Sapuppo v. Allstate Floridian Ins. Co.

• Citation: 739 F.3d 678
• Decision Date: 07 January 2014
• Docket Number: No. 13–11558.,13–11558.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Parties: David SAPUPPO, Teresa Sapuppo, Plaintiffs–Appellants, v. ALLSTATE FLORIDIAN INSURANCE COMPANY, Defendant–Appellee.

739 F.3d 678

David SAPUPPO, Teresa Sapuppo, Plaintiffs–Appellants,

v.ALLSTATE FLORIDIAN INSURANCE COMPANY, Defendant–Appellee.

No. 13–11558.

United States Court of Appeals,

Eleventh Circuit.

Jan. 7, 2014.

James David Huskey, Jr., McGee & Huskey, PA, Fort Lauderdale, FL, Jon C. Moyle, Jr., Moyle Law Firm, P.A., Tallahassee, FL, for Plaintiff–Appellant.

Richard L. Fenton, Steven M. Levy, Dentons US, LLP, Chicago, IL, Lori Jean Caldwell, Lena Mirilovic, Rumberger Kirk & Caldwell, PA, Orlando, FL, for Defendant–Appellee.

Appeals from the United States District Court for the Northern District of Florida. D.C. Docket No. 4:12–cv–00382–RH–CAS.

Before CARNES, Chief Judge, HULL and COX, Circuit Judges.

CARNES, Chief Judge:

A series of hurricanes struck the state of Florida in 2004 and 2005. First the waters rose and then the insurance premiums did. To contain those costs, Florida's legislature passed a law, Chapter 2007–1 of the Laws of Florida, which made state-subsidized reinsurance available to Florida insurers at rates lower than those offered in the private market. In return for the subsidized, less expensive reinsurance, insurers agreed to pass the cost savings along to Florida policyholders in the form of lower premiums. To make sure the insurers complied, Chapter 2007–1 required them to file revised rates with Florida's Office of Insurance Regulation (the Insurance Office) “reflect[ing] the savings or reduction in loss exposure to the insurer due to the [reinsurance subsidy].” Ch.2007–1, § 3(1), Laws of Fla.

Allstate Floridian Insurance Company (Allstate) filed its new rates on July 1, 2007, but instead of being lower than before, the new rates were 41.9% higher than the ones it had on file the year before receiving the benefit of the subsidy of reinsurance costs. That prompted the Insurance Office to begin an investigation into Allstate, and it later suspended Allstate's authority to transact new business in Florida. After a year-long dispute, culminating in a Florida district court of appeal decision upholding the final agency decision, seeAllstate Floridian Ins. Co. v. Office of Ins. Regulation, 981 So.2d 617 (Fla. 1st DCA 2008), Allstate agreed to reduce its premiums by 5.4% from those charged before it received subsidized reinsurance. That reduced rate went into effect on September 4, 2008.

The plaintiffs in this case, David and Teresa Sapuppo, are Allstate policyholders who filed a putative class action complaint against the company in July 2012, seeking “the disgorgement of ill-gotten gains, value and profits” that Allstate had obtained in the 14 months between its July 2007 filing with the Insurance Office and its September 2008 rate reduction. The complaint alleged on behalf of the Sapuppos (and other policyholders if class action status were granted) four claims based on the allegation that Allstate violated Chapter 2007–1 by failing to promptly reduce its premiums and retaining the cost savings resulting from the state's subsidy of its reinsurance: (1) unjust enrichment; (2) breach of contract; (3) breach of fiduciary duty; and (4) breach of the implied covenant of good faith and fair dealing.

On Allstate's motion, the district court dismissed the Sapuppos' complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief could be granted. The court relied on several alternative grounds to reach the conclusion that the Sapuppos had failed to state a claim. First, the court found that the “filed rate doctrine” barred suits that challenge the reasonableness of rates filed with a regulatory agency.¹ Second, it held that the Florida Legislature had not created a private right of action to enforce Chapter 2007–1, meaning that the Sapuppos could not recover from Allstate for its alleged violations of Chapter 2007–1 even if the filed rate doctrine did not bar their claims.

In addition to those two general grounds, which applied to all four of the Sapuppos' claims, the court also gave as an independent alternative ground for its dismissal the legal inadequacy of each claim. On the unjust enrichment claim, the district court ruled that the complaint had failed to state a viable claim because “it is not unjust enrichment ... for an insurer to collect from its insured precisely the rate that the insurer quoted and the insured agreed to pay.” On the breach of contract claim, the court ruled that Allstate had not breached its contracts by charging the first rates that it filed with the Insurance Office. On the breach of fiduciary duty claim, the court ruled that the complaint had failed to allege facts showing that Allstate owed any fiduciary duty to its policyholders when it set rates. And the court ruled that there could be no breach of the implied covenant of good faith and fair dealing where there was no breach of contract.

To obtain reversal of a district court judgment that is based on multiple, independent grounds, an appellant must convince us that every stated ground for the judgment against him is incorrect. When an appellant fails to challenge properly on appeal one of the grounds on which the district court based its judgment, he is deemed to have abandoned any challenge of that ground, and it follows that the judgment is due to be affirmed. Little v. T–Mobile USA, Inc., 691 F.3d 1302, 1306 (11th Cir.2012). That is the situation here.

In their opening brief, the Sapuppos state two, and only two, issues:

I. Whether the trial court erred in finding that Plaintiffs' claims were barred by the filed rate doctrine[.]

II. Whether the trial court erred in dismissing Plaintiffs' complaint based on its finding that the Florida Legislature did not create a private right of action to enforce the requirement for reduced rates as soon as practicable[.]

Appellants' Corrected Brief at ix. Their statement of the issues does not mention any issues involving the district court's alternative rulings that, even apart from the filed rate doctrine and implied right of action problems, each of the four claims was due to be dismissed for an additional reason individual to that claim. As a result, the Sapuppos have abandoned any argument that the additional reasons the district court stated for dismissing each of the claims was error. SeeHamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir.2012) (stating that it is well settled in this circuit that a party abandons an issue “by failing to list or otherwise state it as an issue on appeal”); United States v. Willis, 649 F.3d 1248, 1254 (11th Cir.2011) (“A party seeking to raise a claim or issue on appeal must plainly and prominently so indicate.... Where a party fails to abide by this simple requirement, he has waived his right to have the court consider that argument.”) (internal marks and citation omitted); Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir.2004) (“Any issue that an appellant wants [us] to address should be specifically and clearly identified in the brief.... Otherwise, the issue—even if properly preserved at trial—will be considered abandoned.”); Marek v. Singletary, 62 F.3d 1295, 1298 n. 2 (11th Cir.1995) (“Issues not clearly raised in the briefs are considered abandoned.”); Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir.1995) (“We note that issues that clearly are not designated in the initial brief ordinarily are considered abandoned.”) (internal marks, quotation marks, and citation omitted).

The Sapuppos' initial brief not only fails to clearly raise any challenge to the alternative holdings, it treats those holdings as though they do not exist, stating that the “trial court dismissed Plaintiffs' Complaint with prejudice on two theories: 1) that Plaintiffs' claims were barred by the ‘filed rate doctrine’ and, 2) there is no private cause of action which exists to enforce a Florida statute requiring a rate reduction.” Appellants' Corrected Brief at 8–9. Even if we looked past that statement and past the Sapuppos' failure to list the alternative holdings issues in their statement of the issues, we would still conclude that they have abandoned those claims by not adequately addressing them in the remainder of their initial brief.

A party fails to adequately “brief” a claim when he does not “plainly and prominently” raise it, “for instance by devoting a discrete section of his argument to those claims.” Cole v. U.S. Att'y Gen., 712 F.3d 517, 530 (11th Cir.2013) (internal marks and quotation marks omitted). The Sapuppos do not devote even a small part of their opening brief to arguing the merits of the district court's alternative holdings. The most that can be said is that they make passing references to those holdings, without advancing any arguments or citing any authorities to establish that they were error. We have long held that an appellant abandons a claim when he either makes only passing references to it or raises it in a perfunctory manner without supporting arguments and authority. See, e.g., Walter Int'l Prods. Inc. v. Salinas, 650 F.3d 1402, 1413 n. 7 (11th Cir.2011) (holding that the appellant abandoned a claim for tortious interference with a contract by making “nothing more than a passing reference” to it in the initial brief); Singh v. U.S. Att'y Gen., 561 F.3d 1275, 1278 (11th Cir.2009) (explaining that “an appellant's brief must include an argument containing appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies,” and that “simply stating that an issue exists, without further argument or discussion, constitutes abandonment of that issue and precludes our considering the issue on appeal”) (quotation marks omitted); United States v. Jernigan, 341 F.3d 1273, 1283 n. 8 (11th Cir.2003) (holding that an evidentiary issue was abandoned on appeal because the appellant's brief “contain[ed] only four passing references to the evidence ... each of which [was] embedded...