[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12

- 14780 Non

- Argument Calendar

___________ _____________

D.C. Docket No. 1:11

- cv

- 23020

- RNS

ABCO PREMIUM FINANCE, LLC

,

Plaintiff

- Appell ant
,

v ersus

AMERICAN INTERNATIONAL GROUP, INC., et al.,

Defendants,

UNITED STATES FIRE INSURANCE COMPANY, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA,

Defendant s

- Appell ees

.

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ (April 9, 2013)

Before HULL , PRYOR and MARTIN , Circuit Judges.

PER CURIAM:

Case: 12-14780 Date Filed: 04/09/2013 Page: 1 of 52 ABCO Premium Finance, LLC, appeals the summary judgment in favor of

United States Fire Insurance Company and National Union Fire Insurance

Company of Pittsburg. ABCO, an insurance premium finance company, decided

to insure itself against potential losses , such as fraud, by purchas ing a financial

institution bond from US Fire and an exc ess insurance policy from National Union.

ABCO discovered that it had been defrauded and filed claim s with US Fire and

National Union

, but the companies denied coverage based on a retroactive date

rider in the bond that also had been incorporated into the policy . ABCO sued the

companies for breach of contract

, but the district court ruled that the loss caus ed by

the fraud was excluded from coverage under the r ider

. We affirm.

The rider restrict ed coverage to losses incurr ed after a retroactive date . The

rider inserted for section 3 a substitute that provided t hat the bond and insurance

policy cover ed only a “ single loss ” tha t occurred after April 24, 2009:

RETROACTIVE DATE RIDER

It is agreed that

1 [

. ] The attached bond/policy is amended deleting Section 3

– Discovery [.]

2. The attached bond/policy is further amended by inserting the following as Section 3.

Section 3 Case: 12-14780 Date Filed: 04/09/2013 Page: 2 of 53 RETRO ACTIVE DATE

- April 24, 2009 month day year

This bond/policy applies only to a Single Loss, as defined in section 4, which was sustained in its entirety after the Retroactive Date set forth above . All acts or omissions causing or contributing to such Single Loss . . . must occur after th e Retroactive Date for coverage under this bond/policy to apply. Such Single Loss must be discovered by the Insured during the Bond/Policy period.

And s ection 4 of th e bond defined “Single Loss” to include all monetary loss es

suffer ed from a discrete event or a relate d series of event s committed by one

person

.
Single Loss Defined

Single Loss means all covered loss, including court costs and attorneys’ fees incurred, . . . resulting from

(a) any one actor series of related acts of burglary, robbery or attempt thereat, in which no Employee is implicated, or

(b) any one act or series of related unintentional or negligent acts or omissions on the part of any person (whether an Employee or not) resulting in damage to or destruction or misplacement of Property, or

(c) all acts or omissions other than those specified in (a) and (b) preceding, caused by any person (whether an Employee or not) or in which such person is implicated, or

(d) any one c asualty or event not specified in (a), (b) or (c) preceding [.] Case: 12-14780 Date Filed: 04/09/2013 Page: 3 of 54 ABCO sought to recover for fraud committed by an insurance broker, Jose

Vicente Peris, who had signed a producer agreement with ABCO. Peris had access

to blank finance a greements and computer systems that he mis used to process

fraudulent loan applications. Beginning in March 2007, Peris began obtaining

loans for fictitious clients and depositing the money into his bank account. In July

2009, ABCO discovered that Peris h ad submitted more than 3,000 fraudulent

contracts and defrauded the company of more than $7 million.

US Fire and National Union were entitled to a summary judgment because

the uncontroverted evidence establishes that the claim of ABCO was excluded

from coverage . ABCO submitted Peris’s affidavit in which he admitted that he

“created and engaged in a scheme to fraudulently obtain monies from ABCO” and

“[e]ach time . . . [he] submitted a fraudulent contract to ABCO, [he] engaged in the

same scheme.” The a ffidavit establishe d that Peris’s fraud resulted in a “single

loss” to ABCO, but t he rider also require d that “[a]ll acts or omissions causing or

contributing to [the] “single loss . . . occur after the Retroactive Date” and that the

“Single Loss [of ABCO] . . . [be] sustained in its entirety after the Retroactive

Date.” See State Farm Mut. Auto. Ins. Co. v. Mashburn

, 15 So. 3d 701, 704 (Fla.

Dist. Ct. App. 2009) (“[T]he contract [of insurance] is to be construed according to

its entire terms, as set forth in the policy and amplified by the policy application,

Case: 12-14780 Date Filed: 04/09/2013 Page: 4 of 55 endorsements, or riders. ”). Peris’s scheme to defraud commenced in March 2007

,
and a sizeable portion of the loss from his scheme occurred before April 24, 2009.

The loss s uffered by ABCO was not a claim cover ed by the plain language of the

bond issued by US Fire or the excess insurance policy issued by National Union.

We AFFIRM the summary judgment in favor of US Fire and National

Union. Case: 12-14780 Date Filed: 04/09/2013 Page: 5 of 5