[PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 22

- 13738

____________________
HEE JIN LOWERY, JOHN LOWERY, Individually, and as assignee s of Shou & Shou, Inc.
, Plaintiffs

- Counter Defendants

- Appellees,

versus AMGUARD INSURANCE COMPANY,

Defendant

- Counter Claimant

- Appellant.

____________________ Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:20

- cv

- 05148

- TWT USCA11 Case: 22-13738 Document: 35-1 Date Filed: 10/06/2023 Page: 1 of 152 Opinion of the Court 22

- 13738

____________________ Before W ILLIAM P RYOR , Chief Judge, A BUDU , Circuit Judge, and
B ARBER , * District Judge.

W ILLIAM P RYOR , Chief Judge : This appeal present s a jurisdictional issue that we must address before we can resolve the merits of equitable reformation of an insurance policy under Georgia law. After Gina Lowery sustained serious injuries from a hot

- soup spill at Noodle College Park, an Atlanta

- area restaurant , she and her spouse sued Shou & Shou, Inc., which owned and operated the r estaurant. Shou & Shou tendered the defense to and sought coverage fr om AmGuard Insurance Company . But AmGuard denied coverage on the ground that the policy nam ed “Noodle
, Inc

. ”

— an entity that did not exist

— as insured . Shou & Shou settled the suit and assigned the Lowerys its rights under the policy. The Lowerys , as assignees, then sued AmGuard for equitable reformation of the policy. The district court granted partial summary judgment in favor of the Lowerys an d later entered a final judgment

. We have jurisdiction to review that judgment because the Lowerys filed a written notice abandoning their remaining claim without objection. And b ecause reformation of the policy was proper under Georg i a l aw, w e affirm.

* Honorable Thomas P. Barber, United States District Judge for the Middle District of Florida, sitting by designation. USCA11 Case: 22-13738 Document: 35-1 Date Filed: 10/06/2023 Page: 2 of 1522

- 13738 Opinion of the Court 3

I. BACKGRO UND Shou & Shou, Inc., owned several restaurants in the Atlanta area under the trade name “Noodle.” One restaurant was located

on Main Street in College Park. In 2013, the Shou siblings
, who owned the company
, bought businessowner’s insurance and workers’ compensation insurance from AmGuard Insurance Company. The businessowner’s policy named “Noodle
, Inc

. ” as the insured and listed its address as 3693 Main Street in College Park. The policy list ed three locations at which Shou & Shou operated resta urants. Location 001 was 3 69 3 Main Street in College Park

— Noodle College Park. The workers’ compensation policy was also issued to “Noodle
, Inc.” But the Shous never had any ownership interest in an entity by that name

. Noodle
, Inc. was not a corporation a t all; “Noodle
, Inc.” was “merely a reference to the tradename” of the Noodle restaurants.
The Shous renewed the businessowner’s policy through the
2018

– 19 policy period. Each renewal retained the same name, mailing address, and Location 001 for the insure d. Shou & Shou paid all policy premiums from its operating account. In 2014, AmGuard learned during an audit of the workers’ compensation policy thatShou & Shou was doing business as “Noodle” at the insured locations. AmGuard accordingly added Shou & Shou to the workers’ compensation policy from its inception. But AmGuard never added Shou & Shou to the businessowner’s polic y

.AmGuard provided legal representation to Shou & Shou under the businessowner’s policy despite the omission of it s name . In USCA11 Case: 22-13738 Document: 35-1 Date Filed: 10/06/2023 Page: 3 of 154 Opinion of the Court 22

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2016, Ele d Addus sued several corporate and individual defendants in the Noodle chain

— but not Shou & Shou

— for injuries she allegedly sustained at Noodle College Park. The Shous tendered the defense to AmGuard, which accepted representation and appointed defense cou nsel. During that litigation, defense counsel informed AmGuard that Noodle College Park was “owned and operated by Shou & Shou, Inc.” AmGuard gave defense counsel authority to substitute Shou & Shou as the proper defendant and to represent it. Defense coun sel later told AmGuard again that its “insured i sShou & Shou, Inc. This company owns and operates [Noodle College Park].” Yet , when AmGuard issued the 2016

– 17 businessowner’s p olicy later that year, it retained the same information for the insured, its ad dress, and Location 001. AmGuard eventually settled the Addus suit by obtaining a release for Shou & Shou. AmGuard also investigated a claim b y Zuri Zahara Love for injuries she sustained at Noodle College Park during the 2016

– 17 po licy’s coverage period. Love sued multiple defendants in the Noodle network
, including Shou & Shou. Shou & Shou again tendered the defense to AmGuard, which again accepted representation. The assigned defense counsel told AmGuard that t he “ company that owns [Noodle College Park] is Shou & Shou, Inc.” Defense counsel filed an answer for Shou & Shou and moved to dismiss the other defendants as improper parties. AmGuard later settled the Love suit by obtaining a release for Shou & Shou. This appeal arises from a third lawsuit. Gina Lowery bought soup at Noodle College Park during the effective dates of the 2016

– USCA11 Case: 22-13738 Document: 35-1 Date Filed: 10/06/2023 Page: 4 of 1522

- 13738 Opinion of the Court 5

17 p olicy. The soup seriously injured her when it spilled through its pack ag ing into her lap. She and her husband sued Shou & Shou in state court and demanded damages for personal injur ies . Shou & Shou tendered the defens e to AmGuard. But t his time, the insurance company denied coverage on the ground that “Shou and Shou Inc. is not a name d insured” or “otherwise qualif[ied] as an insuredunder the policy.” Shou & Shou reached a $1 million consent judgment with the Lowerys and assigned them its rights under the
2016

– 17 p olicy. The Lowerys sued AmGuard in the district court based on diversit y jurisdiction

. 28 U.S.C. § 1332(a). Their amended complaint a lleg ed three counts: count one for equitable reformation of the 2016

– 17 p olicy based on mutual mistake in not naming Shou & Shou as the insured owner of Noodle College Park; count two for breach of contract of the reformed 2016

– 17 p olicy; and count three for bad

- faith refusal to defend and indemnify Shou & Shou. AmGuard filed a counterclaim seeking a declaration that Shou & Shou had no rights under the 2016

– 17 p olicy. The parties moved for summary judgment following discovery. The Lowerys sought partial summary judgment on c ounts one and two of their complaint and against the counterclaim. The district court granted partial summary judgment in favor of the Lowerys. But that order did not resolve c ount three of the complaint.
After AmGuard asked the district court to certify its order for interlocutory review
, see 28 U.S.C. § 1 292(b)
, t he Lowerys filed a “notice of intent to abandon” the bad

- faith claim alleged in c ount USCA11 Case: 22-13738 Document: 35-1 Date Filed: 10/06/2023 Page: 5 of 156 Opinion of the Court 22

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three . The notice stat ed that the Lowerys had “elect[ed] to forego” the penalties and fees they were seeking in c ount three and were “abandon[ing]” that count. T he Lowerys also filed a “request for final judgment” under Federal Rule of Civil Procedure 58(d). The request a lleg ed that “[n]o further matters [we]re before the District Court for resolution” because the Lowerys had abandoned the only count not resolved by the partial summary judgment. The Lowerys asked that the partial summary judgment “be made the final judgment of the court.” T he y argued that the district court should not certify an interlocutory appeal because the motion to certif y would become moot w hen “final judgment [was] entered consistent with the Court’s summary judgment order.”
AmGuard filed a notice of non

- opposition to the Lowerys’ request for final judgment based on their abandonment of the remaining claim . The district court entered a “final order and judgment” the next day. It found that “no additional claims for adjudication remain[ed] pending.” And it declared its order granting partial summary judgment the “final judgment of the Court .”
Th is Court submitted jurisdictional questions to the parties. First, the Court asked whether the Lowerys’ “notice of intent to abandon” c ount three effectively dismissed that claim of bad faith

. Second, the Court asked whether the allegations in the pleadings satisfied the requirements of diversity jurisdiction. The parties argued for jurisdiction in a joint response. The jurisdictional panel agree d that the district court had diversity USCA11 Case: 22-13738 Document: 35-1 Date Filed: 10/06/2023 Page: 6 of 1522

- 13738 Opinion of the Court 7
jurisdic tion but carried the question whether c ount three ha d been resolved and whether the district court entered a final order

. II. STANDARD S OF REVIEW
We review our jurisdiction de novo

. Cavalieri v. Avior Airlines C.A. , 25 F.4th 843, 848 (11th Cir. 2022). We a lso review de novo a summary judgment, drawing all inferences in the nonmoving party’s favor and affirming only if there are no genuine issues of material fact. Sutton v. Wal

- Mart Stores E., LP , 64 F.4th 1166, 1168 (11th Cir. 2023) (citation omitted) . We m ay affirm on any ground the record s upports. Mata Chorwadi, Inc. v. City of Boynton Beach , 66 F.4th 1259, 1263 (11th Cir. 2023).
III. DISCUSSION
We divide our discussion in to three parts . First, we explain why we have jurisdiction to hear this appeal. Next, we explain thatthe district court did not err by granting summary judgment in favor of the Lowerys on their claim for equitable reformation. Last, we explain that the district court d id not err by granting summaryjudgment in favor of the Lowerys on their claim for breach of contract. A. We Have Jurisdiction Under Section 1291

. Federal law grants us jurisdiction over appeals from “final decisions of the district courts.” 28 U.S.C. § 12 91. A decision ordinarily is “final” only when it adjudicates all claims of all parties to an action. Corsello v. Lincare, Inc. , 276 F.3d 1229, 1230 (11th Cir. 2001). The partial summary judgment did not resolve the bad

- faith USCA11 Case: 22-13738 Document: 35-1 Date Filed: 10/06/2023 Page: 7 of 158 Opinion of the Court 22

- 13738

claim in c ount three

. Bu t the district court render ed that partial summary judgment “final” under Rules 54 and 58 after the Lowerys filed their notice to abandon count three

. Our precedent establishes that the Lowerys resolved c ount three by abandoning it

. A party may “abandon [] ” a claim “in response to questioning by the trial judge

. ” Mid City Mgmt. Corp. v. Loewi Realty Corp. , 643 F.2d 386, 388 n.2 (5th Cir. 1981)

. And a written notice abandoning a claim without objection by the opposing party accomplishes the same thing. After a party, without objection, abandon s the only remaining claim, a district court may enter a final judgment for our exercise of appellate jurisdiction under section 1291. See id. Because t he Lowerys expressly abandoned the only claim that the partial summary judgment did not resolve
, thedistrict court correctly found that “no additional claims for adjudication remain[ed] pending.”

B. The District Court Correctly Equitabl y Reform ed the 2016

– 17 Policy to Insure the True Owner of the Restaurant

. The Lowerys s ought equitable reformation of the 2016

– 17 p olicy based on mutual mistake , which under Georgia law is “an action intended to ‘ do equity ’ among the interested parties by changing completed transactions to reflect true intent ions.” Cherokee Nat. Life Ins. Co. v. Coastal Bank of Ga. , 238 S.E.2d 866, 869 (Ga. 1977). A mistake of fact can be an “unintentional act, omission, or error” owing to “ignorance, surprise,” or “misplaced confidence.” G A

. C ODE § 23

- 2

- 21(a). A mutual mistak e is one “shared by ” the parties, Ledford v. Smith , 618 S.E.2d 627, 637 (Ga. Ct. App. 2005) USCA11 Case: 22-13738 Document: 35-1 Date Filed: 10/06/2023 Page: 8 of 1522

- 13738 Opinion of the Court 9
(citation omitted), but the parties’ mistakes need not be “exactly the same,” Bank of Am. v. Cuneo , 770 S.E.2d 48, 54 (Ga. Ct. App. 2015). Georgia courts have defin ed mutual mistake at a high level of generality to accomplish the basic objective the parties set out to achieve. See, e.g. , Curry v. Curry , 473 S.E.2d 760, 761 (Ga. 1996)(granting reformation when the parties to a deed intended to convey a home lot); Occidental Fire & Cas. of N.C. v. Goodman , 793 S.E.2d 606, 609 (Ga. Ct. App. 2016) (granting reformation when the parties intended to insure a restaurant and bar). A wareness of the correct name of the party seeking reformation is not necessary for the mistake to be common to both parties. See Occidental , 793 S.E.2d at 609.
Reformation is proper only when the party seeking it proves mutual mistak e with “clear, unequivocal, and decisive” evidence. G A

. C ODE § 23

- 2

- 21(c). But the mistake need not be “admitted by both parties

. ” G a. Farm Bureau Mut. Ins. Co. v. Wall , 249 S.E.2d 588,
59 0

– 9 1 (Ga. 1978). A court can reform an instrument even if the opposi ng party asserts in an affidavit that it did not share t he claimant ’s intent

. See Cuneo , 770 S.E.2d at 54. We focus our analysis on the 2016

– 17 p olicy, not the original
2013

– 14 contract

. A claim for reformation arises when the parties “labored under the sa me misconception .

. . at the time of the execution of the instrument.” Fox v. Washburn , 449 S.E.2d 513, 514 (Ga.1994) (citation and internal quotation marks omitted). The Lowerys correctly seek reformation of the 2016

– 17 p olicy because th at USCA11 Case: 22-13738 Document: 35-1 Date Filed: 10/06/2023 Page: 9 of 1510 Opinion of the Court 22

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was the polic y in force when Lowery sustained her injury at Noodle College Park.
AmGuard cit es Infinity General Insurance Co. v. Litton to support its argument that we should focus our analysis on the original policy, but AmGuard misreads that decision

. 707 S.E.2d 885 (Ga. Ct. App. 2011)

. Litton never discusse d equitable reformation. It stands only for the proposition that a policy is a “renewal,” not a “new contract,” when “its terms .

. . carr[y] forward the same obligation[s]” as an earlier policy. Id. at 888

– 89. T he parties do not dispute that the 2016

– 17 p olicy is, as it says on its face, a “[r]enewal” of the original policy. It does not follow that the 2016

– 17 p olicy is not the proper instrument for our analysis. The 2016

– 17 p olicy does not expressly “vo id” its predecessor policies

. See Brannen v. Gulf Life Ins. Co. , 410 S.E.2d 763, 764 (Ga. Ct. App. 1991) ( finding that a “duplicate” policy was the proper instrument for the analysis of mistake when it “clearly and unequivocally” voided an earlier policy).AmGuard also argues that the district court erred by considering events after the execution of the relevant policy , but we disagree

. C ourts may consult the parties’ “subsequent conduct” as “evidence of their true intent.” First Chatham Bank v. Liberty Cap ., LLC , 755 S.E.2d 219, 224 (Ga. Ct. App. 2014) . The “actual conduct of both parties” following contract formation is probative evidence of mutual mistake. Fox , 449 S.E.2d at 514. A mutual mistake in naming the insured owner of a restaurant provide s a basi s for equitable reformation. In Occidental Fire , a USCA11 Case: 22-13738 Document: 35-1 Date Filed: 10/06/2023 Page: 10 of 1522

- 13738 Opinion of the Court 11 limited liability company bought a bar and restaurant business. See 793 S.E.2d at 608. The individual member of the company then signed a commercial insurance application for the restaurant that identified the restaurant and its former owner as the insured. Id. The member later accepted an insurance proposal listing the former owner as the insured. Id. The n the estate of a patr on who had been stabbed to death in the restaurant sued the company for wrongful death. The company sought defense and indemnification under the polic y . B ut the insurer denied coverage on the ground that the entity “was not listed as, and did not come with in the definition of, an insured under the policy.” Id. After t he restaurant settled the suit and assigned its policy rights to the estate , t he estate obtained a reformation of the policy. Id. at 60 8

. T he Georgia C ourt of A ppeals held that the insurer fail ed to explain why either party to the policy “would have intended for [it] to provide .

. . coverage to the prior owner who no longer had any interest in the business, rather than the actual current owner.” Id. at 609. The insurer “relied on” a mistaken ap plication when it issued the policy and “labored under the same misconception that the name of the insured should be the prior corporate owner’s name.” Id.
Occidental controls this appeal . AmGuard insist s that it could not have shared Shou & Shou’s mistake because it did not know the “identit[y]” of the intended insured and could not have intended to “name” Shou & Shou as an insured. But Georgia law does not demand that degree of specificity in d efini ng a mutual mistake. Nothing in Occidental suggests that the insurer knew or had reason to know the identity or name of the limited liability USCA11 Case: 22-13738 Document: 35-1 Date Filed: 10/06/2023 Page: 11 of 1512 Opinion of the Court 22

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corporation . The mistake was that the insured should be an entity other than the true owner. And t he mutual mistake here is identical: the 2016

– 17 p olicy insured a fictional entity with no insurable interest instead of the owner of the business that the p olicy was meant to insure, and the insurer reaped premiums even as the owner was denied coverage. A s in Occidental , the parties could not have intended that outcome. AmGuard argues that Occidental is “materially distinguishable” on three grounds , but each argument misses the mark

. First , AmGuard contend s that the 2016

– 17 p olicy was not issued to a prior owner of the insured business. But nothing in Occidental suggests the materiality of the fact that the mistaken insured was the prior owner of the bar and restaurant. What mattered was that the mistaken insured was not the “ current owner”

— that is, the tru e

owner. Id. at 609 (emphasis added). Second , AmGuard asserts that the p olicy “ did provide coverage”

— to “Noodle Life” and for “various propert[ies]” owned by the Shous

— and so was “not issued to an entity with no insurable interest.” But the record contain s no evidence that the p olicy insured “Noodle Life

. ” The original policy and the 2016

– 17 p olicy were both issued to “Noodle
, Inc.” And theparties agree that “Noodle, Inc. was not an actual corporation” during the coverage period and could have “no insurab le interest

. ” Third, AmGuard argues that because the Shous “own several entities,” no evidence “suggest[s] that the parties would have intended to solely insure Shou & Shou as opposed to Noodle [Inc

. ].” On the contrary, no evidence refutes the Lowerys’ consistent assertion USCA11 Case: 22-13738 Document: 35-1 Date Filed: 10/06/2023 Page: 12 of 1522

- 13738 Opinion of the Court 13

that the Shous in tended to insure the owner of Noodle College Park

— Shou & Shou.
Lee v. American Central Insurance Co.
, o n which AmGuard relies , is inapposite . 530 S.E.2d 727 (Ga. Ct. App. 1999). The plai ntiff in Lee sought reformation o f an insurance policy to which he was not a party and that never mentioned his name. Id. at 729. T he court of appeals explaine d that the insurer “was not informed” that the plaintiff owned the property, that the policy never mentioned the plaintiff , and that the plaintiff “did not conduct bus iness” with the insurer “related to the policy.” Id. at 730. AmGuard , in contrast,

was informed that Shou & Shou owned Noodle College Park, and Shou & Shou did conduct business with AmGuard under the p olicy. AmGuard’s appointed defense counsel in the Addus suit told AmGuard, “[y]our insured is Shou & Shou, Inc. This company owns and operates [Noodle College Park].” Defense counsel in the Love suit told AmGuard substantially the same thing. Shou & Shou paid all premiums for the p olicy and its predecessor pol icies out of its operating account. AmGuard also settled the Addus and Love suits by obtaining releases in favor of Shou & Shou. And AmGuard, in evaluating policy renewal and premium rates for “Noodle
, Inc

. ,” considered prior claims it had handled for Shou & Shou at Noodle College Park.
Reformation of the p olicy d oes not prejudice AmGuard. Although AmGuard contends that reformation would be prejudicial because it would require insur ing Shou & Shou, an entity it “never agreed” or “intended” to insure
, the sa me could be said of the USCA11 Case: 22-13738 Document: 35-1 Date Filed: 10/06/2023 Page: 13 of 1514 Opinion of the Court 22

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insurer in Occidental

. See 793 S.E.2d at 609. AmGuard also argues that the polic y charged premiums reflecting the risks it judged “commensurate with insuring a single business entity” and that reforming the p olicy to “add” Shou & Sh ou would entail insuring “multiple entities.” Bu t the Lowerys seek only to substitute Shou & Shou for “Noodle, Inc

. ,” a nonexistent entity; reformation would not change the “number of entities to be insured.” A nd though AmGuard consider s it “obviously prej udicial” to be “exposed” to the $1 million consent judgment in the Lowerys’ state suit
, t he Georgia court rejected that argument in materially identical circumstances in Occidental
, see 793 S.E.2d at 609

. O ther Georgia courts too have rejected prejudice arguments grounded in financial loss when the contract is otherwise reformable

. S ee, e.g. , Brannen , 410 S.E.2d at
763

– 6 5

. C

. The Lowerys’ Claim of Breach of Contract Merges with Reformation of the Policy

. T he district court also did not err by granting summary judgment in favor of the Lowerys on their claim of breach of contract. A claim for equitable reformation and a claim for damages flowingfrom breach of the reformed contract are “only one claim for relief.” Wall , 249 S.E.2d at 590. Reformation relates back to the date of the p olicy’s execution. Aames Fund ing Corp. v. Henderson , 620S.E.2d 503, 506 (Ga. Ct. App. 2005). Because the district court correctly reformed the 2016

– 17 p olicy to substitute in Shou & Shou as the insured, the p olicy required AmGuard to defend and indemnify Shou & Shou in the Lowerys’ s tate suit

. See Occidental , 793 S.E.2d
at 609. USCA11 Case: 22-13738 Document: 35-1 Date Filed: 10/06/2023 Page: 14 of 1522

- 13738 Opinion of the Court 15

IV. CONCLUSION
We AFFIRM the judgment in favor of the Lowerys

. USCA11 Case: 22-13738 Document: 35-1 Date Filed: 10/06/2023 Page: 15 of 15