Trans Coastal Roofing Company, Inc., Plaintiff-counter-defendant-appellee,intercargo Insurance Company, Counter-defendant-appellee, v. David Boland Incorporated, Defendant Counter-claimant-appellant,american Insurance Company, Defendant, 344 F.3d 1281 (11th Cir. 2003)

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US Court of Appeals for the Eleventh Circuit - 344 F.3d 1281 (11th Cir. 2003) September 9, 2003

Denis L. Durkin, Baker & Hostetler, Orlando, FL, for David Boland Inc.

Alexander J. Williams, Jr., Leiby Ferencik Libanoff & Brandt, P.C., James O. Murphy, Jr., Byrd and Murphy, Ft. Lauderdale, FL, for Appellees.

Appeal from the United States District Court for the Southern District of Florida (No. 94-10062-CV-JCP); James C. Paine, Judge.

Before TJOFLAT and BARKETT, Circuit Judges, and WEINER* , District Judge.

PER CURIAM:


The procedural history, facts, and issues in this case are contained in our previous opinion, which certified a dispositive question of state law to the Florida Supreme Court. Trans Coastal Roofing Co. v. David Boland, Inc., 309 F.3d 758 (11th Cir. 2002). That Court has now answered the certified question in the affirmative. See David Boland, Inc., v. Trans Coastal Roofing Company, 28 Fla. L. Weekly S626 (Fla., July 11, 2003). The district court therefore erred in interpreting Florida Statutes § 627.428 to prohibit the recovery of attorneys' fees in excess of a performance bond's face amount from a subcontractor's surety when the fees claimant has not shown independent misconduct on the part of the surety. Accordingly, we VACATE the district court judgment with regard to limiting Intercargo's liability for attorneys' fees and REMAND this case for further proceedings consistent with the opinion of Florida Supreme Court.

 *

Honorable Charles R. Weiner, United States District Judge for the Eastern District of Pennsylvania