722 Fed.Appx. 870 (11th Cir. 2018), 16-16187, Aviation One of Florida, Inc. v. Airborne Insurance Consultants (PTY), Ltd.

Docket Nº:16-16187
Citation:722 Fed.Appx. 870
Opinion Judge:PER CURIAM:
Party Name:AVIATION ONE OF FLORIDA, INC., Plaintiff-Appellant, v. AIRBORNE INSURANCE CONSULTANTS (PTY), LTD, Africa Tours and Travel, LLC, d.b.a. S.A. Guinea, Mohamed Diaoune, Clyde & Co., LLP, Defendants-Appellees.
Attorney:Rosemary Hanna Hayes, Barbara Briggs Smithers, Hayes & Caraballo, PL, Orlando, FL, Meredith L. Sasso, Sanabria Llorente & Associates, Maitland, FL, for Plaintiff-Appellant Sarah Lahlou-Amine, L. Robert Bourgeois, Lauren Virginia Humphries, Jeffrey M. James, John Patrick O’Flanagan, Banker Lopez G...
Judge Panel:Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.
Case Date:January 11, 2018
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
FREE EXCERPT

Page 870

722 Fed.Appx. 870 (11th Cir. 2018)

AVIATION ONE OF FLORIDA, INC., Plaintiff-Appellant,

v.

AIRBORNE INSURANCE CONSULTANTS (PTY), LTD, Africa Tours and Travel, LLC, d.b.a. S.A. Guinea, Mohamed Diaoune, Clyde & Co., LLP, Defendants-Appellees.

No. 16-16187

United States Court of Appeals, Eleventh Circuit

January 11, 2018

Editorial Note:

DO NOT PUBLISH. (See Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 11th Cir. Rule 36-2.)

Page 871

[Copyrighted Material Omitted]

Page 872

[Copyrighted Material Omitted]

Page 873

Appeal from the United States District Court for the Middle District of Florida, D.C. Docket No. 6:13-cv-01243-CEM-DAB

Rosemary Hanna Hayes, Barbara Briggs Smithers, Hayes & Caraballo, PL, Orlando, FL, Meredith L. Sasso, Sanabria Llorente & Associates, Maitland, FL, for Plaintiff-Appellant

Sarah Lahlou-Amine, L. Robert Bourgeois, Lauren Virginia Humphries, Jeffrey M. James, John Patrick O’Flanagan, Banker Lopez Gassler, PA, Tampa, FL, for Defendant-Appellee Airborne Insurance Consultants (PTY), Ltd

Mohamed Diaoune, Pro Se

Anthony John Russo, Lewis F. Collins, Jr., Scott E. Damon, Matthew John Lavisky, Butler Weihmuller Katz Craig, LLP, Tampa, FL, for Defendant-Appellee Clyde & Co., LLP

Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.

OPINION

PER CURIAM:

This case stems from the crash of Plaintiff-Appellant Aviation One of Florida, Inc.’s ("Aviation One") aircraft— a Beech model 1900C— in Guinea, West Africa, on September 1, 2009. At the time of the accident, the aircraft was being leased by Defendant Africa Tours and Travel, LLC d/b/a S.A. Guinee1 ("S.A. Guinee"). Under the lease, S.A. Guinee was responsible for obtaining and maintaining certain insurance coverage for the aircraft, which it procured through Defendant-Appellee Airborne Insurance Consultants (PTY), Ltd. ("Airborne"), an insurance broker based in South Africa. However, Guardrisk Insurance Company, the South African-based insurer that issued the insurance policy, denied coverage for the accident. Airborne represented Aviation One’s interests in the ensuing coverage dispute with Guardrisk, but without success. Aviation One then retained Airborne’s legal counsel, Defendant-Appellee Clyde & Co., LLP ("Clyde"), in order to pursue recovery against Guardrisk in the South African

Page 874

courts. But after paying nearly $300,000 in legal fees with no end in sight, Aviation One ceased its efforts against Guardrisk and then filed this complaint in federal district court in the Middle District of Florida.

In this action, Aviation One alleges that Airborne negligently failed to procure insurance coverage that would have protected Aviation One’s interests in the aircraft after the crash and breached its fiduciary duty to Aviation One in several other ways, and that Clyde committed various acts of professional negligence in assisting Aviation One in its efforts to recover its damages. The district court dismissed Airborne for lack of personal jurisdiction, concluding that it lacked sufficient minimum contacts with Florida for the exercise of jurisdiction to satisfy the requirements of due process. As for Clyde, the court dismissed the claims against it under the doctrine of forum non conveniens based on a forum-selection clause in the retainer agreement between Aviation One and Clyde. Aviation One challenges both rulings on appeal and also contends that the court committed a few other procedural errors, including failing to permit jurisdictional discovery before dismissing the lawsuit. After careful review, we conclude that the district court properly dismissed the claims against both Airborne and Clyde and that the asserted procedural errors do not provide a basis for reversal. Accordingly, we affirm the district court.

I.

The relevant facts are these.2 Aviation One was a corporation based in Daytona Beach, Florida. In around August 2008, Aviation One leased a Beech model 1900C aircraft, its primary asset, to S.A. Guinee, a Georgia LLC. S.A. Guinee planned to use the aircraft for charter flights in Guinea, West Africa.

The initial lease, which ran for a period of one year, required S.A. Guinee to procure and maintain insurance coverage on the aircraft, and it specified the nature of the necessary coverage. To that end, S.A. Guinee engaged Airborne, an aviation insurance broker based in South Africa, to procure the necessary insurance.

S.A. Guinee gave Airborne a copy of the lease and asked Airborne to obtain coverage naming both S.A. Guinee and Aviation One as insureds. Specifically, Aviation One was to be insured under a "breach of warranty" endorsement, which, according to Aviation One, creates a separate and distinct contractual status with the insurer so it could recover its loss under circumstances

Page 875

and conditions that would defeat recovery by S.A. Guinee.

Airborne had no direct contact with Aviation One during the process of procuring insurance. Instead, Airborne corresponded with S.A. Guinee’s principals, Mohamed Diaoune and Ousmane Balde, who, in turn, corresponded with Aviation One’s President, William Udey. S.A. Guinee added Udey as a "cc" on a few emails between S.A. Guinee and Airborne. Yet despite the lack of direct communication between Airborne and Aviation One, the evidence construed in Aviation One’s favor shows that Airborne agreed to procure insurance in part for Aviation One, the Florida-based owner of the aircraft.

Airborne procured insurance coverage from Guardrisk, an insurance company based in South Africa. The initial policy issued by Guardrisk listed both S.A. Guinee and Aviation One as insureds and ran for a period of one year, starting on August 18, 2008. Airborne sent a copy of the policy to S.A. Guinee at Aviation One’s address in Florida, which was the address S.A. Guinee provided to Airborne. Airborne also submitted invoices to that same address, though S.A. Guinee paid the premiums. The initial policy’s coverage was geographically limited to the continent of Africa, where S.A. Guinee planned to operate, except for the aircraft’s ferry flight from Florida to West Africa, which was also covered.

Both the lease and the policy were renewed around August 2009. At that time, the aircraft was located in Africa, and the renewal policy was geographically limited to the continent of Africa. Again, a copy of the policy was sent to Aviation One’s address in Florida.

On September 1, 2009, the aircraft crashed during takeoff in Guinea, West Africa, causing extensive and irreparable structural damage. The estimated total of repair was $1,145,000.00, making it a total loss.

After the accident, Guardrisk denied coverage under the renewal policy. Among the reasons cited for denying coverage, Guardrisk stated that the pilot at the time, Wilson, was not listed as an approved pilot on the insurance policy. Before the policy was renewed, S.A. Guinee had asked Airborne to add Duane Wilson as an approved pilot under the policy, but Airborne did not do so.

Aviation One, with Airborne serving as its representative, challenged Guardrisk’s denial of insurance coverage. Airborne and Aviation One communicated by email and phone during this time. Airborne also retained legal counsel to represent Aviation One’s interests in responding to Guardrisk. Meanwhile, Airborne notified Aviation One by email that a former employee had failed to procure the requested breach-of-warranty endorsement in the renewal policy.3

Ultimately, despite Airborne’s representations that Aviation One was likely to prevail, Guardrisk rejected the arguments that were made on Aviation One’s behalf and denied the claim. Thereafter, Airborne referred Aviation One to its legal counsel, Clyde, which was familiar with the matter. Aviation One then retained Clyde to pursue recovery against Guardrisk.

Before beginning representation, Clyde sent Udey, Aviation One’s President, an

Page 876

email with an attached engagement letter outlining the scope and cost of representation, among other matters. The engagement letter referred Udey to Clyde’s "Terms of Business," which were also attached to the email, advising him to read them carefully and then sign and return the letter. In signing the engagement letter, Udey represented that he agreed to the terms in the letter and the attached Terms of Business. Significantly, the Terms of Business included a choice-of-law and forum-selection provision stating that all disputes between Udey and Clyde arising out of the representation "shall be: (a) governed by and construed in accordance with English law; and (b) subject to the exclusive jurisdiction of the English courts."

Ultimately, Aviation One abandoned its claims against Guardrisk when pursuing the litigation in South African courts proved prohibitively...

To continue reading

FREE SIGN UP