FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 31, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-15263

Non-Argument Calendar

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D.C. Docket No. 09-60922-CV-CMA

VOZZCOM, INC., a Florida corporation,

Plaintiff-Appellant,

versus

GREAT AMERICAN INSURANCE COMPANY

OF NEW YORK, a Foreign Profit Corporation d.b.a.

Great American Insurance,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

________________________

(March 31, 2010)

Before TJOFLAT, WILSON and COX, Circuit Judges.

PER CURIAM:
Vozzcom, Inc., a cable and broadband outsourcing company, appeals the grant

of summary judgment in favor of Great American Insurance Company of New York

for Vozzcom’s claim for declaratory relief seeking a determination that Great

American has a contractual obligation to cover defense costs of a lawsuit filed against

Vozzcom by one of its former employees. We affirm.

Vozzcomhad an employment practicesliability policy with Beazley Insurance

Company, which covered defense costs in suits by Vozzcomemployees for violations

of wage and hour laws. In June 2007, Claudio Teixeira, a former Vozcomm cable

installer, sued Vozzcom alleging it denied him overtime compensation in violation

of the Fair Labor Standards Act (“FLSA”). Beazly paid the costs associated with

defending the Texeira suit. 

Vozzcom’s insurance policy with Beazley then expired, and it obtained a

similar policy from Great American, which covered the period from January 1, 2008

through December 31, 2008. In January 2008, Fransisco DaSilva, another former

cable installer, sued Vozzcom. The allegations ofthe DaSilva complaint were similar

to the allegations ofthe Texeira complaint. Vozzcomsought coverage for the defense

of the Dasilva lawsuit from both Beazley and Great American. Both companies

denied coverage, and Vozzcom defended the Dasilva claim at its own expense. It

then filed suit against Beazley and Great American seeking a declaratory judgment

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as to each company’s obligations under the insurance policies. The court granted

summary judgment in favor of Vozzcom as to Beazley, and against Vozzcom as to

Great American. Vozzcom, Inc. v. Beazley Ins. Co., No. 08-62044-CIV, 2009 WL

3486308, (S.D. Fla. June 17, 2009). It found that the allegations in the Taixeira and

Dasilva claims were “related” and were to be considered filed at the same time. Id.

at *9. The court held that the Great American policy did not afford coverage for the

Dasilva action because it was deemed to have been filed “long before Great

American’s policy came into effect.” Id. But, it concluded the Beazley policy did

afford coverage because the DaSilva action was filed within the policy’s sixty-day

window that covered claims filed after the insurance policy expired. Id. at *8.

In January 2009, Richard Elliot, another former cable installer, sued Vozzcom. 

The allegations in the Elliot complaint are similar to those made in Texeira and

DaSilva. Vozzcom requested coverage from Great American for the defense of the

Elliot lawsuit. Great American denied coverage, and Vozzcom filed this suit for

declaratory relief. Both parties moved for summary judgment. The district court

concluded that Great American was not obligated under its policy with Vozzcom to

pay the costs of defending the Elliot lawsuit. (R. 1-30 at 16.) So, it granted summary

judgment in favor of Great American and denied Vozzcom’s motion for summary

judgment. (Id.) Vozzcom appeals.

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The insurance policy provides that multiple claims “involving the same

Wrongful Act or Related Wrongful Acts” are to be considered a single claim and

shall be deemed to have been made on the date on which any such claim was first

made or on which any such act was reported under this policy or other policy

providing similar coverage. (R.1-1 at 22, 35; see also id. at 19 (defining Wrongful

Act and Related Wrongful Act).) We look to the allegations in the complaint to

determine whether Great American has a duty to insure. See Jones v. Florida Ins.

Guar. Ass’n, Inc., 908 So. 2d 435, 442-43 (Fla. 2005) (noting that a duty to insure

arises “when the complaint alleges facts that fairly and potentially bring the suit

within the policy coverage.”) We find that the allegations in the Elliot action are

nearly identical to and, at the very least, are “related” to those in the Teixeira and

DaSilva actions. (Compare R.1-21 at Ex. A (Teixeira complatint) with R.1-21 at Ex.

B (DaSilva complaint) and R.1-21 at Ex. E (Elliot complaint).) The plaintiffs in all

three cases are former cable installers who worked for Vozzcom during the same

approximate time period, and the complaints allege similar facts and FLSAviolations.

Therefore, we conclude that, under the terms of the policy, the Teixeira, DaSilva, and

Elliot actions are to be considered a single claim. That claim was first made, at the

latest, in June 2007 when the Teixeira lawsuit was filed. The Great American policy

period started well after the Teixeira lawsuit was filed, so Great American is under

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no duty to defend the Elliot action. Having concluded that the Elliot claim should be

deemed to have been made before the insurance policy became effective, we need not

consider whether the claimis excluded under other provisionsin the insurance policy. 

We hold that the district court did not err in holding that Great American is not

obligated to defend the Elliot action and by granting summary judgment in its favor.

AFFIRMED.

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