[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13313

Non-Argument Calendar

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ALABAMA SPACE SCIENCE EXHIBIT COMMISSION, 

d.b.a. U.S. Space & Rocket Center,

Plaintiff-Counter DefendantThird-Party Defendant-Appellant,

versus

MARKEL AMERICAN INSURANCE COMPANY, 

Defendant-Counter ClaimantThird-Party Plaintiff-Appellee,

DEBORAH BARNHART, et al.,

Counter Defendants-Third-Party Defendants.

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2 Opinion of the Court 21-13313

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 5:19-cv-00594-LCB

____________________

Before WILSON, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:

Alabama Space Science Exhibit Commission (ASSEC) 

entered into an agreement to produce a children’s television show 

with funding from NASA. When the funding never came through, 

an arbitration panel found ASSEC liable for breaching the 

agreement. ASSEC then sued Markel American Insurance 

Company, which had agreed to provide coverage for liability 

unless it resulted from a breach of contract. The question before 

us, then, is whether Markel’s insurance policy covers ASSEC’s 

losses.

It does not. The insurance policy at issue excludes liability 

“under a written or express contract or agreement,” and ASSEC’s 

liability flows solely from its breach of such an agreement. Because

ASSEC’s arguments to the contrary do not alter the plain meaning 

of the insurance contract, we affirm.

I.

In 2016 ASSEC signed a Memorandum of Agreement with 

Space Race, LLC to produce a children’s television show called 

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21-13313 Opinion of the Court 3

Space Racers.1 The two companies promised to “work together to 

promote” the series and to “collaborate on all press, public 

relations, events and activities.” Most importantly, ASSEC 

promised to fund the project—a commitment of over $4 million—

provided that it received a NASA grant for that purpose. Around 

the same time, ASSEC entered a “Cooperative Agreement” with

NASA, which pledged $4.5 million to the project to be disbursed

over three years.

Space Racers enjoyed a successful launch. But by 2018, 

ASSEC had stopped providing the promised funding. So Space 

Race filed an arbitration demand against ASSEC pursuant to the 

Memorandum’s terms, alleging “a straightforward breach of 

contract—the refusal to fund by [ASSEC] in contravention of the 

parties’ Agreement and in violation of the duty of good faith and 

fair dealing inherent in every contract.” In Space Race’s view, 

ASSEC had created a “false pretext to prevent NASA, a willing 

funder, from funding,” and had therefore violated the terms of the 

Memorandum. 

ASSEC promptly notified its insurer, Markel, about the 

arbitration complaint. ASSEC had taken out a “Directors and 

Officers” insurance policy ensuring that Markel would pay “all Loss 

which [ASSEC] becomes legally obligated to pay on account of any 

Claim”—including an arbitration claim—“for a Wrongful 

1 In the Memorandum of Agreement and elsewhere, ASSEC is sometimes

referred to as “U.S. Space & Rocket Center” or “USSRC.” 

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4 Opinion of the Court 21-13313

Act.” “Wrongful acts” generally included any “actual or alleged 

error, misstatement, misleading statement, act, omission, neglect, 

or breach of duty” committed by ASSEC. But there were 

exceptions. As relevant here, the policy clearly stated that Markel 

would not be liable to “pay any Loss on account of,” and would

“not be obligated to defend,” a claim for “any actual or alleged 

liability of [ASSEC] under any written or express contract or 

agreement, except to the extent that [ASSEC] would have been 

liable in the absence of such contract or agreement.”

Markel refused to defend and indemnify ASSEC against 

Space Race’s claims. In its view, the breach-of-contract exclusion

put the claims squarely outside ASSEC’s insurance policy. Because 

“all liability alleged against” ASSEC was “for breach of the parties’ 

Agreement,” Markel explained, the policy provided no coverage.

Nine months later, ASSEC received more bad news. After a 

four-day hearing, the arbitration panel concluded that ASSEC had 

“materially breached” its obligations under the Memorandum and 

the Cooperative Agreement with NASA. The panel ordered 

ASSEC to pay the rest of the amount promised in the 

Memorandum—over $1.3 million, plus interest.

ASSEC sued Markel, alleging breaches of the duties to 

defend and indemnify and bad faith. The district court granted 

summary judgment for Markel. Like the arbitration panel, it found

that Space Race’s arbitration claims alleged no “wrongful acts” 

beyond a breach of the Memorandum, meaning that there was no 

coverage under the policy. ASSEC now appeals.

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II. 

We review a district court’s grant of summary judgment de 

novo, “viewing all facts and drawing all inferences in the light most 

favorable to the nonmoving party.” Pelaez v. Gov’t Emps. Ins. Co., 

13 F.4th 1243, 1249 (11th Cir. 2021) (quotation omitted). Summary 

judgment is proper when a “movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

III. 

ASSEC argues that the insurance policy requires Markel to 

defend and indemnify it against Space Race’s claims. We are not 

persuaded. The plain language of the policy and the nature of the 

arbitration claims make clear that the breach-of-contract exclusion

applies to those claims. Because Markel thus had no duty to defend 

or indemnify ASSEC, we affirm the district court’s grant of 

summary judgment.

The text of the insurance policy is not in dispute. As 

explained above, the policy covered liability incurred by ASSEC for 

claims brought against it for “wrongful acts,” subject to an 

exception “[f]or any actual or alleged liability of [ASSEC] under any 

written or express contract or agreement, except to the extent that 

[ASSEC] would have been liable in the absence of such contract or 

agreement.” The question, then, is whether Space Race brought 

any claim based on a “wrongful act” that was not “under any 

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written or express contract or agreement.” Unless it did so, the 

policy provides no coverage.

Space Race brought three claims against ASSEC in its 

arbitration action. Each of these claims asserts liability based on 

ASSEC’s failure to honor its Memorandum of Agreement with 

Space Race; none of them alleges bad acts independent of that 

agreement. The first cause of action is an explicit claim for breach 

of contract. The second is a request, in the alternative, for “a 

declaratory judgment that [ASSEC] owes Space Race $1.5 million 

under the Agreement, plus interest.” (Emphasis added.) And the 

third is a claim sounding in quantum meruit, or implied contract, 

for the same alleged failure to adhere to the agreement. On its face, 

then, the arbitration complaint alleges just what it purports to

allege: “a straightforward breach of contract.”

ASSEC’s counterarguments do not convince us otherwise. 

ASSEC first attacks the scope of the breach-of-contract exclusion in 

the insurance policy. Under Alabama law (which the parties agree 

governs), insurance contracts are “construed liberally in favor of 

the insured and strictly against the insurer,” in order to “provide 

maximum coverage for the insured.” Allstate Ins. Co. v. Skelton, 

675 So. 2d 377, 379 (Ala. 1996). ASSEC explains that in the

insurance policy at issue, other exclusions apply to claims “based 

upon, arising out of or in any way involving” certain 

circumstances. But the breach-of-contract exclusion does not use 

such expansive language. According to ASSEC, this difference in 

wording shows that “the Breach of Contract Exclusion was 

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intended to be narrow.” And because of that, it says, Space Race’s 

claims should not fit within it.

The trouble with this argument is that even when narrowly 

construed, the plain language of the breach-of-contract exclusion 

still applies to Space Race’s claims. Space Race alleged a breach of 

the Memorandum of Agreement (and, in the alternative, two other 

claims based on the same behavior). The only basis for its 

allegations that ASSEC owed it $1.5 million was a “written or 

express contract or agreement,” as explicitly contemplated by the 

exclusion.

ASSEC disagrees. In its view, the “plethora of allegations of 

wrongdoing in the Statement of Claim suggest potential liability 

for torts such as negligence, misrepresentation, breach of fiduciary 

duty, and wantonness.” But a passing reference in a complaint, 

especially when placed in the introduction rather than the “Facts” 

section (as much of the language quoted by ASSEC was), does not 

by itself generate an independent cause of action. The district court 

correctly explained that while no precedent suggests that 

“statements in the introduction of a complaint can put an insurer 

on notice for a claim of a wrongful act triggering a duty to defend, 

courts have found no claim to exist where a plaintiff state[d]

various acts and violations of law in the introduction of her 

complaint but failed to flesh those assertions out in its body and 

into a fully formed count.” See, e.g., Bracewell v. Patrick, No. 

1:10–cv–992–MEF, 2011 WL 1431521, at *3 (M.D. Ala. Apr. 14, 

2011).

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ASSEC does not explain how the arbitration complaint 

might encompass another cause of action (one for negligence or 

misrepresentation, for example). Instead, it seems to suggest that 

the court has the obligation to diligently identify “any potential for 

coverage arising out of the allegations” and fill in any gaps left by 

the complaint. But ASSEC offers no binding legal support for this 

proposition, and we find none ourselves. While Alabama law 

requires that insurance contracts be liberally construed, we do not 

interpret that principle to require courts to rewrite complaints to 

trigger coverage. 

ASSEC next argues that Space Race not only alleged a 

breach of the Memorandum, but also a breach of the implied duty 

of good faith and fair dealing—a breach creating “liability that 

could be imposed independent of the contract.” This argument 

fails immediately because, as a leading treatise succinctly explains, 

“[v]iolation of the duty of good faith and fair dealing constitutes a 

breach of contract.” Williston on Contracts § 63:22 (4th ed.). And 

Alabama law has long held that a “mere failure to perform” a 

“contract-obligation is not a tort, and it furnishes no foundation for 

an action on the case.” Bentley-Beale, Inc. v. Wesson Oil & 

Snowdrift Sales Co., 165 So. 830, 832 (Ala. 1936). While Space Race 

alleged a breach of an implied contractual duty, that does not 

constitute a “wrongful act” independent of a breach of contract.

Finally, ASSEC argues that Space Race’s quantum meruit 

claim is based on a wrongful actrather than breach of contract. But

as the district court explained, when “an express contract exists, an 

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argument based on a quantum meruit recovery in regard to an 

implied contract fails” as a matter of Alabama law. Mantiply v. 

Mantiply, 951 So. 2d 638, 656 (Ala. 2006) (quotation 

omitted). Furthermore, Space Race’s quantum meruit claim 

alleged that ASSEC “knowingly induced Space Race to render 

cobranding services for [ASSEC] while agreeing to reimburse Space 

Race for its submitted invoices,” that ASSEC gave “promises and 

assurances” to work with Space Race, and that ASSEC “willingly 

accepted the benefits of Space Race’s services on the understanding 

that Space Race would be reimbursed for its submitted invoices.” 

The entire basis for the quantum meruit claim was ASSEC’s failure 

to perform under the Memorandum of Agreement. That claim is 

thus not based on an independent wrongful act.

* * *

We AFFIRM the district court’s grant of summary 

judgment.

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