FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

March 3, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-15630

 ________________________

D. C. Docket Nos. 

03-01407-CV-ORL-18-JGG & 04-00486-CV-ORL

GREAT AMERICAN E&S INSURANCE COMPANY,

f.k.a. Agricultural Excess & Surplus Insurance Compnay,

Plaintiff-Appellee,

versus

CHRISTINE SADIKI,

FOUAD SADIKI, her husband,

Defendants-Appellants.

__________________________________________________________________

CHRISTINE SADIKI,

FOUAD SADIKI,

 Plaintiffs-Appellants,

versus

AGRICULTURAL EXCESS & SURPLUS INSURANCE COMPANY,

n.k.a. Great American E&S Insurance Company,

 Defendant-Appellee.
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________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(March 3, 2006)

Before EDMONDSON, Chief Judge, ANDERSON and FAY, Circuit Judges.

PER CURIAM:

 Appellants Christine and Fouad Sadiki appeal the district court’s order

granting final summary judgment in the underlying declaratory judgment actions

in favor of Appellee Great American E & S Insurance Co., f/k/a Agricultural

Excess and Surplus Insurance Co. ("Great American"). The Sadikis argue that the

district court erred in failing to construe the subject insurance policy under New

York law and ask this court to reverse the district court's order or certify the choice

of law issue to the Supreme Court of Florida. Because the district court correctly

concluded that the choice of law issue is controlled by binding precedent from this

court, its order is affirmed.

I. BACKGROUND

Both of the underlying declaratory judgment actions pertain to liability

under an insurance policy issued by Great American to Tarragon Realty Investors,

Inc. and its subsidiary and sister companies (collectively, "Tarragon"). The policy
1

 The pollution clause provided, in relevant part, that the policy did not

apply to:

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provided liability coverage on several of Tarragon's properties throughout the

United States, including the Orlando Central Park Tarragon ("OCP Tarragon")

development in Orlando, Florida. It is undisputed that the parties entered into the

contract in New York. 

The Sullivan Group ("Sullivan") is a property management company hired

to manage one of Tarragon's buildings in Orlando. Sullivan employed Ralph

Caban to manage the building. On October 26, 2000, Caban allegedly sprayed a

chemical mixture near the building's air intake system in an effort to exterminate a

wasp nest. Christine Sadiki, who was working in the building on that date,

allegedly suffered injuries as a result of inhaling the chemicals that Caban sprayed. 

She and her husband filed suit against Tarragon, Sullivan, and Caban in Florida

state court.

After the Sadikis filed their state court claim, Great American filed an action

in federal district court seeking a declaration regarding its duties under the subject

insurance policy. Great American's principal argument was that it had no duty to

defend or indemnify Tarragon, Sullivan, and Caban because the policy contained

an "Absolute Pollution and Contamination Exclusion with a Hostile Fire

Exception" (the "pollution clause") that excluded coverage of the Sadikis' claims.1
"Bodily injury" "personal injury" or "property damages" (actual, alleged

or threatened) arising out of the discharge, dispersal, release, or escape

of smoke, vapors, soot, fumes, acids, alkalis, oil or other petroleum

substance, toxic substances of chemicals, waste materials or other

irritants, contaminants or pollutants whether solids, liquids, gases, into

or upon land, the atmosphere or any watercourse or body of water.

The Sadikis do not dispute the district court’s holding that the pollution clause validly 2

excludes their injuries from coverage under Florida law.

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The district court held that the policy should be interpreted under Florida law and

that, under Florida law, the pollution clause unambiguously excluded coverage for

the type of injuries alleged by the Sadikis. The district court therefore granted

Great American's motion for summary judgment in the underlying declaratory

judgment actions. On appeal, the Sadikis argue that the district court erred in

applying Florida law rather than that of New York, the state where the insurance

contract was issued.2

II. STANDARD OF REVIEW

This court reviews a district court's grant of summary judgment de novo. 

Nolen v. Boca Raton Cmty. Hosp., Inc., 373 F.3d 1151, 1154 (11th Cir. 2004). 

The de novo standard applies to a district court's resolution of a choice of law

issue as well as its interpretation of an insurance contract. LaFarge Corp. v.

Traveler's Indem. Co., 118 F.3d 1511, 1514-15 (11th Cir. 1997).

III. DISCUSSION

It is well-settled that, in diversity actions such as the instant case, federal
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courts must apply the substantive law of the forum state. Id. at 1515 (citing Erie

R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct . 817 (1938) and Keller v. Miami Herald

Publ'g Co., 778 F.2d 711 (11th Cir. 1985)). This principle extends to the forum

state's choice of law rules. LaFarge, 118 F.3d at 1515 (citations omitted). We are

thus bound to apply Florida's choice of law rules in determining which state's law

governs this case. 

The district court held that Florida's choice of law rules mandate the

application of Florida law to a dispute over a contract to insure real property

located within the state. The Sadikis concede, as they must, that the district court's

holding is entirely consistent with two prior opinions of this court. Id. at 1516

(holding that Florida courts would apply Florida law to contracts insuring real

property located within the state); Shapiro v. Associated Int'l Ins. Co., 899 F.2d

1116, 1121 (11th Cir. 1990). Like the district court, we are bound to follow these

opinions. As we said in Lee v. Frozen Food Express, Inc., 592 F.2d 271 (5th Cir.

1979), in rejecting a suggestion that we certify: “Once a panel of this Court has

settled on the state law to be applied in a diversity case, the precedent should be

followed by other panels . . . absent a subsequent state court decision or statutory

amendment which makes this Court’s decision clearly wrong.” Id. at 272.

After a careful consideration of the Florida case law cited by the parties and
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revealed by our own research, we cannot conclude that the Florida courts have

given a clear indication that this court’s decisions in LaFarge and Shapiro were

wrong. Lee, 592 F.2d at 272. Accordingly, we decline to certify, and we follow

our own prior precedent. The district court’s order is therefore 

AFFIRMED.