The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 5, 2011
No. 11-10167 JOHN LEY
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 0:10-cv-60561-WPD
HILDA SULTAN,
CRAIG SULTAN,
Plaintiffs-Appellants,
versus
SAFECO SURPLUS LINES INSURANCE COMPANY,
a Washington corporation,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 5, 2011)
Before TJOFLAT, HULL and BLACK, Circuit Judges.
PER CURIAM:
Hilda Sultan and Craig Sultan (the Sultans) appeal the district court’s order
dismissing their claims against Safeco Surplus Lines Insurance (Safeco) for
violations of Florida Statute § 626.9551(1), which regulates insurance field
representatives and operations. The Sultans contend the district court erred by:
(1) misinterpreting § 626.9551(1)(c) and concluding the Sultans failed to allege
Safeco imposed a prohibited separate handling charge; and (2) concluding the
Sultans failed to allege Safeco used protected insurance information to solicit the
sale of insurance in violation of § 626.9551(1)(d). After review, we affirm the
district court’s dismissal of the Sultans’ claims.
I. BACKGROUND
The Sultans are residential homeowners, who obtained a home mortgage
from an unnamed lender. Non-party EverHome Mortgage Company (EverHome)
serviced the Sultans’ mortgage on behalf of the lender.
In the event the Sultans failed to maintain adequate insurance coverage on
their home, the mortgage permitted the lender to purchase a “force-placed” policy
to protect its interest in the property, and subsequently charge the Sultans for the
policy premium. On December 4, 2006, EverHome, acting as the lender’s agent,
purchased a force-placed insurance policy from Safeco on the Sultans’ home.
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Shortly thereafter, EverHome billed the Sultans $33,198.57–the purported
premium for the policy.
The Sultans allege EverHome and Safeco colluded to overcharge them for
the force-placed policy. According to the Sultans, EverHome purchased force-
placed policies exclusively from Safeco at dramatically inflated premiums in
exchange for kickbacks and other related payments. EverHome, the Sultans allege,
retained the kickbacks while passing the costs associated with the inflated
premiums to borrowers. The Sultans claim that in this case, Safeco paid
EverHome as a kickback $7,137.57 of the $33,198.57 insurance premium.
II. DISCUSSION
This circuit applies a de novo standard of review when considering a district
court’s dismissal for failure to state a claim. Levine v. World Finan. Network Nat’l
Bank, 437 F.3d 1118, 1120 (11th Cir. 2006) (citation omitted).
A. Failure to State a Claim under Florida Statute § 626.9551(1)(c)
The Sultans allege Safeco required them to “pay a separate charge in
connection with the handling of” the force-placed policy in violation of Florida
Statute § 626.9551(1)(c). The Sultans argue the district court misinterpreted
§ 626.9551(1)(c) by finding the provision did not restrict an insurance business
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from imposing a separate charge, so long as the insurance business would have
imposed that charge had the insurance business itself provided the policy.
The relevant part of § 626.9551(1)(c) states that no person may:
Require, directly or indirectly, that any borrower, mortgagor,
purchaser, insurer, broker, or agent pay a separate charge in
connection with the handling of any insurance policy that is required
in connection with a loan or other extension of credit or the provision
of another traditional banking product, or pay a separate charge to
substitute the insurance policy of one insurer for that of another,
unless such charge would be required if the person were providing the
insurance.
Based on the arguments before us, the district court did not err by
concluding the unless clause modifies the “separate charges in connection with the
handling of” provision. Despite the Sultans’ claims to the contrary, the 1999
amendment’s legislative history supports the district court’s interpretation of §
626.9551(1)(c). In a section entitled “Effect of Proposed Changes,” the Florida
Senate staff analysis1 accompanying the amendment states the amendment would
“prohibit[] any person from requiring a borrower, mortgagor, purchaser, insurer,
broker, or agent to pay a separate charge in connection with a loan, extension of
1
The Florida Senate staff analysis includes a disclaimer stating it “does not reflect the intent
or official position of the bill’s sponsor or the Florida Senate.” Florida courts have nonetheless
relied on senate staff analyses in discussing legislative intent. See, e.g., Grosso v. State, 2 So. 3d
362, 365 (Fla. 4th DCA 2008) (“As the Senate Staff Analysis below indicates, the legislative intent
of section 943.0436 was to enforce sexual predator and offender registration requirements . . .”);
Dep’t of Envtl. Reg. v. SCM Glidco Organics Corp., 606 So. 2d 722, 725 (Fla. 1st DCA 1992) (“Staff
analyses of legislation should be accorded significant respect in determining legislative intent.”).
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credit, or another banking product, unless such charge would be required if the
person were providing the insurance.” The staff analysis thus indicates the
legislature knowingly added the unless clause to modify § 626.9551(1)(c)’s
restriction on separate charges.2
In light of the district court’s finding that the unless clause modifies the
“separate charge in connection with the handling of” provision, to state a claim
under § 626.9551(1)(c), the Sultans must allege (1) Safeco required them to pay a
separate charge in connection with the handling of the force-placed policy and (2)
the unless clause does not exempt the separate charge from the restriction.
Section 626.9551(1)(c)’s unless clause removes from the restriction on
separate charges any “charge [that] would be required if the person were providing
the insurance.” “When the language of the statute is clear and unambiguous and
conveys a clear and definite meaning . . . the statute must be given its plain and
obvious meaning.” Miller v. Scottsdale Ins. Co., 932 So. 2d 1028, 1030 (Fla.
2006) (citation omitted). Courts are “without power to construe an unambiguous
statute in a way which would extend, modify, or limit, its express terms or its
2
This circuit has, at times, analyzed statutory language by applying “the rule of the last
antecedent, an accepted canon of statutory construction which provides that . . . ‘qualifying words,
phrases, and clauses are to be applied to the words or phrase immediately preceding, and are not to
be construed as extending to and including others more remote.’ ” In re Paschen, 296 F.3d 1203,
1209 (11th Cir. 2002) (quoting United States v. Correa, 750 F.2d 1475, 1481 n.10 (11th Cir. 1985)).
Because the Sultans do not argue the rule applies to § 626.9551(1)(c), we do not consider it here.
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reasonable and obvious implications.” Holly v. Auld, 450 So. 2d 217, 219 (Fla.
1984) (citation omitted).
In this case, the Sultans concede: (1) Safeco provided the insurance; and (2)
Safeco required the alleged separate charge. As a result, regardless of whether they
alleged a separate charge, the Sultans’ claim fails because they do not, and cannot,
allege Safeco would not have imposed the separate charge had it provided the
policy.3 Safeco, as the insurance provider requiring the disputed charge, falls
squarely within the unless clause’s exemption. Accordingly, the district court did
not err in finding that the Sultans failed to allege a claim under § 626.9551(1)(c).
B. Failure to State a Claim under Florida Statute § 626.9551(1)(d)
The Sultans argue the district court erred in finding they failed to allege
Safeco used protected insurance information for the purpose of soliciting the sale
of insurance in violation of Florida Statute § 626.9551(1)(d). Section
626.9551(1)(d) states that no person may:
use or provide to others insurance information required to be disclosed
by a customer to a financial institution, or a subsidiary or affiliate
thereof, in connection with the extension of credit for the purpose of
3
The unless clause makes no distinction between charges imposed in association with a
direct policy issuance and those imposed in association with a non-direct policy issuance. As the
district court correctly notes, the unless clause simply removes from the prohibition on separate
charges those charges that would have been imposed had the insurance business provided the policy.
Here, Safeco provided the policy and imposed the charge. The Sultans’ allegations that Safeco
would have not have imposed the charge had Safeco issued the policy directly do not address the
deficiency in the § 626.9551(1)(c) claim.
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soliciting the sale of insurance, unless the customer has given express
written consent or has been given the opportunity to object to such use
of the information. Insurance information means information
concerning premiums, terms, and conditions of insurance coverage,
insurance claims, and insurance history provided by the customer.
The opportunity to object to the use of insurance information must be
in writing and must be clearly and conspicuously made.
The Sultans identify only one letter as a possible solicitation. The
letter–dated March 26, 2007, and addressed to Craig Sultan– provides a basic
description of the insurance policy and explains, “Please be aware that you will be
responsible for the insurance charges for this coverage. . . . If you provide proof of
current coverage, this insurance will be cancelled . . . We encourage you to obtain
acceptable replacement coverage.”
The district court did not err in finding the Sultans failed to allege Safeco
used protected insurance information to solicit the sale of insurance for two
reasons. First, it is unclear from the Sultans’ allegations how Safeco used
protected insurance information in the March 26 letter. The letter itself contains no
references to any protected insurance information, and the Sultans offer only
broad, conclusory allegations in support of their position.
Second, the letter cannot be characterized as a solicitation. The Sultans cite
Black’s Law Dictionary, 1427 (8th ed. 2004), as defining a solicitation as “[a]n
attempt or effort to gain business.” While conceding the letter does not attempt to
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persuade a potential buyer – EverHome had procured the policy nearly four months
prior to the date of the letter – the Sultans claim the letter is an attempt or effort to
gain business by coercion. Although it informs the Sultans that they “will be
responsible for the insurance charges for this coverage,” the letter does not demand
immediate or future payment and encourages the Sultans to obtain replacement
insurance. Nothing in the letter amounts to an attempt to coerce payment.
Accordingly, the district court did not err in finding that the Sultans failed to allege
Safeco used protected information to solicit the sale of insurance.4
AFFIRMED.
4
In their reply brief, the Sultans argue for the first time on appeal that the district court
should have adopted the Florida Department of Financial Services Office of Insurance Regulation’s
published interpretation of § 626.9551(1)(d). Regardless of the merits of this argument, it is well
established in this circuit that “[a]rguments raised for the first time in a reply brief are not properly
before a reviewing court.” United States v. Evans, 473 F.3d 1115, 1120 (11th Cir. 2006) (quoting
Herring v. Sec’y, Dep’t of Corrections, 397 F.3d 1338, 1342 (11th Cir. 2005)). As a result, we need
not consider this issue.
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