USCA11 Case: 21-11612 Date Filed: 01/11/2022 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11612
Non-Argument Calendar
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METAL PRODUCTS COMPANY, LLC,
Plaintiff-Appellant,
versus
OHIO SECURITY INSURANCE COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:19-cv-00489-TKW-MJF
____________________
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2 Opinion of the Court 21-11612
Before WILLIAM PRYOR, Chief Judge, WILSON, and BRASHER, Cir-
cuit Judges.
PER CURIAM:
Metal Products Company, LLC, appeals the summary judg-
ment in favor of its insurer, Ohio Security Insurance Company.
Metal Products filed a claim for hurricane damage to the exterior
and interior of its two buildings, but it received payment only for
wind damage to the roof of one building. Metal Products sued
Ohio Security for breach of contract for failing to pay the replace-
ment cost damages for both buildings, and the insurer removed the
action to federal court,
28 U.S.C. § 1332. The district court ruled
that Metal Products was not entitled to replacement costs for build-
ings it had not repaired and that damage to the interior of one
building was excluded from coverage. We affirm.
Ohio Security issued a commercial general liability policy to
Metal Products that covered “direct physical loss of or damage to”
its buildings in Marianna, Florida. Metal Products obtained cover-
age of $1,335,395 for building 1 and $223,098 for building 2, subject
to separate deductibles for windstorm damage, respectively, of
$66,769.75 and $11,154.90. The windstorm endorsement stated
that Ohio Security would “not pay for loss or damage until the
amount of loss or damage exceeds the applicable Deductible.” The
policy also excluded from coverage “loss or damage caused by or
resulting from” “[w]ear and tear” and “[r]ust, or other corrosion,
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21-11612 Opinion of the Court 3
decay, deterioration, hidden or latent defect or any quality in prop-
erty that causes it to damage or destroy itself.”
The policy stated that Ohio Security had the “option . . . [to]
either” “[p]ay the value of” or “the cost of repairing or replacing
the lost or damaged property” “[a]t [its] actual cash value as of the
time of loss or damage.” If Metal Products “elect[ed] to have loss
or damage settled on an actual cash value basis, [it could] still make
a claim for” replacement cost. Metal Products had to give “noti[ce]
. . . of [its] intent to do so within 180 days after the loss or damage
and then “[r]eplacement Cost (without deduction for depreciation)
replace[d] Actual Cash Value [as] the [type of] Valuation . . . .” But
“no[] pay[ment] . . . [of the] replacement cost basis” occurred
“[u]nless the repairs or replacement [were] made as soon as reason-
ably possible after the loss or damage” and “[u]ntil the lost or dam-
aged property [was] actually repaired or replaced.”
Metal Products timely filed a claim for coverage for damage
to its two buildings from Hurricane Michael. The company sub-
mitted an estimate from RestoreMasters Contracting LLC that cal-
culated a total “Replacement Cost Value” of $818,745.12. The esti-
mate described repairs needed for the roofs of both buildings and
for the interior of building 1 caused by water intrusion. The esti-
mate quoted identical replacement costs and actual costs for the
repairs and contained no deduction for depreciation.
Ohio Security determined that the policy covered some
damage to both buildings based on reports prepared by an engi-
neering firm and a consultant, which were provided to Metal
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4 Opinion of the Court 21-11612
Products. The insurer paid Metal Products $61,717.44 for lost in-
come and the actual cash value of wind damage to building 2, but
paid nothing for building 1 because its windstorm deductible ex-
ceeded its damages. Ohio Security determined that the interior
damages to building 1 were excluded from coverage due to wear
and tear and deterioration of the roofing systems.
Metal Products complained that Ohio Security breached its
contract by “refus[ing] to reimburse . . . adequately for damages”
from a “hurricane event.” Ohio Security answered that Metal Prod-
ucts was not entitled to replacement cost damages because it had
made no repairs to its property and that the interior damages to
building 1 were excluded from coverage as caused by wear and tear
and deterioration. During discovery, Metal Products demanded
“$740,820.47 in indemnity” based on the RestoreMasters estimate,
which it admitted did not account for depreciation. Metal Products
also admitted it had made no repairs to its buildings.
Ohio Security moved for summary judgment and argued
there could be no breach of contract because undisputed evidence
established that Metal Products made no repairs, as required to ob-
tain replacement costs. Metal Products responded that summary
judgment was inappropriate because factual disputes existed about
actual cash value and the amount of loss and about the cause of the
interior damage to building 1. Ohio Security replied that Metal
Products requested replacement costs to which it was not entitled
and that the interior damage to building 1 was not covered under
the policy because its engineer’s report established, without
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21-11612 Opinion of the Court 5
dispute, that water entered the building due to the deterioration of
the roof.
The district court entered summary judgment in favor of
Ohio Security. The district court ruled that Metal Products “pre-
sent[ed] [no] expert testimony or other evidence contradicting the
engineer’s opinions regarding the damage to the buildings” and
“there [was] no evidence from which a reasonable jury could find”
that Ohio Security breached its contract by refusing to pay interior
damage not covered under the insurance policy. The district court
also ruled that Ohio Security “did not breach the insurance policy
by failing to make additional payments to [Metal Products] based
on [its] RestoreMasters RCV estimate” because “it is undisputed
that [the company] ha[d] not repaired the damage to the property
as required for payment of RCV.” The district court “did not over-
look that the RestoreMasters’ estimate included a column titled
ACV,” but found “it . . . undisputed that those amounts were not
ACVs because they are the same as the corresponding amounts in
the RCV column and the RestoreMasters’ estimate did not include
any amounts for depreciation.”
We review de novo the summary judgment in favor of Ohio
Security. Zucker for BankUnited Fin. Corp. v. U.S. Specialty Ins.
Co.,
856 F.3d 1343, 1348 (11th Cir. 2017). “In so doing, we view all
of the evidence in a light most favorable to the nonmoving party
and draw all reasonable inferences in that party's favor.”
Id. (inter-
nal quotation marks omitted). Summary judgment is appropriate
when “there is no genuine dispute as to any material fact and the
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6 Opinion of the Court 21-11612
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
Under Florida law, which the parties agree applies, “insur-
ance contracts are construed according to their plain meaning.”
Zucker, 856 F.3d at 1348 (quoting Taurus Holdings, Inc. v. U.S. Fid.
& Guar. Co.,
913 So.2d 528, 532 (Fla. 2005)). When “a policy pro-
vision is clear and unambiguous, it should be enforced according
to its terms” and we “may not rewrite” it. Taurus Holdings,
913 So.
2d at 532.
Ohio Security did not breach its contract with Metal Prod-
ucts. Metal Products submitted an estimate that calculated the re-
placement cost damages to its buildings. The insurance policy
states that no payment is made on a claim for replacement cost
value “[u]ntil the lost or damaged property is actually repaired or
replaced.” So “[u]nder the terms of the policy, [Metal Products had
to] actually repair or replace the damage as a condition precedent
to payment of replacement costs.” Fla. Ins. Guar. Ass’n v. Somerset
Homeowners Ass’n, Inc.,
83 So. 3d 850, 852 (Fla. Dist. Ct. App.
2011). Because Metal Products made no repairs, Ohio Security was
not obligated to pay the replacement cost value of the buildings.
See id.; Ceballo v. Citizens Prop. Ins. Corp.,
967 So. 2d 811, 815
(Fla. 2007) (“[C]ourts have almost uniformly held that an insurance
company's liability for replacement cost does not arise until the re-
pair or replacement has been completed.”) (quoting State Farm
Fire & Cas. Co. v. Patrick,
647 So. 2d 983 (Fla. Dist. Ct. App. 1994)).
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21-11612 Opinion of the Court 7
Metal Products argues that “the true issue in [the] case . . .
was the amount of loss” and the “refusal [by Ohio Security] to
make an additional actual value payment,” but the company de-
manded only replacement cost damages. Metal Products submit-
ted only an estimate from RestoreMasters to support its claim for
coverage. And that estimate calculated only replacement cost dam-
ages. Metal Products could not change the nature of its demand for
payment by asserting, in its opposition to summary judgment, that
its estimate “contain[ed] both ACV and RCV values.”
Metal Products also argues that it was unfairly prejudiced
when the district court ruled on the issue of causation when it was
not raised initially by Ohio Security, but we disagree. Metal Prod-
ucts raised the issue of causation in its opposition to summary judg-
ment and invited the court to address the issue. Metal Products at-
tached to its opposition the engineer’s report prepared for Ohio Se-
curity. That report attributed damage to the interior of building 1
to “structural settlement” and “age related deterioration.” Metal
Products was not prejudiced when Ohio Security cited the same
report in its reply as evidence establishing, without dispute, that
damage to the interior of building 1 was attributable to deteriora-
tion and excluded from coverage under the policy. The district
court committed no error when it addressed the issue of causation.
We AFFIRM the summary judgment in favor of Ohio Secu-
rity Insurance Company.
