it is included in the policy’s definition of ‘suit’ as an
‘alternative dispute resolution proceeding’ to which the insurer’s consent is
required to invoke the insurer’s duty to defend the insured.” Altman
Contractors, Inc. v. Crum & Forster Specialty Ins. Co., __ So. 3d __,
No. SC16-1420, 2017 WL 6379535, at *5 (Fla. Dec. 14, 2017) [42 Fla. L. Weekly
S960b]. The Florida Supreme Court did “not address whether, in this case,
C&F consented to [ACI’s] participation in the chapter 558 process because
it [was] outside the scope of the certified question and an issue of fact disputed
by the parties.” Id.

The Florida Supreme Court,
therefore, reached a different conclusion than did the district court regarding
whether chapter 558 constitutes an alternative dispute resolution proceeding
(and accordingly a “suit” under the CGL policies at issue). Compare id. with
Altman Contractors, 832 F.3d at 1325 (explaining district court’s holding
that chapter 558 is not an alternative dispute resolution proceeding and,
therefore, not a ‘suit’ under the CGL policies). Because “state courts are the
ultimate expositors of state law,” Reaves v. Sec’y, Fla. Dept. of Corr.,
717 F.3d 886, 903 (11th Cir. 2013) [24 Fla. L. Weekly Fed. C321a], the Florida
Supreme Court’s determination on this point is dispositive. Given the benefit
of this answer to our certified question, we reverse the grant of summary
judgment in favor of C&F, vacate the final judgment, and remand this case
to the district court for further proceedings. We thank the Florida Supreme
Court for accepting, and answering, the certified question.

REVERSED, VACATED AND REMANDED.

__________________

*The Honorable Paul L. Friedman,
United States District Judge for the District of Columbia, sitting by
designation.

* * *