FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 28, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-14678

________________________

D. C. Docket No. 04-02523-CV-CAP-1

EXECUTIVE RISK INDEMNITY INC., 

Plaintiff-Counter

Defendant-Appellant, 

versus 

AFC ENTERPRISES INC., 

FRANK J. BELATTI, 

GERALD J. WILKINS, 

DICK R. HOLBROOK, 

Defendants-Counter

Claimants-Appellees, 

SAMUEL N. FRANKEL, 

MARK J. DORAN, 

PAUL FARRAR, 

MATT L. FIGEL, 

PETER STARRETT, et al., 

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(May 28, 2008)
 Honorable Susan C. Bucklew, United States District Judge for the Middle District of Florida, *

sitting by designation. 

2

Before CARNES and MARCUS, Circuit Judges, and BUCKLEW, District Judge. *

PER CURIAM:

In this insurance case, Executive Risk Indemnity Inc. (“Executive Risk”)

appeals from a final judgment entered by the United States District Court for the

Northern District of Georgia, after a bench trial, awarding AFC Enterprises Inc.

$24,295,890.40 in damages for breach of contract. 

Executive Risk makes four basic claims on appeal. First, it says the district

court erred in finding that AFC made no material misrepresentations in connection

with the renewal of an insurance policy. Second, it claims that the trial court

abused its discretion in denying its motion to compel discovery from AFC’s

accountant, KPMG. Third, it contends that the court abused its discretion in

denying its motion to amend the complaint. Finally, it argues that the district court

erred in concluding that Executive Risk was not entitled to an allocation of the

losses incurred by AFC in settling a number of securities and derivative lawsuits in

2003 (‘the underlying actions”). After review, we affirm the judgment of the

district court based on its thorough and well-reasoned opinion of September 21,

2007.

As to the question of allocation, however, we add this observation. Pursuant
 In pertinent part, the policy states: 1

If both Loss covered by this Policy and Loss not covered by this Policy are

incurred, either because a Claim made against the Insureds includes both covered

and uncovered matters, or because a Claim is made against both Insureds and

others not included within the definition of “Insured” . . . , [the Insureds] agree to

use their best efforts to determine a fair and proper allocation of all such amounts.

. . . In the event that an allocation cannot be agreed to, then [Executive Risk] shall

be obligated to make an interim payment of the amount of Loss, Including

Defense Expenses, which the parties agree is not in dispute until a final amount is

agreed upon or determined pursuant to the provisions of this Policy and

applicable law. 

The Policy § V, ¶ (B)(5) (emphasis added).

3

to the terms of the insurance policy, Executive Risk can seek an allocation only

where both “Loss covered by this Policy and Loss not covered by this Policy are

incurred,” that is, either (1) where “a Claim made against the Insureds includes

both covered and uncovered matters,” or (2) where “a Claim is made against both

Insureds and others not included within the definition of ‘Insured.’” Neither 1

circumstance is presented in this case. There is no dispute that the “claims” raised

in the underlying actions involved only covered “matters.” Moreover, it is

undisputed that all of the underlying actions were raised against “Insured” persons

or entities. On this policy, Executive Risk is not entitled to an allocation of the

settlement losses. 

Accordingly, we affirm.

AFFIRMED