FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DECEMBER 4, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-12310

Non-Argument Calendar

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D.C. Docket No. 07-20619-CV-DLG

ELLER MEDIA CORPORATION,

Plaintiff-Appellant,

versus

NATIONAL UNION FIRE INSURANCE

COMPANY OF PITTSBURGH, PA.,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

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(December 4, 2009)

Before BARKETT, HULL and COX, Circuit Judges.

PER CURIAM:

Eller Media Corporation n/k/a Clear Channel Outdoor, Inc. commenced this

action in state court against National Union Fire Insurance Company of Pittsburgh,
PA and AIG Technical Services Inc. The action was removed to federal court as a

diversity case. 

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Jorge Luis Cabrera, a minor, was electrocuted near a bus shelter on or about

October 12, 1998. Eller had performed the electrical installation at the bus shelter.

The Miami-Dade County State Attorney’s Office prosecuted Eller for criminal

manslaughter, alleging that Eller had performed defective electrical work at the

shelter. Eller spent significant sums of money in its criminal defense. Some of these

funds were spent on “work product”, including expert witnesses and developing

defense strategies. As Eller points out in its brief, “[a]lthough some ‘work product’

in the legal sense may have been included, the term ‘work product’ is used

descriptively and not as the term is traditionally used when referring to a legal

privilege.” (Appellant’s Brief at 8 n.2.) We use the term in the same sense. The

criminal case ended in an acquittal for Eller in April 2001.

 Cabrera’s family initiated a civil wrongful death action against Eller on

October 20, 1998. Eller’s primary insurer, Reliance Insurance Company, initially

provided Eller’s defense. On September 14, 2001, however, the policy limits were

exhausted. As a result, National Union took over Eller’s defense pursuant to Eller’s

Commercial Umbrella Policy. Eller claims that National Union used work product

The claims against AIG were dismissed with prejudice after removal. 1

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created and paid for by Eller during its criminal proceedings, in National Union’s

civil defense of Eller, but refused to pay for the work product.

Eller brought suit against National Union, asserting claims for unjust

enrichment, quantum meruit, and breach of contract. Both parties moved the district

court for summary judgment. National Union soughtsummary judgment on all three

counts of Eller’s complaint. Eller opposed National Union’s motion for summary

judgment, and sought partial summary judgment on the breach of contract claim, or

in the alternative, liability based upon unjust enrichment or quantum meruit. (R.5-

131 at 3.) The district court granted National Union’s motion for summary judgment,

and denied Eller’s motion. (R.5-131 at 18.) Eller appeals, contending that the district

court erred in granting summary judgment to National Union on each of its three

claims. 

We first consider the unjust enrichment claim. In order to prevail under such

a claim in Florida, Eller must demonstrate facts, that if accepted as true, would

establish: (1) that a benefit was conferred upon National Union; (2) that National

Union either requested the benefit or voluntarily accepted it; and (3) that under the

present circumstances, it would be inequitable for National Union to retain the benefit

without paying for it. W.R. Townsend Contracting, Inc. v. Jensen Civil Const. Inc.,

728 So.2d 297, 303 (Fla. 1st Dist. Ct. App. 1999). 

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Although Eller argues otherwise, courts may resolve unjust enrichment claims

on summary judgment. See e.g., Nova Info. Sys., Inc. v. Greenwich Ins. Co., NAC,

365 F.3d 996 (11th Cir. 2004). We assume for purposes of this appeal, as did the

district court, that Eller established the first two elements of an unjust enrichment

claim. Nevertheless, we agree with the district court that no inequity would occur by

allowing National Union to retain the benefit of the work product without paying

Eller for it. “[E]quity suggests that National Union should not be required to pay for

the ‘work product’ of Eller that Eller generated in its own criminal defense, which

was ultimately used again for the benefit of Eller in its civil defense.” (R.5-131 at 14.) 

Eller disputes the district court’s conclusion that it received a benefit from National

Union’s representation. Instead, Eller contends that it was National Union that

received a benefit from use of the work product, because National Union was

subjected to the financial exposure in the civil suit, not Eller. We disagree.

Regardless of any benefit National Union received or the nature of Eller’s

limited financial exposure, it is undeniable that Eller received some benefit from

National Union’s use of the work product during its civil defense of Eller. Moreover,

Eller certainly benefitted during its criminal proceedings from the work product it

developed. “Ordinarily, restitution is not available under an unjust enrichment theory

for a benefit conferred as an incident of a plaintiff’s having acted primarily for his or

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her own benefit.” 66 Am. Jur. 2d, Restitution and Implied Contracts, § 13. Thus,

although it was “fortuitous” for National Union to use Eller’s work product during

its representation of Eller, (R.5-131 at 15), that work product was used solely for the

benefit of Eller during the criminal proceedings and at least partly for the benefit of

Eller during the civil action. We concur with the district court that if Eller’s logic

were followed, National Union would have been able to start fromscratch and forego

using the work product that already existed. “However, if National Union had

followed such a course of conduct . . . it is questionable whether National Union

would have been acting in the best interest of [Eller] and/or acting in good faith in the

resolution of it[s] insured’s claims.” (Dist. Ct. Order, R.1-131 at 14-15) (citing Nat’l

Union First. Ins. Co. v. Travelers Ins. Co., 214 F.3d 1269, 1274 (11th Cir. 2000)). 

Because no inequity would result by allowing National Union to use the work product

without providing compensation to Eller, the district court did not err in granting

summary judgment to National Union on the unjust enrichment claim. 

Having considered the briefs on the other issues, we conclude that the district

court properly granted National Union summary judgment on Eller’s breach of

contract and quantum meruit claims for the reasons stated in its order on the motion. 

(R.5-131.)

AFFIRMED.

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