[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-12333

Non-Argument Calendar

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D.C. Docket No. 2:13-cv-00691-JES-CM

DAVID M. SPELLBERG, 

 Plaintiff–Appellant,

versus

NEW YORK LIFE INSURANCE COMPANY, 

 Defendant–Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(May 25, 2016)

Before HULL, MARCUS, and JULIE CARNES, Circuit Judges.

PER CURIAM: 

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Plaintiff Dr. David M. Spellberg (“Plaintiff”) appeals the district court’s 

order granting summary judgment to Defendant New York Life Insurance 

Company (“Defendant”) on Plaintiff’s claim for benefits under an overheadexpense insurance policy. Plaintiff seeks reimbursement for his medical practice’s

overhead expenses, which he says he incurred while disabled. The district court 

concluded that the company that owned Plaintiff’s practice incurred those 

expenses, not Plaintiff. After careful review, we affirm.

I. Background

Plaintiff used to own a urology practice called Naples Urology Associates,

P.A., which consisted of a main office in Naples, Florida, and two satellite offices. 

In 2004, Plaintiff became an insured under a physicians’ group disability-insurance 

policy (“Policy”) issued by Defendant to the American College of Surgeons 

Insurance Trust. The Policy provides office overhead-expense insurance to cover 

“Eligible Expenses” an insured incurs while totally disabled, as long as each 

Eligible Expense is enumerated in the “Eligible Expenses” section, is not excluded 

under the Policy, is a normal and customary expense of the insured member, and is 

generally accepted as tax deductible. 

According to the Policy, Eligible Expenses encompass costs “only to the 

extent outlined” in the plan. These expenses include business equipment loans and 

leases, depreciation of office furniture and equipment, employee salaries, insurance 

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premiums, maintenance, other normal and customary fixed expenses (such as 

license fees, subscriptions, membership dues, and accountant services), rent, and 

utilities. The Policy excludes personal expenses, salaries of people hired after the 

insured becomes disabled, and purchases of office equipment. If an insured 

properly makes a claim, the benefit payable is the lesser of the actual amount of 

Eligible Expenses incurred or the monthly benefit in force on the date the insured’s 

total disability began. Plaintiff’s maximum monthly benefit was $20,000. 

In January 2010, Plaintiff sold Naples Urology and all of its assets to 21st 

Century Oncology (“21st Century”), including all tangible assets, leases, and 

patient files and records, for about $214,000. 21st Century further assumed 

“liabilities and obligations under any agreement or contract entered into in the 

ordinary course of business” and which “relate to rent, or goods or services sold or 

provided after the Closing.” 

Plaintiff then entered into an Employment Agreement with 21st Century that 

provided for an initial two-year term of employment and established that Plaintiff 

and 21st Century would “be in an employer/employee relationship.” Plaintiff 

agreed to continue providing medical services at his three office locations, but 21st 

Century became responsible for billing and collection, and it agreed to provide 

Plaintiff office space, computer hardware and software, computer support 

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personnel, nursing, staff and scheduling support, a cell phone, and other supplies. 

21st Century also maintained medical malpractice insurance on Plaintiff’s behalf. 

With respect to Plaintiff’s compensation, 21st Century agreed to pay 

Plaintiff a base salary equal to 100% of his “Net Profits.” The Employment 

Agreement defined “Net Profits” as

Net Revenues decreased by the direct costs . . . incurred by 21st 

Century in connection with the medical services personally performed 

or supervised by you at the Office including, without limitation, rent, 

taxes, utilities, supplies, capital (other than goodwill) and equipment 

acquisition costs . . . , staff salaries and benefits, your fringe benefits, 

the costs of your CME and medical malpractice insurance premiums, 

administrative expenses, such as accounting, legal, human resources, 

and billing and collection.

“Net Revenues” were defined as “all revenues of 21st Century . . . attributable to 

professional services personally performed or supervised by you.” 21st Century 

further promised not to incur expenses above the average expenses Plaintiff had 

incurred in the two years before he sold his practice. In the first year, the firm 

would advance Plaintiff’s base salary by paying him, in bi-weekly installments,

75% of the income he earned for the year prior to his employment with 21st 

Century. In subsequent years, the advance would amount to 75% of the previous 

year’s base salary. After each quarter, 21st Century would reconcile the estimated 

base salary with Plaintiff’s actual quarterly earnings. If the actual base salary 

exceeded the estimated base salary, 21st Century would pay Plaintiff the 

difference. If 21st Century overpaid the estimated base salary, it would deduct the 

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overpayment from the next salary payment. The Employment Agreement also 

provided for bonus compensation separate from the base salary. 

After entering into the January 2010 Employment Agreement, Plaintiff 

worked as an employee of 21st Century until July 2012, when he became disabled 

following neck surgery. Plaintiff was unable to perform any medical services, but

21st Century continued to operate the practice at a loss. Meanwhile, Plaintiff was 

paid a base salary averaging around $25,000 per month until the Employment 

Agreement terminated at the end of December 2012. 

Plaintiff submitted a claim under the Policy for $100,000 in contractual 

benefits (the sum of the maximum monthly benefit of $20,000 for August 2012–

December 2012) to cover expenses he says he incurred while he was disabled

despite having sold his practice. Plaintiff points out that he had earned $36,612.62 

in net profits as of June 30, 2012, just before he became disabled, and that 21st 

Century owed him a bonus payment of $106,941.96 in December 2012. But 

because Plaintiff’s practice operated at a loss in 2012, 21st Century never 

distributed approximately $143,500 due to Plaintiff. And 21st Century’s loss still 

amounted to $489,492.47.

Defendant denied the claim because it believed Plaintiff did not incur 

Eligible Expenses. Defendant reasoned that because Plaintiff no longer owned his 

practice and was instead an employee of 21st Century, he could not claim expenses 

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under the Policy. Plaintiff sued for benefits, but the district court concluded as a 

matter of law that 21st Century incurred the expenses, not Plaintiff. Plaintiff 

appeals.

II. Discussion

“We review a district court’s grant or denial of summary judgment de novo, 

considering all the facts and reasonable inferences in the light most favorable to the 

nonmoving party.” Norfolk S. Ry. Co. v. Groves, 586 F.3d 1273, 1277 (11th Cir. 

2009). Summary judgment is appropriate “if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show 

that there is no genuine issue as to any material fact and that the moving party is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. 

Catrett, 477 U.S. 317, 322 (1986).

Both parties cite Florida law as governing the interpretation of the Policy. 

Under Florida law, the interpretation of an insurance contract is a question of law 

to be determined by the court. See Graber v. Clarendon Nat’l Ins. Co., 819 So.2d 

840, 842 (Fla. Dist. Ct. App. 2002). “Where the language in an insurance contract 

is plain and unambiguous, a court must interpret the policy in accordance with the 

plain meaning so as to give effect to the policy as written.” Wash. Nat’l Ins. Corp. 

v. Ruderman, 117 So.3d 943, 948 (Fla. Dist. Ct. App. 2013). Courts should also 

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read the policy as a whole, giving every provision its full meaning and operative 

effect. U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 877 (Fla. 2007).

The determinative issue here is whether Plaintiff or 21st Century incurred 

the overhead expenses. The parties agree that “to incur” means “to be liable for” 

or “to have to pay for.” Plaintiff argues that he continued to incur expenses even 

after he sold his practice to 21st Century because he was obligated to generate 

revenue sufficient to cover the practice’s overhead before he earned a base salary. 

It is true that the compensation formula took into account these expenses, but that 

did not mean that Plaintiff incurred them. The Employment Agreement even states 

that for the purpose of compensation, “‘Net Profit’ shall mean Net Revenue 

decreased by the direct costs . . . incurred by 21st Century,” including rent, 

utilities, and other overhead expenses. And 21st Century agreed that it would not 

“incur expenses over and above the average historical expenses incurred by you

for the two (2) year period immediately preceding your employment hereunder.” 

The way the Employment Agreement contrasts who incurred expenses before and 

after the sale confirms that 21st Century became responsible for paying overhead

and that expenses were considered only for the purpose of calculating Plaintiff’s 

salary. Moreover, it is evident from the terms of the Employment Agreement that 

21st Century agreed to provide Plaintiff office space, supplies, and support staff. 

And under the asset-purchase agreement, 21st Century assumed Plaintiff’s 

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liabilities, including a lease and contracts for goods and services, and 21st Century 

in fact did pay rent and other overhead. 

Plaintiff insists that he nevertheless incurred expenses because 21st Century 

kept about $36,000 he had earned through June 2012 and another $107,000 in 

bonuses that would have been due to him at the end of 2012. Therefore, he reasons 

that he “was ultimately obligated to pay” expenses. Importantly, however, 

Plaintiff continued to receive an advance of his base salary while he was disabled, 

which was calculated using the previous year’s profits. So, by the end of the 

contract, Plaintiff had been disabled for several months while his practice operated 

at a loss. Normally, if 21st Century determined at the end of a quarter that it had 

overestimated Plaintiff’s base salary, 21st Century would deduct the overpayment 

from subsequent salary payments. But because Plaintiff’s contract expired at the 

end of 2012, 21st Century could not reconcile Plaintiff’s actual base salary in the 

final two quarters of 2012 over subsequent salary payments; instead it kept 

previously earned profits and bonus payments Plaintiff normally would have been 

entitled to. Whether or not 21st Century properly kept the accrued salary and 

bonus under the Employment Agreement, Plaintiff was not liable to 21st Century 

for the balance of its $489,000 loss. Rather, 21st Century kept these salary and 

bonus payments to adjust his compensation given that he generated no revenue in 

the final two quarters of 2012. As the district court put it, “The fact that 

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[Plaintiff’s] compensation formula factored in expenses did not cause the expenses 

to be ‘incurred’ by [him]. . . . While expenses had the effect of reducing 

[Plaintiff’s] compensation, [Plaintiff] did not become liable for the expenses and 

did not directly pay any of the expenses.”1

 Consequently, the district court 

properly granted summary judgment to Defendant.

III. Conclusion

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.

 1 Defendant cites a handful of cases for the proposition that Plaintiff could not incur expenses 

after he sold his practice. We do not read these cases to hold that someone who sells his practice 

could never be covered under an overhead-expense insurance policy. Rather, the cases simply 

interpreted the language of the particular policies at issue requiring expenses to have been 

incurred in the “operation” of an insured’s business. See Paul Revere Life Ins. Co. v. Klock, 169 

So.2d 493, 495 (Fla. Dist. Ct. App. 1964) (dentist’s expenses not covered under policy that 

required expenses to be incurred “in the operation of his office” because he had ceased 

operations and let a doctor set up practice in his old office space); Chenvert v. Paul Revere Life 

Ins. Co., No. Civ. 03-0330-SLR, 2004 WL 1739718, at *4 (D. Del. Aug. 2, 2004) (dentist’s 

claim for expenses incurred after he ceased operation of his business not covered because policy

provided coverage only for expenses incurred while the insured’s business was in “operation”); 

Twin Tiers Eye Care Assocs., P.C. v. First Unum Life Ins. Co., 270 A.D.2d 918, 918 (N.Y. App. 

Div. 2000) (employee’s expenses not incurred “in the operation of” his office because he did not 

own the practice); see also Lincoln Dental Arts Clinic, Ltd. v. Mut. Life Ins. Co. of N.Y., No. 92 

C 3661, 1993 WL 239020, at *3–4 (N.D. Ill. June 28, 1993) (dentist’s expenses covered for 

period of his disability, even though he sold his practice after becoming disabled, because policy 

required only that he be a shareholder of the practice at the beginning of his disability).

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