[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 10-12613

________________________

D.C. Docket No. 3:09-cv-00894-HES-JRK

INTERVEST CONSTRUCTION OF JAX, INC.,

et. al.

Plaintiffs-Appellants,

versus

GENERAL FIDELITY INSURANCE COMPANY,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(March 28, 2014)

Before CARNES, Chief Judge, TJOFLAT, Circuit Judge, and MICKLE,

∗ District 

Judge.

 ∗

 The Honorable Stephan P. Mickle, United States District Judge for the Northern District of 

Florida, sitting by designation. Judge Mickle did not participate in the decision; it is rendered by 

quorum. See 28 U.S.C. § 46(d) (2012).

Case: 10-12613 Date Filed: 03/28/2014 Page: 1 of 6 
2

PER CURIAM:

I.

The controversy in this case is between an insurer, General Fidelity 

Insurance Company, and its insureds, Intervest Construction of Jax, Inc. and ICI 

Homes, Inc. (collectively “ICI”), regarding whether General Fidelity breached its 

obligations under a general liability insurance policy held by ICI. 

The coverage dispute at issue arose from a personal injury suit brought 

against ICI by Katherine Ferrin, who purchased and lived in a home built by ICI. 

During the construction of Ferrin’s residence, ICI hired Custom Cuttings, Inc. to 

install the attic stairway. Pursuant to its subcontract with ICI, Custom Cuttings

agreed to indemnify ICI from any damages or claims brought against ICI as a 

result of Custom Cuttings’s negligence. In April 2007, Ferrin received serious 

injuries from a fall while using the attic stairs installed by Custom Cuttings. She 

brought suit solely against ICI. In turn, ICI sought indemnification from Custom 

Cuttings pursuant to the terms of their subcontract. At the time of Ferrin’s

accident, ICI held a general liability insurance policy with General Fidelity (the 

“General Fidelity Policy”) and Custom Cuttings held a general liability insurance 

policy with North Pointe Insurance Company. 

Case: 10-12613 Date Filed: 03/28/2014 Page: 2 of 6 
3

The terms of the General Fidelity Policy included a Self-Insured Retention 

endorsement (“the SIR endorsement”), requiring ICI to pay $1 million towards its

own losses before General Fidelity had a duty to defend or indemnify ICI for any 

occurrence or event.1 The General Fidelity Policy also contained a transfer-ofrights provision giving General Fidelity subrogation rights over certain ICI 

claims.

2

 

On July 7, 2009 a mediation was held involving Ferrin, ICI, Custom 

Cuttings, General Fidelity, and North Pointe. As a result of this mediation, a 

settlement agreement was reached wherein ICI and General Fidelity agreed to pay 

Ferrin $1.6 million as full and final settlement of her claims against ICI, Custom 

Cuttings, General Fidelity, and North Pointe. As indemnity, Custom Cuttings and 

North Pointe agreed to pay $1 million (the “Custom Cuttings Payment”) to ICI and 

General Fidelity in exchange for a release from any liability arising under the 

Ferrin lawsuit. 

A dispute arose between ICI and General Fidelity regarding to whom the 

Custom Cuttings Settlement Payment should be payable and whether ICI could use 

 1 The full text of the SIR endorsement can be found at Intervest Constr. of Jax, Inc. v. 

Gen. Fid. Ins. Co., 662 F.3d 1328, 1333–35 (11th Cir. 2011). 

2 The transfer-of-rights provision found in the General Fidelity Policy reads as follows:

If the insured has rights to recover all or part of any payment we have made under this 

Coverage Part, those rights are transferred to us. The insured must do nothing after loss 

to impair them. At our request, the insured will bring “suit” or transfer those rights to us 

and help us enforce them.

Case: 10-12613 Date Filed: 03/28/2014 Page: 3 of 6 
4

the Custom Cuttings Payment to satisfy the SIR endorsement. In order to resolve 

Ferrin’s claim, ICI and General Fidelity tabled their dispute and agreed to release 

the Custom Cuttings Payment––which was being held in trust––to Ferrin and to 

each fund $300,000 towards the $1.6 million settlement agreement. Both ICI and 

General Fidelity reserved all claims and defenses against one another with respect 

to the coverage provided by the General Fidelity Policy. 

II.

After the full $1.6 million settlement payment was delivered to Ferrin, ICI 

filed suit in the Circuit Court of the Fourth Judicial Circuit of Florida against 

General Fidelity for breach of contract, requesting a declaratory judgment that its 

claim to the Custom Cuttings payment is superior to General Fidelity’s and that it 

is entitled to apply the Custom Cuttings payment towards the SIR endorsement in 

the General Fidelity Policy. General Fidelity removed the case to the United States 

District Court for the Middle District of Florida. 

After hearing arguments, the District Court found in favor of General 

Fidelity, concluding that ICI had not satisfied the SIR obligation because the 

payment had originated from another party. Intervest Constr. of Jax, Inc., v. Gen. 

Fid. Ins. Co., No. 3:09-cv-00894-HES-JRK, Order at 8 (M.D. Fla. Apr. 22, 2010). 

On appeal, we determined that the resolution of this dispute depends on 

unanswered questions of Florida law. Intervest Constr. of Jax, Inc., v. Gen. Fid. 

Case: 10-12613 Date Filed: 03/28/2014 Page: 4 of 6 
5

Ins. Co., 662 F.3d 1328, 1332 (11th Cir. 2011). In light of the absence of 

controlling precedent from the Supreme Court of Florida, we certified two 

questions for resolution:3 “1) Does the General Fidelity Policy allow the insured to 

apply indemnification payments received from a third-party towards satisfaction of 

its $1 million Self-Insured Retention? [and] 2) Assuming that funds received 

through an indemnification clause can be used to offset the Self-Insured Retention, 

does the transfer of rights provision found in the General Fidelity Policy grant 

superior rights to be made whole to the insured or to the insurer?” Id.

On February 6, 2014 the Supreme Court of Florida issued a decision 

answering both of these questions. Intervest Constr. of Jax, Inc., v. Gen. Fid. Ins. 

Co., No. SC11-2320 (Fla. 2014). In its decision, the Supreme Court of Florida 

concluded that (1) “the General Fidelity policy allows the insured to apply 

indemnification payments received from a third party towards satisfaction of its $1 

million self-insured retention,” id. at *19, and (2) “the transfer of rights provision 

in the policy does not abrogate the made whole doctrine, thereby preserving ICI’s 

right of priority,” id. at *25. 

In light of the Supreme Court’s answers, the final judgment of the District 

Court is

 3 The Florida Constitution allows the Florida Supreme Court to consider a certified 

question if it “is determinative of the cause and for which there is no controlling precedent of the 

supreme court of Florida.” Fla. Const. art. V, § 3(b)(6); see also Stevens v. Battelle Mem’l Inst., 

488 F.3d 896, 904 (11th Cir. 2007).

Case: 10-12613 Date Filed: 03/28/2014 Page: 5 of 6 
6

REVERSED. 

Case: 10-12613 Date Filed: 03/28/2014 Page: 6 of 6