Case: 18-12887       Date Filed: 08/18/2020      Page: 1 of 24



                                                                 [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 18-12887
                              ________________________

                         D.C. Docket No. 1:17-cv-23362-KMM



MAMA JO’S INC.,
d.b.a. Berries,

                                                                       Plaintiff - Appellant,

                                           versus


SPARTA INSURANCE COMPANY,

                                                                     Defendant - Appellee.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                     (August 18, 2020)

Before NEWSOM, TJOFLAT, Circuit Judges, and PROCTOR,* District Judge.


       *
       Honorable R. David Proctor, United States District Judge for the Northern District of
Alabama, sitting by designation.
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PROCTOR, District Judge:

      In this insurance coverage case, we are called upon to assess whether the

district court properly excluded the opinions of Plaintiff’s experts and granted

Defendant’s motion for summary judgment based upon the conclusion that

Plaintiff failed to establish that it suffered a direct physical loss that would trigger

coverage. We conclude the district court correctly ruled on both questions.

Therefore, for the reasons more fully discussed below, we affirm.

I.    Background

      Appellant Mama Jo’s Inc. d/b/a Berries (“Berries”) owns and operates a

restaurant located at 2884 SW 27th Avenue, Miami, FL 33133. (Doc. 107-1 at 8-9).

The restaurant is located less than one mile from the ocean (Doc. 111-5 at 4; Doc.

111-6 at 57-58, 104), and is partially enclosed by a retractable awning, wall, and

roof system. (Doc. 109-4 at 4, 31; Doc. 109-5 at 66-68, 75-81; Doc. 110-8 at 104).

When the system is opened, the restaurant’s interior areas are exposed to the

elements. (Id.). The restaurant’s front entrance, bar, and seating areas are adjacent

to SW 27th Avenue. (Doc. 107-1 at 95-97; Doc. 109-5 at 51-54, 66-71, 80; Doc.

116-8 at 4-5).

      A.     The Road Construction

      From December 2013 until June 2015, there was roadway construction at

different locations along SW 27th Avenue in the general vicinity of the restaurant.


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(Doc. 102 at 2; Doc. 107-1 at 58-60; Doc. 116-5 at 11). During that time, dust and

debris generated by the construction migrated into the restaurant. (Doc. 116 at 3-5;

Doc. 110-3 at 51-55; Doc. 110-8 at 54; Doc. 116-8 at 3-7; Doc. 116-9 at 3-15, 19-

29). Berries performed daily cleaning using its normal cleaning methods,

employing dust pans, hoses, rags, towels, and blowers. (Id.).

      Berries was open every day throughout the time period of the roadwork.

(Doc. 116 at 3-5; Doc. 110-8 at 56-57, 95-97; Doc. 116-8 at 7-10; Doc. 116-9 at

25). Although the restaurant maintained the ability to serve the same number of

customers as it had before the construction began, customer traffic decreased

during the roadwork. (Doc. 116 at 3-5; Doc. 107-1 at 73-74; Doc. 110-8 at 56-57;

Doc. 116-8 at 9-12; Doc. 116-9 at 24-27).

      B.     The Insurance Policy

      From September 19, 2013 to September 19, 2014, Berries was insured by

Appellee, Sparta Insurance Company (“Sparta”). (Doc. 110-1 at 5, 31-54). Sparta

issued an “all risk” commercial property insurance policy, which included, in

relevant part, a Building and Personal Property Coverage Form and a Business

Income (and Extra Expense) Coverage Form. (Doc. 110-1 at 31-54).

      The Building and Personal Property Coverage Form contained in the policy

covers “direct physical loss of or damage to Covered Property . . . caused by or

resulting from any Covered Cause of Loss.” (Id. at 31). The policy defines


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“Covered Causes of Loss” as “Risks of Direct Physical Loss unless the loss is”

excluded or limited. (Id. at 33, 63).

      The policy’s Business Income (and Extra Expense) Coverage Form provides

that Sparta will pay for “the actual loss of Business Income you sustain due to the

necessary ‘suspension’ of your ‘operations’ during the ‘period of restoration.’” (Id.

at 46). The policy provides that the “‘suspension’ must be caused by direct

physical loss of or damage to” covered property. (Id.).

      C.     The Initial Insurance Claim

      On December 12, 2014, Berries submitted a claim to Sparta under the

policy. (Doc. 143 at 4). Berries asserted that the claim was related to dust and

debris generated by the roadway construction. (Id.). Sparta assigned Corey Buford,

an insurance adjuster, to review the claim on behalf of Sparta. (Doc. 116-10 at 5).

Berries hired a public adjuster, Robert Inguanzo of Epic Group Public Adjusters, to

assist with its claim. (Doc. 110 at 3).

      In December 2014 and January 2015, Buford requested information about

the claim from Berries. (Doc. 116-10 at 6-8, 17-19). In January 2015, Inguanzo

responded to these requests and informed Buford that the claimed loss “occurred as

early as December of 2013 in the form of construction debris and dust from the

[roadwork]” and that, “the construction related debris and dust . . . caused damage




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to the insured’s building. The scope of loss includes but is not limited to, cleaning

of the floors, walls, tables, chairs and countertops.” (Id. at 17).

      In March 2015, Inguanzo provided Berries with an estimate in the amount of

$16,275.58 to clean and paint the restaurant. (Doc. 110-10 at 1-10; Doc. 116-11 at

11-15, 23-25; Doc. 116-12 at 5-6). Inguanzo testified that, “based on our

inspection back then” the estimate encompassed “the work that we felt was

necessary to bring the property to its pre-loss condition includ[ing] the cleaning

and painting,” and that, “[a]t that time, we didn’t have anything for removal or

replacement . . . .” (Doc. 116-11 at 14-15).

      In April 2015, Inguanzo sent Buford a “Sworn Statement in Proof of Loss”

for the building claim, including a preliminary damage estimate in the amount of

$13,775.58. (Doc. 116-10 at 21). This amount was calculated based on the amount

of the estimate -- $16,235.58 -- minus a deductible. (Id.). Inguanzo also sent

Buford a “Sworn Statement in Proof of Loss” and supporting documentation

regarding a business income claim in the amount of $292,550.84. (Id.). Berries

contended that its 2014 sales were lower than expected when compared to its rate

of sales growth in previous years. (Doc. 109-2).

      On January 30, 2017, Sparta denied the claim because it was “not covered

under the [] policy.” (Doc. 110-13). As Sparta explained: “[w]ith regard to

Building coverage, . . . the Proof of Loss Form does not reflect the existence of


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any physical damage. It is also questionable whether a direct physical loss

occurred.” (Doc. 110-13 at 5). Sparta also stated that:

      Under the Business Income Coverage Form, coverage is provided for
      the actual loss of business income the insured sustains due to the
      necessary “suspension” of “operations” during the “period of
      restoration.” The “suspension” must be caused by direct physical loss
      of or damage to property at the premises . . . .

(Doc. 110-13 at 6) (emphasis in original).

      D.     The Litigation and Presentation of a New Claim for Damages

      Berries initiated this action in Florida state court in May 2017. (Doc. 1-2).

Sparta removed the action to the United States District Court for the Southern

District of Florida based on diversity jurisdiction. (Doc. 1). In its initial disclosures

in the lawsuit, Berries claimed the same damages it had before the suit was filed:

$16,275.58 for cleaning and painting the restaurant, and $292,550.84 for lower-

than-expected sales in 2014. (Doc. 20 at 4).

      On February 26, 2018, Berries also served amended answers to

interrogatories. (Doc. 116-5 at 8). In those responses, it identified for the first time

new categories of damages totaling $319,688.57. (Id.). Berries contended that the

newly claimed damages were due to replacement of the restaurant’s awning and

retractable roof systems, HVAC repairs, and replacement of the restaurant’s audio

and lighting systems. (Id. at 8-9).




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             1.     Berries’ Experts

      Berries relied on three experts to causally link its newly-claimed damages to

the construction dust and debris generated more than two and a half years earlier,

i.e., during Sparta’s policy period ending on September 19, 2014. First, Alex

Posada offered opinion testimony about Berries’ audio and lighting systems.

Second, Christopher Thompson opined about the awning and retractable roof

systems. Third, Alfredo Brizuela proffered his opinion about “engineering” and

“the cause and origin of the loss.” (Doc. 105-1 at 5-6; Doc. 113 at 2-4).

                    a.    Alex Posada

      Posada’s firm, United Audio, had “been in the audio and special lighting

industry for over 15 years providing integrated audio, video, lighting & control

solutions. . . .” (Doc. 109-1 at 2). Posada’s proposed methodology included

performing a “QC diagnostic” which would have involved, among other things,

“[d]ismantl[ing] all Audio & Lighting Equipment, . . . [t]est[ing] all existing wiring

and terminations[,] [d]isassembl[ing] each and every speaker and lighting

fixture[],[t]est[ing] all audio devices[, and] [e]xamin[ing] all components in every

lighting fixture.” (Id. at 2-3; Doc. 108-1 at 51-53). However, Posada did not

perform the QC diagnostic. (Doc. 108-1 at 53). Rather, in February 2018, he

performed a two-hour site inspection and concluded that “it [wa]s more cost

effective to replace the system.” (Id. at 24-34).


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      At Posada’s deposition, the following exchange occurred:

      Q:    So is it fair to say if you want to find out a specific reason why
      a speaker or light is not working, you have to run this diagnostic? []

      A:     It’s an option.

      Q:     What other options are there?

      A:    There are no other options . . . it[’]s either this or replace it
      which, I mean -- as of looking at it, I can already tell you it’s not
      going to be worth doing this.

      Q:    If you want to find out the specific reason why a subwoofer or
      speaker or light is not working, do you need to perform the
      diagnostic?

      A:     It’s an option. Yeah

      Q:     But are there any other options?

      A:     No, there is no other option.

      Q:     That’s the only option?

      A:     That is correct.

(Doc. 108-1 at 55-56). Posada’s inspection consisted of visually observing some of

the system’s audio and lighting components, and listening to some of its audio

components. (Doc. 109 at 3; Doc. 108-1 at 51-53).

      Posada did not inspect all of the restaurant’s speakers and components

because some were out of reach and, during his inspection, there were patrons in

the restaurant whom he did not wish to disturb. (Doc. 108-1 at 24-25, 31-39). He

only walked around the perimeter of the restaurant. (Id. at 34). Posada testified that
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the speakers outside the restaurant’s entrance were “probably” damaged, and

although he did not inspect the subwoofers, he assumed that they were not

working. (Id. at 43, 68-69). Posada nevertheless testified that all of Berries’ audio

systems were damaged by construction dust and debris, to the exclusion of all

other causes, because they produced sounds that were “tedious,” “distorted,” and

“hard to explain in words.” (Id. at 88, 93-94).

      Posada’s inspection of Berries’ lighting system involved observing

components from ground level, about 15 feet below the fixtures. (Id. at 45). Posada

testified that the lights did not turn on at all and were “full of dust.” (Id. at 33, 44-

45). Although he opined that the light fixtures’ motherboards were damaged,

Posada conceded that he could not see those components, and did not inspect them.

(Id. at 87-88, 97-98). He did not know the age of the lighting fixtures, or when they

stopped working. (Id. at 76, 87).

                    b.     Christopher Thompson

      Thompson is employed by Awnings of Hollywood, the company that

originally installed the awnings and retractable roof “several” (i.e., “more than

three [-] four”) years before his inspection. (Doc. 108-3 at 17-18, 32-33).

Thompson’s inspection of the restaurant’s awnings and retractable roof consisted

of a visual inspection from the ground floor, and lasted approximately one hour.

(Doc. 108-3 at 29, 34, 83). His inspection took place more than two years after the


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roadwork ended. (Id. at 26-29, 34-37). He did not take notes. (Id. at 34). Based on

his one-hour inspection, Thompson concluded that the awnings and retractable roof

systems were damaged beyond repair by sediment that he “assumed” was

construction dust. (Id. at 46, 54; Doc. 109-3 at 1). Thompson took no samples of

the sediment, and did no testing to determine its origin. (Doc. 108-3 at 45-46).

Thompson had eaten at the restaurant during the road construction. (Doc. 108-3 at

46).

       Thompson did not test the retractable roof system because he observed that

the drive belt was broken. (Doc. 108-3 at 69). But, the belt was the only thing

Thompson observed that was broken. (Id. at 69-70). In his report, Thompson noted

that the system had to be replaced, rather than repaired, because the components

were no longer available in the United States. (Doc. 109-3 at 1; Doc. 108-3 at 69).

When asked why the drive belt snapped, Thompson testified: “I could not tell you.

I have an opinion, but I couldn’t tell you seriously.” (Doc. 108-3 at 71).

                    c.    Alfredo Brizuela

       Brizuela has a degree in architecture and structural engineering, and is a

Florida licensed civil and structural engineer. (Doc. 108-5 at 26-27). His inspection

of the restaurant consisted of a one-hour visual inspection conducted in December

2017 and a review of photographs taken in 2014 and 2015. (Doc. 108-5 at 42, 76-

77). He also ran his “fingers across” dust (which he believed was construction


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dust), although it had been over two years since the construction had been

completed. (Doc. 108-5 at 45, 57-59, 115, 154). Based on this inspection, he

offered the following opinion:

      [I]t is evident that the source of the damage was from the nearby
      roadway construction on 27th [A]venue in front of the property.
      Simply stated, the migration of the dust and its resulting paste was a
      sudden and accidental occurrence that damaged the equipment,
      awning, windows, railings, and stucco.

(Doc. 109-5 at 7). Brizuela’s report explains how construction dust combined with

water can be corrosive. (Doc. 108-5 at 117). But, on the question of the source of

the corrosive material in this case, Brizuela acknowledged that his “testing was

strictly [his] observation through [his] inspection and [his] review of the

photographs.” (Doc. 108-5 at 116). That is, Brizuela did nothing other than touch

the dust and look at pictures before opining as to its origin. (Id.). His opinion, like

Thompson’s, was based on his assumption that the construction dust was the

source of the corrosive material. (Id.).

             2.     The District Court’s Decision Ruling on the Motions in Limine
                    Regarding Berries’ Experts

      In April 2018, Sparta filed a motion to preclude the testimony of Plaintiff’s

expert witnesses: Posada, Thompson, and Brizuela. (Doc. 105). That same day, the

parties filed Cross Motions for Summary Judgment. (Docs. 106, 110). After

briefing, the district court entered an omnibus order granting Sparta’s Daubert and

summary judgment motions. (Doc. 146). The district court found that, although
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Berries’ causation experts were minimally qualified to render their opinions, their

methodologies on the issue of causation were unreliable or nonexistent, and their

testimony was speculative. (Id. at 5-15). The district court further concluded that,

without expert testimony, Berries could not prove that construction dust and debris

generated in 2014 caused the “new” damages (first claimed in 2018) to Berries’

awnings, retractable roof, HVAC system, railings, and audio and lighting system.

(Id. at 15-17).

       The district court determined that Berries’ initial claim for cleaning was not

covered because property that must be cleaned, but is not damaged, has not

sustained a “direct physical loss.” (Id. at 17-19). The district court also concluded

that direct physical loss refers to tangible damage to property, which causes it to

become unsatisfactory for future use or requires repairs. (Id. at 17-19). Finally, the

district court decided that Berries’ claim for lower-than-expected sales in 2014 was

not covered because Berries could not establish that it suffered a “necessary

‘suspension’” of its “operations” as the result of a “direct physical loss.” (Id. at 19-

20). Because of its determinations, the district court declined to address any of the

parties’ arguments related to the policy’s exclusions or limitations. (Id. at 16, n.

14).

       This appeal followed.




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II.   Standard of Review

      We review a district court’s order granting summary judgment de novo,

“considering all of the evidence in the light most favorable to the nonmoving

party.” Nesbitt v. Candler County, 

, 1357 (11th Cir. 2020).

“Summary judgment is proper ‘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.’”

Civ. P. 56(a)).

      “We review for abuse of discretion a district court’s evidentiary ruling under

Daubert v. Merrell Dow Pharmaceuticals, Inc., 

(1993).” Adams v.

Lab. Corp. of Am., 

, 1327 (11th Cir. 2014) (parallel citations

omitted). “‘A district court abuses its discretion if it applies an incorrect legal

standard, follows improper procedures in making the determination, or makes

findings of fact that are clearly erroneous.’” United States v. Alabama Power Co.,

, 1282 (11th Cir. 2013) (quoting Chicago Tribune Co. v.

Bridgestone/Firestone, Inc., 

, 1309 (11th Cir. 2001)). The deference

we show on evidentiary rulings includes giving the court “considerable leeway in

deciding in a particular case how to go about determining whether particular expert

testimony is reliable.” Kumho Tire Co., Ltd. v. Carmichael, 

, 152

(1999). Even where a district court’s ruling excluding expert testimony is


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“outcome determinative” and the basis for a grant of summary judgment, our

review is not more searching than it would otherwise be. Gen. Elec. Co. v. Joiner,

, 142-43 (1997).

III.   Analysis

       Berries argues that the district court erred in three ways: first, by concluding

that “direct physical loss” does not include cleaning, but rather requires a showing

that the property be rendered uninhabitable or unusable; second, by requiring Berries

to show that a suspension of operations was the result of physical damage in order

to establish business income coverage; and third, in striking Berries’ causation

experts. We begin by addressing the exclusion of Berries’ experts and then turn to

the other two issues.

       A.    Exclusion of the Experts

       In Daubert, the Supreme Court explained that trial courts must act as

“gatekeepers” and are tasked with screening out “speculative, unreliable expert

testimony.” Kilpatrick v. Breg, Inc., 

, 1335 (11th Cir. 2010) (citing

). In that important role, trial courts may consider a non-

exhaustive list of factors including: (1) whether the expert’s theory can be and has

been tested; (2) whether the theory has been subjected to peer review and

publication; (3) the known or potential error rate of the technique; and (4) whether

the technique is generally accepted in the scientific community. Kilpatrick, 613


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. Later, in Kumho Tire, the Court explained that the gatekeeping

function governs all expert testimony, including “scientific, technical, or other

specialized knowledge,” not just singularly scientific 

-

49. The factors identified in Daubert “do not constitute a definitive checklist or

test.” 

(internal quotation marks omitted). Admittedly, they

are designed to guide a district court’s assessment of the reliability of scientific or

experience-based expert testimony.

court’s “gatekeeping

inquiry must be tied to the facts of a particular case.”

omitted). The goal of gatekeeping is to ensure that an expert “employs in the

courtroom the same level of intellectual rigor that characterizes the practice of an

expert in the relevant field.”

      Federal Rule of Evidence 702 provides:

      A witness who is qualified as an expert by knowledge, skill,
      experience, training, or education may testify in the form of an
      opinion or otherwise if:

             (a) the expert’s scientific, technical, or other specialized
             knowledge will help the trier of fact to understand the evidence
             or to determine a fact in issue;

             (b) the testimony is based on sufficient facts or data;

             (c) the testimony is the product of reliable principles and
             methods; and

             (d) the expert has reliably applied the principles and methods to
             the facts of the case.


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F.R.E. 702. “We have distilled from Daubert, Kumho, and Rule 702 these three

requirements: First, ‘the expert must be qualified to testify competently regarding

the matter he or she intends to address’; second, the expert’s ‘methodology . . .

must be reliable as determined by a Daubert inquiry’; and third, the expert’s

‘testimony must assist the trier of fact through the application of expertise to

understand the evidence or determine a fact in issue.’” 

.

        To be sure, experience, standing alone, is not a “sufficient foundation

rendering reliable any conceivable opinion the expert may express.” U.S. v.

Frazier, 

, 1261 (11th Cir. 2004). Even experienced experts “must

explain how that experience leads to the conclusion reached, why that experience

is a sufficient basis for the opinion, and how that experience is reliably applied to

the facts.”

(quoting Fed. R. Evid. 702 advisory committee note (2000

amends.)). “[N]othing in either Daubert or the Federal Rules of Evidence requires

a district court to admit opinion evidence that is connected to existing data only by

the ipse dixit of the expert.” 

.

              1.     Alex Posada

        The district court found that Posada, the audio and lighting expert, was

qualified, but concluded that his methodology was unreliable. (Doc. 146 at 7, 10).

We agree. Berries failed to establish that Posada’s methodology was reliable.


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      Posada listened to the audio system and looked at the lighting system in

2018. From this brief inspection, he opined that any damage was caused by

construction dust and debris from 2014. Posada identified what he thought to be

the only diagnostic test to determine the reason why a speaker or light would not

work, but he did not perform that test because “it [wa]s more cost effective to

replace the system.” (Doc. 108-1 at 24-34, 55-56). Posada performed no testing

that would permit him to conclusively determine that the dust he observed in 2018

came from much earlier road construction. To the extent it can be said that Posada

even identified a methodology for reaching his conclusions, he provided no

testimony (or anything else) from which the district court could have concluded

that his methodology was in any way reliable. See 

(the expert’s “methodology . . . must be reliable”). Nothing about Posada’s

methodology is capable of being tested or being subjected to peer review, and

Berries presented no evidence indicating that Posada’s technique is generally

accepted in the scientific community. 

.

      Under Daubert, a “district judge asked to admit scientific evidence must

determine whether the evidence is genuinely scientific, as distinct from being

unscientific speculation.” 

. Here, the district court did

not abuse its discretion in determining that Posada’s testimony provided nothing




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more than speculation about the cause of the damage to the audio and lighting

systems.

             2.    Christopher Thompson

      The district court found that Thompson was at least minimally qualified as

an expert based on his years of experience, but concluded that “Thompson’s

testimony is nothing more than unexplained assurances and unsupported

speculation.” (Doc. 146 at 12). Again, we agree. Berries did not establish that

Thompson’s opinions are reliable.

      Like Posada, Thompson merely visually inspected the awnings and

retractable roof, and did not do so until more than two years after the road

construction. (Doc. 108-3 at 26-29, 34-37). Thompson observed a broken drive belt

on the retractable roof, but candidly admitted he could not say what caused it to

break. (Doc. 108-3 at 71). Although Thompson did not test the retractable roof

system, he determined that it had to be replaced. (Doc. 109-3 at 1). This conclusion

was based on Thompson’s knowledge that parts for this system could no longer be

obtained in the United States. (Id.). And, although Thompson performed no testing

on the sediment on the awnings and retractable roof two years after the

construction ended, he nonetheless opined that it came from that construction. (Id.;

108-3 at 27, 44-45).




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      Again, to the extent that Thompson even employed a methodology, there

was nothing against which that methodology could be compared to determine

whether it was reliable or even scientific in nature. See 

(recognizing the court must ensure the “evidence is genuinely scientific, as distinct

from being unscientific speculation.”). Therefore, the district court did not abuse

its discretion in excluding Thompson’s testimony as unreliable.

             3.     Alfredo Brizuela

      Berries offered Brizuela as a cause and origin expert. He opined as to the

source or origin of the damage to the restaurant. Brizuela opined that “[i]t is

evident that the source of the damage was from the nearby roadway construction

on 27th [A]venue in front of the property.” (Doc. 109-5 at 7). In reaching this

conclusion, he conducted a visual inspection of the restaurant, again over two years

after the road construction ended. He conducted no sampling or testing of the dust

and sediment he found at that time. His “methodology” was simply observation

and a review of photographs. (Doc. 108-5 at 116).

      Brizuela gave a scientific explanation about the general issue of how dust

and debris can damage property. But, even if one accepted the general proposition

that construction dust and debris can damage or corrode property, Brizuela did not

actually attribute any damage to the restaurant as a result of that circumstance.

(Doc. 146 at 12-15). His “methodology” in this respect consisted of an assumption.


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Therefore, we conclude that the district court did not abuse its discretion in

excluding Brizuela’s proposed testimony as unreliable under Daubert.

      Here, given its considerable leeway in assessing expert testimony, the

district court did not err in concluding that Berries failed to establish that its

experts’ methodologies have been (or, for that matter, can be) tested. Berries also

failed to show that its experts’ methodologies have been subjected to peer review

and publication. Berries also failed to address the known or potential error rates of

its experts’ techniques. And, Berries failed to establish that its experts’ techniques

are generally accepted in the scientific community. Simply stated, Berries did not

satisfy any of the factors which indicate a reliable and admissible expert opinion.

Accordingly, the district court did not abuse its discretion in excluding the experts.

See 

.

      The district court correctly excluded the expert opinions proffered by Berries

and this inexorably led to the swing of the summary judgment axe. “[A]n insured

claiming under an all-risks policy has the burden of proving that the insured

property suffered a loss while the policy was in effect.” Jones v. Federated Nat’l

Ins. Co., 

, 941 (Fla. 4th DCA 2018) (citation omitted). Berries relied

on the expert reports of Brizuela, Thompson, and Posada to prove that the “new”

damages to Berries’ awnings, retractable roof, and audio and lighting system, first

claimed in 2018, were caused by construction dust and debris from 2014. That is, it


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was necessary for Berries to tie the damages it claimed in 2018 to construction

occurring during the much earlier policy period, ending on September 19, 2014.

Without the properly excluded experts’ testimony, the district court properly

granted Sparta summary judgment on Berries’ newly claimed damages.

      B.     Berries Failed to Show any “Direct Physical Loss or Damage”

       Under Florida law, the interpretation of an insurance contract, including

resolution of any ambiguities contained therein, is a question of law to be decided

by the court. Dahl–Eimers v. Mutual of Omaha Life Ins. Co., 

, 1381

(11th Cir. 1993) (citing Sproles v. Amer. States Ins. Co., 

, 484 (Fla.

5th DCA 1991)). In construing an insurance contract, a court must strive to give

every provision meaning and effect. Auto-Owners Ins. Co. v. Anderson, 

29, 34 (Fla. 2000); Excelsior Ins. Com. v. Pomona Park Bar & Package Store,

, 941 (Fla. 1979). A party claiming coverage (here, Berries)

generally bears the burden of proof to establish that coverage exists. U.S. Liab. Ins.

Co. v. Bove, 

, 680 (Fla. 3rd DCA. 1977). The policy at issue is an

“all risks” policy. However, as the Florida Supreme Court has noted, “an ‘all-risk’

policy is not an ‘all loss’ policy, and thus does not extend coverage for every

conceivable loss.” Sebo v. Am. Home Assurance Co., 

, 696-97 (Fla.

2016) (citation omitted).




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      Berries’ initial claim had two components: one for cleaning the restaurant,

and another for Business Income Loss. (Doc. 110-10). The insuring agreement in

the policy’s Building and Personal Property Coverage Form states that Sparta “will

pay for direct physical loss of or damage to Covered Property . . . caused by or

resulting from any Covered Cause of Loss.” (Doc. 110-1 at 31). The policy’s

Business Income Coverage Form provides that Sparta will pay for “the actual loss

of Business Income you sustain due to the necessary ‘suspension’ of your

‘operations’ during the ‘period of restoration.’” (Id. at 46). The “‘suspension’ must

be caused by direct physical loss of or damage to” covered property. (Id.).

      Florida’s District Court of Appeals for the Third District has addressed the

definition of “direct physical loss”: “A ‘loss’ is the diminution of value of

something []. Loss, Black’s Law Dictionary (10th ed. 2014). ‘Direct’ and

‘physical’ modify loss and impose the requirement that the damage be actual.”

Homeowners Choice Prop. & Cas. v. Maspons, 

, 1069 (Fla. 3d

DCA 2017); see also Vazquez v. Citizens Prop. Ins. Corp., 

, at

*3 (Fla. 3d DCA 2020).

      With regard to the cleaning claim, Berries’s public adjuster, Inguanzo,

testified that “cleaning and painting” was all that was required. (Doc. 76-1 at 35-

36). He also testified that there was no need for removal or replacement of items at

that time. (Id. at 36). Based on this testimony, the district court held that Berries


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had failed to establish that it had suffered a “direct physical loss” as that term is

defined under Florida law. (Doc. 146 at 18-19). We conclude that the district court

correctly granted summary judgment on Berries’ cleaning claim because, under

Florida law, an item or structure that merely needs to be cleaned has not suffered a

“loss” which is both “direct” and “physical.” See 

(recognizing that “damage [must] be actual”); Vazquez, 

, at *3

(same). See also Universal Image Prods., Inc. v. Fed. Ins. Co., 475 F. App’x 569,

573 (6th Cir. 2012) (“[C[leaning . . . expenses . . . are not tangible, physical losses,

but economic losses.”); MRI Healthcare Ctr. of Glendale, Inc. v. State Farm Gen.

Ins. Co., 

, 779, 

, 37 (2010) (“A direct

physical loss ‘contemplates an actual change in insured property.”); AFLAC Inc. v.

Chubb & Sons, Inc. (2003) 

, 

, 319 (same).

      As to the Business Income Loss claim, the Business Income Coverage Form

requires that a “suspension” of operations “be caused by direct physical loss of or

damage to property.” (Doc. 110-1 at 46). Again, as discussed above, even if

Berries had shown a “suspension” of operations, Berries did not put forward any

Rule 56 evidence that it suffered a direct physical loss of or damage to its property

during the policy period. Therefore, the district court’s entry of summary judgment

on Berries’ Business Income Loss claim was also proper. Berries failed to show it

suffered a “direct physical loss.”


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      C.     Berries Did Not Establish that it Suffered a Covered Suspension of
             Operations

      The policy’s Business Income Coverage Form provides that Sparta will pay

for “the actual loss of Business Income you sustain due to the necessary

‘suspension’ of your ‘operations’ during the ‘period of restoration.’” (Id. at 46).

Berries argues that the district court erred when it held that Berries did not suffer a

“suspension” of its operations, and when it ignored evidence that Berries had been

required to close sections of the restaurant for cleaning. Conceivably, a slowdown

caused by closing parts of the restaurant for cleaning could be attributed to a

“period of restoration.” But, even if Berries is correct that the district court got this

part of the analysis wrong, Sparta was still entitled to summary judgment on the

Business Income Claim because any “‘suspension’ must be caused by direct

physical loss of or damage to property.” Berries failed to show it suffered a “direct

physical loss.” (Id.).

IV.   CONCLUSION

      For the foregoing reasons, the district court’s grant of summary judgment in

favor of Sparta is

AFFIRMED.




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