FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 28, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-13242

________________________

D. C. Docket No. 03-01688-CV-T-26-TGW

RICHARD L. TOOMEY,

Resident of Montgomery County, As an

individual and as an assignee of IMC Mortgage

Company,

BRIAN D. HOLMAN,

Resident of Baltimore County, As an

individual and as an assignee of IMC Mortgage

Company,

Plaintiffs-Appellees

Cross-Appellants,

versus

WACHOVIA INSURANCE SERVICES, INC.,

JOEL G. WILLIAMS,

DAVID BALDWIN, INC.,

A Division of Wachovia Insurance Services, Inc.,

Defendants-Appellants

Cross-Appellees.
________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(October 28, 2008)

Before TJOFLAT, BARKETT and GOODWIN, Circuit Judges.

*

PER CURIAM.

In this diversity action, Richard Toomey and Brian Holman sued Wachovia

Insurance Services, Inc., Davis Baldwin, Inc., a division of Wachovia Insurance

Services, Inc., and Joel Williams, an officer/employee of Wachovia Insurance

Services, Inc. (together “Wachovia”) alleging, inter alia, that Wachovia breached

fiduciary duties it owed to IMC Mortgage Company (“IMC”) and that Wachovia

was negligent in its dealings with IMC. In a previous settlement agreement

between IMC and Toomey and Holman, IMC had assigned its potential claims

against Wachovia to Toomey and Holman.

After trial, the district court submitted the breach of fiduciary duty claim to

the jury, which returned a verdict of $1,069,200 in favor of Toomey and Holman.

However, as to Toomey and Holman’s other claims, including the claim that

Wachovia was negligent in its dealings with IMC, the district court granted

 Honorable Alfred T. Goodwin, United States Circuit Judge for the Ninth Circuit, sitting *

by designation.

2
judgment as a matter of law in favor of Wachovia. Wachovia appealed the jury

verdict on the fiduciary duty claim and Toomey and Holman cross-appealed the

grant of judgment as a matter of law on the remaining claims and the denial of their

motion to alter or amend the judgment.

Because we found that determinative questions raised by this appeal were

unsettled under Florida law, we certified the following two questions to the Florida

Supreme Court:

WHAT IS THE EFFECT OF A SETTLEMENT AGREEMENT

BETWEEN TWO PARTIES THAT EXPLICITLY CONTAINS

BOTH AN ASSIGNMENT OF CAUSES OF ACTION AGAINST A

THIRD PARTY INSURER AND AN IMMEDIATE RELEASE OF

THE INSURED ON THE SAME CAUSES OF ACTION?

CAN A CLAIM FOR BREACH OF FIDUCIARY DUTY AGAINST

AN INSURANCE BROKER BE ASSIGNED?

The Florida Supreme Court answered both questions in the affirmative,

holding that the settlement agreement properly assigned IMC’s cause of action

against Wachovia to Holman and Toomey because the assignment was done

simultaneously with the release of IMC from all liability and that the claim for

breach of fiduciary duty against Wachovia is comparable to a bad faith claim and

thus is assignable. Wachovia Insurance Services, Inc. v. Toomey, No. SC06-1110,

2008 WL 4379587, at *9 (Fla. Sept. 29, 2008). The Florida Supreme Court further

determined that IMC’s negligence claim against Wachovia was assignable to

3
Toomey and Holman and should have been submitted to the jury. Id. at *8-9.

Based on the Florida Supreme Court’s opinion in the instant case, we reverse

the district court’s grant of judgment as a matter of law in favor of Wachovia as to

the negligence claim, affirm the judgment finding Wachovia liable for breach of

fiduciary duty to IMC, affirm as to all other issues, and remand this case for any

further proceedings necessary and consistent with the Florida Supreme Court’s

opinion.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

4