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[DO NOT PUBLISH]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)
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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
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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).
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