FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 February 5, 2004 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 03-11688

________________________

D. C. Docket No. 99-01319-CV-S-N

COLONIAL LIFE & ACCIDENT 

INSURANCE COMPANY, and 

COLONIAL COMPANIES, INC.,

Plaintiffs-Appellants,

versus

HARTFORD FIRE INSURANCE 

COMPANY, TWIN CITY FIRE 

INSURANCE COMPANY, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(February 5, 2004)

Before ANDERSON, BLACK and HILL, Circuit Judges.

BLACK, Circuit Judge:
1

 Although the district court certified only the breach of the enhanced duty of good faith

conflict of laws question, “[w]hen a court of appeals has jurisdiction on interlocutory appeal

pursuant to 28 U.S.C. § 1292(b), the scope of appellate review is not limited to the precise

question certified by the district court because the district court’s order, not the certified question,

is brought before the court.” Aldridge v. Lily-Tulip, Inc. Salary Retirement Plan Benefits Comm.,

40 F.3d 1202, 1207 (11th Cir. 1994). We choose to address the remedy question even though it

was not specifically mentioned in the district court’s interlocutory order. We choose not to

address Colonial’s additional claims that the district court erred in restricting its bad faith claim

to a breach of the enhanced duty of good faith claim, and in holding, as a matter of law, there

could not be bad faith failure to settle. 

2

 The Parker White lawsuit was filed by an independent representative against Colonial

seeking damages for mental anguish, sickness, illness, physical harm, lost commissions, and lost

2

Colonial Life & Accident Insurance Company, and Colonial Companies,

Inc. (collectively Colonial) appeal the district court’s order partially dismissing

their lawsuit against Hartford Fire Insurance Company, Twin City Fire Insurance

Company, and Hartford Casualty Insurance Company (collectively Hartford). The

district court dismissed Colonial’s breach of enhanced duty of good faith claim

solely because South Carolina classifies the breach of good faith and fair dealing

as a tort, and held Alabama law controls the remedy in contract claims even

though South Carolina controls the substantive claims. We reverse.1

 

I. BACKGROUND 

Colonial sued Hartford for breach of contract, breach of the enhanced duty

of good faith, negligence, and bad faith, in a cross-claim and third party complaint. 

These claims arose out of a reservation of rights defense provided by Hartford and

Hartford’s failure to settle the Parker White lawsuit.2

 
benefits. 

3

While this case was pending, the Alabama Supreme Court, in response to a

certified question in a related case, held that a claim of breach of the enhanced

duty of good faith sounds in contract. Twin City Fire Ins. Co. v. Colonial Life &

Accident Ins. Co., 839 So. 2d 614, 616 (Ala. 2002). Following briefs by the

parties, the district court conducted a hearing to discuss the impact of Twin City on

this case. Subsequently, the district court issued an order dismissing Colonial’s

claim for breach of the enhanced duty of good faith. The court held that under

Alabama choice of law provisions and the decision in Twin City, Colonial’s breach

of the enhanced duty of good faith claim sounds in contract and is governed by

South Carolina contract law. Because South Carolina recognizes the breach of the

duty of good faith and fair dealing as a tort claim, rather than a contract claim, the

district court dismissed Colonial’s claim for breach of the enhanced duty of good

faith. The district court also found that, while Colonial’s contract claims are

governed by South Carolina substantive law, in the event contract liability exists,

the remedy is governed by Alabama law. The district court’s interlocutory order

certified the following holding for immediate appeal:

In sum, this is what the court concludes. Alabama law mandates that

Colonial’s “enhanced duty” claims be construed as contract claims. 

Because they are contract claims, South Carolina law governs. When
4

the court looks to South Carolina contract law, these claims do not

exist as contract claims. Under South Carolina law, the claims are

construed as tort claims. If the court were then to apply Alabama law

to these tort claims, this avails Colonial nothing because under

Alabama law, no such tort claims exist. See Twin City, supra. 

Therefore, putting aside terminological problems, counts two and four

of the cross-claim and third party complaint [breach of the enhanced

duty of good faith and bad faith] must be dismissed because they do

not exist as contract claims in South Carolina or as tort claims in

Alabama.

II. DISMISSAL OF THE BREACH OF THE ENHANCED DUTY OF GOOD

FAITH CLAIM

A. Alabama Choice of Law

“A federal court in a diversity case is required to apply the laws, including

principles of conflict of laws, of the state in which the federal court sits.” O’Neal

v. Kennamer, 958 F.2d 1044, 1046 (11th Cir. 1992). This case was brought in the

Middle District of Alabama, and the district court did not err in applying Alabama

choice of law rules. 

B. Application of South Carolina Substantive Law

Alabama applies the traditional doctrines of lex loci contractus to contract

claims and lex loci delicti to tort claims. The doctrine of lex loci contractus

governs the validity, interpretation, and construction of the contract. Cherry,

Bekaert & Holland v. Brown, 582 So. 2d 502, 506 (Ala. 1991). The doctrine states

that “a contract is governed by the laws of the state where it is made except where
5

the parties have legally contracted with reference to the laws of another

jurisdiction.” Id. The doctrine of lex loci delicti, on the other hand, requires the

court to “determine the substantive rights of an injured party according to the law

of the state where the injury occurred.” Fitts v. Minnesota Mining & Mfg. Co.,

581 So. 2d 819, 820 (Ala. 1991).

The breach of the enhanced duty of good faith sounds in contract. Twin

City, 839 So. 2d at 616. The doctrine of lex loci contractus, therefore, applies to

Colonial’s breach of the enhanced duty of good faith claim. The parties agree the

insurance contracts at issue were made in South Carolina, and thus, South

Carolina law applies to any contract claims. The district court did not err in

finding Colonial’s breach of the enhanced duty of good faith claim should be

decided under South Carolina law.

C. Breach of the Enhanced Duty of Good Faith

In Alabama, insurers have an enhanced duty of good faith to defend their

insured under a reservation of rights. L & S Roofing Supply Co. v. St. Paul Fire &

Marine Ins. Co., 521 So. 2d 1298, 1303–04 (Ala. 1987). South Carolina does not

have a cause of action identical to Alabama’s breach of the enhanced duty of good

faith under L & S Roofing, but has a similar cause of action for breach of the duty

of good faith and fair dealing. See Trimper v. Nationwide Ins. Co., 540 F. Supp.
3

 The breach of the duty of good faith and fair dealing and bad faith are not separate

causes of action in South Carolina. Ocean Winds Council of Co-Owners, Inc. v. Auto-Owners

Ins. Co., 241 F. Supp. 2d 572, 577 (D.S.C. 2002).

6

1188, 1193 n.2 (D.S.C. 1982) (explaining that insurers have an enhanced duty to

act in good faith and that South Carolina courts have imposed a duty of good faith

and fair dealing). A breach of the duty of good faith and fair dealing is a tort in

South Carolina.3

 Tadlock Painting Co. v. Maryland Cas. Co., 473 S.E.2d 52,

54–55 (S.C. 1996). 

The district court dismissed the breach of enhanced duty claim because

South Carolina characterizes a breach of the duty of good faith and fair dealing as

a tort claim rather than a contract claim. We have never addressed whether a

claim should be dismissed because another state characterizes the claim

differently. In a related case, Twin City Fire Ins. Co. v. Colonial Life & Accident

Ins. Co., Civ. A. No. 99-D-935-N (M.D. Ala. Aug. 16, 2002), however, District

Judge Ira De Ment faced the same issue and reached a different conclusion than

the district court in this case. As in the matter sub judice, Hartford argued that

Colonial had no cause of action because the claim is classified as a contract in

Alabama and a tort in South Carolina. In rejecting this argument, Judge De Ment

held:
7

Twin City draws attention to the fact that South Carolina treats the

claim as tortious rather than contractual. . . . [T]he court notes that

Twin City has not offered any persuasive reason why this fact should

matter. Conflicts rules frequently dictate the application of laws that

are different–both in form and substance–from the laws of the forum

state. These differences lend significance to conflicts analyses, but

they do not permit Twin City’s logical contortions. There is no Catch

22 for one simple reason: the court’s application of Alabama’s choice

of law rules entails that it is concerned solely with Alabama’s

characterization of the claim. Whether South Carolina bases an

analogous cause of action in tort, contract, or statutory law is

irrelevant. Alabama recognizes the duty as arising in contract, thus

requiring reference to South Carolina law to determine the scope of

that duty. 

There is persuasive authority supporting this conclusion. In Waddoups v.

Amalgamated Sugar Co., 54 P.3d 1054, 1059–61 (Utah 2002), the Supreme Court

of Utah noted that under Idaho law, wrongful termination in violation of public

policy is a contract-based cause of action, and under Utah law, the same cause of

action is tort-based. The court employed Utah choice of law analysis to find Idaho

law applicable to the wrongful termination claim, and then dismissed the action

because the wrongful termination claim pled under Utah law did not state a claim

under Idaho law. The court did not dismiss the action because the cause of action

was characterized differently in the two states, but because plaintiffs pled the

wrongful termination claim under Utah law. Id; see also Backar v. Western States

Producing Co., 382 F. Supp. 1170, 1174–75 (W.D. Tex. 1974) (holding that the
4

 The district court cited In re Korean Air Lines Disaster of Sept. 1, 1983, 117 F.3d 1477

(D.C. Cir. 1997), for the proposition that even in heart wrenching circumstances, there is nothing

unusual about a choice of law provision precluding claims in one forum that are available in

another forum. That case, however, dealt with a case where the cause of action was available in

one forum and not in the other. Hartford cites Thompson v. Acceptance Insurance Co., 689 So.

2d 89 (Ala. Civ. App. 1996), but similarly, that case deals with a cause of action not recognized

in the other jurisdiction. In this case, the cause of action, though named differently, is available in

South Carolina, but as a tort claim rather than a contract claim. 

8

law of the controlling state, New York, would determine whether an interest in oil

leases was classified realty or personal, regardless of the fact the forum state,

Texas, classified the interest differently). 

Additionally, the Restatement (Second) of Conflict of Laws leads us to

Judge De Ment’s conclusion. It provides that choice of law rules “do not

themselves determine the rights and liabilities of the parties, but rather guide

decision as to which local law rule will be applied to determine these rights and

duties.” Restatement (Second) of Conflict of Laws § 2 cmt. a(3) (1971). The

Restatement further provides “[t]he classification and interpretation of local law

concepts and terms are determined in accordance with the law that governs the

issue involved.” Restatement (Second) of Conflict of Laws § 7(3) (1971). 

We agree with Judge De Ment’s holding that whether South Carolina

classifies the breach of the duty of good faith as a tort is irrelevant.4

 Colonial may

or may not have pled sufficient facts for a South Carolina breach of the duty of
5

 If the district court finds that Colonial pled sufficient facts for a breach of the duty of

good faith claim, Hartford’s conduct should be measured by South Carolina’s “simple” duty of

good faith and not Alabama’s “enhanced” duty.

6

 Jones states:

It is a principle of law, admitted by all courts, that the lex loci

contractus must govern as to the validity, interpretation, and

construction of the contract. But the remedy to enforce it, or to

recover damages for its breach, must be pursued according to the

law of the forum where the suit is brought.

18 Ala. at 250. Macey provides “[t]he lex loci controls the validity and construction of the

contract but the lex fori operates on the remedy to enforce it.” 30 So. 2d at 669.

9

good faith claim in its complaint and the pretrial order.5

 The district court erred,

however, in dismissing the claim solely because South Carolina classifies the

breach of good faith and fair dealing as a tort. 

III. REMEDY

The district court also held that, while South Carolina law will govern any

claims arising under contract law, Alabama law will govern the remedy in the

event liability exists. The district court cited two older decisions of the Alabama

Supreme Court, Jones v. Jones, 18 Ala. 248, 250 (Ala. 1850) and Macey v. Crum,

30 So. 2d 666, 669 (Ala. 1947), to support this conclusion.6

 

More recently, however, the Alabama Supreme Court has held the law of

the state governing the substantive law must be applied when considering the

damages resulting from a breach of contract. Shelter Mut. Ins. Co. v. Barton, 822

So. 2d 1149, 1158 (Ala. 2001). The court held, “[b]ecause we have held that the
10

Shelter policy must be construed in accordance with Missouri law, we likewise

hold that Missouri law must be applied when considering the damages that

resulted from a breach of that contract.” Id. We hold, pursuant to Shelter Mutual,

that any remedy for a claim sounding in contract should also be decided under

South Carolina law.

IV. CONCLUSION

We reverse and remand for the district court to determine whether Colonial

pled a South Carolina breach of the duty of good faith and fair dealing claim. We

also reverse the district court’s holding that Alabama law will control the remedy

in any contract claims. 

REVERSED AND REMANDED.