762 F.3d 1276 (11th Cir. 2014), 13-10648, Davis v. Producers Agricultural Insurance Co.

Docket Nº:13-10648
Citation:762 F.3d 1276, 25 Fla.L.Weekly Fed. C 266
Opinion Judge:RIPPLE, Circuit Judge.
Attorney:For Curtis Davis, Movant - Appellee: J. Grant Ballard, Banks Law Firm, PLLC, Little Rock, AR; Hubert C. Lovein Jr., Law Office of C. Brian Jarrard, LLC, Macon, GA. For Producers Agricultural Insurance Company, Respondent - Appellant: C. Walker Ingraham, Ailis Leigh Burpee, Seyfarth Shaw, LLP, Atl...
Judge Panel:Before TJOFLAT, WILSON and RIPPLE,[*] Circuit Judges.
Case Date:August 06, 2014
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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762 F.3d 1276 (11th Cir. 2014)

25 Fla.L.Weekly Fed. C 266

CURTIS DAVIS, Movant-Appellee,



No. 13-10648

United States Court of Appeals, Eleventh Circuit

August 6, 2014

Petition for certiorari filed at, 01/18/2015

Appeal from the United States District Court for the Middle District of Georgia. D.C. Docket No.5:12-cv-00092-MTT.

For Curtis Davis, Movant - Appellee: J. Grant Ballard, Banks Law Firm, PLLC, Little Rock, AR; Hubert C. Lovein Jr., Law Office of C. Brian Jarrard, LLC, Macon, GA.

For Producers Agricultural Insurance Company, Respondent - Appellant: C. Walker Ingraham, Ailis Leigh Burpee, Seyfarth Shaw, LLP, Atlanta, GA.

For Department of Agriculture, Amicus Curiae: Catherine H. Dorsey, Sushma Soni, U.S. Department of Justice, Washington, DC; Ramona E. Romero, Department of Agriculture, Washington, DC.

Before TJOFLAT, WILSON and RIPPLE,[*] Circuit Judges.


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RIPPLE, Circuit Judge.

Curtis Davis brought this action in the district court to challenge the decision of an

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arbitrator that had denied his claim under a crop insurance policy obtained from Producers Agricultural Insurance Company (" ProAg" ). Mr. Davis filed a motion to vacate the arbitrator's award and then moved for summary judgment. The district court granted Mr. Davis's motions and vacated the arbitrator's decision. ProAg now appeals.

The district court erred in vacating the arbitrator's decision. Specifically, the arbitrator was entitled to conclude that ProAg had the authority under the policy to set a reasonable deadline for the receipt of necessary documentation in support of the claim. Mr. Davis's failure to comply with that deadline was an adequate basis for ProAg's denial of his claim. Moreover, under the circumstances presented in this case, the arbitrator was entitled to make his findings without first seeking a formal opinion of the Federal Crop Insurance Corporation (" FCIC" ), the federal agency with authority over crop insurance policies. Finally, Mr. Davis waived any argument based upon the arbitrator's failure to deliver his decision and award within the time limitations provided by the policy. Mr. Davis did not object when the arbitrator's deadline passed; instead, he waited until after he received an adverse decision and then filed this action in the district court. Accordingly, we now reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.



A. Facts

1. The Policy, the Crop and the Claim

Mr. Davis farms in Pulaski County, Georgia. ProAg is a private insurance company that writes federal crop insurance policies pursuant to a Standard Reinsurance Agreement with the FCIC. At all times relevant to this action, Mr. Davis maintained a crop insurance policy written by ProAg to cover his cotton crop. In 2008, Mr. Davis's cotton crop had a low yield caused by periods of both drought and excessive rainfall, irrigation problems and a tropical storm. He began harvesting in late October, and he completed his harvest on December 24, 2008.

Two days prior to completing his harvest, on December 22, Mr. Davis notified his crop insurance agent, Pat Rush of the Rush-Yearty Insurance Agency, of the possibility of a claim under his policy because of the low yield. The agency, however, failed to forward the notice to ProAg until January 8, 2009. The record is not clear regarding what additional information Mr. Davis submitted to ProAg during this initial period after his notice to Rush in late December. In particular, the record does not contain a copy of any completed indemnity claim labeled as such. It is clear that, in evaluating the claim, ProAg adjusters visited the Davis farm in January, February and March. The record also contains a form titled " Delayed Notice of Loss/Delayed Claim Report" dated March 24, 2009, on which an adjuster had written " Claim was on time. Delayed Original Adjuster behind in processing claim." 1

On March 20, 2009, adjuster Lamar Jones authored a Special Report indicating that he could not substantiate Mr. Davis's claimed losses as weather-related. He relied in part on comparisons to neighboring farms and weather records. The record also contains internal ProAg forms signed by Mr. Davis on the same date calculating

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the loss on the cotton crop, apparently supported by Mr. Davis's production reports from his ginnery (" gin sheets" ).

ProAg notified Mr. Davis, by way of letter dated June 12, 2009, that " the current information provided and determinations made would result in your claim being denied. At this time additional information is being requested from you in an effort to support your claim." 2 It continued: " As you are aware, your loss was reported beyond the time allowed by the policy. Section 15 . . . provide[s] information regarding your duties . . . in the event of a loss." 3 The letter did not otherwise specify what Mr. Davis had failed to provide and what deadline he had not satisfied. It did, however, note that " [a]t our request, you are required to provide the following documentation in order for us to determine your loss." 4 The letter went on to list nine required items, including " proof of the cause or causes of loss that contributed to your reported loss and the time frames in which they occurred." 5 Because Mr. Davis had indicated that certain portions of his crop were not irrigated, the letter further requested an additional three items relating to irrigation practices. The letter gave a thirty-day deadline for a response. The record does not disclose

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whether Mr. Davis took any action during the following thirty days.

In a letter dated July 21, 2009, approximately forty days after its prior letter, ProAg formally denied Mr. Davis's claim. This letter recited that " ProAg has not received a response in writing from you and /or any of the items we requested and that are required by the policy." 6 It further stated:

Your claim has been denied due to, but not limited to, failure to comply with " Section 15 -- Duties in the Event of Damage, Loss, Abandonment, Destruction, or Alternative Use of Crop or Acreage" of the [policy]. Specifically, you are required to assist us in the investigation of your claim, report[] all notices timely, and submit your claim for indemnity not later than 60 days after the End of Insurance Period. Since you did not respond to our request for more information we are simply not able to make any determinations as to the cause of loss, production to be counted or uninsured causes to be assessed, and unit eligibility based on Irrigated or Non-irrigated acreage reported. For future reference, please review all policy requirements.7

The letter also advised Mr. Davis of his right to contest the determination in mediation or arbitration.

By handwritten letter and accompanying documentation dated November 22, 2009, some four months after the claim was denied, Mr. Davis responded to ProAg's request. Mr. Davis then filed for arbitration of his claim, demanding an award of $348,204.50.8

2. Arbitration Proceedings

Beyond the evidence discussed above and, therefore, indisputably in ProAg's possession prior to June 12, 2009, the arbitration record contains expert opinions regarding rainfall and local irrigation practices, receipts related to the crop, lab testing results, news items relating to rainfall during the relevant period and similar items. Some of those documents plainly were not received during the claims period because they are dated after that period had expired; the origins and submission dates of the remainder of the items are unclear.

After a hearing and post-hearing briefing, the record of proceeding closed on November 11, 2011. Thirty-three days later, on December 15, 2011, the arbitrator issued his decision and denied Mr. Davis's claim in its entirety. Specifically, the arbitrator found that Mr. Davis's November response to the June request was " [c]learly . . . outside the Policy's timelines[] and did not provide all requested and required information/documentation to adjust and complete the claim." 9 He further found:

Other than Claimant's testimony and the aforementioned undated letter of the Local Agent [confirming a delay in forwarding the initial report of loss to ProAg], no documentary evidence was presented or offered by Claimant to prove he submitted the required information/documentation requested in Respondent's June 12, 2009 letter within the time provided by Respondent, nor why he failed to submit the required claim information/documentation due under the Policy. Claimant clearly failed to comply with the Policy provisions and terms as it relates to his duties and

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responsibilities to provide information/documentation for his claim per Section 15 of the Policy.

Claimant's failure to comply with the Policy provisions as stated above is reason and justification for Respondent to deny Claimant's claim. Therefore, having made these factual determinations, it is not necessary to make any additional factual determinations on issues of irrigation practices, drought, water supply, excessive Fall rains, etc.10

B. District Court Proceedings

Upon receipt of the decision of the arbitrator denying his claim, Mr. Davis filed this action in the district court, seeking vacatur of the arbitration award pursuant to the Federal Arbitration Act (" FAA" ), 9 U.S.C. § § 1-16. Specifically, he invoked 9 U.S.C. § 10(a)(4), which pertains to awards in which " the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject...

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