[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 13-15254

Non-Argument Calendar

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D.C. Docket No. 6:13-cv-01067-GAP-TBS

PUBLIC RISK MANAGEMENT OF FLORIDA, 

 Plaintiff-Appellant,

versus

ONE BEACON INSURANCE CO., 

a foreign corporation authorized to do business in Florida, 

 Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(June 24, 2014)

Before CARNES, Chief Judge, HULL and FAY, Circuit Judges.

PER CURIAM: 

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Public Risk Management of Florida appeals the district court’s decision to 

dismiss its complaint with prejudice. Public Risk contends that its complaint stated 

two claims for relief, one based on breach of contract and one based on equitable 

estoppel.

I.

This case is a dispute about insurance coverage in an underlying lawsuit.

Public Risk is an intergovernmental risk management association that insures 

various local governmental entities in Florida.1

 See Fla. Stat. § 768.28(16). Public 

Risk insures itself through a reinsurance policy purchased from OneBeacon 

Insurance Company. Public Risk has filed a claim with OneBeacon seeking 

coverage for the legal fees that Public Risk incurred defending one of its members, 

the City of Wintergarden, in an underlying lawsuit. OneBeacon refuses to pay on 

that claim because it believes that Public Risk had no duty to defend the City from 

that suit. We will begin by outlining the facts of that underlying lawsuit because 

they are necessary to understand the dispute before us. 

In 2009 the City reached an agreement with the Florida Department of 

Transportation (FDOT) to remove the utilities located along State Road 50 so that 

the FDOT could widen and improve the road. Under the agreement, the City 

 1 Because Public Risk challenges the Rule 12(b)(6) dismissal of its complaint, we take these 

facts from Public Risk’s complaint, accepting its account as true and construing its facts in the 

light most favorable to Public Risk, see Doe v. Pryor, 344 F.3d 1282, 1284 (11th Cir. 2003).

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would remove all of the City-owned utilities, and the FDOT would — before the 

City’s removal began — remove all of the non-City-owned utilities. The City 

solicited bids on the job and awarded the contract to Dewitt Excavating, Inc. The 

contract called for Dewitt to complete the job in 240 days and included a liquidated 

damages clause that required Dewitt to pay the City $5,000 for each extra day it 

took to finish the project. The contract softened that deadline by allowing for 

“equitable extensions” in the event that outside forces delayed, disrupted, or 

complicated Dewitt’s work. Dewitt entered its bid and agreed to the contract based

largely on two representations by the City: (1) the project drawings that the City 

provided to all the bidding contractors, which identified the location of the utilities 

that Dewitt would have to move; and (2) “Addendum No. 1” to the City’s request 

for bid proposals, which informed the bidders that the FDOT would remove the 

non-City-owned utilities by January 23, 2010. Dewitt used that information to 

estimate how much time and money it would take to finish the project, as well as to

plan where to dig.

Once the work began, Dewitt ran into significant delays. The biggest 

problem was that there were far more utilities along the road than the City had 

indicated. The FDOT failed to move the non-City-owned utilities that it had 

agreed to handle under its agreement with the City, and Dewitt found many 

unknown or unidentified utilities that did not appear on the project drawings.

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Dewitt damaged some of those utilities when it dug into what it thought was empty 

ground. On top of that, the City made numerous revisions to its plan that required 

Dewitt to perform extra work and incur extra costs that had not been part of its 

original bid. Although the City initially granted several of Dewitt’s early requests 

for equitable extensions, it refused to grant further extensions as the deadline 

neared and threatened to seek both liquidated and actual damages if Dewitt did not 

meet the deadline. Dewitt tried to finish on time, but the logistical problems were 

too much to overcome and the project ran past the deadline. After the work was 

complete, the City refused to pay Dewitt for pending change orders and other 

amounts under the contract, asserting that Dewitt was liable for liquidated and 

actual delay damages.

Dewitt sued the City in state court in June 2011. Its complaint organized 

Dewitt’s claims into two general counts, one for breach of contract and one for 

violation of Florida’s Public Records Act. This appeal concerns Count One, which 

was for breach of contract.2 It alleged, among other things, that the City’s project 

drawings omitted some utilities, and that the City knew the non-City-owned 

utilities would not be removed in the timeframe presented in Addendum No. 1.

Count One claimed that the City had breached its contract with Dewitt in eleven 

 2 Count Two was based on the City’s refusal to honor a public records request that Dewitt 

made in May 2011 in an attempt to acquire documents regarding the City’s contract with Dewitt. 

Public Risk concedes that Count Two does not trigger the duty to defend because the City’s

policy covers only claims for money damages, and Count Two seeks equitable relief.

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different ways, identifying the different theories of breach as “26(a)” through 

“26(k).” The first two theories faulted the City for the errors and omissions in the 

project drawings and the false information in Addendum No. 1. Paragraph 26(a)

alleged that the City “breach[ed] its implied warranty that the plans and design 

specifications issued to Dewitt were accurate and suitable for performing Dewitt’s 

scope of work.” And Paragraph 26(b) alleged that the City “breach[ed] its implied 

obligation not to furnish misleading information.” The remaining nine theories

focused on the City’s conduct after the work had begun, such as “refusing without 

valid justification to pay change orders and pay applications” and “failing to 

respond to or pay various written requests for payment.” Based on those eleven 

theories of breach, Count One sought eleven categories of damages from the City, 

which the complaint identified as “27(a)” through “27(k).” Many of them were 

based on payments the City owed Dewitt under the contract, but two were tied to 

the inaccuracies in the City’s project drawings and the misstatement in Addendum 

No. 1. Paragraph 27(f) sought “[a]mounts Dewitt is and/or becomes obligated to 

pay owners of utilities that were damaged as a result of the City’s 

misrepresentations, erroneous design specifications, and/or refusal to grant 

warranted time extensions.” And Paragraph 27(h) sought “[o]ther expenses and 

damages associated with the reduction in Dewitt’s expected productivity as a result 

of the City’s misrepresentations and inaccuracies in the bid package . . . .” 

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Public Risk concluded that Dewitt’s allegations could be covered by the 

provision in the City’s policy insuring against “wrongful acts” by the City’s 

officials. That triggered Public Risk’s duty to defend under the policy, so it hired a 

law firm to represent the City.

3

 Shortly after Public Risk decided that it had a duty 

to defend the City, it submitted a claim to OneBeacon for coverage under the 

reinsurance policy. On June 24, 2011, Public Risk sent OneBeacon a claim letter 

and a copy of Dewitt’s complaint. OneBeacon responded by letter on June 29. It 

concluded that: “There is no coverage for [Dewitt’s suit] as it is currently pled.” 

Public Risk asked OneBeacon to revisit its coverage analysis and proceed under a 

full reservation of rights.4 On September 22, 2011, OneBeacon sent Public Risk a 

supplemental letter doing that. The letter made clear that OneBeacon did so 

“without conceding that there is at present any potential coverage under the 

[reinsurance policy] and without waiving any of its rights, including the right to 

deny coverage for the Dewitt Action in its entirety.”

Dewitt’s case was settled before trial for $1.35 million. Public Risk did not 

pay any of that settlement figure, but it did owe $486,941.07 in legal fees to the 

 3 The City’s policy creates a general duty to defend for Public Risk. The policy states: “It is 

understood and agreed [Public Risk] has the right and duty to investigate, handle, settle, or 

defend any claim, proceeding, or suit against the [City] or against any person or organization for 

whom the [City] is or may be found to be legally liable.” (capitalization omitted).

4 A reservation of rights is “[a] notice of an insurer’s intention not to waive its contractual 

rights to contest coverage or to apply an exclusion that negates an insured’s claim.” Black’s Law 

Dictionary (9th ed. 2009), available at Westlaw BLACKS.

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law firm representing the City. The reinsurance policy obligated OneBeacon to 

pay the legal fees that Public Risk incurred defending the City in legal actions 

covered by its policy with Public Risk, subject to a $200,000 self-insured 

retention.

5 But when Public Risk sought $286,941.07 from OneBeacon, the 

reinsurer refused to pay.

Public Risk filed suit in state court in June 2013, asserting claims for breach 

of contract and equitable estoppel. OneBeacon removed the case to federal district

court under 28 U.S.C. § 1441 and shortly thereafter moved to dismiss the 

complaint under Rule 12(b)(6) for failure to state a claim. The court granted the 

motion and dismissed the complaint with prejudice in October 2012. Public Risk 

filed a motion for reconsideration, which the court denied. This is Public Risk’s 

appeal.

II.

Public Risk challenges the district court’s decision to dismiss its breach of 

contract claim. The district court did so after concluding that: (1) Dewitt’s 

complaint did not fall under the policy’s coverage for “wrongful acts,” and (2) the 

policy’s exclusion for any “[l]oss arising out of an intentional breach of contract”

 5 A self-insured retention is “[t]he amount of an otherwise-covered loss that is not covered by 

an insurance policy and that usu[ally] must be paid before the insurer will pay benefits.” Black’s 

Law Dictionary (9th ed. 2009), available at Westlaw BLACKS.

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eliminated Public Risk’s duty to defend. Our review is de novo. James River Ins. 

Co. v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1273–74 (11th Cir. 2008).

This challenge turns on whether Dewitt’s complaint triggered Public Risk’s 

duty to defend under the City’s policy with Public Risk.

6

 Our analysis focuses on 

the language of two documents: the City’s insurance policy and Dewitt’s

complaint. Under Florida law, we must construe the terms of the City’s policy 

based on their plain meaning, resolving any ambiguities in favor of the insured. Id.

at 1274. So if a term is ambiguous — if it is susceptible to multiple reasonable 

interpretations — courts choose the interpretation that favors coverage. AutoOwners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000). When discerning the 

meaning of a term, courts must be sure to read the “policy as a whole, endeavoring 

to give every provision its full meaning and operative effect.” U.S. Fire Ins. Co. v. 

J.S.U.B., Inc., 979 So. 2d 871, 877 (Fla. 2007) (quotation marks omitted). Our 

assessment of Public Risk’s duty to defend in the underlying suit is also focused on 

text — the text of Dewitt’s complaint. Because the duty to defend in Florida is 

broader than the duty to indemnify, insurers “must defend when the complaint 

alleges facts which fairly and potentially bring the suit within policy coverage.”

Lime Tree Vill. Cmty. Club Ass’n, Inc. v. State Farm Gen. Ins. Co., 980 F.2d 

 6 The district court’s opinion observed that “[t]he parties appear to be in agreement that if 

[Public Risk] had no duty to defend under the [City’s] Policy, then OneBeacon had no duty to 

reimburse [Public Risk].” Neither party disputes that characterization on appeal.

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1402, 1405 (11th Cir. 1993) (emphasis added). That holds true even where “the 

complaint alleges facts partially within and partially outside the scope of 

coverage,” or when “the later true facts show there is no coverage.” Trizec Props., 

Inc. v. Biltmore Constr. Co., Inc., 767 F.2d 810, 811 (11th Cir. 1985). Courts 

therefore focus “solely on the facts and legal theories alleged in the pleadings and 

claims against the insured,” asking whether those allegations arguably fall under 

the policy’s coverage. James River Ins. Co., 540 F.3d at 1275. “If the allegations 

of the complaint leave any doubt as to the duty to defend, the question must be 

resolved in favor of the insured.” Lime Tree Vill. Cmty. Club Ass’n, Inc., 980 

F.2d at 1405.

We begin with the language of the coverage provisions at issue. Public Risk 

argues that it had a duty to defend based on Section IV of the policy’s primary 

coverage, which provides coverage for “wrongful acts” by City officials. Under

Section IV, Public Risk “agrees, subject to the Coverage Document limitations, 

exclusions, terms and conditions to pay on behalf of the [City] for all sums which 

the [City] is legally liable by reason of a wrongful act.” (capitalization omitted). 

Paragraph 23 of the policy’s general coverage provisions defines a wrongful act as 

“any actual or alleged error or miss-statement [sic], omission, act or neglect or 

breach of duty due to misfeasance, malfeasance, and non-feasance . . . by the 

[City].” (capitalization omitted). Nothing in the City’s policy suggests that a 

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wrongful act cannot be rooted in a duty the City has under a contract. To the 

contrary, the fact that Paragraph (l) in Section IV’s exclusions eliminates coverage 

for “[l]oss arising out of an intentional breach of contract” establishes that 

unintentional breaches of contract can be covered. Reading the definition of 

wrongful act as not including breaches of contractual duties would render 

Paragraph (l) superfluous, which would contradict our obligation “to give every 

provision its full meaning and operative effect.” U.S. Fire Ins. Co., 979 So. 2d at

877 (quotation marks omitted).

When we consider Dewitt’s complaint in light of those policy provisions, it 

is clear that its first two theories of breach “fairly and potentially bring the suit 

within policy coverage” because those theories allege breaches of contract based 

on the City’s mistakes, misstatements, or omissions. See Lime Tree Vill. Cmty. 

Club Ass’n, Inc., 980 F.2d at 1405. Paragraph 26(a) asserted that the City 

“breach[ed] its implied warranty that the plans and design specifications issued to 

Dewitt were accurate and suitable for performing Dewitt’s scope of work.” And 

Paragraph 26(b) asserted that the City “breach[ed] its implied obligation not to 

furnish misleading information.” The same can be said for the two categories of 

damages in Paragraphs 27(f) and 27(h), which sought money “to pay owners of 

utilities that were damaged as a result of the City’s misrepresentations” and for 

“[o]ther expenses and damages associated with the reduction in Dewitt’s expected 

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productivity as a result of the City’s misrepresentations and inaccuracies in the bid 

package.” Because those portions of Dewitt’s complaint assert that the City is 

liable for mistakes or omissions in drafting the project drawings and misstatements 

in Addendum No. 1, they arguably fall under the coverage provision for wrongful 

acts, which is enough to trigger Public Risk’s duty to defend. See id. 

The district court reached a different conclusion. Its first basis for 

concluding that Public Risk had no duty to defend was its determination that 

Dewitt’s complaint had not alleged a theory of liability based on a wrongful act. 

The court declared that it would assess Public Risk’s duty to defend by analyzing 

“the Dewitt Complaint taken as a whole.” It then reasoned that:

The Dewitt Complaint makes clear that the asserted basis for money 

damages was Winter Garden not paying what it allegedly owed under 

the terms of the Construction Contract. As such, there was no 

allegation of any purported wrongful acts by Winter Garden officials 

that gave rise to the Dewitt Action—the Construction Contract was 

the reason Winter Garden was obligated to pay Dewitt.

The district court never specifically addressed the four paragraphs from the

complaint discussed above — none of which are based on the City’s refusal to 

make payments.

The district court’s reductive “as a whole” analysis has no support under 

Florida law and is contrary to this Court’s binding precedent. In Lime Tree 

Village, we held that insurers have a duty to defend under Florida law where some 

of the complaint’s allegations trigger the duty to defend and some are excluded. 

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See 980 F.2d at 1405–06. OneBeacon attempts to distinguish Lime Tree Village

on the grounds that it involved two suits bringing eleven separate counts, while 

Dewitt’s complaint brought all of its breach of contract claims under one count.

See id. at 1405 (“This is not a case where there is a single cause of action based 

wholly on acts expressly excluded by the policy.”). But that mathematical 

distinction makes no jurisprudential difference. Nothing in Lime Tree Village

suggests that the duty to defend is so formalistic that an allegation cannot trigger 

the duty unless it is brought under a separately headed count that segregates it from

allegations not covered by the policy. In fact, Lime Tree Village rejected an 

argument very similar to OneBeacon’s. The insurance policy at issue there 

excluded coverage for intentional acts. Id. at 1404. The defendant argued that all 

the plaintiffs’ counts were excluded because every count incorporated by reference 

all of the complaint’s factual allegations, and the allegations included intentional 

acts. Id. at 1405. We rejected that argument because all that mattered under 

Florida law was that some of the factual allegations set forth unintentional acts. 

See id.

Furthermore, Florida law imposes a duty to defend whenever “the 

underlying facts contained in the complaint can be fairly read to support a claim 

covered by the indemnification provision.” Nat’l R.R. Passenger Corp. v. 

Rountree Transp. & Rigging, Inc., 286 F.3d 1233, 1261 (11th Cir. 2002) (emphasis 

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added) (citing Metro. Dade Cnty. v. CBM Indus. of Minn., Inc., 776 So.2d 937, 

938 (Fla. 3d DCA 2001)). The eleven theories of breach that Dewitt’s complaint 

alleges can be fairly read as effectively raising eleven distinct claims. Paragraphs 

26(a) and 26(b) assert liability based on factual allegations that fall under the 

policy’s coverage for wrongful acts. That triggers the duty to defend regardless of 

whether Paragraphs 26(c) through 26(k) rely on facts that fall outside the policy’s 

coverage.

The district court also relied on an exclusion clause in the City’s policy. It 

concluded that Dewitt’s complaint was not covered because Paragraph (l) of 

Section IV excluded coverage for “[l]oss arising out of an intentional breach of 

contract.” We disagree. In Florida, “exclusionary clauses are construed even more 

strictly against the insurer than coverage clauses.” Auto-Owners Ins. Co. v. 

Anderson, 756 So. 2d 29, 34 (Fla. 2000). OneBeacon thus “has the burden of 

demonstrating that the allegations of the complaint are cast solely and entirely 

within the policy exclusion and are subject to no other reasonable interpretation.” 

Hartford Acc. & Indem. Co. v. Beaver, 466 F.3d 1289, 1296 (11th Cir. 2006) 

(quotation marks omitted). It has not met that burden.

OneBeacon argues that Paragraph (l)’s use of the phrase “arising out of” —

which is a term of art in Florida insurance law meaning “originating from” or 

“growing out of” — makes the exclusion broad enough to exclude coverage here. 

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See James River Ins. Co., 540 F.3d at 1275 (quotation marks omitted). But that 

argument overlooks the fact that Paragraph (l) excludes coverage for “loss” as 

opposed to coverage for “claims.”7

 Florida insurance law distinguishes claims 

from losses — the former being the suits themselves, and the latter being the 

damages that are assessed. That is why an insurer can be obligated to defend 

against a claim even if it is not ultimately obligated to pay for the losses arising 

from that claim. See Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156, 163 n.4 (Fla. 

2003) (“An insurer’s duty to defend is broader than the duty to pay or indemnify 

and it involves distinct responsibilities beyond the coverage issues.”). So the only 

way that Paragraph (l) could negate OneBeacon’s duty to defend here is if all of 

 7 Nine of the exclusions in Section IV exclude coverage for claims. For example, Paragraph 

(j) excludes coverage for “[a]ny claim based upon or attributable to any failure or omission of the 

[City] to effect or maintain coverage of any kind.” (capitalization omitted and emphasis added). 

Paragraph (l)’s contrasting use of the term “loss” implies that it has a different scope than the 

exclusions that use the term “claim.” Cf. State v. Mark Marks, P.A., 698 So. 2d 533, 541 (Fla. 

1997) (“The legislative use of different terms in different portions of the same statute is strong 

evidence that different meanings were intended.”) (quotation marks omitted).

The policy’s own definitions reinforce the distinction. Section IV defines “claim” to mean 

“all notices or suits demanding payment of money, or charges filed with the Equal Employment 

Opportunity Commission or comparable State agency based on, or arising out of the same 

wrongful act or a series of related wrongful acts by one or more assureds.” (capitalization 

omitted). While the City’s policy does not define the term “loss,” it does define “ultimate net 

loss” to mean “the total sum which the [City] is obligated to pay because of loss or damage 

covered under any Section of this Coverage Document, either through adjudication or 

compromise, after making proper deductions for all recoveries and salvages.” So the policy uses 

“claim” to refer to suits, which implicate the duty to defend, and uses “loss” to refer to damages, 

which implicate the duty to indemnify.

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the losses sought in Dewitt’s complaint grew out of an intentional breach.8 If some 

of the alleged losses could be independent of the alleged intentional breach, the 

duty to defend would still exist.9

Four paragraphs in the complaint extend beyond the scope of Paragraph (l). 

Paragraphs 26(a) and 26(b) fall outside its scope because they claim the City made

mistakes in the project drawings and a misstatement in Addendum No. 1, not that 

the City intentionally breached the contract. Likewise, Paragraphs 27(f) and 27(h)

seek damages that do not depend on or relate to any intentional breach of the 

contract. Paragraph 27(f) seeks money for “[a]mounts Dewitt is and/or becomes 

obligated to pay owners of utilities that were damaged as a result of the City’s 

misrepresentations, erroneous design specifications, and/or refusal to grant 

warranted time extensions.” Similarly, Paragraph 27(h) seeks money for “[o]ther 

expenses and damages associated with the reduction in Dewitt’s expected 

 8 We have our doubts about whether Paragraph (l) can ever negate the duty to defend because 

we find no language in the policy that suggests the duty to defend depends on the damages a 

claim seeks. The policy simply states that OneBeacon has a duty to defend against “any claim, 

proceeding, or suit against the [City] or against any person or organization for whom the [City] is

or may be found to be legally liable.” (capitalization omitted). The use of “any claim” implies 

that the duty to defend will apply unless there is an exclusion for that particular kind of claim (as 

opposed to that kind of loss). But the City does not raise that argument, and both sides’ briefs 

assume that Paragraph (l) can exclude coverage for some claims. So we will assume it as well 

since it does not affect the outcome here.

9 The distinction between coverage for claims and coverage for loss means that OneBeacon’s 

heavy reliance on Transamerica Insurance Co. v. Snell is misplaced. See 627 So. 2d 1275 (Fla. 

1st DCA 1993). The exclusion provision in Snell applied to “[a]ny claim arising out of 

insolvency, receivership, or bankruptcy.” Id. at 1276 (emphasis added). The court did not 

address whether an exclusion limited to “loss” can negate the duty to defend against claims.

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productivity as a result of the City’s misrepresentations and inaccuracies in the bid 

package . . . .”10 The money Dewitt had to pay those utility owners, as well the dip 

in productivity it suffered, had nothing to do with the City’s decision to withhold 

the payments that it owed Dewitt. So those four paragraphs, in concert, seek out

damages that do not entirely depend on, originate from, or relate to an intentional 

breach by the City, which means they cannot be excluded by Paragraph (l). 

OneBeacon does not point to any provision in the City’s insurance policy or the 

contract that establishes otherwise.

III.

Public Risk also contends the district court erred in dismissing its equitable 

estoppel claim. That claim alleged that OneBeacon’s letters on June 29 and 

 10 It might be argued that some of the damages sought by Paragraphs 27(f) and 27(h) were

losses excluded by Paragraph (l). In full, Paragraph 27(f) sought:

Amounts Dewitt is and/or becomes obligated to pay owners of utilities that were 

damaged as a result of the City’s misrepresentations, erroneous design

specifications, and/or refusal to grant warranted time extensions.

(emphasis added). Similarly, Paragraph 27(h) sought: 

Other expenses and damages associated with the reduction in Dewitt’s expected 

productivity as a result of the City’s misrepresentations and inaccuracies in the 

bid package, the City’s active interference with Dewitt’s work, and the City’s 

knowing failure to cooperate in good faith in resolving hindrances within its 

control.”

(emphasis added). But even if the emphasized clauses of each paragraph were damages arising 

out of intentional breach, all that matters in terms of the duty to defend is that part of each 

paragraph raises allegations that fall outside the scope of Paragraph (l)’s exclusion. See Hartford 

Acc. & Indem. Co., 466 F.3d at 1296. The allegation of “erroneous design specifications” in 

Paragraph 27(f) and the allegation of “inaccuracies in the bid package” in Paragraph 27(f) are 

outside the Paragraph (l) exclusion.

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September 22 indicated that Public Risk had a duty to defend the City, and that 

Public Risk relied on those representations to its detriment. This contention is 

frivolous. Under Florida law, every estoppel claim must assert, among other 

things, that the defendant made “a representation as to a material fact that is 

contrary to a later-asserted position.” State v. Harris, 881 So. 2d 1079, 1084 (Fla. 

2004).11 Nothing in either letter is contrary to a position that OneBeacon asserted 

later. Both letters make clear from their beginnings that OneBeacon did not 

believe the City’s policy covered Dewitt’s claims. The first paragraph of the June 

29 letter says — point blank — “There is no coverage for [Dewitt’s suit] as it is 

currently pled.” And the first paragraph of the September 22 letter announces that 

it will discuss the general terms of the City’s policy “without conceding that there 

is at present any potential coverage under the [reinsurance policy].” Public Risk’s

complaint does not identify an instance in which OneBeacon wavered from that 

position.

Instead, by taking several portions of the September 22 letter out of context 

and mischaracterizing them, the complaint tries to create the impression that 

OneBeacon changed positions. For example, the September 22 letter says: 

“OneBeacon understands that Public Risk Management of Florida (‘PRM’) 

 11 For claims such as Public Risk’s, where promissory estoppel is being “utilized to create 

insurance coverage,” Florida law requires the plaintiff to go even further and show that refusing 

to find coverage “would sanction fraud or other injustice.” Crown Life Ins. Co. v. McBride, 517 

So. 2d 660, 662 (Fla. 1987).

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contends that Paragraphs 19 and 24 of the DeWitt Action complaint create a small 

sliver of potential coverage that at least triggers PRM’s duty to defend.” Public 

Risk tries to claim that this sentence, which merely acknowledges Public Risk’s 

position, is an affirmative statement by OneBeacon that Public Risk does in fact 

have a duty to defend. Allegations based on obvious misreadings of OneBeacon’s 

letters do not satisfy Rule 12(b)(6)’s “facial plausibility” standard. See Ashcroft v. 

Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009).

IV.

The district court’s judgment is reversed as to Public Risk’s breach of 

contract claim and affirmed as to its promissory estoppel claim.

AFFIRMED in part; REVERSED in part.

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