Great Lakes Ins. SE v. Concourse Plaza, A Condo. Ass'n
| Decision Date | 16 August 2022 |
| Docket Number | 21-cv-21873-BLOOM/Otazo-Reyes |
| Parties | GREAT LAKES INSURANCE SE, Petitioner/Counter-Defendant, v. CONCOURSE PLAZA, A CONDOMINIUM ASSOCIATION, INC. Respondent/Counter-Plaintiff. |
| Court | U.S. District Court — Southern District of Florida |
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon the Motion for Summary Judgment, ECF No. [35], filed by Respondent/Counter-Plaintiff Concourse Plaza, A Condominium Association, Inc. (“Concourse Plaza”), and the Motion for Summary Judgment, ECF No. [38], filed by Petitioner/Counter-Defendant Great Lakes Insurance SE's (“Great Lakes”). The Court has carefully reviewed the Motions, all opposing and supporting submissions,[1] the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, Concourse Plaza's Motion is denied, and Great Lakes' Motion is granted.
This is an insurance coverage dispute concerning losses allegedly caused by Hurricane Irma on September 10, 2017. Great Lakes initiated this federal proceeding on May 19, 2021, with the filing of its Petition for Declaratory Relief, ECF No [1] (“Petition”). Therein, Great Lakes seeks a declaration that Concourse Plaza's failure to comply with Fla. Stat. § 627.70132 bars its claim for losses stemming from Hurricane Irma. Id. at 5.
On August 6, 2021, Concourse Plaza filed its Answer, asserting nine affirmative defenses. See ECF No. [9]. Concourse Plaza also raised three Counterclaims: an action for specific performance to compel Great Lakes' compliance with the Appraisal Clause (“Count I”); an action for declaratory judgment (“Count II”); and an action for breach of contract (“Count III”). See Id. at 24-31. On December 19, 2021, the Court dismissed Count II of Concourse Plaza's Counterclaims. See ECF No. [26].
In its Motion, Concourse Plaza seeks a declaratory judgment that it has complied with the three-year limitation period set forth in Fla. Stat. § 627.70132. It further seeks judgment that Great Lakes is in breach of the subject policy's appraisal clause and an order referring the parties to binding appraisal. ECF No. [35] at 17-18. In its Motion, Great Lakes seeks declaratory judgment that Concourse Plaza's claim for Hurricane Irma damages is barred by Fla. Stat. § 627.70132. ECF No. [38] at 15.
Based on the parties' respective statements of material facts, along with the evidence in the record, the following facts are not in dispute.
At all times relevant, Concourse Plaza was the insured under an insurance policy (“the Policy”) issued by Great Lakes for a property located at 1111 Kane Concourse, Bay Harbor Islands, Florida 33154 (the “Property”). ECF No. [9] at 34-150. The Policy had a windstorm deductible of $195,210. Id. at 88.
On September 14, 2017, Concourse Plaza filed a Notice of Loss claiming windstorm damage to the Property caused by Hurricane Irma on September 10, 2017. ECF No. [36-2] at 1. That Notice of Loss provided the following description of loss: Id.
On March 5, 2018, Great Lakes sent Concourse Plaza a letter stating that, after investigating the damage to the Property, Great Lakes estimated Concourse Plaza's losses to be $31,035.21. ECF No. [36-5] at 2. Because that amount was within the Policy's $195,210 deductible, Great Lakes determined that Concourse Plaza was not entitled to payment. Id. at 3.
On September 4, 2020, Concourse Plaza sent a letter to Great Lakes, titled “Renewed/Supplemental/Reopened Claim re: Hurricane Irma September 10, 2017.” ECF No. [36 7] at 1 (the “Notice”). The Notice stated that Concourse Plaza disagreed with Great Lake's estimation of damages and was conducting its own damage assessment. Id. at 2-3. It requested Policy documents from Great Lakes and further stated:
Please consider this correspondence as the Insured's notice of its intent to pursue additional insurance benefits under the Policy for the Loss, and, further, that such notice is being provided in accordance with the Policy's notice provision(s) and/or §627.70132 FLA.STAT. [Notice Of Windstorm Or Hurricane Claim]. If, for some reason, the Insurer believes that this notice does not comply with the terms of the Policy and/or aforesaid statute, please notify this office immediately so that we can address any concerns that you may have.
Id. at 2. The letter did not contain an estimate of the Hurricane Irma damages.
On September 7, 2020, Great Lakes responded to Concourse Plaza's Notice. ECF No. [44 2]. Great Lakes provided the Policy documents Concourse Plaza requested, and asked, Id.
Concourse Plaza did not send an estimate until April 8, 2021, when it sent Great Lakes an Appraisal Demand and a Sworn Statement in Proof of Loss. ECF No. [36-10]. Therein, Concourse Plaza estimated the amount of damages caused by Hurricane Irma to be $6,403,728.62. ECF No. [36-9]. Concourse Plaza subsequently reduced its estimate to $3,276,080.50, after Great Lakes filed suit. ECF No. [36] at 8 ¶ 21.
II. LEGAL STANDARD
A court may grant a motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The parties may support their positions by citations to materials in the record, including depositions, documents, affidavits, or declarations. See Fed.R.Civ.P. 56(c). An issue is genuine if “a reasonable trier of fact could return judgment for the non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if it “might affect the outcome of the suit under the governing law.” Id.
A court views the facts in the light most favorable to the non-moving party, draws “all reasonable inferences in favor of the nonmovant and may not weigh evidence or make credibility determinations[.]'” Lewis v. City of Union City, Ga., 934 F.3d 1169, 1179 (11th Cir. 2019); see also Crocker v. Beatty, 886 F.3d 1132, 1134 (11th Cir. 2018) (). “The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which a jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. “If more than one inference could be construed from the facts by a reasonable fact finder, and that inference introduces a genuine issue of material fact, then the district court should not grant summary judgment.” Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990).
This case presents three issues: (A) whether Concourse Plaza complied with Fla Sat. § 627.70132, which requires an insured to provide notice of “a supplemental claim” for hurricane damages within three years of the hurricane; (B) whether Great Lakes took any action that could constitute a waiver of its right to insist on Concourse Plaza's compliance with § 627.70132; and (C) whether Concourse Plaza's failure to comply with § 627.70132 bars its demand for appraisal.
The primary issue in this case is whether Concourse Plaza's claim is barred by Fla Sat. § 627.70132. At the time the Petition was filed in 2021, that statute provided:
Notice of windstorm or hurricane claim.-A claim, supplemental claim, or reopened claim under an insurance policy that provides property insurance, as defined in s. 624.604, for loss or damage caused by the peril of windstorm or hurricane is barred unless notice of the claim, supplemental claim, or reopened claim was given to the insurer in accordance with the terms of the policy within 3 years after the hurricane first made landfall or the windstorm caused the covered damage. For purposes of this section, the term “supplemental claim” or reopened claim” means any additional claim for recovery from the insurer for losses from the same hurricane or windstorm which the insurer has previously adjusted pursuant to the initial claim. This section does not affect any applicable limitation on civil actions provided in s. 95.11 for claims, supplemental claims, or reopened claims timely filed under this section.
Fla. Stat. § 627.70132 (2017).[2] The parties agree that § 627.70132 bars “supplemental claims” for hurricane damage if notice was not given within 3 years after hurricane Irma. There is also no dispute that Concourse Plaza's claim for Hurricane Irma losses beyond what Great Lakes initially paid-nothing-constitutes a “supplemental claim” for hurricane damages.[3] See, e.g., ECF No. [43] at 10 (Concourse Plaza arguing that it provided notice of its “supplemental claim”); ECF No. [38] at 1 ().
The narrow dispute in this case is whether Concourse Plaza's Notice of September 4, 2020, constitutes valid notice of a “supplemental claim.” Great Lakes argues that the Notice was deficient because it lacked an estimation of damages. See, e.g., ECF No. [38] at 10-11. Concourse Plaza counters that neither § 627.0132 nor the Policy explicitly requires any such estimation of damages. See, e.g., ECF No. [35] at 2.
Concourse Plaza is correct that the Policy itself contains no such...
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