[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11427

Non-Argument Calendar

____________________

THE DIAZ FRITZ GROUP, INC., 

d.b.a. Diaz Fritz Isabel,

Plaintiff-Appellant,

versus

WESTFIELD INSURANCE COMPANY, 

 Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:20-cv-00785-VMC-AAS

____________________
2 Opinion of the Court 21-11427

Before ROSENBAUM, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:

General contractor, the Diaz Fritz Group, Inc., appeals the 

district court’s grant of summary judgment in favor of Westfield 

Insurance Company—which acted as Diaz Fritz’s general liability 

insurer between January 1, 2009 and January 1, 2010—on its breach 

of contract claim. Diaz Fritz raises two primary issues. First, it 

argues that the district court erroneously concluded that, under 

Florida law and the plain language of the insurance policy, 

Westfield had no duty to defend Diaz Fritz against affirmative 

defenses or contractual counterclaims raised by Diaz Fritz’s 

subcontractor, Hayward Baker, Inc. (“HBI”), in a separate action 

initiated by Diaz Fritz. Second, Diaz Fritz claims that the district 

court erred by holding that, absent a duty to defend, Westfield also 

had no duty to indemnify Diaz Fritz in its lawsuit against HBI. 

After review, we affirm.

I. BACKGROUND 

Diaz Fritz, a general contractor in the state of Florida, 

purchased a general liability insurance policy from Westfield for 

the period between January 1, 2009 and January 1, 2010. Under the 

policy, Westfield agreed to “pay those sums that the insured 

becomes legally obligated to pay as damages because of . . . 

‘property damage’ to which this insurance applies.” Likewise, the 

parties agreed that Westfield “will have the right and duty to 
21-11427 Opinion of the Court 3

defend the insured against any ‘suit’ seeking those damages . . . .” 

The policy further provided that it: “applies to . . . ‘property 

damage’ only if . . . [t]he . . . ‘property damage’ is caused by an 

‘occurrence’ that takes place in the ‘coverage territory;’” and “[t]he 

. . . ‘property damage’ occurs during the policy period . . . .” 

Pursuant to the policy, an “occurrence” meant “an accident, 

including continuous or repeated exposure to substantially the 

same general harmful conditions.” “Property damage” referred to 

“[p]hysical injury to tangible property, including all resulting loss 

of use of that property. All such loss of use shall be deemed to 

occur at the time of the physical injury that caused it; or . . . . Loss 

of use of tangible property that is not physically injured. All such 

loss of use shall be deemed to occur at the time of the ‘occurrence’ 

that caused it.” More importantly to this appeal, the policy defined 

a “suit” as “a civil proceeding in which damages because of ‘bodily 

injury’, or ‘property damage’ or ‘personal and advertising injury’ to 

which this insurance applies are alleged,” including “[a]n 

arbitration proceeding in which such damages are claimed and to 

which the insured must submit or does submit with our consent;

or “[a]ny other alternative dispute resolution proceeding in which 

such damages are claimed and to which the insured submits with 

our consent.” 

In May 2009, Diaz Fritz was engaged in contracting work at the 

University Community Hospital Carrollwood (“the hospital” or 

“UCH”). The firm enlisted HBI’s assistance as a subcontractor to 

perform foundation work at UCH. Diaz Fritz agreed to pay HBI 
4 Opinion of the Court 21-11427

$290,000 to complete the project. But work at the hospital went 

awry, and, according to Diaz Fritz, HBI negligently caused some of 

the hospital’s other property to flood, incurring substantial 

damage. 

The hospital promptly sent Diaz Fritz a letter demanding that 

it immediately remediate the damage, which jeopardized “patient 

and employee safety.” Given the nature of UCH’s operations, it 

insisted that time was “of the essence” and gave Diaz Fritz three 

days to comply. In addition to withholding all payments due to 

Diaz Fritz, the hospital also threatened that it would “look to [Diaz 

Fritz] for any and all costs incurred” after the three days lapsed. 

Diaz Fritz reached out to Westfield, but the insurer felt that HBI 

was responsible for the flooding. Accordingly, it then sent the 

hospital’s property damage claim to Zurich American Insurance 

Company (“Zurich”), HBI’s general liability insurer. But Zurich 

and Westfield could not agree about whether Zurich’s policy with 

HBI required it to provide coverage to Diaz Fritz as an “additional 

insured” party. While the two insurers bickered, Diaz Fritz—

without seeking approval from Westfield—paid for all of the 

repairs necessary to restore the hospital’s property, albeit without 

admitting fault. The repairs totaled $505,597.72. 

Meanwhile, Diaz Fritz, believing that HBI’s negligence caused 

the hospital’s property damage, decided to withhold the $290,000 

it had agreed to pay HBI for the project in an effort to recoup the 

money for the repairs. Even still, Diaz Fritz remained on the hook 

for over $200,000 of the approximately $506,000 in payments
21-11427 Opinion of the Court 5

remitted to UCH. Accordingly, in 2011, it sought to recover its 

perceived losses from HBI in Florida state court. In its answer, HBI 

raised multiple affirmative defenses, the third of which—and the 

only one relevant to this appeal—asserted that Diaz Fritz’s 

negligence contributed to or entirely caused the damage to the 

hospital. 

HBI also filed two counterclaims against Diaz Fritz. First, it 

argued that Diaz Fritz breached its subcontract by withholding the 

$290,000 payment for its work on the hospital. Second, it sought 

to recover the value of its performance in quantum meruit. 

Diaz Fritz then reached out to Westfield to seek a defense under 

its general liability policy. Westfield refused, explaining that the 

policy did not require it to defend against affirmative defenses, and 

that the counterclaims were outside the scope of coverage. 

Nevertheless, Diaz Fritz persisted and brought its case against HBI 

to trial. The jury found HBI partially responsible for a total of 

$266,596.32 in damages and expenses, and, offsetting that amount 

against the $290,000 that Diaz Fritz withheld, awarded HBI 

$23,403.68 in damages.1 

Diaz Fritz then filed suit against Westfield in state court on 

March 11, 2020. Diaz Fritz sought a declaratory judgment that 

Westfield was obligated to defend it in the state court litigation 

against HBI and to indemnify it against the final judgment in that 

1 Nevertheless, the trial court entered final judgment in favor of HBI for a 

grand total of $361,902.44, including pre-judgment interest. 
6 Opinion of the Court 21-11427

case; alleged that Westfield breached its contract by denying 

defense and indemnification of Diaz Fritz in state court; and 

requested damages for a Florida law bad faith claim. Westfield 

subsequently removed the case to the United States District Court 

for the Middle District of Florida and successfully moved to dismiss 

all of Diaz Fritz’s claims excepting breach of contract. 

After discovery, both parties moved for summary judgment. 

Turning first to Westfield’s motion, the district court concluded 

that the insurer’s obligations to defend and indemnify were not 

triggered by Diaz Fritz’s suit against HBI. Noting that Florida law 

controlled the suit and that no Florida court had yet weighed in on 

whether an affirmative defense can trigger an insurer’s duty to 

defend, the court determined that, at least in the present case, it did 

not. Though it recognized that HBI’s affirmative defense “blamed 

Diaz Fritz for any purported damage to the hospital,” it 

nevertheless emphasized that “it did not seek any affirmative relief 

from Diaz Fritz ‘because of’ this damage,” as required to trigger the 

duty to defend under the policy. 

Likewise, the district court found that HBI’s counterclaims did 

not seek reimbursement for property damage, but, instead only to 

recover economic damages from Diaz Fritz’s breach of contract. 

Because the policy “unambiguously” required damages “because 

of” property damage, the district court found that HBI’s 

counterclaims fell outside the scope of Diaz Fritz’s insurance 

policy. And, because “the duty to defend is broader than the duty 

to indemnify,” the district court also found that “as a matter of 
21-11427 Opinion of the Court 7

law,” Westfield was not obligated to indemnify Diaz Fritz from the 

state court’s final judgment.2 Diaz Fritz timely appealed. 

II. STANDARD OF REVIEW 

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

judgment, “considering the evidence in the light most favorable to 

the nonmoving party.” Lindley v. FDIC, 733 F.3d 1043, 1050 (11th 

Cir. 2013). Likewise, we review de novo a district court’s 

interpretation of an insurance contract. Galindo v. ARI Mut. Ins. 

Co., 203 F.3d 771, 774 (11th Cir. 2000). 

III. ANALYSIS 

A. The district court properly granted summary judgment in 

favor of Westfield as to its duty to defend Diaz Fritz in the 

latter’s suit against HBI.

On appeal, Diaz Fritz argues that the district court erred in 

granting summary judgment in favor of Westfield and 

simultaneously denying its own motion for summary judgment. 

The firm contends that, under Florida law, we should construe the 

statutory language “in light of the skill and experience of ordinary 

people,” rather than legal scholars. Gen. Star Indem. Co. v. W. Fla. 

Vill. Inn, Inc., 874 So. 2d 26, 29–30 (Fla. 2d DCA 2004). See also 

2 Consequently, the district court denied Diaz Fritz’s motion for summary 

judgment. 
8 Opinion of the Court 21-11427

Hrynkiw v. Allstate Floridian Ins. Co., 844 So. 2d 739, 741-42 (Fla. 

5th DCA 2003). Likewise, Diaz Fritz reiterates that where “one 

reasonable interpretation of the policy provisions would provide 

coverage, that is the construction which must be adopted.” 

Washington Nat’l Ins. Corp. v. Ruderman, 117 So. 3d 943, 950 (Fla. 

2013). 

To create a “reasonable” interpretation of the contract that 

favors an affirmative duty to defend in Diaz Fritz’s suit against HBI, 

Diaz Fritz urges us to focus “on the substance” of the affirmative 

defense, rather than the “form.” By its logic, because the hospital

would have had a “property damage” claim against Diaz Fritz 

within the plain language of the policy had the firm not settled with 

the hospital, HBI’s affirmative defense—that Diaz Fritz was at least 

partially responsible for the flooding—litigated the same issue that 

would have triggered a duty to defend in a suit between Diaz Fritz 

and the hospital. 

But Florida’s lodestar interpretive principle undermines Diaz 

Fritz’s argument: “Where the language in an insurance contract is 

plain and unambiguous, a court must interpret the policy in 

accordance with the plain meaning so as to give effect to the policy

as written.” Allstate Ins. Co. v. Orthopedic Specialists, 212 So. 3d 

973, 975-76 (Fla. 2017) (quoting Washington Nat. Ins. Corp. v. 

Ruderman, 117 So. 3d 943, 948 (Fla. 2013)). Granted “[p]olicy 

language is considered to be ambiguous . . . if the language ‘is 

susceptible to more than one reasonable interpretation, one 

providing coverage and the other limiting coverage.’” Id. at 976 
21-11427 Opinion of the Court 9

(quoting Travelers Indem. Co. v. PCR Inc., 889 So. 2d 779, 785 (Fla. 

2004)). But “[t]o find in favor of the insured on th[at] basis, 

however, the policy must actually be ambiguous.” Id. (quoting 

Penzer v. Transp. Ins. Co., 29 So. 3d 1000, 1005 (Fla. 2010) 

(emphasis omitted)). We may not “put a strained and unnatural 

construction on the terms of a policy in order to create an 

uncertainty or ambiguity.” Jefferson Ins. Co. of N.Y. v. Sea World 

of Fla., Inc., 586 So. 2d 95, 97 (Fla. 5th DC A 1991). 

Here, the district court granted Westfield’s motion for 

summary judgment after concluding that the plain and 

unambiguous policy language covered “suits” for “damages” 

“because of ‘property damage.’” In contrast, it found that HBI’s 

affirmative defense only sought to offset the amount of damages 

Diaz Fritz claimed it was owed in a contract action. We agree, and 

find Diaz Fritz’s contrary argument unconvincing.3 Diaz Fritz fails 

to identify any Florida precedent suggesting that, when construing 

3 Although Diaz Fritz urges us to follow Simon v. Maryland Cas. Co., 353 F.2d 

608, 610-12 (5th Cir. 1965), as “circuit precedent,” it misunderstands how 

federal courts, sitting in diversity, operate. “In diversity cases, we are required 

to apply the substantive law of the forum state; here, Florida.” Mesa v. 

Clarendon Nat’l Ins. Co., 799 F.3d 1353, 1358 (11th Cir. 2015). And, “Florida 

applies its own laws to interpret policies which are purchased and delivered in 

that state.” Trans Caribbean Lines, Inc. v. Tracor Marine, Inc., 748 F.2d 568, 

570 (11th Cir. 1984). Consequently, Simon, a case involving an insurance 

contract governed by Texas law, does not control our analysis of a case under 

Florida law. 
10 Opinion of the Court 21-11427

an insurance contract, courts should look past plain and 

unambiguous language to rule in favor of coverage.

Although HBI blamed Diaz Fritz for causing the flood that 

damaged the hospital, its affirmative defense did not seek “any 

sums that [Diaz Fritz] [would] become[] legally obligated to pay as 

damages because of . . . ‘property damage’” as required by the 

policy. Instead, Diaz Fritz sued HBI to recover the amount it had

paid voluntarily to the hospital to rectify the flood damage. 

Consequently, HBI’s affirmative defense could only reduce the 

amount of damages sought by Diaz Fritz, rather than entitle it to 

any amount of compensation. Therefore, there is no reasonable 

construction under which HBI’s third affirmative defense could 

qualify as a “suit” for “damages.” 

Diaz Fritz opines that this interpretation “effectively punishes 

[it] for doing the right thing.” Perhaps, but Diaz Fritz agreed to the 

policy’s unambiguous language, which, as we have explained, does 

not implicate Westfield’s duty to defend in this case. Accordingly, 

we affirm the district court’s grant of summary judgment in favor 

of Westfield. 

B. The district court properly granted summary judgment in 

favor of Westfield as to its duty to indemnify Diaz Fritz after 

concluding that, as a matter of law, the duty to indemnify is 

coterminous with the duty to defend. 
21-11427 Opinion of the Court 11

Finally, because we reject Diaz Fritz’s argument that the district 

court erred in concluding that Westfield was not obligated to 

defend its suit against HBI, we also reject its claim that the district 

court erroneously concluded that Westfield was not obligated to 

indemnify Diaz Fritz in that suit. Under Florida law, “[a]n insurer’s 

duty to defend is distinct from and broader than the duty to 

indemnify.” Lime Tree Vill. Cmty. Club Ass’n v. State Farm Gen. 

Ins. Co., 980 F.2d 1402, 1405 (11th Cir. 1993) (quotation omitted). 

And, as a matter of Florida law and binding Eleventh Circuit 

precedent, “[a] court’s determination that the insurer has no duty 

to defend requires a finding that there is no duty to indemnify.” 

Trailer Bridge, Inc. v. Ill. Nat. Ins. Co., 657 F.3d 1135, 1146 (11th 

Cir. 2011) (quoting Philadelphia Indem. Ins. Co. v. Yachtsman's Inn 

Condo Ass'n, Inc., 595 F. Supp. 2d 1319, 1322 (S.D. Fla. 2009)).

AFFIRMED.