FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 5, 2011

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 11-10167

Non-Argument Calendar

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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.

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Appeal from the United States District Court

for the Southern District of Florida

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(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 forceplaced 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 analysis accompanying the amendment states the amendment would

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“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

The Florida Senate staff analysis includes a disclaimer stating it “does not reflect the intent 1

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. 4 DCA 2008) (“As the Senate Staff Analysis below indicates, the legislative intent th

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. 1 DCA 1992) (“Staff st

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.

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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

This circuit has, at times, analyzed statutory language by applying “the rule of the last 2

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 (11 Cir. 2002) (quoting United States v. Correa, 750 F.2d 1475, 1481 n.10 (11 Cir. 1985)). th th

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. Safeco, as the insurance provider requiring the disputed charge, falls

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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

The unless clause makes no distinction between charges imposed in association with a

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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 (8 ed. 2004), as defining a solicitation as “[a]n

th

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.

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AFFIRMED.

In their reply brief, the Sultans argue for the first time on appeal that the district court 4

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 (11 Cir. 2006) (quoting th

Herring v. Sec’y, Dep’t of Corrections, 397 F.3d 1338, 1342 (11 Cir. 2005)). As a result, we need th

not consider this issue. 

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