New South Communications, Inc. v. Houston Casualty Company

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12276
________________________
D.C. Docket No. 4:18-cv-10110-JLK
NEW SOUTH COMMUNICATIONS, INC.,
d.b.a. Florida Keys Media, LLC,
Plaintiff - Appellants,
versus
HOUSTON CASUALTY COMPANY,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 2, 2020)
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Before MARTIN, ROSENBAUM, and TALLMAN,* Circuit Judges.
PER CURIAM:
When it made landfall in the Florida Keys on September 10, 2017, then-
Category 4 Hurricane Irma left a path of destruction in its wake. This case involves
an insurance claim that Plaintiff-Appellant New South Communications, Inc., filed
with its insurer, Defendant-Appellee Houston Casualty Co., to recover insurance
proceeds for hurricane damage two buildings (known as Building 35 and Building
41) sustained. As it turned out, Plaintiffs-Appellants Florida Keys Media, LLC, and
Robert Holladay—not New South—owned the properties involved, and they were
also named insureds on the same Houston policy as New South.
But before New South realized that it did not own the buildings, New South
filed suit against Houston for failure to pay the claim. Florida Keys Media and
Holladay later joined as Plaintiffs. After they did, Houston moved for summary
judgment. The district court granted the motion. In part, it held that none of the
Plaintiffs enjoyed standing. In the alternative, the district court concluded that the
Plaintiffs lost on the merits.
* Honorable Richard C. Tallman, United States Circuit Judge for the Ninth Circuit Court
of Appeals, sitting by designation.
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After careful consideration and with the benefit of oral argument, we agree
with the district court that New South lacks standing. But we conclude that Florida
Keys Media and Holladay have established standing.
As for the merits, after the district court granted summary judgment to
Houston, Florida’s Third District Court of Appeal issued a new ruling concerning
Florida insurance law that now requires vacatur of the order granting summary
judgment as it pertains to the merits. We therefore vacate the summary-judgment
order and remand to the district court for further proceedings consistent with this
opinion.
I.
A. Factual History
After Hurricane Irma blew through the Keys on September 10, 2017, Plaintiff-
Appellant New South reported to Defendant-Appellee insurer Houston a claim for
damages to two office buildings located in the Keys. 1 The properties were covered
under an insurance policy Houston issued.
Houston enlisted an independent adjustment firm to inspect the interiors and
exteriors of the two office buildings at Location No. 35 in Tavernier, Florida
(“Building 35”), and Location No. 41 in Sugarloaf Key, Florida (“Building 41”).
1
The claim also sought insurance proceeds for four radio towers. But the parties ultimately
acknowledged that none of the eventual Plaintiffs in this litigation owned the four radio towers, so
the towers are not involved in this appeal.
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The initial investigation indicated that rain infiltration caused some interior building
damage, which fell under a coverage exclusion in the policy. But within that
exclusion was an exception: interior loss was covered if caused by rain “entering
through openings made by a ‘named peril,’” including “windstorms” from
hurricanes like Irma.
Blake Tuomy, retained by an agent for Houston, inspected the properties to
determine the causes and origins of the damages and openings. With respect to
Building 35, Tuomy attributed much of the interior moisture intrusion to conditions
that existed before Hurricane Irma touched down in the Keys. But he did report an
isolated patch of wall where a Hurricane Irma-inflicted roof-damage leak could not
be ruled out. He also reported some localized interior water damage directly below
three holes believed to be made by a displaced roof-mounted antenna dislodged
during Hurricane Irma. As to Building 41, Tuomy concluded that there was no
indication that Hurricane Irma had damaged or breached the exterior of the building
in a way that could allow water penetration at the locations of water infiltration.
Based on Tuomy’s report, Houston determined that the cash value of the
covered loss, minus the deductible, resulted in an adjusted amount of $52,217.14.
On Houston’s behalf, Houston’s counsel sent a letter to New South’s public-
adjusting firm about the adjusted amount and about Houston’s partial denial of
coverage concerning Buildings 35 and 41. Counsel explained that the policy’s
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Interior-of-Building limitation for interior loss caused by rain (that did not enter
through openings created by Hurricane Irma) precluded coverage beyond the
adjusted amount. Houston also mailed New South a statement-of-loss form with
instructions to sign, notarize, and return a proof-of-loss statement within sixty days.
Neither New South nor any named insureds under the policy ever submitted a sworn
proof of loss.
B. Procedural History
After it received Houston’s partial denial letter, New South filed a breach-of-
contract suit against Houston in state court. In the suit, New South listed itself as
the only Plaintiff. 2 The complaint alleged that Houston failed to issue proper
payment for the cost of repairs necessary to restore the properties to their pre-loss
condition.
Houston removed the case to the Southern District of Florida. During
discovery, corporate-disclosure statements revealed that other named insureds on the
New South policy with Houston—Florida Keys Media and Robert Holladay,
individually—owned the two buildings listed in the claim. Since New South did not
own or lease either of the two properties, it amended the complaint and added the
2
New South filed the original complaint in this case as “New South Communications, Inc.,
d.b.a. Florida Keys Media, LLC.” In fact, though, New South and Florida Keys Media are two
entirely separate corporate entities, and New South was not doing business as Florida Keys at any
time relevant to this case.
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buildings’ owners, Florida Keys Media and Holladay, as Plaintiffs 3 (collectively
referred to as “the Insureds”).
Houston moved for summary judgment on three grounds. It contended that
the Insureds lacked standing, failed to satisfy the policy’s conditions precedent for
coverage and filing suit, and were unable to demonstrate an exception to the Interior-
of-Building exclusion for interior loss caused by rain. Simultaneously, Houston
filed a motion in limine seeking to exclude certain testimony by the Insureds’ expert,
Alfredo Brizuela, concerning the causes of the openings that allowed for rain
infiltration in Buildings 35 and 41 and the resulting damages.
The district court held a hearing on the summary-judgment motion. During
that hearing, among other things, the Insureds relied on Brizuela’s expert report to
address Houston’s contention that the Interior-of-Building coverage exclusion
precluded recovery beyond $52,217.14. Ultimately, the district court agreed with
Houston, granted the motion for summary judgment, dismissed the case with
prejudice, and denied as moot Houston’s motion to exclude Brizuela’s testimony.
The Insureds timely appealed.
II.
3
The amended complaint still satisfied diversity-jurisdiction requirements, as the breach-
of-contract claim involved Plaintiffs New South (an inactive corporation previously incorporated
in Florida and Mississippi), Holladay (a Louisiana resident), Florida Keys Media (a Florida
company with its principal place of business in Louisiana), and Defendant Houston (a Texas
corporation with its principal place of business in Texas). See 28 U.S.C. § 1332.
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We review standing de novo. AT & T Mobility, LLC v. Nat’l Ass’n for Stock
Car Auto Racing, Inc., 494 F.3d 1356, 1360 (11th Cir. 2007). We also review de
novo the district court’s grant of summary judgment. Southern-Owners Ins. Co. v.
Easdon Rhodes & Assocs. LLC, 872 F.3d 1161, 1163-64 (11th Cir. 2017). In
conducting our review, we view all evidence and draw all reasonable inferences
from that evidence in the light most favorable to the nonmoving party—here, the
Insureds. McCullum v. Orlando Reg’l Healthcare Sys., Inc., 768 F.3d 1135, 1141
(11th Cir. 2014). Summary judgment is appropriate only when the moving party
demonstrates that no genuine dispute exists over the material facts, and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
Because this federal action is based on diversity jurisdiction and the insurance
policy does not include a choice-of-law provision, Florida’s substantive law governs
our interpretation of the policy. See Great Am. All. Ins. Co. v. Anderson, 847 F.3d
1327, 1331 (11th Cir. 2017); State Farm Mut. Auto. Ins. Co. v. Roach, 945 So. 2d
1160, 1163 (Fla. 2006). We review de novo the district court’s interpretation of the
policy’s language. Southern-Owners, 872 F.3d at 1164.
III.
A. Standing
Whether the Insureds have standing raises a jurisdictional question, so we
begin with that issue. Under Article III of the Constitution, our jurisdiction as a
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federal court is limited to “cases” and “controversies.” Wilding v. DNC Servs. Corp.,
941 F.3d 1116, 1124 (11th Cir. 2019). For a matter to qualify as a “case” or
“controversy,” as relevant here, the plaintiff must establish standing to sue. See
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1546-47 (2016). Article III standing exists
when the plaintiff demonstrates that it has “(1) suffered an injury in fact, (2) that is
fairly traceable to the challenged conduct of the defendant, and (3) that is likely to
be redressed by a favorable judicial decision.” Id. at 1547.
In evaluating the Insureds’ standing here, we must consider the terms of the
policy. But before we do that, a brief review of the relevant Florida principles of
contract construction that govern our interpretation of the policy is in order.
Florida courts construe insurance contracts in accordance with the plain
meaning of the policies as bargained for by the parties. Prudential Prop. & Cas. Ins.
Co. v. Swindal, 622 So. 2d 467, 470 (Fla. 1993). But insurance contracts can
sometimes include “a genuine inconsistency, uncertainty, or ambiguity” in the
policy’s meaning. State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So. 2d 1245, 1248
(Fla. 1986). A policy provision is ambiguous when “the relevant policy language is
susceptible to more than one reasonable interpretation, one providing coverage and
the [other] limiting coverage.” Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29,
34 (Fla. 2000). We construe ambiguous coverage provisions and exclusions against
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the insurer and in favor of the insured. Id. (noting that “exclusionary clauses are
construed even more strictly against the insurer than coverage clauses”).
Ultimately, a court cannot rewrite a contract, add meaning that is not present,
or reach results contrary to the parties’ intentions. Taurus Holdings, Inc. v. U.S. Fid.
& Guar. Co., 913 So. 2d 528, 532 (Fla. 2005); Intervest Const. of Jax, Inc. v. Gen.
Fid. Ins. Co., 133 So. 3d 494, 497 (Fla. 2014). Rather, in construing insurance
policies, courts must read the policy as a whole and give meaning and operative
effect to every provision. Anderson, 756 So. 2d at 34.
Under Florida law, a party seeking to enforce an insurance contract must have
an “insurable interest” in the property secured, which means an “actual, lawful, and
substantial economic interest” in keeping the property “free from loss, destruction,
or pecuniary damage or impairment.” See Fla. Stat. § 627.405(1)–(2); see also
Travelers Indem. Co. v. Duffy’s Little Tavern, Inc., 478 So. 2d 1095, 1096 (Fla. 5th
DCA 1985). Where an insurance policy insures multiple parties, the rights of each
party under the policy “are separate and independent of the rights of the others.”
Unijax, Inc. v. Factory Ins. Ass’n, 328 So. 2d 448, 452 (Fla. 1st DCA 1976). We
keep these principles in mind as we evaluate the standing of the three Plaintiffs.
i. Florida Keys Media and Holladay
As owners of the damaged properties, Florida Keys Media and Holladay argue
that they have standing to sue Houston because Houston’s partial denial of the
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claim—irrespective of which Insured initially filed it—causes them injury. Florida
Keys Media and Holladay point to the facts that their properties suffered damage,
and Houston, their insurer, has refused to pay to remedy the damage that their policy
allegedly covers. They assert that, under the policy, it is irrelevant to coverage
whether they filed the claim or any other named insured did so, as long as one of the
named Insureds filed a claim for the Florida Keys Media- and Holladay-owned
properties.4 Based on the policy language, we agree.
The policy contained the following relevant language:
PROPERTY COVERAGE PART
In this coverage form, the words “you” and “your” mean the
persons or organizations named as the insured on the declarations
and the words “we”, “us”, and “our” mean the company providing this
coverage.
***
WHAT MUST BE DONE IN CASE OF LOSS
1. Notice -- In case of a loss, “you” must:
a. give “us” or “our” agent prompt notice including a description of
the property involved (“we” may request written notice); and
b. give notice to the police when the act that causes the loss is a
crime.
***
4
The parties also dispute whether the district court improperly disregarded Holladay’s
sworn interrogatories and affidavit attesting that New South initially reported the claim on behalf
of all named insureds under the policy. But the record indicates that New South became aware of
the actual property owners only during discovery at the district court. So we find no error in the
district court’s decision in this regard.
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(bold, italicized emphasis added).
The policy language unambiguously defines “you” as the “persons or
organizations named as the insured on the declarations.” In this case, the “property
named insured list” includes New South, Florida Keys Media, and Holladay. That
means that under the notice provision, which says what “you” must do, any of the
named insureds—New South, Florida Keys Media, or Holladay—had to give
Houston or its agent notice of the loss and “a description of the property involved.”
Contrary to Houston’s contention, nothing in the policy language requires—or even
suggests—that each named insured may file a claim concerning only its own
property. We will not rewrite the policy to effect Houston’s preferred requirement.
See Taurus Holdings, 913 So. 2d at 532. Rather, under the policy’s own terms, any
of the named insureds could provide Houston with the required notice of the loss
and the property involved, regardless of which of the three entities actually owned
the damaged property.
Under Florida law, as the owners of Buildings 35 and 41, named insureds
Florida Keys Media and Holladay also have an insurable interest in those insured
properties. See Travelers, 478 So. 2d at 1096. That makes them real parties in
interest to this breach-of-contract suit seeking coverage for repairs necessary to
restore the properties to their pre-loss condition. See Fed. R. Civ. P. 17(a)(1); see
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also Payroll Mgmt., Inc. v. Lexington Ins. Co., 815 F.3d 1293, 1298-99 (11th Cir.
2016).
In sum, Florida Keys Media and Holladay have established Article III
standing. First, they have “personally” experienced an injury, see Granite State
Outdoor Advert., Inc. v. City of Clearwater, Fla., 351 F.3d 1112, 1116 (11th Cir.
2003), in that they own the damaged properties listed in the New South claim, and
Houston has refused to pay for what Florida Keys Media and Holladay contend are
covered losses under their policy with Houston. Second, Florida Keys Media’s and
Holladay’s injuries are fairly traceable—indeed, directly caused by—Houston’s
refusal to provide coverage for the losses to the two buildings. And third, a favorable
court determination finding a breach of contract and awarding damages for the
interior losses of Florida Keys Media and Holladay would redress their injuries. For
these reasons, Florida Keys Media and Holladay have standing to sue.
ii. New South
New South also claims to have standing. But unlike Florida Keys Media and
Holladay, New South had no insurable interest in the covered property at the time of
the loss. That is so because, as New South conceded in its motion for leave to file
an amended complaint, Florida Keys Media and Holladay—not New South—own
the two buildings listed in the claim. Without an actual economic interest in
Buildings 35 and 41, New South has suffered no cognizable injury because of
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Houston’s refusal to cover damages to the properties. Rather, any recovery under
the asserted breach-of-contract claim would be payable to only Florida Keys Media
or Holladay, or both. So New South lacks standing to sue Houston in this suit.
B. Satisfaction of Condition Precedent to Coverage
Next, we consider whether Florida Keys and Holladay forfeited any potential
insurance coverage by failing to comply with their post-loss obligation, or condition
precedent, to file a proof of loss with Houston. 5 A condition precedent requires the
execution of an act after the contract has been entered but before the obligation to
perform under the contract is triggered. Racing Props., L.P. v. Baldwin, 885 So. 2d
881, 882–83 (Fla. 3d DCA 2004). In evaluating whether Florida Keys Media or
Holladay failed to complete a necessary condition precedent, we again begin with
the relevant policy language:
WHAT MUST BE DONE IN CASE OF LOSS
***
3. Proof Of Loss -- “You” must send “us”, within 60 days after “our”
request, a signed, sworn proof of loss. This must include the
following information:
a. the time, place, and circumstances of the loss;
b. other policies of insurance that may cover the loss;
c. “your” interest and the interests of all others in the property
involved, including all mortgages and liens;
5
The parties do not assert that Holladay and Florida Keys Media’s failure to provide notice
constituted a material breach forfeiting coverage of the policy plan. So we analyze only whether
the failure to submit the sworn proof of loss was a material breach.
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d. changes in title of the covered property during the policy
period; and
e. estimates, specifications, inventories, and other reasonable
information that “we” may require to settle the loss
***
OTHER CONDITIONS
[. . .]
10. Suit Against Us -- No one may bring a legal action against “us”
under this coverage unless:
a. all of the “terms” of this coverage have been complied with; and
b. the suit has been brought within two years after “you” first have
knowledge of the loss.
If any applicable law makes this limitation invalid, then suit must
begin within the shortest period permitted by law.
***
Under the policy’s plain language, the Insureds’ submission of “proof of loss”
represents a condition precedent to the Insureds’ ability to sue Houston. Here, none
of the named insureds submitted a proof of loss to Houston for the damages to
Buildings 35 and 41, so Houston argued in the district court that it had no duty to
pay insurance proceeds for losses to those properties. The district court agreed.
But at that time, the district court did not have the benefit of American
Integrity Insurance Co. v. Estrada, 276 So. 3d 905, 912 (Fla. 3d DCA 2019), which
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was issued after the district court entered its decision.6 We now reconsider the
parties’ arguments in light of Estrada.
In Estrada, Florida’s Third District Court of Appeal emphasized that “Florida
law abhors forfeiture of insurance coverage.” Id. at 914 (citation and internal
quotation marks omitted). In line with this perspective, Florida law construes
“policy provisions that tend to limit or avoid liability . . . liberally in favor of the
insured and strictly against the drafter who prepared the policy.” Id. (cleaned up).
As a result, Estrada concluded, a total forfeiture of coverage because of a failure to
comply with post-loss obligations occurs only when the insured’s breach is both
material and prejudicial to the insurer. 7 See id.
Estrada provides the relevant framework for conducting this analysis. See id.
at 912, 914-16. Under it, we first consider whether the insurer pled and proved that
the insured materially breached a post-loss policy provision. Id. at 912. If so,
6
“[W]e are bound to apply the specific law that would govern if this case were brought in
state court.” Bravo v. United States, 532 F.3d 1154, 1165–66 (11th Cir. 2008). Here, the case was
initially filed in the Circuit Court of the 16th Judicial Circuit in and for Monroe County, so where
a conflict among Florida’s Circuit Courts of Appeal exists, we must apply decisions of Florida’s
Third District Court of Appeal.
7
Estrada agreed with Florida’s Fifth District Court of Appeal’s analysis in Allstate
Floridian Insurance Co. v. Farmer, 104 So. 3d 1242 (Fla. 5th DCA 2012), which required that the
insurer be prejudiced by the insured’s failure to comply with a material post-loss condition before
insurance coverage would be forfeited. But the Fourth District Court of Appeal has concluded in
at least some cases that the insurer need not have been prejudiced by the insured’s failure to comply
for the insurer to enjoy a valid coverage defense. See, e.g., Rodrigo v. State Farm Fla. Ins. Co.,
144 So. 3d 690, 692 (Fla. 4th DCA 2014). As we have explained, see supra at note 6, we follow
the Third District Court of Appeal, since this action was initially filed in state court in that state
District.
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prejudice to the insurer is presumed, and the burden shifts to the insured to prove
that the breach did not prejudice the insurer. Id. at 916.
i. Material Breach of the Policy’s Proof-of-Loss Condition
Here, as we have noted, the post-loss condition in question required at least
one of the named insureds under the policy to file the required proof of loss. A
failure to provide a sworn proof of loss to prove damages can be a material breach
of a policy’s conditions precedent. Rodrigo v. State Farm Fla. Ins. Co., 144 So. 3d
690, 692 (Fla. 4th DCA 2014); see also Amica Mut. Ins. Co. v. Drummond, 970 So.
2d 456, 460 (Fla. 2d DCA 2007) (concluding that the insured’s failure to submit to
an examination under oath, a post-loss obligation, “was a material breach of a
condition precedent to [the insurer’s] duty to provide coverage under the policy”).
Here, none of the Insureds ever submitted a signed and sworn proof of loss to
Houston for the two damaged properties listed in the claim. They therefore breached
a material post-loss obligation.
The Insureds try to avoid this result by offering several excuses for their
failure to comply with this condition. None is availing.
First, they argue that Houston never legitimately requested a sworn proof of
loss because it demanded that the Insureds sign a document swearing that certain
interior water damages were excluded and that the amount of the claim was limited
to $52,217.14—a position with which they disagreed. But nothing in the policy
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required the Insureds to submit a proof of loss on a particular form. So nothing
prevented the Insureds from providing their proof of loss to Houston in the form that
the Insureds desired.
Second, the Insureds maintain that the facts associated with their explanations
for noncompliance with their post-loss obligation to provide proof of loss are in
dispute, so they are reserved for a jury determination. See Haiman v. Fed. Ins. Co.,
798 So. 2d 811, 812 (Fla. 4th DCA 2001). That argument fails for the same reason
the Insureds’ first one did: nothing in the policy required the Insureds to comply
with the proof-of-loss requirement by signing the form that Houston provided.
Third, the Insureds contend that Houston waived the proof-of-loss
requirement because it conceded that some portion of the claim (specifically,
$52,217.14) was covered and that the exception to the Interior-of-Building exclusion
applied. But under Florida law, an insurer’s investigation into “any loss or claim
under any policy” or an insurer’s partial payment to “engag[e] in negotiations
looking toward a possible settlement of any such loss or claim” does not waive any
policy requirement, including failure to provide proof of loss. Fla. Stat. §
627.426(1)(c).
In short, Houston has established that the Insureds materially breached a
proof-of-loss condition.
ii. Prejudice
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Under Estrada, then, the burden shifts to the Insureds to establish that their
material breach of the proof-of-loss requirement did not prejudice Houston. But as
we have noted, Estrada was not issued until after the district court granted summary
judgment to Houston. So the parties had no reason to present evidence concerning
this requirement in the district court, and the district court had no opportunity to
analyze the prejudice inquiry in the first place. For these reasons, we remand for the
district court to consider Estrada’s prejudice inquiry in the first instance and, if it
wishes, to allow the parties to submit additional evidence concerning that issue.
C. Interior-of-Building Loss Exclusion
We now consider whether, as Houston asserts, the policy’s Interior-of-
Building loss exclusion bars coverage for damages beyond what Houston has
previously acknowledged it would pay ($52,217.14). As always, we start with the
policy language. It excludes from coverage “loss to the interior of buildings or
structures or to personal property in the buildings or structures caused by rain” unless
the rain entered through “openings made by a ‘named peril.’” The policy defined
“named peril” to include a “windstorm.”
When a policy’s exclusion contains an exception, like the policy here, the
insured must shoulder the burden of demonstrating that the exception applies. E.
Fla. Hauling, Inc. v. Lexington Ins. Co., 913 So. 2d 673, 678 (Fla. 3d DCA 2005).
As Houston readily concedes, rain entering through openings Hurricane Irma created
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caused at least some of the damage in the Insureds’ claim for Buildings 35 and 41—
namely, damage the cash value of which was $52,217.14. But Houston asserted that
the hurricane did not cause any damage beyond that. So we must determine whether
the Insureds satisfied their burden to demonstrate that at least a material issue of fact
remains concerning whether Hurricane Irma’s winds created openings in the
buildings that allowed for rain to enter and cause interior damage beyond that
conceded by Houston.
In the district court, the Insureds filed the two-page affidavit and 327-page
report of professional engineer Alfredo Brizuela, who inspected the site one year
after Hurricane Irma made landfall. But the affidavit itself does not identify any
specific locations within the buildings where openings Brizuela attributed to
Hurricane Irma allowed for claimed water intrusion. Nor does it cite any pages
within the 327-page report that pinpoint any such locations.
Rather, Brizuela’s affidavit simply claimed in a conclusory manner that he
“identified several areas wherein the Properties sustained wind created openings by
Hurricane Irma that allowed for moisture intrusion.” And even on appeal—both in
their brief and at oral argument—the Insureds still failed to direct this Court to any
specific part of the record supporting their position. Instead, they again state in a
conclusory way that “substantial evidence” demonstrates wind-created openings
caused by Hurricane Irma, which, in turn, allowed water infiltration and damage
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beyond what Houston has acknowledged. It does not help that they effectively try
to send us on a hunt for treasure that may or may not exist by generally citing two
technically written exhibits in the record, totaling nearly 500 pages, with the hope
that we will discover any relevant portions (if there are any) that might defeat a
finding of summary judgment.
But that is not how our adversary system works. The advocates—not the
courts—are charged with identifying the evidence that supports their claims. Indeed,
Federal Rule of Appellate Procedure 28(a)(8) expressly instructs that the appellant
bears the responsibility for providing the court “with citations to the authorities and
parts of the record on which the appellant relies.” See also Mendoza v. United States
Atty. Gen., 327 F.3d 1283, 1286 n. 4 (11th Cir. 2003) (noting that failure to include
“citations to the . . . parts of the record on which the appellant relies . . . may result
in waiver or abandonment of issues on appeal”).
Perhaps the Insureds do not specify any particular parts of Brizuela’s report
because no part appears to conclude that Hurricane Irma was the “but-for” causation
of building openings that permitted rain and moisture intrusion, which in turn caused
interior damage beyond what Houston has already identified. In his report’s
summary chart of alleged “wind force and water damage caused by Hurricane Irma,”
Brizuela identified only categories of damages, such as “interior dry wall” and
“interior/exterior door and window damage,” without reference to their exact
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locations, causes, or contributions to moisture intrusion and interior loss. Brizuela
then concluded in his professional opinion that “the wind pressure, wind gusts and
airborne debris produced by Hurricane Irma, created openings at exterior
fenestrations, mechanical attachments and roof assemblies for moisture entry.”
These conclusory assertions without reference to the corresponding specific
interior damage—let alone the specific building where that damage occurred—are
not sufficient to create a material issue of fact concerning whether the exception to
the Interior-of-Building exclusion applied to more damage than Houston conceded.
See Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985). For this reason,
should the Insureds demonstrate on remand that Houston was not prejudiced by their
failure to file proof of loss, the Insureds’ recovery for property damage is limited to
$52,217.14.
IV.
For these reasons, we affirm the district court’s determinations that New
South lacked standing and that the Interior-of-Building limitation applied to
coverage beyond $52,217.14. We reverse the conclusion that Florida Keys Media
and Holladay lack standing. We remand for further proceedings on the Estrada
prejudice inquiry, consistent with this opinion.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
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