[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-14664

____________________

ENDURANCE AMERICAN SPECIALTY 

INSURANCE COMPANY, 

a foreign corporation, individually 

as Subrogee of Comegys Insurance 

Agency, Inc., 

Plaintiff-Appellee,

versus

LIBERTY MUTUAL INSURANCE COMPANY,

Defendant,

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2 Opinion of the Court 19-14664

SAFECO INSURANCE COMPANY OF ILLINOIS, 

SAFECO INSURANCE COMPANY OF AMERICA, 

Defendants-Appellants.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:17-cv-02832-VMC-CPT

____________________

Before JORDAN, NEWSOM, and TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge:

We are faced with the question of how far the indemnification provision in this case stretches. And our answer is, not as far 

as Endurance, the errors and omissions insurer for Comegys,

would like. Comegys, an independent insurance agency, had an 

independent contractor relationship with Safeco, a liability insurer—in short, Comegys marketed Safeco insurance policies to 

the public. Comegys was allegedly negligent in procuring automobile insurance for one of its clients, Robert Smith. Comegys had 

provided Smith with an automobile insurance policy from Safeco, 

which Smith eventually needed to rely on when he caused a car 

accident that ended in a motorcyclist’s death. Comegys offered to 

settle (and did settle through the errors and omissions policy it had 

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19-14664 Opinion of the Court 3

with Endurance) the potential negligence claim Smith had against 

it. Now, relying on the indemnification provision between Safeco 

and Comegys, Endurance is suing Safeco. Endurance wants to be 

indemnified by Safeco because the attorney Safeco provided to 

Smith after the car accident pointed out the potential negligence 

claim Smith had against Comegys.1 Comegys has no right to indemnification in this circumstance, so Endurance has no viable 

claim. 

At trial, the jury found that, because Safeco had refused to 

indemnify Comegys, Safeco had both breached its contract with 

Comegys and violated the implied covenant of good faith and fair 

dealing. The jury awarded Endurance, the errors and omissions 

insurer for Comegys, about $1.6 million in damages plus a $25,000 

deductible and $30,000 in attorneys’ fees paid by Comegys during 

litigation. This is an appeal from the District Court’s denial of 

Safeco’s motion after trial under Fed. R. Civ. P. 50(b). We hold 

that Safeco did not breach its contract with Comegys, nor did it 

breach the implied covenant of good faith and fair dealing. Endurance was not entitled to any recovery under the indemnification 

provision between Safeco and Comegys. We reverse the judgment 

below and remand for entry of judgment. 

1 In essence, Endurance is trying to treat Safeco like a second errors and omissions insurer. 

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4 Opinion of the Court 19-14664

I. 

A. 

 Safeco is a liability insurer. Comegys is an independent insurance agency. At one point, these two entities had a business 

relationship. Their relationship went something like this. A customer would go into Comegys’ office. The customer would say 

she needed automobile insurance. A Comegys agent would show

her a host of available policies and probably recommend the one 

he thought was best for her. Let’s say that the best policy for the 

customer was a Safeco policy, and the customer agreed to that policy. Comegys would sign her up for Safeco insurance, and then 

Safeco would insure her. 

Comegys and Safeco operated under a contract, the Limited 

Agreement, that allowed Comegys to act as an independent contractor for Safeco “for the limited purpose of placing Safeco insurance products.”2 The Limited Agreement placed parameters 

around Comegys’ scope of authority to act on Safeco’s behalf. For 

instance, Comegys could “solicit and submit applications for insurance, and [] bind insurance on [Safeco’s] behalf, but only with respect to such lines of business . . . as [Safeco] [] authorized.” And 

2 We note that the version of the Limited Agreement entered into evidence

was signed after the car accident in this case but before settlement. Neither 

party disputes the validity of the Limited Agreement. 

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Comegys could not “adjust or settle claims unless [Comegys] obtain[ed] prior written approval from [Safeco].” 

 The Limited Agreement contained a set of indemnification 

clauses between Comegys and Safeco. They read as follows: 

A. [Comegys] shall defend, indemnify, protect, and 

hold [Safeco] harmless from and against any and all 

liability for claims, suits, regulatory or administrative 

proceedings and investigations, losses, damages, 

costs, penalties and expenses, including court costs 

and reasonable attorneys’ fees related thereto, arising 

out of or incurred by reason of the breach of this Limited Agreement by, or any actual or alleged negligent 

or intentional act, error or omission on the part of, 

[Comegys], its directors, officers, owners, employees, 

Sub-producers or others acting on [Comegys’] behalf 

in placing business pursuant to or carrying out the 

terms of this Limited Agreement, except to the extent 

such act, error or omission was expressly and knowingly authorized, concurred in, or ratified by [Safeco]. 

[Comegys’] indemnification obligation includes all 

costs, expenses and attorneys’ fees incurred by 

[Safeco] to enforce this indemnity obligation. 

[Comegys’] obligations under this Section are conditioned upon [Safeco] providing prompt notice to 

[Comegys] of any claim made or legal or regulatory 

action brought against [Safeco].

B. [Safeco] shall defend, indemnify, protect, and hold

[Comegys] harmless from and against any and all 

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liability for claims, suits, regulatory or administrative 

proceedings and investigations, losses, damages, 

costs, penalties and expenses, including court costs 

and reasonable attorneys’ fees related thereto, arising 

out of or incurred by reason of the breach of this Limited Agreement by, or any actual or alleged negligent 

or intentional act, error or omission on the part of, 

[Safeco], its directors, officers, employees or others

acting on [Safeco’s] behalf in the placement of business pursuant to or carrying out the terms and conditions of this Limited Agreement, except to the extent 

such act, error or omission was expressly and knowingly authorized, concurred in, or ratified by 

[Comegys]. [Safeco’s] indemnification obligation includes all costs, expenses and attorneys’ fees incurred 

by [Comegys] to enforce this indemnity obligation. 

[Safeco’s] obligations under this Section are conditioned upon [Comegys] providing prompt notice to 

[Safeco] of any claim made or legal or regulatory action brought against [Comegys]. 

We can glean two principles from the indemnification provisions: 1) Safeco agreed to take responsibility when it messed up

and its mess-up affected Comegys (and Comegys agreed to do likewise), and 2) whether Safeco (or Comegys) messed up was defined 

by the terms of the Limited Agreement. In short, liability between 

Safeco and Comegys rose and fell with the Limited Agreement. 

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B.

Let us return to the hypothetical above, with a customer 

walking into the Comegys office to procure insurance, except now, 

we are going to substitute in the characters of this case. In January 

2012, Comegys procured automobile insurance for its customer, 

Robert Smith. Comegys provided him with a Safeco policy—

$250,000 per person, $500,000 per incident limit with an umbrella 

policy of $ 1 million. In December 2013, Smith emailed a Comegys 

agent to inquire about raising his umbrella limit to $2 million or $3 

million. The Comegys agent responded that Safeco would only 

raise the umbrella limit to $2 million without also increasing the 

automobile coverage to a $500,000 combined single limit, instead 

of the $250,000 per person, $500,000 per incident limit. If Smith 

chose to raise his umbrella policy with Safeco to $2 million, the 

agent explained, it would cost Smith about an extra $200 annually. 

The Comegys agent never discussed other policies with Smith besides Safeco’s. Smith never responded to the Comegys agent about 

the potential increase in policy limits with Safeco. He then renewed his existing Safeco policy. Smith, a man of substantial 

means, later stated that he would have purchased $5 to $10 million 

in umbrella insurance if it had been recommended to him and that 

he would have considered other insurance companies besides 

Safeco in adjusting his insurance limits. 

Smith’s Safeco automobile insurance policy became important when his car caused an accident with a motorcyclist in June 

2015. About two weeks after the incident, the motorcyclist died in 

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8 Opinion of the Court 19-14664

the hospital of his injuries. Twelve days after the motorcyclist’s 

death, Safeco tendered Smith’s $1.25 million policy limit to the motorcyclist’s estate by mail. The estate rejected the tender because 

the estate believed its claim was more than the policy limit. In 

compliance with the insurance policy, Safeco then provided Smith 

with a defense attorney, whose job it was to represent Smith in any 

case the estate brought against him.3 Safeco explained to Smith’s

attorney that Smith’s policy limits would probably not be sufficient 

to settle the case, so Smith’s personal assets would be at risk in any 

case the estate brought against him. 

Smith’s attorney and the estate’s attorney then began discussing how to settle the accident. In reviewing the history of the 

case, Smith’s attorney realized that Comegys might have been negligent in procuring automobile insurance for Smith. The basic idea 

of the claim was that, based on Smith’s substantial assets, Comegys 

did not adequately respond when Smith asked about raising the 

umbrella coverage in December 2013. Smith’s attorney mentioned this possible negligent procurement claim to the estate’s attorney during negotiations over the accident settlement and arranged for the estate’s attorney to meet an insurance attorney who 

specialized in negligent procurement suits. 

After the estate officially filed a wrongful death action 

against Smith in state court in December 2015, Smith’s attorney 

3 Based on the record, Smith never hired any other attorney. His only legal 

representation during these proceedings was what Safeco provided. 

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reached out to Comegys, asking Comegys to indemnify and defend 

Smith on the basis that Comegys had negligently procured insurance for Smith prior to the accident. After some correspondence

between Smith’s attorney and Comegys, Endurance, Comegys’ errors and omissions insurer, responded on Comegys’ behalf, saying 

that it would not take over Smith’s defense. 

In June 2016, Smith and the estate entered non-binding arbitration. The arbitrator found Smith 95% liable and the motorcyclist 5% liable, awarding the estate a little over $7 million. After 

this non-binding arbitration, Smith and the estate entered into a 

joint stipulation and agreement. The terms of the joint stipulation 

were that the parties would agree to a mutual release of all claims, 

in exchange for Safeco’s $1.25 million policy limit on Smith and 

Smith’s assignment to the estate of his negligent procurement 

claim against Comegys. In other words, the estate accepted the 

negligent procurement claim as covering the difference between 

the $1.25 million policy limit and the roughly $7 million award the 

arbitrator in the non-binding arbitration thought was appropriate. 

The state court approved the joint stipulation in September 2016, 

and it served as a final judgment on the matter. 

 

 

 

 

 

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C.

The estate then sent Comegys a demand for $2 million based 

on Smith’s negligent procurement claim.4 Comegys’s errors and 

omissions insurance with Endurance had a policy limit of $2 million. In a strange turn of events, Endurance, Comegys’ errors and 

omissions insurer, then sent a letter to Safeco, requesting indemnification for the suit the estate brought against Comegys. Safeco 

never responded. Next, Comegys and the estate settled for about 

$1.5 million in exchange for Comegys’ release from all liability. 

The settlement explained that Comegys was not at all admitting 

fault or wrongdoing in procuring insurance for Smith.5 As 

Comegys’ errors and omissions insurer, Endurance paid out this 

sum to the estate. 

Even though Comegys voluntarily settled with the estate, in 

October 2017, Endurance, on Comegys’ behalf, filed suit against 

Safeco for, among a host of other things,6 breach of the indemnification agreement between Comegys and Safeco in the Limited 

4 So, in essence, the estate was willing to settle its claim against Smith for $3.25 

million, the $1.25 million it already got in its settlement with Smith as Safeco’s 

policy limit on Smith, plus the $2 million it then sought from Comegys. 

5 In addition to the $1.5 million Endurance paid out to the estate, Comegys

itself spent $25,000 as a deductible toward settlement and paid $30,000 to 

Comegys’ personal attorneys. 

6 Endurance’s other claims were for fraud on the court, civil conspiracy, and 

negligent misrepresentation. 

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Agreement and breach of the implied covenant of good faith and 

fair dealing.7 The case went to trial. At the end of testimony, 

Safeco filed a motion for judgment as a matter of law under Fed. 

R. Civ. P. 50(a), which the District Court denied.8 In what must 

have been the jury attributing the actions of Smith’s attorney to 

Safeco itself, the jury then agreed with Endurance that Safeco had 

breached the indemnification provision and the implied covenant 

7 Safeco’s logical response to Comegys’ claims should have been that 

Comegys was a volunteer in settling with the estate when the indemnification 

provision required that Comegys be liable for something or that Safeco actually caused loss by reason of Safeco’s breach of an independent provision of 

the Limited Agreement. 

8 The District Court order denying Safeco’s motion for judgment as a matter 

of law reads as follows: 

Viewing the evidence in the light most favorable to Plaintiff, 

the Court finds that there was sufficient evidence for a reasonable jury to find that Defendants coordinated with the various 

actors involved in this case to shift liability from Defendants to 

Comegys in violation of the indemnification provision in the 

agency agreement, and that they were therefore liable for 

breach of contract and breach of the covenant of good faith 

and fair dealing. Plaintiff also offered sufficient evidence from 

which a reasonable jury could find that Plaintiff suffered damages in the form of costs and expenses related to defending, 

and ultimately settling, the broker liability claim. To the extent 

that Defendants' motions seek judgment as a matter of law on 

Plaintiff's remaining claims, they are moot in light of the jury 

verdict.

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of good faith and fair dealing.9 The jury awarded Endurance about 

$1.6 million in damages plus a $25,000 deductible and $30,000 in 

attorneys’ fees paid by Comegys during litigation. Safeco filed a 

renewed motion for judgment as a matter of law under Fed. R. Civ. 

P. 50(b). The District Court again denied this motion. Safeco 

timely appealed. 

II. 

This Court reviews a district court’s denial of a motion for 

judgment as a matter of law de novo. Howard v. Walgreen Co., 

605 F.3d 1239, 1242 (11th Cir. 2010). We view the evidence in the 

light most favorable to the non-moving party. Id. A motion for a 

judgment as a matter of law should only be granted “when the 

plaintiff presents no legally sufficient evidentiary basis for a reasonable jury to find for him on a material element of his cause of action.” Id. (internal citations omitted). We review questions of contract interpretation de novo. Hegel v. First Liberty Ins. Corp., 778 

F.3d 1214, 1219 (11th Cir. 2015). And this is a diversity jurisdiction 

case, so Florida law applies. See Erie R. Co. v. Thompkins, 304 U.S. 

64, 78, 58 S. Ct. 817, 822 (1938) (requiring federal courts whose jurisdiction arises from diversity alone to apply the relevant state

law).10

9 The jury did not buy Endurance’s arguments that Safeco had committed

fraud on the court, civil conspiracy, and negligent misrepresentation. 

10 From the outset, we address Endurance’s claims that Safeco waived two of 

its arguments about whether it breached the indemnification agreement. We 

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III. 

Under Florida law, “[i]ndemnity contracts are subject to the 

general rules of contractual construction . . . [and] must be construed on the [express] intentions of the parties.” Dade County 

Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 643 (Fla. 1999).

Looking at this breach-of-contract case, there is one problem. 

There is no breach. So, there is no “legally sufficient evidentiary 

basis” for Endurance to win this case. Howard, 605 F.3d at 1242.

Endurance never carried its burden at trial of explaining how 

Safeco breached the indemnification provision of the Limited 

Agreement. And that is because it cannot do so. Instead, Endurance apparently distracted the jury with facts that are totally irrelevant to this appeal.11 The distraction method may have worked 

with the jury in this case, but it does not with us. 

find that view unpersuasive. The issue of breach is clearly before the Court, 

and parties may raise new arguments in support of already-raised legal issues 

on appeal. See In re Home Depot Inc., 931 F.3d 1065, 1086 (11th Cir. 2019)

(explaining that when an issue is “properly presented, a party can make any 

argument in support of that [issue]; parties are not limited to the precise arguments they made below”) (alteration adopted) (citing Yee v. City of Escondido, 503 U.S. 519, 534, 112 S. Ct. 1522, 1532 (1992))). As to Endurance’s argument that Safeco is raising for the first time on appeal that the jury award for 

the deductible and Comegys’ attorneys was improper, that claim is now moot 

because we are reversing the jury’s verdict. 

11 Endurance’s trial testimony (and briefing) is full of accusations about 

Safeco’s corrupt motives and collusive behavior, presumably derived from the 

fact that Smith’s attorney worked with the estate to settle the claim arising out 

of the accident. We do not recount all the irrelevant facts here because it 

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Endurance’s argument on appeal is that “[t]he [Limited] 

Agreement requires that Safeco indemnify Comegys for any loss or 

claim arising out of or incurred by any negligent or intentional acts 

by Safeco.” If you take that claim on its face, Endurance is literally 

saying, “Safeco has to indemnify Comegys for any loss Comegys 

experiences when Safeco intentionally acts—at all.”12 Let us compare that claim with the actual language of the indemnification provision of the Limited Agreement: 

[Safeco] shall defend, indemnify, protect, and hold 

[Comegys] harmless from and against any and all liability for 

claims, suits, regulatory or administrative proceedings and 

investigations, losses, damages, costs, penalties and expenses, including court costs and reasonable attorneys’ fees 

related thereto, arising out of or incurred by reason of the 

breach of this Limited Agreement by, or any actual or alleged negligent or intentional act, error or omission on the 

would be a waste of our time and yours. Suffice it to say that Endurance trying 

to point to Safeco’s bad motives cannot create a breach of contract where none 

exists. 

12 Critically, Endurance omits that, according to the terms of the indemnification provision, any loss caused by Safeco must be caused by a breach of the 

Limited Agreement or pursuant to Safeco carrying out the Limited Agreement. So, even if Comegys experienced loss, that loss must be tied to Safeco 

acting against an independent term of the Limited Agreement, outside the indemnification provision. Even assuming Endurance proved that Comegys 

had experienced loss, Endurance never proved that Safeco breached or acted 

against any of the independent provisions of the Limited Agreement or that 

any alleged breach caused the loss Comegys experienced. 

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part of, [Safeco], its directors, officers, employees or others 

acting on [Safeco’s] behalf in the placement of business pursuant to or carrying out the terms and conditions of this 

Limited Agreement, except to the extent such act, error or 

omission was expressly and knowingly authorized, concurred in, or ratified by [Comegys]. Safeco’s indemnification 

obligation includes all costs, expenses and attorneys’ fees incurred by [Comegys] to enforce this indemnity obligation. 

[Safeco’s] obligations under this Section are conditioned 

upon [Comegys] providing prompt notice to [Safeco] of any 

claim made or legal or regulatory action brought against 

[Comegys]. 

What Endurance leaves off is that for Safeco’s actions to fall 

under the indemnification provision, the actions must fall into one 

of three buckets: 1) Safeco has breached the Limited Agreement; 2) 

Safeco has negligently or intentionally committed an act, error, or 

omission in the placement of business pursuant to the Limited 

Agreement; or 3) Safeco has negligently committed an act, error, 

or omission in the carrying out the terms of the Limited Agreement. In short, to win a breach-of-contract case based on the indemnification provision of the Limited Agreement, Endurance 

needed to prove at trial that its claim fell into one of these three 

buckets. We will address these possibilities in turn. 

The first possibility is that Safeco breached the Limited 

Agreement. Endurance quickly loses on this ground. Again, the 

Limited Agreement that existed between Comegys and Safeco explained that when Comegys acted within its authority in selling 

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insurance Safeco would cover Comegys’ customers with the appropriate insurance policies. And that is exactly what happened 

here. Comegys was within the scope of its authority when it procured a Safeco insurance policy for Smith. Safeco then covered 

Smith. And, in due course, when Smith had an accident and 

needed his insurance coverage to kick in, Safeco tendered the policy limit within twelve days of the motorcyclist’s death. Safeco provided Smith with an attorney to negotiate the claim. And Safeco 

ultimately paid the policy limit pursuant to the settlement between 

Smith and the estate. In other words, Safeco covered Smith, just 

like it told Comegys it would in the Limited Agreement. So, Endurance cannot win based on an argument in the first bucket because it has not proven that Safeco breached a single provision of

the Limited Agreement.

Next, in the second or third buckets, Endurance could have

argued that Safeco negligently or intentionally committed an act, 

error, or omission in the placement of business pursuant to the 

Limited Agreement or that Safeco negligently committed an act, 

error, or omission in the carrying out the terms of the Limited 

Agreement. At bottom, Endurance’s case is based on two facts:

Smith’s attorney (provided by Safeco) 1) brought up the possible 

negligent procurement claim to the estate during negotiations and 

2) recommended an insurance lawyer to the estate, if the estate 

wanted to assume the negligent procurement claim against 

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Comegys in Smith’s place.13 In a very generous reading of Endurance’s arguments at trial, it is basically saying that Safeco acted 

through the attorney it provided to Smith, ultimately prompting

Comegys to (voluntarily) settle with the estate (without Comegys 

admitting any fault). And, Endurance argues, because Comegys 

settled with the estate (as a volunteer), Safeco now must indemnify 

Comegys (even though Comegys never admitted any liability). 

The first (and biggest problem) with Endurance’s position is 

that Endurance equates the actions of Smith’s attorney with the 

actions of Safeco. And the two are not the same. For sure, Safeco 

provided Smith with an attorney. And that was pursuant to the 

insurance policy between Smith and Safeco. But that does not give 

Endurance license to attribute every action of Smith’s attorney to 

Safeco itself. Safeco was bound by the terms of the Limited Agreement. Smith’s attorney, on the other hand, was not bound to protect Comegys in any way. Smith’s attorney had a duty of zealous 

representation, which is exactly what he provided to Smith in settling with the estate. See de Vaux v. Westwood Baptist Church, 

953 So.2d 677, 684 (Fla. 1st Dist. Ct. App. 2007) (citing the Florida 

13 Endurance points out a whole army of other facts: Smith’s attorney kept 

Safeco apprised of the entire case, and Safeco gave input on the final terms of 

the settlement (which makes sense because Safeco was going to be paying out 

$1.25 million in a policy limit); Smith’s attorney did not conduct discovery before the non-binding arbitration; Safeco waited twelve days after the motorcyclist’s death before tendering the policy limits; and the cross-examination of 

the motorcyclist’s widow by Smith’s attorney at the non-binding arbitration 

was not strong enough. As we will explain infra, these facts are irrelevant. 

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rules of professional responsibility and explaining that “lawyers are 

expected to be zealous advocates for the interests of their clients”).

Smith’s attorney was acting on behalf of Smith, not on behalf of 

Safeco. See Pozo v. Roadhouse Grill, Inc., 790 So.2d 1255, 1260 

(Fla. 5th Dist. Ct. App. 2001) (explaining that “an attorney retained 

by an insurer to represent an insured does so as an independent 

contractor, not as an agent of the insurer”). So, Endurance cannot 

win on a breach-of-contract claim when Safeco wasn’t even the one 

acting and the Limited Agreement requires that Safeco act for indemnification to be triggered.14 See id. (“Generally, the obligation 

of contracts is limited to the parties making them.” (internal citation and quotation marks omitted); cf. Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 739 (Fla. 2002) (“In contract interpretation cases, the issue to be addressed is not what this Court or 

the petitioner would prefer that the policy cover, but what losses 

the mutually agreed-upon contractual language covers.”). 

The next problem with Endurance’s argument is that by 

looking at the plain (and clear) language of the Limited Agreement 

between Comegys and Safeco, we do not read it as covering in any 

14 In saying so, we do not suggest that an attorney, provided by an insurance 

company to an insured, may never act on behalf of the insurance company 

and in so doing violate an insurance company’s contract with an insurance 

agency. But that is not the presumption under Florida law. And, what we 

have here is a garden variety case of an attorney representing a client, and, in 

that case, zealous representation is the mandate. Comment, rule 4–1.3, Rules 

Regulating The Florida Bar.

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way, shape, or form how Safeco ultimately insures its policyholders. See MDS (Canada) Inc. v. Rad Source Tech., Inc., 143 So.3d 

881, 891 (Fla. 2014) (“Contract interpretation begins with a review 

of the plain language of the agreement because the contract language is the best evidence of the parties’ intent at the time of the 

execution of the contract.” (internal citation omitted)); see also 

Crawford v. Barker, 64 So.3d 1246, 1255 (Fla. 2011) (“Where the 

terms of a contract are clear and unambiguous, the parties’ intent 

must be gleaned from the four corners of the document.”). The 

Limited Agreement simply delineates Comegys’ authority to bind 

Safeco when it sells Safeco’s insurance. Nowhere in the Limited 

Agreement does it even mention any restraint on how Safeco provides attorneys to its insured or how it settles insurance claims.

The only obligations that exist by the terms of the Limited Agreement are the ones between Comegys and Safeco. Because any intentional act or omission of Safeco must be related to the placement of business pursuant to or the carrying out the terms of the 

Limited Agreement, Endurance’s argument falls outside the scope 

of the four corners of the clear Limited Agreement. So, Endurance 

cannot prevail on a breach-of-contract claim on this ground. 

Finally, the fatal blow to Endurance’s breach-of-contract 

claim hinges on the fact that the indemnification provision protects 

Comegys from all liability or loss arising out of Safeco’s breach. 

The problem for Comegys is that in its settlement agreement with 

the estate it specifically disclaimed all liability, and it has not proven 

that it lost anything because of Safeco’s actions. The settlement 

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agreement between Comegys and the estate explained that it was 

not “to be construed as admissions of fault, wrongdoing or liability 

on the part of the Claimant or Comegys, which liability is expressly 

denied.” Because the indemnification provision between Safeco 

and Comegys hinges on Comegys having some sort of liability or 

demonstrating that Safeco’s actions caused loss, we are not free to 

hold Safeco liable where Comegys is a volunteer in settlement.15

See Siegle, 819 So.2d at 739 (explaining that the court “cannot create coverage ‘out of whole cloth’” where it otherwise would not 

exist (internal citation omitted)). 

On a final note about the breach-of-contract claim, it is 

worth pointing out that what Endurance, as subrogee of Comegys,

is really trying to do is make Safeco a secondary errors and omissions insurer. In essence, Endurance is saying, “Smith’s attorney 

15 Endurance cannot recover without proving that Comegys was actually liable to the estate—i.e., that there was an actual litigation where the estate 

proved liability in court. Otherwise, Safeco would be liable in this kind of case, 

even if, after Smith’s attorney (provided by Safeco) had pointed out a possible 

claim, Comegys had called Smith up and explained that it had negligently procured insurance for him and wanted to make it right by paying him what it 

thought was appropriate. We decline to read the indemnification provision as 

extending that far. Cf. Westinghouse Elec. Corp. v. Prudential Ins. Co. of 

America, 547 So.2d 721, 721–722 (Fla. 1st Dist. Ct. App. 1989) (per curiam) 

(refusing to require indemnification where indemnitee had not admitted liability); Nat’l R.R. Passenger Corp. v. Rountree Transp. & Rigging, Inc., 286 

F.3d 1233, 1262 (11th Cir. 2002) (declining to apply an indemnification provision when the indemnitor was not first found liable under the plain terms of 

the agreement). 

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identified that Comegys may have messed up in procuring insurance for Smith. We, Endurance, on behalf of Comegys, settled that 

claim with the estate without admitting fault. Now we want you, 

Safeco, to pay us for doing that.” We will not penalize Safeco for 

Comegys’ volunteer payment to the estate. And, even if Comegys 

had been negligent and that fact had been proven in court by the 

estate, we would still refuse to hold Safeco liable for Comegys’ own

alleged negligence because Florida requires those kinds of arrangements to be clearly stated by contract.16 See Cox Cable Corp. v. 

Gulf Power Co., 591 So. 2d 627, 629 (Fla. 1992); Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 

487, 489 (Fla. 1979). Safeco and Comegys did not express a clear 

intent in the Limited Agreement that Safeco would indemnify 

Comegys for Comegys’ own negligence. So, Comegys is stuck 

with the one errors and omissions insurer it already has—Endurance.

16 Looking at common-law indemnity principles, absent a clear contractual 

arrangement, the principal has no duty to indemnify when the loss results 

from the agent’s negligence or fault. See Restatement (Second) of Agency § 

440(a) (1958); 19 Williston on Contracts § 54:34 (4th ed. Nov. 2021 update); 

Britton D. Weiner et al., Law of Commercial Agents and Brokers § 4:3 (June 

2021 update). Florida, significantly, follows this general rule. See GAB Bus.

Servs., Inc. v. Syndicate 627, 809 F.2d 755, 758–59 (11th Cir. 1987) (applying 

Florida law).

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22 Opinion of the Court 19-14664

IV. 

Regarding Endurance’s claim for breach of the implied covenant of good faith and fair dealing, we have stated that generally, 

under Florida law, “[t]he duty of good faith must ‘relate to the performance of an express term of the contract and is not an abstract 

and independent term of a contract which may be asserted as a 

source of breach when all other terms have been performed pursuant to the contract requirements.’” Resnick v. Avmed, Inc., 693 

F.3d 1317, 1329 (11th Cir. 2012) (alteration adopted) (quoting Ins. 

Concepts & Design, Inc. v. Healthplan Servs., Inc., 785 So. 2d 1232, 

1235 (Fla. 4th Dist. Ct. App. 2001) (per curiam) (emphasis omitted)).17 Endurance does not argue that there is any express term of 

the Limited Agreement (besides the indemnification provision, 

17 We have also stated that “a cause of action for breach of the implied covenant cannot be maintained . . . in the absence of breach of an express term of 

the underlying contract.” Burger King Corp. v. Weaver, 169 F.3d 1310, 1318 

(11th Cir. 1999). Insofar as there is any possibility that a contract could be 

performed in bad faith without a breach of an express term, it would be when 

a contract “appears by word or silence to invest one party with a [substantial] 

degree of discretion in performance,” there is “an implied obligation of good 

faith to observe reasonable limits in exercising that discretion.” Cox v. CSX 

Intermodal, Inc., 732 So. 2d 1092, 1097 (Fla. 1st Dist. Ct. App. 1999) (quoting 

Centronics v. Genicom Corp., 562 A.2d 187, 193 (N.H. 1989) (Souter, J.); see 

Speedway SuperAmerica, LLC v. Tropic Enterprises, Inc., 966 So.2d 1, 3 (Fla. 

2d Dist. Ct. App. 2007); Ins. Concepts, 785 So.2d at 1235–36 (stating that in 

CSX no breach of the express terms was found but there was an express term 

that was allegedly not performed in good faith). No such possibility is relevant 

to this case because Endurance’s claims do not concern the exercise of discretion under incompletely specified contractual terms.

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19-14664 Opinion of the Court 23

which requires breach of an independent contract provision) that 

has been violated. We accordingly find that Endurance’s claim for 

breach of the implied covenant also fails.

V. 

For the foregoing reasons, Safeco was entitled to judgment 

as a matter of law. The judgment of the District Court on Endurance’s claims for breach of contract and breach of the implied covenant of good faith and fair dealing is reversed, and the case is remanded for entry of judgment in favor of Safeco.

Endurance filed a separate but interrelated appeal for attorneys’ fees in Case No. 20-14763. However, this appeal is now moot 

because we hold that Safeco did not breach the indemnification 

agreement or the implied covenant of good faith and fair dealing. 

Thus, Endurance loses on all claims and is not entitled to attorneys’ 

fees. 

REVERSED AND REMANDED. 

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