*

Honorable Maurice B. Cohill, Jr., Senior U.S. District

Judge for the Western District of Pennsylvania, sitting by

designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-2951.

GAS KWICK, INC., Plaintiff-Appellant,

v.

UNITED PACIFIC INSURANCE COMPANY, Defendant-Appellee.

July 21, 1995.

Appeal from the United States District Court for the Middle

District of Florida. (No. 93-807-CIV-T-21A), Ralph W. Nimmons, Jr.,

Judge.

Before DUBINA and BLACK, Circuit Judges, and COHILL*

, Senior

District Judge.

DUBINA, Circuit Judge:

Plaintiff-Appellant Gas Kwick, Inc. ("Gas Kwick") appeals the

district court's grant of summary judgment in favor of

defendant-appellee United Pacific Insurance Company ("United

Pacific") in this declaratory judgment action regarding an

insurance contract. We affirm.

I. STATEMENT OF THE CASE

A. Facts

United Pacific issued a policy that provided insurance

coverage to Gas Kwick for a number of commercial properties. After

suffering a fire loss at one of the properties, Gas Kwick sought a

declaratory judgment that the policy issued to it provided

insurance coverage for such a loss.

In April of 1991, Gas Kwick submitted an application for
insurance to United Pacific listing properties to be covered by the

policy. One of the listed properties was an "Oper. Bulk Plant and

Warehouse" located at 30th Street and 8th Avenue in Tampa, Florida.

The premises was owned by Gas Kwick and leased by it to a third

party. At that location were several above-ground storage tanks

(the bulk plant) and a warehouse building. The lessee used the

storage tanks to store reclaimed oil, but did not use the

warehouse, which was empty.

United Pacific issued a binder for insurance to Gas Kwick

dated September 12, 1991. The effective date of the binder was

September 15, 1991, and the expiration date was October 15, 1991.

The policy period shown on the binder was September 15, 1991, to

September 15, 1992. The binder included a provision that "[t]he

insurance is subject to the terms, conditions, and limitations of

the policy(ies) in current use by the company." The policy was

typed on September 29, 1991, and presumably mailed sometime

thereafter.

On September 25, 1991, the warehouse at 30th Street and 8th

Avenue burned to the ground. Gas Kwick's agent, Nick Capitano

("Capitano"), reported the fire loss to United Pacific on the day

of the fire. Capitano and Abbey Sierra ("Sierra"), Gas Kwick's

vice president, gave a recorded statement to United Pacific the day

after the fire acknowledging that the warehouse was empty at the

time of the fire and had not been used for over a year.

On March 9, 1992, United Pacific denied Gas Kwick's insurance

claim on the warehouse, citing paragraph 10 of page 5 of the

policy. That paragraph provides:
PROPERTY NOT COVERED

We will not pay for:

10. Loss to building or personal property if the building

where loss or damage occurs has been vacant or unoccupied for

more than sixty (60) consecutive days before that loss or

damage. (Emphasis added).

B. Procedural History

Gas Kwick filed an action for declaratory judgment seeking a

declaration that: (1) United Pacific's policy exclusion for loss

to a building vacant for more than 60 days was timed from the date

of the policy issuance; and (2) coverage should, therefore, be

provided for the loss to a building where a fire occurred 13 days

after the issuance of a blanket binder and 10 days after the

effective date of the policy even though the building itself had

been vacant for more than 60 days.

United Pacific moved for summary judgment, claiming that the

loss was excluded under the terms of the insurance policy. United

Pacific argued that the insurance policy did not provide coverage

for damage to the property, since the property was vacant for more

than 60 consecutive days prior to the fire loss. In response, Gas

Kwick argued that the 60-day period referred to in the exclusionary

clause started to run from the issue date of the insurance policy,

and that since the loss occurred less than 60 days after the policy

was issued, recovery was proper under the terms of the policy.

The district court granted United Pacific's motion for summary

judgment, finding that recovery for the fire loss was excluded by

the vacancy provision. Gas Kwick then perfected this appeal.

II. ISSUES

(1) Whether a 60-day exclusion for vacant buildings under an
insured's policy runs prospectively from the effective date of the

policy or retrospectively from the date of the loss.

(2) Whether a policy to take effect on September 15, 1991, but

not written or issued until September 29, 1991, after the loss

occurs, can be the basis for excluding coverage under the loss.

(3) Whether there is coverage for loss of a vacant building

where the insurer did not inspect or demand disclosure of vacancy

and did not provide notice of its 60-day vacancy exclusion until

after the loss.

III. STANDARD OF REVIEW

 We review de novo the district court's grant of a motion for

summary judgment. Edwards v. Wallace Community College, 49 F.3d

1517, 1520, (1995). Summary judgment is appropriate only where

there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Beal v. Paramount

Pictures Corp., 20 F.3d 454, 458 (11th Cir.), cert. denied, ---

U.S. ----, 115 S.Ct. 675, 130 L.Ed.2d 607 (1994). This court

reviews the facts in the light most favorable to the non-movant and

resolves all factual disputes in favor of the non-movant. Smith v.

Jefferson Pilot Life Ins. Co., 14 F.3d 562, 566 (11th Cir.), cert.

denied, --- U.S. ----, 115 S.Ct. 57, 130 L.Ed.2d 15 (1994).

IV. DISCUSSION

A. The Vacancy Exclusion

 The policy provides that no coverage is afforded for a loss

to a building if the building has been vacant or unoccupied for

more than 60 consecutive days before that loss or damage.

Nevertheless, Gas Kwick argues that the 60-day vacancy period began
 1

According to United Pacific, "[t]he occupancy status of

property is material to underwriting in evaluating the acceptance

of the risk and determining the premium rate. Vacant or

unoccupied property is rated differently and usually the premium

rate is much higher if the property is vacant or unoccupied." 

Appellee's Brief at 18 (citations omitted). 

to run from the effective date of the insurance policy, so recovery

for the loss was not barred by the vacancy exclusion. United

Pacific argues that the policy is unambiguous, precluding coverage

for a loss where the property has been vacant for 60 days

immediately preceding the loss.1 Under Florida law, interpretation

of an insurance contract is a matter of law to be decided by the

court. Gulf Tampa Drydock Co. v. Great Atlantic Ins. Co., 757 F.2d

1172, 1174 (11th Cir.1985). Furthermore, courts must construe an

insurance contract in its entirety, striving to give every

provision meaning and effect. Dahl-Eimers v. Mutual of Omaha Life

Ins. Co., 986 F.2d 1379, 1382 (11th Cir.1993). When a term in an

insurance policy is ambiguous, however, the court is required to

construe it in favor of the insured and against the insurer. Davis

v. Nationwide Life Ins. Co., 450 So.2d 549, 550 (Fla.App. 5th

Dist.1984). An insurance contract is deemed ambiguous if it is

susceptible to two or more reasonable interpretations that can

fairly be made. Dahl-Eimers, 986 F.2d at 1381. Courts may not,

however, rewrite contracts or add meaning to create an ambiguity,

and an ambiguity is not invariably present when a contract requires

interpretation. Id.

Despite Gas Kwick's citation of authority to the contrary, the

vacancy exclusion precluded recovery in this case, and the district

court properly granted summary judgment for United Pacific. The
cases relied upon by Gas Kwick in its brief concerning this issue

are factually distinguishable from the instant case. For instance,

in Thomas v. Industrial Fire and Casualty Co., 255 So.2d 486

(La.Ct.App.1971), the court indeed construed "the sixty-day vacancy

provision as running from the issuance date of the policy." Id. at

488. However, the language of the vacancy provision at issue in

Thomas is significantly different from the language of the policy

in this case. The vacancy clause in Thomas excluded coverage for

buildings that are "vacant or unoccupied beyond a period of sixty

days." Id. at 488 n. 1. In contrast, the United Pacific policy

excludes coverage for a building that " has been vacant or

unoccupied for more than 60 days before that loss or damage."

(Emphasis added). Thus, as the district court reasoned, "[t]he

exclusion clause in United Pacific's policy clearly defines the

vacancy period in retrospective terms—the period is to be measured

by looking back from the date of the loss; the vacancy provision

is not defined in prospective terms, whereby it would be measured

by looking forward from the issuance date of the policy." District

Court's Order at 7.

As in Thomas, the other cases cited by Gas Kwick involved

policies employing prospective language distinguishable from the

vacancy exclusion in the present case. See, e.g., Old Colony

Insurance Co. v. Garvey, 253 F.2d 299, 302 (4th Cir.1958)

(addressing prospective policy and stating that "[i]f it had been

intended that existing vacancy be taken into account, language to

that effect should have been used ..."); Bledsoe v. Farm Bureau

Mut. Ins. Co., 341 S.W.2d 626, 629 (Mo.App.1960) (provision that
company not liable for loss occurring while building "is vacant or

unoccupied beyond a period of sixty consecutive days"); Home Mut.

Fire Ins. Co. v. Pierce, 240 Ark. 845, 402 S.W.2d 672 (1966)

(exclusion for vacancy "beyond a period of thirty days").

Accordingly, the cases relied upon by Gas Kwick as persuasive

authority are all distinguishable from the present case.

Second, Gas Kwick appears to misapprehend the issue in the

case. According to Gas Kwick, the issue is whether the vacancy

period "began to run" from the effective date of the insurance

policy or from the prior date the building became vacant. On the

contrary, the question of when the vacancy began to run appears to

be irrelevant in light of the retrospective focus of the vacancy

clause. That is, under the vacancy exclusion, when a loss occurs,

the inquiry is whether the building has been vacant for the 60

consecutive days immediately preceding the loss. If so, recovery

is precluded. There is no reference to the date of issuance of the

policy, and there is no inquiry as to when the vacancy began. The

only relevant question is whether the building was vacant for 60

days prior to the loss.

We see no ambiguity in the language of the vacancy exclusion.

The policy clearly precludes coverage where the building has been

vacant for 60 consecutive days before the loss. Moreover, the

cases relied upon by Gas Kwick involve an exclusion where a

building has been vacant "beyond 60 consecutive days," defining the

vacancy prospectively. Conversely, the vacancy exclusion in the

present case is retrospective and unambiguous. For these reasons,

it is our view that the district court properly granted summary
judgment on this issue.

B. Whether Policy Issued After Loss Could Preclude Coverage

 Gas Kwick contends that if we find that the 60-day period is

computed retrospectively from the date of the loss, we should hold

the vacancy exclusion inapplicable because the policy was not

delivered to Gas Kwick until after the fire loss. Gas Kwick states

that it "was unable to predict its own risk and conform its

behavior to satisfy coverage under the policy due to the conduct of

the defendant." Appellant's Brief at 25. This argument is not

persuasive.

The binder issued to Gas Kwick on September 12, 1991, provided

that "THIS BINDING IS A TEMPORARY INSURANCE CONTRACT SUBJECT TO THE

CONDITIONS SHOWN ON THE REVERSE SIDE OF THIS FORM.... The

insurance is subject to the terms, conditions, and limitations of

the policy(ies) in current use by the company." United Pacific

issued its policy to Gas Kwick with effective dates of September

15, 1991, through September 15, 1992. Clearly, Gas Kwick seeks the

benefit of this effective date of September 15, 1991, since the

fire occurred on September 25. Quite simply, Gas Kwick wants the

policy's coverage to be effective September 15, 1991, but not its

conditions or exclusions (such as the vacancy provision).

While it does seem somewhat inequitable to use an exclusion in

the policy to deny coverage when the policy was issued after the

loss, it would be difficult to fashion an exception for this

situation. Insured parties benefit from having an early effective

date while the policy is in the process of being issued. The

exception argued by Gas Kwick would seemingly place insurers in the
 2

Gas Kwick asserts that it was incumbent upon United Pacific

"to investigate to determine if, in fact, the premises was vacant

or, at the very least, make an inquiry to Gas Kwick to determine

situation of providing blanket coverage for all losses without

exception until the policy (with its exclusions) is delivered to

the insured. We refuse to create such an exception and affirm the

district court on this issue.

C. Knowledge of Vacancy

 Finally, Gas Kwick argues that because the district court

determined that there were no material misrepresentations or

omissions in the application, United Pacific should not be able to

issue a policy on a vacant building and then exclude it from

coverage because it is a vacant building. Basically, Gas Kwick

contends that United Pacific should not be able to claim a

violation of the vacancy exclusion that it took no steps to

discover. In support of this argument, Gas Kwick cites Poland v.

Phillips, 371 So.2d 1053, 1056 (Fla.App. 3d Dist.1979), where the

court stated that "[a]n insurance policy may not be issued on a

vacant building and then be excluded from coverage because it is a

vacant building." As the district court noted, however, it appears

essential to the holding in that case that the insurer knew that

the building was vacant when the policy was issued. Id. Thus,

"[t]he justification for not enforcing the vacancy provision, which

was present in the Poland case, is absent here...." District

Court's Order at 8. In fact, Gas Kwick now seems to be making the

opposite argument from that in Poland: because United Pacific did

not know the property was vacant, it cannot use the vacancy

exclusion. This contention is confusing and unpersuasive.2
if it were a vacant building." Appellant's Brief at 28. As

United Pacific notes, however, Gas Kwick had superior knowledge

of the status of the property. In addition, there were 185

properties to be insured under the contract, rendering it

impractical for United Pacific to inspect all of the properties

prior to the issuance of the policy. 

 3We considered certification of the first issue presented in

this appeal to the Florida Supreme Court. While the Florida

courts apparently have not precisely addressed the vacancy

exclusion issue, in our view, it is not worthy of certification. 

The issue is narrow and specific to the language of each

individual contract, and the question has arisen in only a few

reported cases in several decades in courts across the United

States. Accordingly, certification would serve no valid purpose. 

V. CONCLUSION

For the foregoing reasons, we affirm the district court's

grant of summary judgment in favor of United Pacific and against

Gas Kwick.

AFFIRMED.3