PDQ Coolidge Formad, LLC v. Landmark American Insurance Company

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 19, 2014
• Docket: 13-12079
• Status: Unpublished

Opinion

Case: 13-12079 Date Filed: 05/19/2014 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 13-12079 Non-Argument Calendar ________________________

D.C. Docket No. 1:12-cv-20627-KMM

PDQ COOLIDGE FORMAD, LLC,

Plaintiff - Counter Defendant - Appellant,

versus

LANDMARK AMERICAN INSURANCE COMPANY,

Defendant - Counter Claimant - Appellee,

FANNIE MAE, Fannie Mae,

Intervenor - Counter Claimant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(May 19, 2014) Case: 13-12079 Date Filed: 05/19/2014 Page: 2 of 11

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

PDQ Coolidge Formad, LLC (“PDQ”) appeals from the district court’s order

granting summary judgment in favor of Landmark American Insurance Company

(“Landmark”) in PDQ’s suit alleging that Landmark breached an insurance

contract by denying a claim for property damage. The district court concluded that

PDQ had not provided Landmark with timely notice of the damage underlying the

claim, that Landmark was prejudiced by PDQ’s failure to provide timely notice,

and that Landmark did not breach the contract by denying the claim. On appeal,

PDQ argues that the district court erred in granting summary judgment because:

(1) whether PDQ provided timely notice is a question of fact for the jury; (2)

PDQ’s evidence created a question of fact even if it is “self-serving”; (3) the term

“prompt notice” in the contract is ambiguous; and (4) whether Landmark was

prejudiced is a question of fact. After careful review, we affirm.

The undisputed facts are these. PDQ owns an apartment complex known as

Washington Shores, located in Orlando, Florida. The Washington Shores property

(the “Property”) allegedly suffered damage as a result of Tropical Storm Fay on or

about August 20, 2008, during which time the Property was insured under a

commercial policy issued by Landmark (the “Policy”). The Policy provided

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coverage for direct physical loss caused by windstorm, subject to certain

conditions, exclusions or limitations. The Policy included the following provision:

3. Duties in The Event of Loss Or Damage

a. You must see that the following are done in the event of loss or Damage to the covered property:

... (2) Give us prompt notice of the loss or damage. Include a description of the property involved.

(3) As soon as possible, give us a description of how, when and where the loss or damage occurred.

....

(Emphasis added). PDQ submitted claims with Landmark for other locations it

owned immediately following Tropical Storm Fay. In February 2009, Landmark

received notification from PDQ that PDQ intended to submit a claim for the

Washington Shores property relating to alleged damage from Tropical Storm Fay.

Landmark’s structural engineer, Milton Engineering Consultants, P.A. (“MEC”),

thereafter conducted inspections of the Property. MEC then drafted two reports, in

June and August 2009, which determined that none of the roof damage on the

Property could reasonably be attributed to wind forces generated during Tropical

Storm Fay. Landmark denied PDQ’s claims, concluding, among other things, that

PDQ had failed to submit “its claim for damages to the Washington Shores

property in a timely manner as required by the terms of the Policy.”

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We review a district court’s order granting summary judgment de novo,

“viewing all the evidence, and drawing all reasonable inferences, in favor of the

non-moving party.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th

Cir. 2005). Summary judgment is proper if the pleadings, depositions, and

affidavits show that there is no genuine issue of material fact and that the movant is

entitled to judgment as a matter of law. Mayfield v. Patterson Pump Co., 101 F.3d

1371, 1374 (11th Cir. 1996). A mere “scintilla” of evidence supporting the non-

movant’s position will not suffice, nor will a non-movant’s conclusory allegations

without specific supporting facts; instead, there must be a sufficient showing that

the jury could reasonably find for that party. Brooks v. Cnty. Comm’n of Jefferson

Cnty., 446 F.3d 1160, 1162 (11th Cir. 2006); Leigh v. Warner Bros., Inc., 212 F.3d

1210, 1217 (11th Cir. 2000); Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir.

1997); Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).

In this diversity case, because the insurance contract was negotiated in

Florida, Florida law applies. See State Farm Mut. Auto. Ins. Co. v. Duckworth,

648 F.3d 1216, 1218 (11th Cir. 2011) (noting that Florida courts apply the law of

the jurisdiction in which the contract was entered into). Under Florida law, the

purpose of policy provisions requiring prompt notice “is to enable the insurer to

evaluate its rights and liabilities, to afford it an opportunity to make a timely

investigation, and to prevent fraud and imposition upon it.” Laster v. United States

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Fidelity & Guaranty Co., 293 So. 2d 83, 86 (Fla. 3d DCA 1974) (quotation

omitted). Policy provisions that require “timely notice” or “prompt notice” are

interpreted identically, and mean that notice must be given with “reasonable

dispatch and within a reasonable time [i]n view of all the facts and circumstances

of the particular case.” Id. (quoting Employers Casualty Co. v. Vargas, 159 So. 2d

875, 877 (Fla. 2d DCA 1964)); American Fire & Cas. Co. v. Collura, 163 So. 2d

784, 792 (Fla. 2d DCA 1964). In Florida, an insured’s failure to provide “timely

notice of loss in contravention of a policy provision is a legal basis for the denial of

recovery under the policy.” Ideal Mut. Ins. Co. v. Waldrep, 400 So. 2d 782, 785

(Fla. 3d DCA 1981). Thus, Florida courts have ruled on summary judgment that

an insured’s delayed notice to an insurer did not constitute prompt notice under the

policy when the factual record did not support an argument that the delay was

reasonable. See Kroener v. Florida Ins. Guar. Ass’n, 63 So. 3d 914, 916 (Fla. 4th

DCA 2011); Midland Nat’l Ins. Co. v. Watson, 188 So. 2d 403, 405 (Fla. 3d DCA

1966); Morton v. Indem. Ins. Co. of N. Am., 137 So. 2d 618, 620 (Fla. 2d DCA

1962), overruled on other grounds by Collura, 163 So. 2d 784.

Here, the district court did not err in finding no genuine dispute of material

fact concerning PDQ’s lack of prompt notice. For starters, we disagree with

PDQ’s claim that the phrase “prompt notice” in the Policy is ambiguous. Florida

courts have found no ambiguity in this phrase, readily construing it (and similar

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phrases) to mean that notice must be given “with reasonable dispatch and within a

reasonable time in view of all the facts and circumstances of the particular case.”

See Collura, 163 So. 2d at 792 (noting that the “exact phraseology” of policy

provisions requiring notice to be “‘immediate,’ ‘prompt,’ forthwith,’ ‘as soon as

practicable,’ and ‘within a reasonable time’” matters little, and they all “call for

notice to be given with reasonable dispatch and within a reasonable time in view of

all the facts and circumstances of each particular case”) (emphasis omitted).

Moreover, we find no dispute of fact concerning when Landmark was

notified by PDQ about damage to the Washington Shores property. As the record

shows, the evidence first indicating that PDQ had given notice to Landmark about

damage to the Property is found in a letter dated February 2009, approximately six

months after Tropical Storm Fay. As for PDQ’s argument that the district court

erred in requiring notice to be written, we disagree. The record merely reveals that

the first evidence of notice happened to occur in writing in February 2009; there is

no evidence that Landmark was notified in writing, orally, or otherwise prior to

that date. Thus, there is no record evidence to contradict the conclusion that

Landmark was given notice about the damage to the Property in February 2009.

PDQ attempts to create an issue of fact about the timing of the notice with

the affidavit of Tammie Smith, the testimony of Jaime Yuken and a new argument

that “there was considerable confusion.” However, the Smith affidavit contains

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only a conclusory statement that “Landmark knew of the damages and claims for

the Washington Shores Property prior to February 18th, 2009 and at or about the

same time we were adjusting and working on claims for the other properties that

are in within [sic] a very close physical proximity to the Washington Shores

Property.” She provides no specifics or other details concerning when notice was

given. Similarly, deposition testimony of Jaime Yuken, the corporate

representative of PDQ, said that “he believed that PDQ COOLIDGE had submitted

its claim timely and in line with policy conditions.” But, again, Yuken does not

offer an actual date of when he believes such notice was given. As for the letter

that it claims revealed “confusion,” it also fails to provide an actual date prior to

February 2009. We have consistently held that a party’s conclusory allegations are

insufficient to enable the non-movant to withstand summary judgment. See Leigh,

212 F.3d at 1217; Holifield, 115 F.3d at 1564 n.6; Earley, 907 F.2d at 1081. The

district court did not err in disregarding these conclusory assertions, and PDQ’s

claim that the court ignored them because they were “self-serving” has no merit.

Nor do we find any error in the district court’s conclusion that this six-month

delay was not “prompt.” To begin with, Florida cases involving notice provisions

similar to the one here have held that a six-month or less period is considered late

notice. See Morton, 137 So. 2d at 620 (six and one-half months); Ideal, 400 So. 2d

at 783 (six weeks); Deese v. Hartford Accident & Indemnity Co., 205 So. 2d 328,

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329 (Fla. 1st DCA 1967) (four weeks); compare Tiedtke v. Fidelity & Cas. Co. of

NY, 222 So. 2d 206 (Fla. 1969), quashing Fidelity & Cas. Co. of NY v. Tiedtke,

207 So. 2d 40 (Fla. 4th DCA 1968) (four months). Not only did PDQ fail to give

notice about damage to the Property for about six months, it is undisputed that

PDQ promptly provided notice to Landmark for its claims and losses to other

nearby property also damaged by Tropical Storm Fay. Yet PDQ does not explain

why it gave notice for the other properties and failed to mention Washington

Shores. The record also indicates that PDQ was aware of the damage at the

Property, because it supposedly tarped some of the roofs at the Property right after

the storm and PDQ’s property manager Ellen Darland testified that she had

received immediate complaints from the Property’s tenants about roof leaks. On

this record -- which reveals that PDQ knew about the damage to the Property and

knew how to promptly notify Landmark about damage to other properties but

nevertheless failed to provide notice concerning the Property for approximately six

months -- we conclude the district court did not err in concluding that no

reasonable interpretation of the record created a genuine dispute of material fact

concerning whether the notice concerning the Property was timely.

Finally, we reject PDQ’s claim that there was a dispute of fact about the

prejudice Landmark suffered from PDQ’s six-month delay in notice. In Florida, a

failure to give timely notice creates a rebuttable presumption of prejudice to the

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insurer. Bankers Ins. Co. v. Macias, 475 So. 2d 1216, 1217-18 (Fla. 1985). The

burden is “on the insured to show lack of prejudice where the insurer has been

deprived of the opportunity to investigate the facts.” Id. at 1218; Stark v. State

Farm Fla. Ins. Co., 95 So. 3d 285, 288 (Fla. 4th DCA 2012). Prejudice is properly

resolved on summary judgment where an insured fails to present evidence

sufficient to rebut the presumption. 1500 Coral Towers Condo. Ass’n, Inc. v.

Citizens Property Ins. Co., 112 So. 3d 541 (Fla. 3d DCA 2013); Soronson v. State

Farm Fla. Ins. Co., 96 So. 3d 949, 953 (Fla. 4th DCA 2012); City Mgmt. Grp.

Corp. v. Am. Reliance Ins. Co., 528 So. 2d 1299, 1300 (Fla. 3d DCA 1988).

Here, PDQ has not meet its burden to rebut the presumption of prejudice.

Although Landmark’s engineer, MEC, concluded that the damage at the time of

the inspections was not a result of Tropical Storm Fay, there is no evidence

showing that an earlier inspection would not have impacted the investigation. For

instance, PDQ offers nothing to address (a) whether better conclusions could have

been drawn without the delay, (b) whether those conclusions could have been

drawn more easily, or (c) whether the repairs to the affected areas that took place

in the interim would complicate an evaluation of the extent of the damage or

PDQ’s efforts to mitigate its damages. Nor does PDQ proffer anything to indicate

that the condition of the Property was in the same condition as it was right after the

storm. In fact, PDQ has indicated that the damages got worse over time.

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Further, PDQ’s reliance on “two (2) detailed estimates, affidavits and sworn

testimony regarding the loss,” dated February 10 and June 12, 2009, do not rebut

any presumption of prejudice, since this evidence describes all of the damages,

regardless of cause, at the Property and are conclusory. Hope v. Citizens Property

Ins. Co., 114 So. 3d 457, 460 (Fla. 3d DCA 2013) (finding that the insured’s

submission of a homeowner’s affidavit, roofer’s repair estimate and public

adjuster’s report listing various repairs necessary to the structure were conclusory

and did not overcome presumption of prejudice to Citizens). But even if PDQ had

an affidavit saying that “the late notice did not prejudice Landmark” that would not

be enough to overcome the presumption of prejudice. See id.; 1500 Coral Towers,

112 So. 3d at 545 (affirming summary judgment for Citizens where “[t]he closest

Coral Towers comes is a conclusory statement by one of its engineers that, in his

opinion, the late notice did not prejudice Citizens”); Kramer v. State Farm Fla. Ins.

Co., 96 So. 3d 303 (Fla. 4th DCA 2012) (affirming summary judgment where the

presumption of prejudice was not rebutted by structural engineer’s affidavit stating

that roof damage was equally likely to have resulted from wind damage or foot

traffic). Finally, we reject PDQ’s claim that it had no opportunity to rebut

prejudice in the district court, since Landmark raised the issue in its summary

judgment motion, and PDQ expressly addressed prejudice in its response. 1

1 We also DENY PDQ’s motion to take judicial notice. Among other things, we’ve repeatedly 10 Case: 13-12079 Date Filed: 05/19/2014 Page: 11 of 11

AFFIRMED.

held that we will not consider an issue not raised in the district court and raised for the first time on appeal. See Access Now, Inc. v. Sw. Airlines, Co., 385 F.3d 1324, 1331 (11th Cir. 2004). 11