### FI LED U.S . COURT OF APPEALS ELEVENTH CI RCUIT Apri l 9, 2004 THOMAS K. KAHN

CLERK

* Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by designation. [P UBLI SH]

IN THE UNIT ED STATES COURT OF APPEALS FOR THE ELE VEN TH C IRCU IT

________________________ No. 03-10218

________________________ D. C. Docke t No. 00-0 1703- CV-ORL-31- KRS NO VA IN FO RM AT IO N S YS TE M S, IN C.,
Plain tiff-A ppe llant,
versus GR EE NW ICH IN SU RA NC E C OM PA NY , NA C R EIN SU RA NC E C OM PA NY , De fend ants- Ap pellee s.

________________________ Appeal from the United States Distri ct Court for the Middle Dist

rict of Flori da

_________________________ (April 9, 2004) Before ED MO ND SON , Chief Judge, BIRCH and F ARR IS * , Circuit Judges. BIR CH , Circ uit Ju dge :2

Th is app eal stem s fro m th e fina ncial w oes o f Pr emie r O pera tions , Ltd . d/b/a Premier C ruise Lines (“Prem ier”), a pleasure cruise compan y, and involves a cast of four main characters : (1) Premier; ( 2) the passengers whose vacati on plans were thwarted by the c ruise line's financial t roubles and w ho pre-pa id for their cruise with the ir Visa

or MasterCar d; (3) t

he plaintif

f-appel lant

credi t card process ing
com pan y, N OV A I nfo rma tion S ystem s, Inc . (“N OV A” ), w hich ultim ately reimburs ed disa

ppointe d passenge rs who paid wit h thei r Visa or Mast erCard; and (4) the defendant -appel lee s urety company, Gree nwich Insurance Company (“Greenwich”), which was ultimately responsible f or reimbursing disappoint ed pa ss en ge rs who pa i d wi t h e i t he r c re di tcard , ca sh , or ch ec k. NOVA arg ue s, i n two claims based on contra ct and four claims based on equity, t hat it should not bear the fin ancia l loss o f cre dit-ca rd-p aying custo mer s as a r esult o f Pr emie r's bankruptc y and that, instea d, Greenwich s hould be t he fina ncial“fal l guy. ” The distri ct court di sagreed with NOV A and granted summ ary judgment to Greenwich
onal l six c l aims . Af

t er re vi ew , we AFF IRM. I. BACKGRO UND W hen an in divid ual p urch ased a ber th on one of P rem ier's cr uise s hips with his Visa or MasterCard, a seri es of financi al tra nsactions t ook place. First , Premier accept ed the pa ssenger 's r eservation a nd generat ed a tr ansaction rec eipt for the1 A mercha nt bank is a

member o f the Visa

/MasterC ard sy

stem that a

grees to proce ss pay ments made

to the mer

chant––Premier–

–with those

cards.

2 The card-issuing bank is the bank that issued the Visa or Maste rCard to the passenger purchasing the cruise. 3 cruis e. Second, Premier f orwarded the receipt to its merc hant bank, 1 wh ich w ould then cr edit

Premier' s account

for the amount charged. In t his ca se, Fi rst Union Bank (“First Union”) was Premier's merchant bank, but Fir st Union subcontracted all of its cred it card pro cessin g to N OV A. A ccor ding ly, Fir st U nion wo uld c redit Premier's accoun t with the charged a moun t, and then NO VA wou ld reimburse F irst Union. Third, NOV A forwarded the c harges to the appr opriate card- issuing bank. 2 Finally, t he card- issuing bank would pay NOVA , and t hen the pa ssenger , upon receipt of his credit card bill, would pay h is card-issuing bank d irectly. Thus, Premier was pa id by Fir st Union, First Union by NOV A, NOV A by the car dissuin g ba nk, a nd th e car d-iss uing ban k by the p assen ger. In the e vent t

hat a pur chased c ruise did not take pla ce, t he part ies to the series of fin ancia l trans action s w ould be re imb urse d in e ssen tially the opp osite ord er in w hich they w ere p aid. T he p assen ger w ould be re imb urse d firs t by h is card-i ssuing ba

nk, pursua

nt to t he Fair Cre dit Bi lling Act and the Visa and M asterC ard r egu lation s. 15 U.S .C. § 166 6(a) and (b); 1 2 C .F.R . § 22 6.13 (a)(3 ). The card-i ssuing ba

nk would then se ek a “c hargebac k,” or r eimburse ment, f rom3 “Passenger” is defined in FMC reg ulations as “any pe

rson who is to embark on a vessel at any U.S. port and who has paid any amount for a ticket contract entitling him to water transportation.” 46 C.F.R. § 540.2(g). 4 Firs t Un ion. 1 5 U .S.C . § 16 66( a); 12 C .F.R . § 22 6.13 (e)(1 ). U nde r their
con tractu al agr eem ent, N OV A w ould then reim bur se F irst U nion and NO VA , in turn , wo uld n orm ally see k reim bur sem ent fr om Pre mier
. In r e Thoma s B. Hamilton Co., Inc. , 969 F.2 d 10 13, 1 017 (11 th C ir. 19 92)
. Because passengers ordinari ly paid for t heir cruis es substanti ally in advance of the departur e date , the risk e xist ed that Premier would be come insolvent i n the inte rval be tween rec eivi ng fullor part ialpayment f rom a passe nger and provi ding the pre -pa id c rui se. Accor din gly , Pr emi er, operat ingit s cr uis e sh ips out

of aU.S. port, was requir ed by fede ral l aw and the Feder al Maritime Commissi on to provi de evid ence that it co uld r efun d an y un earn ed p assen ger d epo sits. 46 U.S .C. § 817e(a); 46 C.F.R. §§ 540.3, 540.22. To fulfil l this requirement, Premier contracted w ith Amw est to post a “Passenger V essel Surety Bon d” (“Am west bond”) to p rotect any Premier “passen gers” 3 wh ose p re-p aid cr uise d id no t set sail. R3 -75 , Ex . C. Despite the exi stence of t he Amw est bond, NOV A w ould face substantial finan cial risk in the even t that P rem ier w as un able to cov er its ch arge back s. Accordingly, NOV A sought reassurance from Premier regarding it s financia l4 The FMC General Counsel wr

ote that “ the cre dit card

company should be p ermitted

to enjoy subrogation to the benefits the surety bond provides to passengers.” R2-59, Ex. C. The General Counsel made clear, howeve r, that “there is no case law addressing this issue . . . [and thus] a conclusive determination of this issue would have to be made by a court of competent jurisdiction. . . . [T]he opinion expressed herein is my own, rendered in my capacity as General Counsel for the Commission.” Id. Contrary to this position, the FMC's Proposed Rule now make s clear that credit card processors like NOVA are not intended to be protec ted by surety

bonds required by the

FMC. 67 Fed. Reg. 66,352 at 66,354 n.8 (Oct. 31, 2002) (to be c odified at 46 C.F.R. pt. 540).

5 NAC Reinsurance Corporation, also a named defenda nt-appellee, is the parent of Greenwich. 5 condition. To ameli orate NOV A's concerns, Premier “urged Nova to remember that it was pr otected from any ' chargeba ck loss es' ” under t he Amwest bond. R3-75 at 3. U nsatis fied w ith P rem ier's re pres entatio n alo ne, N OV A a sked Pre mier to obtai n more speci fic a ssuranc es of t hird-pa rty be nefic iary

coverage under the Am we st bo nd. Premier, in t urn, asked the General Counsel of t he Federal Maritime Commission (“FMC ”) for a legalinterpretation of whether a credi t card compan y could seek sub rogation for the pa ssenger reimbu rsements protected b y a surety bond. Although the response was tempered, t he FM C General Counsel replied in the affir

mative. 4 Stil l not s ati sfie d, NOVA sought as surance from Am west directly that its chargeback claims w ould be cov ered unde r the Am west bon d. A mw est, ho we ver, w ould not p rov ide N OV A w ith the assu ranc e it sou ght. In it s ongoing ef

fort to provide NOVA w ith a dequate financ ialprotec tion, Premier then contract ed with the fourth main charac ter, Greenwich Insurance Company (“Greenw ich”), 5 to post a new suret

y bond, which “ inure[ d] to t he6 This draf t letter stated Gr

eenwich's posit

ion that so long as NOVA was able to provide reasonable evidence that it had honored credits t o passengers who would have , accor ding to a ll the ter ms of the FMC bond, been considered valid claimants to Greenwich for the non-performance by Premier, then NOVA would be considered a valid cla imant as well under our bond. R2-59, Ex. A.

7 The FMC issued two press releases. The first stated that “f or passengers who purchased their cruise by c

redit card, we sugge st contacting the credit card company and providing them with this information.” R2-59, Ex. K. The second press release stated that “Prior experience has shown that . . . credit card issuers may often provide speedier reimbursement to passengers than the claims proces s established to han dle claims under bonds issued pursuant to [FMC] requirements.” R3-93, Ex. F. 6 ben efit of

any a nd a ll pass eng ers to wh om the P rincip al [P rem ier] m ay be held legally liable f

or an y of th e dam ages here in de scrib ed.” R 1-1 , Ex . B. G reen wic h's agent prepared a proposedlett er of assurance, addressed to NOV A, expressing that NOV A would be covered under Premier' s new suret

y bond. 6 In ex chan ge fo r this proposaland the f

inanci al protecti on it pur ported to offer, Premier r equest ed a redu ction in the fees it p aid to NO VA , but N OV A n ever agre ed to the re duc tion. As a resu lt, the p rop osal r eflecte d in th e dra ft letter w as ne ver f inalize d. Nev ert he l es s, be ca

us e o f i t s c on t ra ct

ua l ar rang em en twi t h Firs tUni on , NOVA
con tinue d to p roce ss P rem ier's cr edit ca rd tra nsac tions
. In September of 2000, Premier ceased operati ng. To alert pre-pai d Premier passengers that

future cruis es would not take place, both the FMC and Greenw ich issue d press r elea ses enc ouraging pa ssenger s to contact t heir c ard-i ssuing ba

nks for a refund. 7 And then the r efund proce ss began: passenge rs were re imbursed byGreenwich, through its law firm processing claims filed under the bond, also issued a press release e

ncourag ing pass engers to conta

ct their c ard-issu

ing ban ks for a r efund. T his press releas e stated : based on our exper

ience . . . we belie

ve that a ny p assenger who pa

id for their transportation by means of a credit card would be well advised to immediately request the card issuer to cancel any charges relating to any

of the cancelled cruises . . . . By

filing a claim with

the cre dit card

company , . . . the p assenger will avoid the delays that will inevitably occur in the investigation and claims settling process. All passengers who made pay ment for cruises that have been cancelled by cash or check may

obtain a Claim Form [to submit to the Coordinating Center]. R3-93, Ex. E. (emphasis in original). 7 thei r card- issuing banks, t he card- issuing banks by Fir st Union, and First Union by NO VA und er the ir con tractu al arra nge men t. Bec ause Pre mier , now ban kru pt,
cou ld no t reim bur se N OV A, N OV A w as left w ithou t app aren t reco urse . Afte r re ceivin g and

pay ingthe charge bac ks, NOVA sent a ssi gnment f orms to thos e passe ngers who had initiated cha rgebacks through t

heir c ard-i ssuing ban ks. T hese assig nm ent fo rms aske d the recip ients to assig n the ir righ ts to receive refunds under the suret y bond to NOVA , but a lso sa id that making t he assi gnment did not

affec t thepassenge r's right to reimbursement f

rom his ca

rdissuin g ba nk. R 2-5 9, E x. J. N OV A a lso co ntacte d G reen wic h to c onf irm th at it was covered under the bond, but Greenw ich contended that only individual “pass engers” were covere d. The FMC has since c onfirmed Gree nwich's position that NOV A was not protec ted under the bond. Notice of

Proposed Rulemaking, 678 This Propo sed Rule was issued issued af ter the p arties f

iled their dispositive

motions in the district court. 8 Fed . Reg . 66,3 52 a t 66,3 53- 54 ( Oc t. 31, 2 002 ) (to b e cod ified a t 46 C .F.R . pt. 540). 8 Unh appy to be left empty-ha nded, N OV A filed a com plaint against Greenwich al legi ng six cl aims, based on i ts position t hat Greenwic h, ins tead, should bear the fi nancial burden: ( 1) breach of contract , (2) contrac tual subrogat ion, ( 3) promiss ory and equitabl e est oppel, (4) equi tabl e subrogation, ( 5) contributi on, and (6) unjust enri chment. The distri ct court grant ed summary judg men t to G reen wic h on all six c laims , and NO VA now app eals. II . DI SCUSSI ON In this section, we w ill (a) state the proper stand ard of review , (b) discuss and rej ect NOVA 's t

wo legal c lai ms, and (c ) disc uss and re ject NOV A's four equ itable c laims
. A. Standard of Review “We review the trialcourt's grant or denial of a motion for summary judg men t de novo , vie wing the re cord and drawing allreasona ble i nferenc es in t

he light most favorable to the non-moving party. ” Patton v. Triad Guar. Ins. Corp. , 277 F.3d 1294 , 1296 (11th Cir. 2002). Summary judgment is appropriate when9

“there is no gen uine issue as to a ny m aterial fact an d . . . the mo ving party is enti tle d to a j udgment as a matte r of la

w.” Fed. R. Ci v. P. 56(c). B. NOVA's Leg al Cla ims NOV A assert ed two lega l cl aims aga inst Greenwich base d on its position that Greenw ich should bear the f inancial loss resulting from Prem ier's bankruptcy: (1) breach of contract

and (2) contractualsubrogation. We discuss and rej ect each claim in tur n. 1. Breach of Contract NO VA inco rrec tly arg ues th at it is a th ird-p arty b enef iciary to the su rety bond contra ct bet

ween Premier and Greenwich. To mai ntai n an act ion on a contra ct as a thi rd-part

y benefi ciar

y, NOVA must cl early show that eit her (a) the
con tract itse lf or ( b) b oth c ontr acting partie s prim arily an d dir ectly in tend ed to pro vide a ben efit to N OV A. Vencor H osps. v. Blue Cross Blue Shield of R.I. , 169 F.3 d 67 7, 68 0 (1 1th C ir. 19 99) ; Blu-J, Inc. v. Kemper C.P.A. Group , 916 F.2d 637, 640 (11 th C ir. 19 90) ; Caretta Trucking, Inc. v. Cheoy Lee Shipya rds, Lt d. , 647 So.2d 1028, 1031 (F la. Dist . Ct. App. 1994). We hold that the dist rict c ourt correctly concluded that “neither t he contract itself

nor the contracting partie s exp resse d an y inten t to dir ectly b enef it [N OV A] a s a thir d pa rty.” R 4-1 11 a t 13.9 We note that the FMC's Proposed Rulemaking makes clear that credit card processors like N OVA are not i ntend ed to b e prot ected b y surety bond s requ ired b y the FMC. 67 Fed. Reg. at 66,354 n.8. Even

prior to th

is new Rule , howeve

r, NOVA was not protected by FMC surety bonds as a bond claimant. 10

a. The Contract The contract on which NO VA maintains i ts cla im is the sure ty bond issued by Green wich to pro tect Premier's passengers. 9 The surety bond provides protec tion f

or Premier

“pass engers” whose cruis es did not take pl ace. R3-75, Ex. C. “Passengers” are defined in FMC regulations––that have remained unchanged––as “any pe rson who is t o embark on a ves sel at any U.S. port and who has pai d any amount f

or a ti cket c ontrac t entitl ing him t o water t ransportati on.” 46 C.F.R. § 5 40.2(g). “Person ” is defined as “individuals, corporations, partnersh ips, associations, and other l egal enti ties. ” Id. § 54 0.2( a). NOV A argues that inc luding “ corporations” in the def inition of “person” indic ates the FMC's int ent t o include credit card companies in thebond's pr otection for “passengers. ” The “corporations” prot ected by suret y bonds, however, are those t hat purc hase t icket s on crui se vess els: “[i ]f a c orporat ion purcha ses al l of the avail able berths f

or a partic ular voyage, t hat corporati on or its desi gnated beneficiaries/ assignees ar e entitled to the benef its af forded by the ti cket contrac t.” 57 F ed. R eg. 4 1,88 7 at 4 1,88 9 (S ept. 1 4, 19 92) (to b e cod ified a t 46 C .F.R . pt. 540 ). In th is case , NO VA has n ot purchased any tickets––it only reimbursed F irst11

Un ion f or ch arge back s acco rdin g to its con tractu al ob ligatio n. A lthou gh, in essence, NO VA has “paid” for a cruise becau se, in the chain of reimbu rsements, the money it pai d First Union was eventually used t o compensate disappointed passengers, we hold that the dist rict c ourt correct ly concluded that “the l egislat

ure inte nded to cove r purchas ers of pa ssenger fares in advance of the c ruise , not thirdparty process ors who honored chargebacks a fter the fa ct of non- performanc e.” R4- 111 at 14 (em pha sis in o rigin al). T hus , NO VA is no t a “pas seng er” e ntitled to pro tection und er the sure ty bo nd is sued by G reen wic h.

b. The Contracting Parti es Despite N OV A's contention, there is no ev idence in the record– –much less clear evid ence ––s how ing th at either Pre mier or G reen wic h inte nde d fo r N OV A to be prote cted unde r the bond. NOV A argues that both t he draft let ter, writt en by Greenw ich's a gent and intended to pl acate NOV A's fears about Premier' s financia l condition, a

nd the negotiations conduc ted bet ween Premier and Greenwich, pro vide evid ence that N OV A w as an inten ded third party ben eficiar y to th e bo nd. The draft letter, however, i s just t hat––a proposal in draft form that was never finali zed. And the negotiati ons between Greenw ich and Premier show only that they negotiated over expanding the bond's coverage, not that t he parties ever agreed to such an expansion. Even if Premier made repre sentati ons to NO VA that12

NO VA would be covered under its surety bond, t here is no evidence in the record showing that Greenwich possessed a similar , final ized int ent. Thus, because t here is no cl ear evi dence t

hat bot h parti es intended to be nefit NOV A, NOV A may not main tain an action on th e con tract as a third -par ty ben eficiar y. 2. Contra ctual , or Convent ional , Subrogation NOV A wrongly argues t hat Greenwhic h should re imburse NOVA for the chargeba cks it

has pai d to Firs t Union under t he doctrine of c ontrac tual , or conventi onal, subrogat ion. Conventionalsubrogat ion “depends upon a l awful contract, and occurs w here one h aving no interest in or relation to the matter pays the debt of anothe r, and by

agreement

is entitl ed to t

he securiti es and ri ghts of t he creditor s o paid.” Dade Co unty Sch . Bd. v. Ra dio Stati on WQBA , 731 So.2d 638, 647 (Fla. 1999). NOV A argues that it should step int o the shoes of the Premier pass eng ers w ho a ssign ed th eir rig hts to reim bur sem ent u nde r the s urety bon d to NO VA
. NO VA 's argument is misplaced because “ an assignee can acqui re no greater rights t han those possessed by the a ssignor himself. ” Pu lte H om e Co rp., In c. v. P ly Gem Indu s., Inc. , 804 F. S upp . 147 1, 14 81 ( M .D. F la. 19 92) . Th e evid ence in this case show s that NO VA received the assignm ents from P remier passeng ers after NOV A had alrea dy rei mbursed Firs t Union for t hose chargebacks––whic h means10 Moreover, NOVA has not “paid the debt of another ” as required for a conventional subrogation claim. See part II.C.3. for a more complete disc ussion.
11 Equitable estoppel requires reliance on a re presentation of fact while promissory estoppel requires reliance on a promise. Pinnacle Port Cmty. Ass'n v . Orenstein , 872 F.2d 1536, 1543 (11th Cir. 1989). This distinction is irrelevant in this case, thus we discuss estoppel generally
. 13 that t he passengers who assigned their rights to NOVA had already been reim bur sed b y their card -issu ing b ank s, ther eby e xting uish ing th eir claim s. Bec ause dou ble re cov ery w ould be p roh ibited , thos e pas seng ers h ad n o rig ht to reim bur sem ent u nde r the G reen wic h bo nd a nd, th us, n o rig hts to assig n to N OV A. As a resu lt, NO VA 's claim base d on con ven tiona l sub rog ation mu st fail. 10 C. NOVA's Equi table Cla ims NO VA asser ted fo ur eq uity-b ased claim s aga inst G reen wic h ba sed o n its pos ition th at G reen wic h sh ould bear the fin ancia l loss r esultin g fro m P rem ier's bankruptc y: (1) promissor y and equi tabl e est oppel, (2) equi tabl e subrogation, ( 3)
con tribu tion, a nd ( 4) u njus t enric hm ent. W e con sider and reject e ach c laim in turn . 1. P rom issor y and Eq uitab le Es topp el Bas ed o n bo th pr om issor y and equ itable e stop pel, 11 NO VA erro neo usly
as se rt s t hatGre enwi chsh ou l d r eimburs e i tfo r t he cr ed i tcardch ar ge ba ck s NO VA has pai d. Neit

her vers ion of es toppel , however, may be “invoked to enl arge or extend t he covera ge speci fied in a contr act, ” unles s the or al representati ons or14

pro mise s are in terpr etation s of a mb iguo us co ntrac t term s. Kane v . Aetna Life In s. , 893 F.2 d 12 83, 1 285 , 128 5 n.3 (11 th C ir. 19 90)
. That exception doe s not exi st i n this case be cause any repre sentations Gr eenw ich m ay ha ve m ade e ither to Pre mier or to NO VA rega rdin g N OV A's
co ve ra ge un de r t

he bo ndwe re no ti nt er

pr etati on s o f amb i gu ou s ter ms . Th e F MC has defined “pass enger” and “person” in i ts regulations, and the sure ty bond issued by Greenw ich was intended to prote ct Premier “pas sengers.” Because cr edit car d process ing compani es do not f allwithin t

he defi niti on of “pas senger, ” any i ntent on the part of Greenwich (or Premier) to include NO VA as a protect ed “passenger”
wo uld h ave e nlarg ed o r exte nde d the cov erag e spe cified in the bon d. Furthermore , even i f est oppel were a pplic able in this case, NOV A cannot satis fy the el ements of estoppel. Although N OV A may have detrimentally relie d on the dra ft l ett er or t

he negoti ati ons between Gree nwich and Premie r regar ding NO VA 's cov erag e un der th e bo nd, N OV A m ust sh ow that Greenwich reaso nab ly expect ed to i nduce NOV A's rel iance based on t he promise s or repr esent ati ons Gr eenw ich m ade. Pin nacle Po rt Cm ty. A ss'n v . Or enste in , 872 F.2d 1536, 1543 (11 th C ir. 19 89) . Th e distr ict cou rt cor rectly c onc lude d tha t Gr eenw ich “co uld [no t] reaso nab ly exp ect tha t an u nsig ned draf t letter w ould indu ce [N OV A] in to acti on or forebe arance , espe cial ly where [ Greenwich] di d not . . . offi cial ly ac cept15

the l ett er.” R4-111 at 18-19. Moreover, t he negoti ati ons between Gree nwich and Premier over whether the surety bond included NO VA as a claimant were never conclude d: Premie r never a ccept ed Greenwich' s draft proposalto ext end covera ge to N OV A b ecau se N OV A r efus ed to low er P rem ier's fe es in r eturn . Th us, N OV A's claim s bas ed o n esto ppe l mu st fail. 2. Equit able Subrogation NOV A wrongly claims that Greenwich shoul d reimburs e NOV A based on the d octrin e equ itable s ubr oga tion. To main tain a c laim b ased on e quita ble subrogation, NOV A mu st prove five el ements: (1) t hat it made the payment at issueto prot ect its own int erest s, (2) the payment was non-voluntary , (3) it was not primari ly l iabl e for t

he debt paid, ( 4) it

paid t he entire debt , and (5) subrogat ion
wo uld n ot w ork any injustice to the righ ts of a third party . Dade County Sch. Bd. v. Ra dio Stati on WQBA , 731 So.2d 638, 646 (Fla. 1999). Subrogation, however, is no t availa ble to a par ty w ho p ays h is ow n de bt. In re Munzenri eder Corp. , 58 B.R . 228 , 231 (M .D. F la. 19 86)
. Essentially, NOV A argu es that it qualifies for equitable subrogation because it pa id Greenwich' s debt to Premier pa ssenger s. Under t he doctrine, NOV A now claims an equitable right to stand in t

he shoes of Premier passengers who were entitled to reim bur sem ent u nde r the G reen wic h bo nd a nd, h ence , claim12 The fact that the FMC and Gre enwich is sued pre ss releases enco uragin g passe ngers t o seek reimbursement from their card-issuing ba nks does not bolster NOVA's position. As the district court noted, “[i]t would be speculative to infer that the credit card passengers relied on [Greenwich's] press release and voice mail as opposed to the FMC's press releases.” R4-111 a t 22. 16 com pen sation from Gr eenw ich. See Dade County Sch. Bd. , 731 So .2d a t 646
. NOV A's cl aim fai ls, however, bec ause NOVA paid i ts own debt, not a debt oblig ated b y G reen wic h. Greenwich was obli gated to pay Premie r passe ngers who made a cl aim for reim bur sem ent u nde r the s urety bon d. N OV A, o n the othe r han d, w as ob ligated to reimburse First Union as a res ult of reimbursements filed by Premier pass engers with their ca

rd-issuing banks. Alt

hough, in essence, bot

h NO VA and Greenw ich were ultimately respon sible for reimbursing P remier passeng ers––N OV A for tho se passenge rs who requested rei mbursement f rom thei r card- issuing banks, a nd Greenwich for t

hose pass engers who reque sted r eimburse ment under t he bond––thei r obli gati ons were, a s the di stri ct cour t corr ectly noted, “sepa

rate and distinct.” R4-111 at 21. N OV A w as contractually obligated to reimburse F irst Union regardl ess of whet her any pa ssenger s ever made a cla im for re imbursement under Greenwich' s suret y bond. 12 Moreover, NOVA was not res ponsibl e for direc tly reimburs ing any Pre mier pas sengers . As the di stri ct cour t note d, “[ t]he fact that passenge rs coul d make a cl aim under t he Bond or

through their cre dit card13 We note also that the FMC's Proposed Rule makes clear that credit card companies like

NOVA ar e not subr ogees under F MC Surety

Bonds. 67Fed. Reg . at 66,35 4 n.8. For this additional reason, NOVA cannot maintain a claim for equitable subrogation. 17 company . . . reinforces the fac t that the li abili ties [ of NO VA and Greenw ich] ran side by side, not vertically.” R4-111 at 21 n .35 (emph asis in original). Thus, NO VA has n ot pa id an y deb t belo ngin g to G reen wic h an d can not m aintain a claim for equi tabl e subrogation. 13 3. Contribution NOV A incorrec tly

argues t hat i t is enti tle d to equi tabl e contributi on from Gr eenw ich fo r a po rtion of its f inan cial los s stem min g fro m P rem ier's b ank rup tcy. The do ctrine of equitable contribution “attempts to distribute equally amon g those who have a com mon obligation, t he burden of performing that obligation.” Fletc her v. Anders on , 616 So.2d 1201, 1202 (F la. Dist . Ct. App. 1993) (per curia m). N OV A m aintain s that it a nd G reen wic h ha ve a “c om mo n ob ligatio n” to reimburs e Premier

passenge rs who paid for thei r crui se with t

heir Vis a or M asterC ard. NOV A's argument

fail s, however, because it was not responsible for reimbursing P remier passeng ers––rather, it was respo nsible for reimbursing First Union. Although t

he money pai d to Firs t Union was, c onsidering thechain of reimburs ements, ultimately paid to Premier pa ssenger s, NOVA , unlike Greenwich,18

did not have an obligation to reimburse tho se passengers d irectly. Similarly, Greenwich, unl ike NOVA , had no obl igation to Fi rst Union or , through it, to cardissuing banks. NOVA and Greenw ich thus did not shar e a “common legal liabi lit y.” Columbus-M cKinnon Co rp. v. Ocean Prod. Research, Inc. , 792 F. Supp. 786, 789 (M .D. Fla. 1992). Accordingly, no “common ob ligation” exist ed between the tw o su fficien t to m aintain a claim for c ontr ibutio n. 4. Unjust

Enrichment NO VA erroneously cl aims that Greenwich owes it money based on a theory of unjust enrichm ent. To succeed on a claim of unjust enrichment, NO VA must show: (1) i t confe rred a be nefit on Greenwich of which Gree nwich is a ware, (2) Greenwich voluntarily accepted and r etained the be nefit conferr ed, and ( 3) “t

he circ umstance s are s uch that it would beinequi tabl e for [Gree nwich] t o reta in the benefit without pay ing for it. ” Sh ibata v . Lim , 13 3 F. Sup p. 2d13 11 , 13 16 (M. D. Fla. 2000). N OV A argu es that the “benefit” it conferred on G reenwich is a reduct ion in t

he ultimate lia

bility of Gree nwich under t he suret y bond becaus e the passengers who w ere reimbursed by their card-iss uing banks––a remedy they were
enco urag ed to pur sue– –did not s eek r eimb urse men t und er the bon d. Again, NO VA 's argument is misplaced. NOVA was contractually obligate d to reim bur se F irst U nion for a ny ch arge back s it incu rred . Th is ob ligatio n is14NOVA, for ex ample , incr eased t he fees it cha rged Pr emier becaus e of NOV A's

uncertainty r

egarding Premier' s financial condition. See, e.g. , R3-79 at 176-77. Greenw ich, in turn, required Premier to post 30% of the bond's $15 million value––approximately $5 million––in collateral, which Greenwich retains today, in order to secure the bond. R3-77 at 120-21. 19 separate and distinct

from the obligati on Greenw ich had to rei mburse passengers wh o claim ed a r ight to com pen sation und er the bon d. A lthou gh N OV A, in effe ct, ultimately paid f

or rei mbursements that

could have been cl aimed i nstea d under the Gr eenw ich b ond , this d id no t con fer a direc t ben efit on Gr eenw ich. A t best, NO VA conferred an indirec t or inci dental benefi t on Greenwich, and the equiti es in this c ase do not favor shifting the financi al burden from NO VA to Greenwich because both parti es were compensated for the ris ks they took and the financial burdens they now suffer. 14 NO VA , how ever , argu es tha t requ iring it to su stain th e fina ncial lo ss in th is case would be inequi tabl e for five reas ons. Allfive of these arguments are fl awed, and we discu ss the m in turn . Firs t, NO VA relies o n the facts th at the F M C h as de term ined that its
re gu l ati on s a

re t o b e c on st

ru ed br oa dly to p ro t ec tco rp or ati on s, an d t hatt he FMC General Counsel opined that cre dit card companies would be protect ed under
sure t y b on ds
. Co nt

ra ry t o t hi s a ss er t i on , ho we ve r, as we me nti on ed , t he FMC regulations protect corpo rations as “passengers,” and are n ot to be construed so20

broadly as to pr otect

corporations l ike NOVA that reimburs e merchant

banks for chargeba cks. And the FMC General Counse l' s opini on was just that ––an opini on, not binding precedent. Moreover, the Proposed Rule makes clear that t he General Counsel' s position was not va lidated and c redit card proc essi ng companies are not pro tected as claim ants u nde r sur ety bo nds
. See 67 Fed. Reg. at 66,354 n. 8. Second, NO VA alleges that Greenwich made representations and promises that NO VA wou ld be protected und er the surety bond. F or the same reaso ns wh y a claim for e stop pel ca nno t be m aintain ed, th is arg um ent is to no a vail. Third, N OV A con tends that Greenw ich is a compensated r isk taker because Greenw ich required Premier to post $5 million i n cash collateral––which Greenwich ret ained––in exchange f or the $15 mi lli on bond. But NOVA was also a
com pen sated risk ta ker– –N OV A r aised the fe es it ch arge d P rem ier be caus e of its concern over Premier's financial condition. In fact , NOV A too has recouped millions of dollars in fees from its relationship w ith Premier. R3-7 9 at 176. Th us, both parties are compensated ris k takers and thi s argument does not support shiftin g the finan cial risk to G reen wic h alo ne. Fo urth , NO VA con tend s that G reen wic h “en gag ed in a con certed effo rt to shift their Premier-related losses” to NO VA by issuing the press release
enco urag ing p assen gers to see k reim bur sem ent fr om their c ard- issuin g ba nks
.21

Appellant 's Br. at 40. As the dis tri ct cour t corr ectly noted, however, “ [i] t would be speculative to infer that the credit card passengers relied on [P remier's] press rele ase and voi cemailas opposed to the FMC's pres s rel eases .” R4-111 at 22. And even if some passe ngers were pe rsuaded to seek re imbursement from their cardissuin g ba nks instea d of und er the bon d, N OV A w ould still be c ontr actua lly obligated t o reimburs e First Union for any c hargebac ks it incurr ed. Requi ring NO VA to ho nor its con tractu al ob ligatio ns is n ot an ineq uitab le resu lt. Fifth and final ly, NOVA argues that bec ause Greenwich w ould have been lia ble t o reimburs e any cr edit -card paying pas sengers who sought rei mbursement under the bond instead of from thei r card-iss uing bank, this nece ssarily means that Gr eenw ich sh ould be re spo nsib le for reim bur sing all cred it-card payin g cu stom ers. Th e con vers e of th is arg um ent, h ow ever , is that b ecau se N OV A is ultim ately responsible for

reimburs ing cre dit- card-paying pas sengers , Greenwich s hould be able to seek re imbursement from NOV A for allthe re imbursement claims of
cr ed i t -c ar d- paying pa ss en ge rs t hatGre enwi chha s p ai d. The l i ab i l i t i es of NOVA and Gr eenw ich, as we hav e disc usse d, are sepa rate an d dis tinct. B ecau se bo th parties cou ld

be liabl e for the same rei mbursements does not mean that eit her NO VA or G reen wic h m ay the n see k co mp ensa tion f rom each othe r.22

Thus, eac h of NOV A's fi ve reas ons to suppor t equi tabl e shif

ting of the financ ialrisk in this case to Greenwich fai ls, as does NOVA's clai m for
com pen sation und er the doc trine o f un just en richm ent. II I. CONCLUSI ON NO VA alleged si x claims agai nst Greenwich based on its posit ion that Gr eenw ich, ra ther th an N OV A, s hou ld sh ould er the finan cial risk from Pre mier 's bankruptc y. We rej ect NOVA 's t heorie s and aff

irm thedist

rict court' s grant

of
sum mar y jud gm ent in favo r of G reen wic h on each of th e claim s.