[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

_____________________ ___ No. 17

- 1 1165

________________________ D.C. Docket No. 5:15

- cv - 00144

- JSM

- PRL
CHARLES W. O’BRIEN, As Successor Trustee of First Enterprise Trust , Plaintiff

- Appellant

versus TRANSAMERICA PREMIER LIFE INSURANCE COMPANY, Defendant

- Appellee.

________________________ Appeal from the United States District Court for the Middle District of Florida

________________________ (August 22, 2018) Case: 17-11165 Date Filed: 08/22/2018 Page: 1 of 122 Before JORDAN and ROSENBAUM , Circuit Judges, and MARTINEZ , * District Judge.
PER CURIAM : The plaintiff

- appellant, Charles W. O’Brien (“O’Brien”), initiated this breach of contract action against defendant

- appellee, Transamerica Premier Life Insurance Co. (“Transamerica”) , seeking recovery under a “Death Benefit Rider” (“Rider”) in corporated in an annuity contract issued to the Beth O’Brien Trust. The district court granted Transamerica’s motion for summary judgment an d denied Mr. O’Brien’s motion. The court concluded that the contract unambiguous ly excluded application of the Rider in in stances where the annuitant died after annuitizing the contract , and thus found the R ider inapplicable to this

case as a matter of law. O’Brien filed this appeal fr om the final summary judgment. For the reasons s tated below, we affirm the judgment of the district
court. I. FACTS
O n February 8, 1999, Peoples Benefit Life Insurance Co., the predecessor to Transamerica, issued a “Flexible Premium Multi

- Funded Variable Annuity
Contract” (“Contract”) to the Beth O’Brie n Trust, with B eth O’Brien desi gnated as

* Honorable Jose E. Martinez, United States District Judge for the Southern District of Florida, sitting by designation.

Case: 17-11165 Date Filed: 08/22/2018 Page: 2 of 123 the a nnuitant. The C ontract, issued in Ohio, bore an original annuity date of December 1, 2008.
Ms. O’Brien designated the Trustee of First Enterprise Trust as the
Contract’s beneficiary. Charles O’Brien, her son, is Successor Trustee of the First Enterprise Trust. Ms. O’Brien made an initial purchase payment of $1,834,582.59 to acquire the annuity, which was administered through Vanguard Variable Annuity Plan ( “ Vanguard ”). The C ontract i ncluded and was simultaneously issued with a “Return o f Premium Death Benefit Rider.” In relevant part, the Rider stated: RETURN OF PREMIUM DEATH BENEFIT RIDER This Rider has been made a permanent part of your contract. This Rider adds a cost provision and a coverage provision that replaces the Death Benefit section of your Contract. This Rider is issued in consideration of the Contract Owner’s agreement to the changes below.

..... Death Benefit This Rider replaces the “Death Benefit” section of your Contract with the following: The Death Benefit payable upon the death of the Annuitant will be the greater of: 1) The Accumulated Value of the Contract as of the date due Proof of Death of the Annuitant is received by the Company; o r 2) The sum of all Premium Payments, less any Adjusted Partial Withdrawals and Premium Taxes, if any. Case: 17-11165 Date Filed: 08/22/2018 Page: 3 of 124 This Rider takes effect and expires concurrently with the Contract to which it is attached.
Ms. O’ Brien elected to annuitize the C ontract within a month of its issuance , and executed a Variable Annuity Election of Income Option to accomplish this
purpose. She elected to begin receiving annuity payments on May 1, 1999, continuing for life, with a guarant eed pay

- out term of ten years. Ms. O’Brien enj oyed the benefit of this guaranteed ten

- year income stream (120 monthly payments) plus 50 additional monthly annuity payments paid up through the da te of her death on May 5, 2013. After she died, Charles O’Brien made demand on Vanguard for payment of the “Death Benefit” described in the Rider. Vanguard denied the claim on the ground that the C ontract ’s “Death B enefit” is payable only
if the annuitant dies prior to the C ontract’s annuity date , a circumstance which did not materialize here

. O’Brien then brought this breach of contract action against Transamerica seeking recovery of the “Death Benefit” described in the Rider. Transamerica eventually filed a motion for summary judgment on the issue of the Rider’s applicability to this case , an d O’Brien ’s response in opposition to the motion was interpreted by t he district court to include a cross - motion for summary judgment. The district court granted Transamerica’s motion for summary judgment , denied O’Brien’s motion , and entered final judgme nt accordingly. O’Brien filed this appeal from the final summary judgment.

Case: 17-11165 Date Filed: 08/22/2018 Page: 4 of 125 II. STANDARD OF REVIEW Our review of the district court’s grant of summary judgment is de novo , and we apply the same legal standards as those used by the district court. Altman
Co ntractors, Inc. v. Crum & Fo r ster Specialty Ins. Co ., 832 F.3d 1318 (11 th Cir. 2016); Hoffman v. Allied Corp ., 912 F.2d 1379, 1383 (11th Cir. 1990) ; Gulf Tam pa Drydock Co. v. Great Atl. Ins. Co., 757 F.2d 1172 (11 th Cir. 1985)

. The interpretation of a contract is also a matter of law subject to de novo review. Equity Life style Prop s . , Inc. v. Fl a . Mowing & Landscape Serv. , Inc ., 556 F.3d 1232 (11th Cir. 2009); Seguro s Del Estado, S.A. v. Sci. Games, Inc ., 262 F.3d 1164 (11th Cir

. 2001) (contract interpretation without resort to parol evidence is question of law reviewed de novo ). 1
III. DISCUSSION The district court found that the Rider, read in context of t he C ontract as a whole, has no application to instances where the designated annuitant dies after the annuity date. The court found this interpretation was compelle d by various provisions of the C ontract describing the interplay between the annuity date and

1 The question of which state’s substantive law applies in this diversity action is a legal question entitled to independent revi ew on appeal. Am. Fam. Life Assurance Co. v. U.S. Fire Co ., 885 F.2d 826, 830 (11th Cir. 1989). However, because the parties agree that Ohio law controls here, the Court will not conduct a choice of law analysis.

Case: 17-11165 Date Filed: 08/22/2018 Page: 5 of 126 when a death benefit was due : First, a section captioned, “Death Benefit Prior to the Annuity Date , ” recites in pertinent part , “ the Death Benefit is calculated and is payable upon receipt of due Proof of Death of the Annuitant, 2 as well as proof that the Annuitant died prior to the Annuity Date.” 3 (R. 48

- 4). Se cond, a section captioned, “ Annuitant’s Death Prior to Annuity Date,” refers to distribution of the death benefit “[i]f the Annuitant dies prior to the Annuity Date ” (emphasis supplied), with the allocation depending on the survivorship and n umber of

con tr act beneficiaries. Third, a section captioned , “ Annuitant’s Death After Annuity Date” (emphasis supplied) states “[i] f the Annuitant dies on or after the Annuity Date, any unpaid Payments Certain will be paid to th e Beneficiary, ” and makes no reference to a Death Benefit. Reading the C ontract as a whole, the district court concluded that the Rider had no application here because Ms. O’Brie n indisputably died after the “ Annuity Date, ” i.e. , the date on which she beg an receiving a nnuity payments. It further found that any “al leged ambiguity” created by the Rider ’s reference to

2 “Annuitant” is defined in the Glossar y of the contract as “[t]he person or persons on whose life expectancy the duration of any Annuity Payments is determined, an d . . . upon whose death prior to the Annuity Date benefits under this Contract are paid.” (R. 48

- 4)
3 “ Annuity Date ” is defined in the Glossary as “ [ t ]he date on which Ann u ity Payments begin.” (R. 48

- 4).

Case: 17-11165 Date Filed: 08/22/2018 Page: 6 of 127 “replace[ment]” of a non

- existent section 4 of the underlying C ontract was immaterial because , under any reaso nable reading of the C ontract, no “Death
B enefi t” is ever due if the annuitant dies after the annuity date

. On appeal, O’Brien argues that the Rider by its plain terms refers to a “Death B enefit ” which is “payable upon the death of the A nnuitant,” without limitation as to whether the annuitant’s death occurs before or after the annuity date. He argues the district court erred by misconstruing or disregarding the word “replace s ,” as it appears in the Rider, which , under its ordinary and plain meaning , refers simply to the substitu tion of one thing for another. Applying this definition here , he contends the Rider calls for the “replacement” of any provisions in the
C ontract which referred to a “Death Benefit,” including those provisions relied upon by the district court in reaching its ultimate interpr etation of the C ontract

. Alternatively , O’Brien contends that the Rider’s reference to the “replacement” of a non - existent section of the C ontract created an ambiguity as to the circumstances under which the Rider was intended to apply, and that the district court should have interpreted this ambig uity against Transamerica as dr after of the Contract and Rider. At a minimum, O’Brien contends that the district court shoul d have conducted an evidentiary hearing to consider extrinsic evidence of the parties’ intent

.

4 While the Rider states it “replaces” the “Death Benefit section” of the Contract, there is no section of the Contract expressly titled a “Death Benefit” section.

Case: 17-11165 Date Filed: 08/22/2018 Page: 7 of 128 Recognizing that “ [ t ] he cardinal purpose for judicial examination of any written instrument is to ascertain and give effe ct to the intent of the parties, ” Foster Wheeler Enviresponse, Inc. v

. Franklin C ty
. Convention Facilities Auth ., 678 N.E.2d 519 , 526 ( Ohio 1997), it is clear in this case that Transam erica performed exactly as the C ontract contempl ated with regard to payment of the

“ Death Be nefit” describ ed in the Rider. In determining the intent of the parties, “a writing, or writing s executed as part of the same transa c tion, will be read as a whole, and the intent of each part will be gathered from a consideration of the whole. ” Id. at 526. Courts sho uld therefore “ attempt to harmonize all the provisions [of the contract] rather than produce conflict in them

. . . [and] no provision of the contact should be ignored as inconsistent if there exists a reasonable interpretati on which gives effect to both.” Lincoln Elec . Co. v. St. Paul Fire and Marine Ins. Co., 210 F.3d 672, 685 (6th Cir. 2000) ( quoting Ottery v. Bland , 536 N.E.2d 651, 654 ( Ohio Ct. App. 1987) )

. Contracts that are, b y their terms, clear and unambiguous require no real construction or interpretation, and courts will enforce such contracts as written by the parties

. See Foster Wheeler, 678 N.E.2d at 526 ; Alexander v

. Buckeye Pipe
Line Co ., 374 N.E.2d 146 , 150 (Ohio 1978); Royal Ins. Co

. of Am. v. Or i ent Overseas Container Line Ltd., 525 F.3d 409 (6th Cir. 2008). Conversely , where the court cannot decipher the parties’ intent through the plain language of the

Case: 17-11165 Date Filed: 08/22/2018 Page: 8 of 129 contract, a fact

- finder may consider extrinsic evidence to resolve the ambiguity and ascertain the parties ’ intent. See Shifrin v

. Forest City Ent er s., Inc

. , 597 N.E.2d 499 , 501 (Ohio 1992). Contract language is deemed ambiguous , however, “ ‘ only where it s meaning cannot be determined from the four corners of the agreement or where the language is susceptible of two or more reasonable interpretations

. ’ ” Savedoff v . Access Gr p . , Inc ., 524 F.3 d 754 , 763 (6th Cir. 2008 ) ( quoting Covington v. Lucia , 784 N.E.2d 186, 19 0 (Ohio Ct. App. 2003) )

. In deciding whether an ambiguity exists , the contract “ ‘ must be construed as a whole ’” and the intent of the parties must be determined from the entire instrument and not from detached parts. Id . ( quoting Tri

- State Grp

. , Inc. v

. Ohio Edison Co ., 782 N.E.2d 1240, 12 46 ( Ohio Ct. App. 2002 ) )

. If primary rule s of contract construction

— plain language of the document and e xtri nsic evidence, in that order

— fail to clarify the meaning of a contract
term , then a secondary rule of contr act construction, requiring ambiguous language in a standardized c on t ract to be construed strictly against its drafter , comes into play. Cadle v. D’Amico , 66 N.E.3d 1184 (Ohio Ct. App. 2016). Finally , c ommon words in a contract are presumed to hold their ordinary meaning unless manifest absurdity results, or some other meaning is clearly evidenced from the instrument. Waste M gmt. , Inc. v. Rice Dan is Ind., 257 F. Supp. 2d 1076 , 1083 (S.D. Ohio 2003) ( citing Buckeye Pipe Line Co ., 374 N.E.2d at

Case: 17-11165 Date Filed: 08/22/2018 Page: 9 of 1210 150); Crosier v. Ohio Dept. o f Rehab

. & Corr

. , 2018 WL 1168385, ___ N.E.3d

___ ( Ohio Ct. App. Mar. 6, 2018) ( citing P laza Dev. Co. v. W. Cooper Enter s . , LLC , 12 N.E.3d 506 (Ohio Ct. App. 2014) ) ; Kenney v . Chesapeake , 31 N.E.3d 136 (Ohio Ct. App. 2015). In this case, the only reasonable interpretation of the Contract, viewing the
C ontract as a whole , i s that the Rider replaced the “D eath Benefit Prior to the Annuity Date” section of the Contract. First, the text and structure of the Rider

m irrors the text and structure of the “Death Benefit Prior to the Annuity Date” section. For example, the Rider and the “Death Benefit Prior to the Annuity Date” section both have two subsections and use the exact same language, differing slightly on only a few items. In addition to the similarity between the text and structure of this section of the Contract and the Rider, it is important to note that the Rider states that it “replaces the Death Benefit” section of the Contract. Although Plaintiff is rig ht that the Contract lacks a section titled “Death Benefit,” the “Death Benefit Prior to the Annuity Date” is the only section of the Contract that has “Death Benefit” in its title whatsoeve r. Furthermore, the Rider and the “Death Benefit Prior to the Ann uity Date” are aimed at the same issue : they both govern the valuation of the Death Benefit, with both providing for the greater of the Accumulated Value of the Contract , or, in the alternative, the sum of all premium payments.

Case: 17-11165 Date Filed: 08/22/2018 Page: 10 of 1211 Moreover, the other two se ctions of the Contract dealing with the annuitant’s death and what payments , if any, are due limit the reac h of the otherwise

uninhibited R ider. Indeed, the language from the “Annuitant’s Death Prior to Annuity Date” section, which limits the Death Benefi t to a situation where the annuitant died before annuitizing the Contract, and the language from the “Annuitant’s Death After Annuity Date” section, which limits after

- death, after

annuitized benefits to any remaining guaranteed annuity payments, clearly l imit what payments are du e upon Ms. O’Brien’s death. And since Ms. O’Brien had already annuitized the Contract and thereafter received all of her guaranteed annuity payments, no further payments were due upon her death. See Fifth Third
M ortg . Co. v. Rank in , 2011 WL 2206629 , *5 (Ohio Ct. App. 2011) (declining to adopt a reading of a rider which would , “in essence, create a new contract”). Last, to interpret the C ontract otherwise, as urged by O’Brien, would effectively amount to a double recovery under the C ontract . I t would allow recovery of the death benefit upon passing of the annuitant under any sequence and would lead to the commercially unreasonable result of allowing an annuitant to reap the benefit of his or her bargain twice

— once by collecting the guaranteed
ten

- year annuity stream during his or her lifetime and again by conferring a death benefit on his or her designated beneficiary at the exp iration of that lifetime. The
C ontract, read as a whole, does not support this result.

Case: 17-11165 Date Filed: 08/22/2018 Page: 11 of 1212 In determinin g the intent of the parties, the Court has harmonized all the provisions of the C ontract to reach the only reasonable interpretation of the
C ontract. And because the meaning of the Rider can be determine d from the four corners of the C ontract and because the language of the Rider is susceptible to only

one reasonable interpretation, no ambiguity exists. This correct, global re ading and harmonization of the C ontract’s terms leads to the conclusion that the parties intended to confer a death benefit only in those circumstances where the annuitant dies before the annuity date. The district court’s grant of summary judgment in favor of Transamerica is AFFIRMED.

Case: 17-11165 Date Filed: 08/22/2018 Page: 12 of 12