[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11774

____________________

PUBLIC RISK MANAGEMENT OF FLORIDA,

Plaintiff-Counter Defendant-Appellant,

versus

MUNICH REINSURANCE AMERICA, INC.,

a foreign corporation authorized to do business in Florida,

Defendant-Counter Claimant-Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:18-cv-01449-MSS-AEP

____________________

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2 Opinion of the Court 21-11774

Before JILL PRYOR, GRANT, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

Public Risk Management of Florida (“PRM”) is appealing the 

district court’s grant of summary judgment to Munich Reinsurance 

America, Inc. (“Munich”). PRM sued Munich for breach of contract and sought declaratory relief that Munich is obligated by the 

parties’ reinsurance agreement (“the Reinsurance Agreement”) to 

reimburse PRM for the defense and coverage it provided to an insured in an underlying lawsuit. Munich counter-claimed for a declaratory judgment stating that it has no duty to reimburse PRM, 

and the district court granted that relief. On appeal, PRM argues, 

inter alia, that the Reinsurance Agreement contained a “follow the 

fortunes” clause, which forbids a reinsurer “from second guessing” 

an insurer’s “good faith decision” to pay a claim to the insured. 

Am. Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins. Co., 198 F.3d 1332, 

1335 (11th Cir. 1999). Alternatively, PRM argues that even if the 

Reinsurance Agreement did not have a follow-the-fortunes clause, 

the district court should have inferred one. 

We disagree with both arguments. The Reinsurance Agreement contains language that is plainly inconsistent with the followthe-fortunes doctrine. Accordingly, the district court properly rejected the doctrine’s application in this case. We also hold that this 

Court will not infer application of the follow-the-fortunes doctrine 

in a reinsurance agreement where the agreement’s plain and 

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21-11774 Opinion of the Court 3

unambiguous language is inconsistent with the doctrine. Applying 

this rule, we conclude that it would be inconsistent with the plain, 

unambiguous terms of the Reinsurance Agreement to infer that 

Munich should be bound by PRM’s coverage decision, and, accordingly, we cannot conclude that the district court erred by granting 

summary judgment and declaratory relief to Munich. 

I. 

PRM is a self-insured intergovernmental risk-management 

program that exclusively insures various local governmental entities in Florida. One of its members, the City of St. Pete Beach (“the 

City”), was insured by PRM from April 1, 2008 to April 1, 2009 under the relevant coverage document (“the 2008/2009 Coverage 

Document”). The Reinsurance Agreement between Munich and 

PRM reinsured that 2008/2009 Coverage Document. Both PRM’s 

2008/2009 Coverage Document and Munich’s Reinsurance Agreement lasted from April 1, 2008 to April 1, 2009.1 Munich reinsured, 

inter alia, the Public Officials Errors and Omissions (“E&O”) Coverage that the 2008/2009 Coverage Document provided to the 

City. Prior to April 1, 2008, a different reinsurer, Certain 

1 In other words, PRM insured the City pursuant to the 2008/2009 Coverage 

Document, and Munich’s Reinsurance Agreement with PRM agreed to reimburse PRM for amounts PRM paid out to the City which were covered by the

2008/2009 Coverage Document. Stated more simply, Munich reinsured the 

2008/2009 Coverage Document, agreeing to pay PRM amounts PRM paid out 

to the City if such amounts were covered under PRM’s 2008/2009 Coverage 

Document with the City. 

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Underwriters at Lloyd’s, London (“Underwriters”), issued reinsurance policies to PRM, one of which was effective October 1, 2005 

to October 1, 2006. 

The 2008/2009 Coverage Document became relevant in this 

case when two residents sued the City. Chester and Katherine 

Chmielewski (“the Chmielewskis”) owned a house (pursuant to a 

1972 deed) and adjoining beach parcel (pursuant to a 1975 deed). 

On April 26, 2006, they brought a quiet title action against the City 

in state court and sought a declaratory judgment that their beach 

parcel deed was valid. The state court entered a Stipulated Final 

Judgment in favor of the Chmielewskis on November 26, 2008 and 

quieted title to the beach parcel. The City, however, continued 

allowing public access to that land and publicly took the position 

that the Chmielewskis had no right to exclude the public from their 

beach parcel. 

On November 9, 2009, the Chmielewskis sued the City 

again in state court, alleging two counts of inverse condemnation. 

PRM denied coverage for this suit because the 2008/2009 Coverage 

Document excluded liability for inverse condemnation claims. 

In this state court litigation, the Chmielewskis filed a second 

amended complaint on November 18, 2013, asserting two new 

counts: (1) a § 1983 claim that the City violated their Fourth 

Amendment rights and (2) an inverse condemnation claim under 

the Florida Constitution. The City removed the suit to federal 

court and gave PRM notice of the second amended complaint. 

PRM said it would cover the § 1983 claim under its Public Officials 

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E&O Coverage, but the inverse condemnation exclusion barred 

coverage for the second claim. PRM notified Munich of the § 1983 

claim against the City on December 13, 2013. 

On January 13, 2014, Munich sent PRM a letter denying coverage for the § 1983 claim because it arose from wrongful acts that 

predated the Reinsurance Agreement’s coverage period (i.e., April 

1, 2008 to April 1, 2009). Munich encouraged PRM to seek coverage from Underwriters because it believed the wrongful acts underlying the § 1983 claim arose during the period when Underwriters reinsured PRM’s policy with the City. PRM notified Underwriters of the Chmielewskis’ claim and told Underwriters that it believed the wrongful acts underlying the claim occurred during the 

coverage period of its reinsurance agreement with Underwriters. 

In a June 15, 2015 letter to the City, PRM used a December 31, 2005 

date of loss and informed the City that it was seeking reinsurance 

coverage from Underwriters. After some back and forth with 

PRM, Underwriters eventually denied coverage as to the § 1983 

claim on October 7, 2015, shortly before the jury trial in the underlying litigation. 

The jury awarded the Chmielewskis $725,000 for the § 1983 

claim and almost $1.5 million for the inverse condemnation claim. 

The City filed a motion to set aside $600,000 of the jury’s award for 

the § 1983 claim as duplicative of the damages awarded for the inverse condemnation claim. The judge granted that motion, and 

judgment on the § 1983 claim was entered as follows: $50,000 for 

interference with Chester Chmielewski’s possessory interest in his 

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6 Opinion of the Court 21-11774

property and $75,000 for interference with Katherine Chmielewski’s possessory interest in her property. PRM agreed to indemnify 

the City for the § 1983 claim. 

On October 28, 2015, PRM contacted Munich to request 

that it reconsider its denial of coverage. PRM argued that, in light 

of evidence and testimony brought out at trial, the date of loss was 

November 28, 2008,2 which was within the coverage period of Munich’s Reinsurance Agreement with PRM. This was the first time 

since Munich denied coverage on January 13, 2014 that PRM notified Munich of developments in the underlying litigation. On 

March 3, 2016, Munich again denied coverage, maintaining that 

“the testimony relevant to the [§ 1983] claim revealed that [the 

Chmielewskis’] damages for interference with property rights had 

been ongoing since 2005, and possibly earlier.” While the City’s 

appeal of the jury verdict was pending, PRM settled the § 1983 

claim for $750,000. 

After PRM settled the § 1983 claim, Munich refused to reimburse PRM. PRM then sued Munich for reimbursement pursuant 

to the Reinsurance Agreement. In its amended complaint, PRM 

asserted two counts for breach of contract and sought 

2 It is unclear why PRM argued that the date of loss was November 28, 2008 

given that the state court’s Stipulated Final Judgment quieting title to the 

Chmielewskis’ beach parcel was entered on November 26, 2008. That said, 

this two-day discrepancy is not material to our resolution of this appeal. 

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reimbursement of its legal defense costs in excess of $200,000,3 including the cost of the $750,000 settlement. That is, PRM sought 

declaratory relief that Munich had a duty under the 2008/2009 

Coverage Document and the Reinsurance Agreement to reimburse PRM for the cost of its legal defense of the City and its 

$750,000 settlement with the Chmielewskis. Munich answered 

and counter-claimed for an opposing declaratory judgment that it 

did not owe PRM any reimbursement for PRM’s payments to the

City. The parties then submitted motions for summary judgment. 

The district court referred these summary judgment motions to a 

magistrate judge for the entry of a report and recommendation 

(“R&R”). 

The magistrate judge recommended granting summary 

judgment and declaratory relief to Munich. He concluded that 

“[t]he record in the Underlying Litigation [was] replete with references to actions taken by the City prior to April 1, 2008, the effective date of the [2008/2009] Coverage Document and the Reinsurance Agreement, that interfered with the Chmielewskis possessory 

interest in their property.” The magistrate judge relied on three 

parts of the record revealing these facts: (a) the Chmielewskis’ second amended complaint, (b) portions of the trial transcript, and 

3 PRM had a self-insured retention of $200,000. As stated in the Reinsurance 

Agreement, “PRM shall retain and be liable for the first $200,000 Ultimate Net 

Loss . . . . [Munich] shall then be liable for the amount by which such Ultimate 

Net Loss exceeds the retention of PRM . . . .” 

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(c) the trial court’s denial of the City’s post-verdict motion for judgment as a matter of law. These portions of the record “contain[ed] 

allegations spanning years before the [November 26, 2008] Stipulated Final Judgment,” which PRM argued was the date of the occurrence underlying the Chmielewskis’ § 1983 claim. Based on the 

plain text of the 2008/2009 Coverage Document and the Reinsurance Agreement between Munich and PRM, the magistrate judge 

reasoned,

[T]he [2008/2009] Coverage Document states that, 

when there are a series of related wrongful acts by a 

member, they will be deemed one wrongful act that 

occurred at the time of the first of such acts. . . . 

Given that the City’s wrongful acts against the 

Chmielewskis constitute a series of related wrongful 

acts, under the plain language of the Public Officials 

E&O coverage, those wrongful acts must “be deemed 

to have been committed at the time of the first of such 

acts or alleged acts.” . . . [T]he City first committed 

the wrongful acts during a timeframe predating the 

[2008/2009] Coverage Document and the Reinsurance Agreement . . . .

PRM objected to the magistrate judge’s R&R. The district 

court disagreed and adopted the R&R. PRM now appeals the district court’s grant of summary judgment and declaratory relief to 

Munich. 

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II. 

We review a district court’s grant of summary judgment de 

novo, applying the same legal standards used by the district court. 

Felts v. Wells Fargo Bank, N.A., 893 F.3d 1305, 1311 (11th Cir. 

2018). “Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled 

to judgment as a matter of law.” Jurich v. Compass Marine, Inc., 

764 F.3d 1302, 1304 (11th Cir. 2014). We view “all facts and reasonable inferences in the light most favorable to the nonmoving 

party.” Id. 

The parties agree that Florida insurance law applies to this 

diversity action. “It is well settled that the construction of an insurance policy is a question of law for the court.” Jones v. Utica Mut. 

Ins. Co., 463 So. 2d 1153, 1157 (Fla. 1985). “Under Florida law, insurance contracts are construed according to their plain meaning. 

Ambiguities are construed against the insurer and in favor of coverage.” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 

528, 532 (Fla. 2005). However, before resolving an ambiguity in 

favor of the insured, we must find “a genuine inconsistency, uncertainty, or ambiguity in meaning . . . after resort to the ordinary 

rules of construction.” Excelsior Ins. Co. v. Pomona Park Bar & 

Package Store, 369 So. 2d 938, 942 (Fla. 1979). “[This rule] does not 

allow courts to rewrite contracts, add meaning that is not present, 

or otherwise reach results contrary to the intentions of the parties.” 

Id. “Florida law places on the insured the burden of proving that a 

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10 Opinion of the Court 21-11774

claim against it is covered by the insurance policy.” LaFarge Corp. 

v. Travelers Indem. Co., 118 F.3d 1511, 1516 (11th Cir. 1997). 

III. 

We agree with the district court that Munich had no duty to 

reimburse PRM for its defense and indemnification of the City 

based on the plain, unambiguous text of the Reinsurance Agreement and the 2008/2009 Coverage Document. The following provisions of the Reinsurance Agreement are crucial to an understanding of this case. 

Article I of the Reinsurance Agreement requires Munich to 

indemnify PRM for “Ultimate Net Loss” that PRM has paid pursuant the 2008/2009 Coverage Document:

The Reinsurer agrees to indemnify PRM, on an excess 

of loss basis, for Ultimate Net Loss paid by PRM as a 

result of Occurrences . . . during the term of this 

Agreement under PRM’s Coverage Document underwritten by PRM and covered under this Agreement. 

Art. I. Article VII then defines “Ultimate Net Loss” as “the 

sum or sums paid by PRM for which it is liable, under the 

Coverage Document reinsured hereunder.” Under Article 

XI(C), Munich must pay PRM after it receives from PRM 

proof of payment and coverage: 

Payment by the Reinsurer of its portion of loss and 

expense, paid by or on behalf of PRM, will be made 

by the Reinsurer to PRM promptly after proof of 

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payment by PRM and coverage hereunder is received 

by the Reinsurer.

Art. XI(C). 

To summarize, the Reinsurance Agreement requires Munich to reimburse PRM after PRM submits: (1) proof that it has 

paid amounts to its insured (i.e., the City), and (2) proof that Munich’s Reinsurance Agreement provides coverage for such payment. Because the Reinsurance Agreement covers only “sums paid 

by PRM for which it is liable, under the Coverage Document reinsured hereunder,” i.e., the 2008/2009 Coverage Document, Munich is not obligated to reimburse PRM for amounts it paid on behalf of the City—either as indemnification or for its legal defense—

that PRM was not required to pay under the 2008/2009 Coverage 

Document. For example, Munich is not obligated to reimburse 

PRM for amounts it paid on behalf of the City for which it might 

have been liable pursuant to coverage documents preceding the 

2008/2009 Coverage Document that might have been reinsured by 

reinsurance companies other than Munich. 

Accordingly, this case turns on whether the 2008/2009 Coverage Document (which Munich reinsured) required PRM (a) to 

defend the City against the § 1983 claim in the Chmielewskis’ second amended complaint and (b) to indemnify the City for the 

$750,000 settlement of that claim. The answer to both questions is 

clearly no. 

As the parties here agree, the 2008/2009 Coverage Document’s Public Officials E&O Coverage provides occurrence-based 

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(as opposed to claims-made) coverage. “An occurrence policy is a 

policy in which the coverage is effective if the [wrongful] act or 

omission occurs within the policy period, regardless of . . . the date 

the claim is made or asserted.” Gulf Ins. Co. v. Dolan, Fertig & 

Curtis, 433 So. 2d 512, 514 (Fla. 1983). In other words, “[c]overage 

depends on when the [wrongful] act or omission occurred and not 

when the claim was asserted.” Id. at 515. Therefore, whether the 

2008/2009 Coverage Document obligated PRM to defend and indemnify the City depends on when the wrongful acts (i.e., the occurrence) underlying the Chmielewskis’ § 1983 claim occurred. 

The following provisions of the 2008/2009 Coverage Document are crucial to an understanding of whether PRM was required to defend and indemnify the City pursuant to the 2008/2009 

Coverage Document. The 2008/2009 Coverage Document’s Public Officials E&O Coverage defines “occurrence” as follows:

1. OCCURRENCE means a WRONGFUL ACT

committed during the COVERAGE PERIOD. 

All claims for damages based on or arising out 

of the same WRONGFUL ACT or a series of 

related WRONGFUL ACTS by one or more 

MEMBERS shall be deemed one 

OCCURRENCE. . . . 

2. For the purposes of this [Public Officials E&O 

policy] only, WRONGFUL ACT means any 

actual or alleged . . . discrimination and violations of civil rights by the MEMBER during the 

COVERAGE PERIOD. All claims for damages 

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based on or arising out of the same 

WRONGFUL ACT or a series of related 

WRONGFUL ACTS by one or more 

MEMBERS shall be deemed one 

WRONGFUL ACT. . . . 

Put simply, these definitions treat a series of related wrongful acts 

as one “occurrence.” The Public Officials E&O Coverage then 

fixes the date of that one occurrence as the date of the first wrongful act in the series of related wrongful acts:

This coverage applies only if a claim for damages 

arises out of a WRONGFUL ACT committed during 

the COVERAGE PERIOD. As respects a series of related WRONGFUL ACTS by one or more 

MEMBERS, the WRONGFUL ACT shall be deemed 

to have been committed at the time of the first of such 

acts or alleged acts. 

The Public Officials E&O Coverage only covers that occurrence if 

it fell within the 2008/2009 Coverage Document’s coverage period—i.e., April 1, 2008 to April 1, 2009:

This coverage does not apply to WRONGFUL ACTS

committed prior to or after the COVERAGE 

PERIOD, however as respects a series of related 

WRONGFUL ACTS by one or more MEMBERS taking place over more than one COVERAGE PERIOD, 

the WRONGFUL ACT shall be deemed to have been 

committed during the first COVERAGE PERIOD in 

which the first of such acts or alleged acts took place 

and only that Coverage Document’s EXCESS LIMIT 

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14 Opinion of the Court 21-11774

OF COVERAGE and SELF INSURED RETENTION

shall apply. 

Based on the plain, unambiguous language of the 2008/2009 

Coverage Document, PRM had neither (a) a duty to defend the 

City against the § 1983 claim in the Chmielewskis’ second amended 

complaint nor (b) a duty to indemnify the City for the $750,000 settlement of that claim. These issues are related, but the two duties 

are “distinct.” Irvine v. Prudential Prop. & Cas. Ins. Co., 630 So. 

2d 579, 580 (Fla. Dist. Ct. App. 1993). “While the duty to defend is 

broad and based on the allegations in the complaint, the duty to 

indemnify is determined by the facts adduced at trial or during discovery.” Pa. Lumbermens Mut. Ins. Co. v. Ind. Lumbermens Mut. 

Ins. Co., 43 So. 3d 182, 188 (Fla. Dist. Ct. App. 2010). “The duty to 

defend is of greater breadth than the insurer’s duty to indemnify, 

and the insurer must defend even if the allegations in the complaint 

are factually incorrect or meritless.” Jones v. Fla. Ins. Guar. Ass’n, 

Inc., 908 So. 2d 435, 443 (Fla. 2005) (per curiam). 

A. Duty to Defend

We will start with the duty to defend. Whether PRM had a 

duty to defend the City “must be determined from the allegations 

in the” Chmielewskis’ second amended complaint. Id. If those allegations “fairly and potentially” brought the § 1983 claim within 

the 2008/2009 Coverage Document’s coverage period, then PRM 

had a duty to defend. Id. The § 1983 claim was based on the City’s 

seizure of the Chmielewskis’ property in violation of the Fourth 

Amendment. See United States v. Jacobsen, 466 U.S. 109, 113, 104 

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S. Ct. 1652, 1656 (1984) (“A ‘seizure’ of property occurs when there 

is some meaningful interference with an individual’s possessory interests in that property.”). Accordingly, we must look to the second amended complaint to determine when that seizure allegedly 

occurred. 

The Chmielewskis’ second amended complaint alleged that 

the City interfered with their possessory interests in their property 

beginning in 2003. They alleged that the City adopted an ordinance 

in 2003 that designated their beach parcel as “public” property, and, 

“[a]s a result, public use of [their property] increased and [their] 

property was constantly traveled by members of the public with 

various degrees of noise, litter, injury to the dunes and plants, pet 

waste, and invasive prying and peering directly into the Chmielewskis’ home through their great room window.” The Chmielewskis 

also alleged that they tried to sell their property in 2005, but the 

City denied them density credits for the beach parcel because the 

City asserted that they “did not own” that parcel. They then alleged that the City continued to infringe upon their possessory interests in their property throughout the following four years. 

PRM does not dispute that (a) the Chmielewskis’ second 

amended complaint alleged that Fourth Amendment violations occurred as early as 2003 (i.e., prior to the relevant coverage period) 

or (b) every infringement by the City of the Chmielewskis’ possessory interest in their property was part of a series of related wrongful acts. Our own review of the allegations in the second amended 

complaint confirms the opinions of the magistrate judge and the 

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district court—i.e., there are ample allegations of related wrongful 

acts of the City interfering with the Chmielewskis’ possessory interest in their property beginning well before 2008. 

The 2008/2009 Coverage Document treats this series of related Fourth Amendment violations as a single “occurrence” that 

took place “at the time of the first of such acts.” Accordingly, the 

occurrence underlying the § 1983 claim occurred, at the earliest, in 

2003 or, at the latest, in 2005. Both dates are well before the 

2008/2009 Coverage Document’s coverage period.4 Based on 

these allegations in the second amended complaint, PRM had no 

duty to defend the City under the 2008/2009 Coverage Document.5 

4 PRM notes on appeal that “[t]he Second Amended Complaint is replete with 

factual allegations that the City interfered with the Chmielewskis’ possessory 

interest in their beach parcel” after “the November 26, 2008 quiet title final 

judgment.” But because those alleged wrongful acts were part of a series of 

related wrongful acts, the 2008/2009 Coverage Document treats them as “one 

occurrence” that was “committed at the time of the first of such acts.” Moreover, even if the series of related wrongful acts “[took] place over more than 

one COVERAGE PERIOD, the WRONGFUL ACT shall be deemed to have 

been committed during the first COVERAGE PERIOD in which the first of 

such acts or alleged acts took place.” The series of related wrongful acts underlying the Chmielewskis’ § 1983 claim occurred prior to the 2008/2009 Coverage Document’s coverage period, so Munich owed no duty to reimburse 

PRM because it only reinsured that coverage document. 

5 PRM asserts that the district court “ignored” the legal principle that “[t]he 

merits of the underlying suit have no bearing on whether the duty to defend 

is owed” because the duty to defend is determined based on the allegations in 

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PRM argues that Munich “admitted” that PRM owed a duty 

to defend the City. PRM’s basis for this claim is that Munich’s “corporate representative, Christopher Duffy, . . . testified that [PRM] 

owed a duty to defend the City in the underlying case, and that its 

duty to defend obligation continued throughout the litigation until 

the claim was finally resolved.” But this mischaracterizes Duffy’s 

testimony. The magistrate judge noted that Duffy “agreed that 

PRM owed a duty to defend regardless of which coverage period 

the underlying lawsuit fell under, based on the allegations contained within [the § 1983 claim] of the [second amended complaint].” In other words, Duffy acknowledged that PRM may have 

had a duty to defend the City pursuant to a prior coverage document, but that duty was not owed under the 2008/2009 Coverage 

Document. 

PRM’s own actions prove this point. At one point, PRM told 

the City that (i) its date of loss was December 31, 2005, and (ii) it 

was seeking reinsurance coverage from Underwriters—not 

the second amended complaint. That is not true. The district court correctly

looked to the second amended complaint: “because the allegations in the operative complaint identified wrongful acts that took place before the policy 

period, PRM did not owe the City a duty to defend the underlying lawsuit.” 

The magistrate judge also quoted the second amended complaint at length to 

show that the series of related Fourth Amendment violations allegedly began 

as early as 2003. Both judges properly concluded that PRM owed no duty to 

defend the City based on the second amended complaint’s allegations, which 

did not “fairly and potentially bring the [§ 1983 claim] within policy coverage.” 

Jones, 908 So. 2d at 443. 

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Munich. After Munich denied coverage, PRM’s claims litigation 

manager told Underwriters that PRM believed the wrongful acts 

underlying the § 1983 claim occurred during the coverage period 

of its reinsurance agreement with Underwriters. Accordingly, 

when PRM defended the City at trial from October 19–23, 2015, it 

likely did so with the understanding that the § 1983 claim was covered by an earlier coverage document, not the 2008/2009 Coverage Document. PRM did not re-seek reinsurance coverage from 

Munich until October 28, 2015—i.e., not until after trial in the underlying case. These facts suggest that PRM defended the City pursuant to an earlier coverage document—one that Munich had not 

reinsured. 

PRM also argues that the Reinsurance Agreement’s definition of “occurrence” means that the § 1983 claim fell within the 

2008/2009 Coverage Document’s coverage period. In its definition 

of “occurrence,” the Reinsurance Agreement says, “If the date of 

any loss occurring under PRM’s Coverage Document cannot be 

specifically determined, the date of loss shall be the inception date 

of the Coverage Document.” PRM argues that because the date of 

loss is unclear (i.e., the first wrongful Fourth Amendment violation 

occurred at some unspecified time between 2003 and 2005), then 

the Reinsurance Agreement resolves this lack of clarity by fixing 

the date as April 1, 2008. But PRM misreads the Reinsurance 

Agreement: it says the date of loss will be April 1, 2008 if the loss 

“occur[s] under PRM’s Coverage Document” and if the date of that 

loss “cannot be specifically determined.” In other words, the 

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Reinsurance Agreement will insert April 1, 2008 as the date of loss 

if the occurrence falls within the 2008/2009 Coverage Document’s 

coverage period and occurred on an unspecified date. Here, that is 

not the case: the loss underlying the § 1983 claim occurred prior to 

the coverage period. 

PRM’s interpretation is inconsistent with the plain meaning 

of this provision of the Reinsurance Agreement: the April 1, 2008

date of loss applies only once it has been established that the loss 

fell within the 2008/2009 Coverage Document. Without that predicate finding, the Reinsurance Agreement does not fix the date of 

any loss as the first day of its coverage period. 

B. Duty to Indemnify

PRM also did not have a duty to indemnify the City for the 

$750,000 settlement of the § 1983 claim. Unlike the duty to defend, 

“the duty to indemnify is determined by the facts adduced at trial 

or during discovery.” Pa. Lumbermens Mut. Ins. Co., 43 So. 3d at 

188. Those facts, like the allegations in the second amended complaint, show that the earliest of the related series of wrongful acts 

by the City began well before the 2008/2009 Coverage Document’s coverage period. As noted by the magistrate judge,

Mrs. Chmielewski testified that she had not been able 

to enjoy her property since the Don Vista Center renovation [which occurred from 2003 to 2005], as she 

experienced reduced privacy when foot traffic in front 

of her home increased and beachgoers would often 

look into her windows. Her sons similarly testified 

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that the renovation of the Don Vista Center in the 

early 2000s invited public visitors to traverse his parents’ property by clearing the overgrowth from his 

family’s sidewalk, that they had to listen to their parents complain about the issue since 2004 or 2005 and 

discuss the issue virtually every day for 10 years, that 

the Chmielewskis’ property began to resemble a 

“zoo” or “circus,” and the neighborhood became 

“like a carnival” starting around the early 2000s. 

The Chmielewskis’ counsel noted at trial that the City used federal 

grant money from 2003 to 2005 to renovate the Don Vista Center, 

and he argued, “[T]hat’s when our problems intensify. That’s 

when we begin having issues leading to this case.” The trial court 

agreed: when it denied the City’s post-verdict motion for judgment 

as a matter of law, it said the Chmielewskis had “presented substantial evidence” that the City infringed on their property rights 

beginning as early as the renovation of the Don Vista Center. 

Like the allegations in the second amended complaint, the 

facts adduced at trial show that the earliest Fourth Amendment violation underlying the § 1983 claim occurred well before the 

2008/2009 Coverage Document’s coverage period. Because the series of Fourth Amendment violations are related, the magistrate 

judge and district court rightly considered them to be a single occurrence that occurred as early as 2003. 

Munich agreed to indemnify PRM for “Ultimate Net Loss,” 

which is “the sum or sums paid by PRM for which it is liable, under 

the [2008/2009] Coverage Document.” PRM did not incur any 

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21-11774 Opinion of the Court 21

“Ultimate Net Loss” because it was not “liable” for the costs of defending and indemnifying the City pursuant to the 2008/2009 Coverage Document. If PRM was not liable to defend or indemnify the 

City under that coverage document, then any costs it incurred are 

not “Ultimate Net Loss,” so Munich has no duty to reimburse it 

under the Reinsurance Agreement. Accordingly, the district court 

did not err by granting summary judgment and declaratory relief 

to Munich. 

C. PRM’s Argument that the Date of Loss was November 26, 

2008. 

PRM makes one final argument in its attempt to locate the 

date of loss within the 2008/2009 Coverage Document. PRM argues that the district court erred in concluding that the Fourth 

Amendment violations underlying the § 1983 claim occurred prior 

to April 1, 2008 because, PRM argues, the City could have violated 

the Chmielewskis’ Fourth Amendment rights only after the state 

court entered its Stipulated Final Judgment in the Chmielewskis’ 

quiet title action on November 26, 2008. PRM’s argument is that 

the Chmielewskis did not have a possessory interest in the beach 

lot until the state court entered its judgment quieting their title to 

that parcel. Accordingly, PRM argues, the first act in the series of 

related wrongs must have occurred immediately after their possessory interest arose on November 26, 2008—i.e., within the coverage period of the 2008/2009 Coverage Document. 

We agree with the magistrate judge and district court that 

this argument is wholly without merit. PRM’s contention hinges 

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22 Opinion of the Court 21-11774

on the premise that one cannot bring a Fourth Amendment claim 

for seizure of one’s property until after a court has acknowledged 

one’s possessory interest in that property in a quiet title action. 

PRM cannot cite a single case for this proposition. 

Under the Fourth Amendment, “[a] ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” Jacobsen, 466 U.S. at 

113, 104 S. Ct. at 1656. No caselaw suggests that the Chmielewskis’ 

possessory interests in their property only come into being once 

they succeeded in their quiet title suit. As the magistrate judge concluded, the state court’s Stipulated Final Judgment “provided clear 

evidence of the enforceability of [the Chmielewskis’] possessory interests, but [it] did not establish their possessory interests.” Therefore, the Chmielewskis could have brought their § 1983 claim for 

Fourth Amendment violations that occurred prior to November 

26, 2008. The series of related wrongful acts underlying their claim 

did occur in fact before the 2008/2009 Coverage Document’s coverage period. 

D. Summary 

For the foregoing reasons, we conclude that the plain, unambiguous language of the relevant insurance provisions clearly 

demonstrate that the insured occurrence occurred prior to the effective date of the 2008/2009 Coverage Document and the Reinsurance Agreement. The allegations of the second amended complaint clearly demonstrate that PRM had no duty to defend the City 

under the 2008/2009 Coverage Document, and the facts developed 

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21-11774 Opinion of the Court 23

in the trial of the underlying case clearly demonstrate that PRM 

had no duty to indemnify the City under the 2008/2009 Coverage 

Document. Thus, the occurrence was not covered under Munich’s 

Reinsurance Agreement. 

IV. 

PRM’s main argument on appeal is that the district court 

erred by reviewing de novo its decision to cover the Chmielewskis’ 

§ 1983 claim because the follow-the-fortunes doctrine requires Munich to reimburse PRM for its good faith decision to defend and 

indemnify the City. This doctrine holds “that reinsurers are generally bound by the reinsured’s decision to pay the claim and must 

refrain from second guessing a good faith decision to do so.” Am. 

Bankers, 198 F.3d at 1335. As this Court has explained, the case law 

cites several policy reasons supporting the doctrine. First, “[r]einsurers do not examine risks, receive notice of loss from the original 

insured, or investigate claims,” so “the reinsurance market has relied on . . . the exercise of utmost good faith to decrease monitoring costs and ex ante contracting costs” because reinsurers “cannot 

duplicate the costly but necessary efforts of the primary insurer in 

evaluating risks and handling claims.” Id. (quoting Unigard Sec. 

Ins. Co., Inc. v. N. River Ins. Co., 4 F.3d 1049, 1054 (2d Cir. 1993), 

abrogated on other grounds by Glob. Reinsurance Corp. of Am. v. 

Century Indem. Co., 22 F.4th 83 (2d Cir. 2021)). 

And American Bankers notes a second reason for the doctrine:

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24 Opinion of the Court 21-11774

To permit the reinsurer to revisit coverage issues resolved between the insurer and its insured would 

place insurers in the untenable position of advancing 

defenses in coverage contests that would be used 

against them by reinsurers seeking to deny coverage. . . . Were the Court to conduct a de novo review 

of [the insurer’s] decision-making process, the foundation of the [insurer]-reinsurer relationship would 

be forever damaged. The goals of maximum coverage and settlement . . . would give way to a proliferation of litigation. [Insurers] faced with de novo review of their claims determinations would ultimately 

litigate every coverage issue before making any attempt at settlement.

Id. (first alteration in original) (quoting N. River Ins. Co. v. CIGNA 

Reinsurance Co., 52 F.3d 1194, 1206 (3d Cir. 1995)). 

As PRM would have us apply it here, the follow-the-fortunes 

doctrine would mean that Munich could not second guess PRM’s 

coverage decision to defend and indemnify the City if PRM decided 

in good faith to do so. Munich would be bound to reimburse on 

the basis of PRM’s good faith coverage decision. 

PRM argues that the Reinsurance Agreement has an express 

follow-the-fortunes clause, and, in the alternative, argues that we 

should infer one. We reject both arguments because the plain, unambiguous language of the relevant insurance provisions are inconsistent with the follow-the-fortunes doctrine. 

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As the foregoing description (supra Part III) of the relevant 

insurance provisions reveals, the relevant insurance provisions in 

this case not only do not contain an express follow-the-fortunes 

clause, they are squarely inconsistent with the doctrine. That is, 

the relevant insurance provisions here expressly require PRM to 

submit to Munich not only proof that PRM has paid its insured (i.e., 

the City), but also proof that Munich’s Reinsurance Agreement 

provides coverage for such payment. As noted above, Article XI(C) 

of the Reinsurance Agreement provides

Payment by the Reinsurer of its portion of loss and 

expense, paid by or on behalf of PRM, will be made 

by the Reinsurer to PRM promptly after proof of payment by PRM and coverage hereunder is received by 

the Reinsurer.

Art. XI(C) (emphasis added). Also as noted above, Article I and Article VII of the Reinsurance Agreement similarly make clear that 

Munich agrees to indemnify PRM only for occurrences which occur during the 2008/2009 Coverage Document that Munich reinsured. In other words, Munich reinsured PRM only for occurrences for which PRM was liable under the 2008/2009 Coverage 

Document. Thus, Article I of the Reinsurance Agreement provides

The Reinsurer agrees to indemnify PRM, on an excess 

of loss basis, for Ultimate Net Loss paid by PRM as a 

result of Occurrences . . . during the term of this 

Agreement under PRM’s Coverage Document underwritten by PRM and covered under this Agreement.

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26 Opinion of the Court 21-11774

Art. I (emphasis added). And Article VII of the Reinsurance Agreement defines the term Ultimate Net Loss as “the sum or sums paid 

by PRM for which it is liable, under the Coverage Document reinsured hereunder,” i.e., the 2008/2009 Coverage Document. Art. 

VII (emphasis added). 

Although PRM argues that Articles I and XI(C) of the Reinsurance Agreement constitute an express follow-the-fortunes 

clause, the above quotations demonstrate just the opposite. 

Squarely contrary to providing that Munich will be bound by 

PRM’s good faith coverage decisions—the core principle of the follow-the-fortunes doctrine—these provisions require that PRM 

must submit proof to Munich not only that PRM has paid amounts 

to its insured (i.e., the City), but also proof that Munich’s Reinsurance Agreement provides coverage for such payments. See Art. 

XI(C) (“Payment by the Reinsurer . . . will be made . . . after proof 

of payment by PRM and coverage hereunder is received by the Reinsurer.”).6 

Having rejected PRM’s argument that the Reinsurance 

Agreement contains an express follow-the-fortunes clause, we turn 

6 PRM inaccurately characterizes the district court’s opinion as deciding that 

Article XI(C) was not a follow-the-fortunes clause “simply because [the reinsurance agreement] did not specifically use the phrase ‘follow the fortunes.’” 

That is incorrect: the district court concluded that Article XI(C) was not a follow-the-fortunes clause because it did not bind Munich to follow PRM’s coverage decisions. 

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21-11774 Opinion of the Court 27

to its argument that, even absent an explicit follow-the-fortunes 

clause in the Reinsurance Agreement, this Court should infer that 

the doctrine applies to any reinsurance contract under Florida law. 

In predicting how the Supreme Court of Florida would construe 

the Reinsurance Agreement, we decline to infer the application of 

the follow-the-fortunes doctrine under the circumstances of this 

case. Where a reinsurance agreement contains terms that are 

plainly and unambiguously inconsistent with the follow-the-fortunes doctrine (as the Reinsurance Agreement does here), we are 

confident that the Supreme Court of Florida would not infer application of the doctrine. What PRM’s argument asks us to do is to 

infer that PRM and Munich intended for Munich to be bound by 

PRM’s good faith decision to provide coverage for the City’s 

wrongful acts in the underlying case. But the plain, unambiguous 

language of the Reinsurance Agreement provides just the opposite: 

it requires that PRM submit to Munich not only proof that it paid 

the City, but also proof that such payments were covered under 

the Reinsurance Agreement. We reject PRM’s argument as wholly 

without merit. See Excelsior Ins. Co., 369 So. 2d at 942 (prohibiting 

courts from “rewrit[ing] contracts, add[ing] meaning that is not 

present, or otherwise reach[ing] results contrary to the intentions 

of the parties”). 

We need not decide—and we expressly do not address—

whether such an inference would be appropriate under other circumstances—e.g., where the reinsurance agreement contains neither an express follow-the-fortunes clause nor language that is 

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plainly inconsistent with the doctrine. Two treatises suggest that 

courts are divided over this question. See 2 Allan D. Windt, Insurance Claims & Disputes: Representation of Insurance Companies 

& Insureds § 7:10 (6th ed. Mar. 2022 Update) (stating that “courts 

in the majority of states” have held that a reinsurer does not have 

to follow the fortunes of the insurer if their contract does not contain an express follow-the-fortunes clause); Steven C. Schwartz, Reinsurance Law: An Analytic Approach § 9.02 (2021) (noting that 

“[c]ourts are split as to whether a follow-the-fortunes clause is required, or whether the doctrine is implicit in every reinsurance 

contract”). 

PRM also argues that our prior decision in American Bankers required the district court to apply the follow-the-fortunes doctrine. We reject that argument. We applied the doctrine in American Bankers because the reinsurance agreement at issue contained 

a follow-the-fortunes clause. See 198 F.3d at 1334–35 (identifying a 

clause that said “[a]ll claims involving this reinsurance when settled 

by the Company, shall be binding on the Reinsurer” as a follow-the-fortunes clause and noting that such clauses “usually 

state[] that when an insurer loses to—or settles with—the insured, 

the reinsurer must ‘follow the fortunes’ of the [insurer] and pay on 

its reinsurance obligations”). Our decision in American Bankers

did not hold, or even suggest, that courts must imply the doctrine 

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21-11774 Opinion of the Court 29

in every reinsurance agreement, even when the relevant insurance 

provisions are inconsistent with an application of the doctrine.7 

In sum, we reject PRM’s arguments that the Reinsurance 

Agreement contains an express follow-the-fortunes clause and its 

alternative argument that we should imply one. Both arguments 

fail because the plain, unambiguous language of the relevant insurance provisions are squarely inconsistent with the core principle of 

7 PRM also cites two decisions of the Eighth Circuit for the proposition that 

courts should imply the follow-the-fortunes doctrine in all reinsurance contracts. We can easily distinguish these cases. In the first one, the Eighth Circuit affirmed the district court’s application of the follow-the-fortunes doctrine 

because (a) the parties agreed “as to the nature of the follow-the-fortunes doctrine and as to its customary application in the reinsurance business” and 

(b) the contracts at issue “did not contain ‘anti-follow-the-fortunes’ provisions.” ReliaStar Life Ins. Co. v. IOA Re, Inc., 303 F.3d 874, 881 (8th Cir. 2002). 

The Eighth Circuit, which was applying Minnesota law, did not hold that a 

silent reinsurance contract implicitly contains a follow-the-fortunes clause 

even when evidence of the parties’ intent is inconsistent with application of 

the doctrine. Id. at 880–81. In the second opinion, the Eighth Circuit expressly 

did not reach the question of whether such a clause may be implied in a reinsurance contract. See Emps. Reinsurance Co. v. Mass. Mut. Life Ins. Co., 654 

F.3d 782, 791 (8th Cir. 2011) (“[W]e express no opinion as to whether follow 

the settlements is an implied term of the Treaty under Connecticut law.”). 

Neither case suggests that a follow-the-fortunes clause should be implied 

when the reinsurance agreement contains provisions inconsistent with the follow-the-fortunes doctrine. 

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the follow-the-fortunes doctrine—i.e., that Munich would be 

bound by PRM’s good faith coverage decisions.8 

V. 

Because the district court correctly decided that Munich had 

no duty to reimburse PRM for its defense and indemnification of 

the City in the underlying § 1983 suit, we AFFIRM the grant of 

summary judgment and declaratory relief in favor of Munich. The 

judgment of the district court is

AFFIRMED. 

8 Because we have determined that the district court correctly refused to apply 

the follow-the-fortunes doctrine, we do not reach the parties’ arguments concerning whether a bad faith exception to the doctrine might apply. 

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