Case: 13-15228   Date Filed: 06/26/2015   Page: 1 of 16


                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-15228
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:10-cv-61984-AOR


200 LESLIE CONDOMINIUM ASSOCIATION INC.,
a Florida corporation,

                                                            Plaintiff-Appellant,

                                  versus

QBE INSURANCE CORPORATION,
a Pennsylvania corporation,

                                                           Defendant-Appellee.

                       ________________________

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

                              (June 26, 2015)

Before HULL, JULIE CARNES and FAY, Circuit Judges.

PER CURIAM:
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        After a bench trial, plaintiff 200 Leslie Condominium Association (“200

Leslie”) appeals the district court’s entry of final judgment in favor of defendant

QBE Insurance Corporation (“QBE”) in 200 Leslie’s action seeking an appraisal of

damages allegedly sustained as a result of Hurricane Wilma in 2005.

        After a review of the record and the parties’ briefs, we affirm.

                                 I. BACKGROUND

A.      QBE Issues a Property Insurance Policy to 200 Leslie

        Plaintiff-appellant 200 Leslie is a condominium association that owns and

operates a property located in Broward County, Florida. The property includes a

multi-story, Y-shaped building, whose units have paned glass windows and

balconies with sliding doors.

        Defendant-appellee QBE is a Pennsylvania corporation engaged in the

business of selling property insurance, with a principal place of business in New

York.

        QBE issued to 200 Leslie a commercial property insurance policy (the

“policy”) effective June 17, 2005 through June 17, 2006. The policy included a

hurricane deductible of $610,039.

        The policy provided that, if a dispute arose regarding the value of a claim,

the dispute would be resolved by a three-person appraisal panel, with each party

selecting one appraiser and the two appraisers selecting a neutral umpire. The


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policy imposed a number of duties on 200 Leslie in the event of a loss or damage

to the covered property. Three duties are relevant to this case: (1) to provide,

within 60 days of a request by QBE, a sworn proof of loss containing information

requested by QBE to investigate any claim; (2) to complete, at QBE’s request,

“inventories of the damaged and undamaged property,” including “quantities,

costs, values, and amount of loss claimed”; and (3) to submit to an examination

under oath, as reasonably required, regarding any matter relating to the insurance

or the claim.

B.     2005 Hurricane Damages 200 Leslie’s Property

       On October 24, 2005, Hurricane Wilma made landfall in southern Florida.1

Three days later, 200 Leslie notified QBE that it sustained a loss from the storm by

submitting a notice that described the loss and damage as “tennis court w/ light

poles; light poles throughout the building; pool fence.”

       A third-party managing agent, which handled insurance matters for QBE,

assigned 200 Leslie’s claim to a contractor. The contractor engaged a sub-

contractor to conduct a physical inspection of 200 Leslie’s property.

       On November 16, 2005, the sub-contractor inspected the property, received

some photographs from 200 Leslie, and took additional photographs himself. The
       1
        Although Hurricane Wilma made landfall on Florida’s Gulf Coast, the storm maintained
hurricane strength as it moved across southern Florida, and the storm’s eye passed over nearly all
of Broward County, which is on the Atlantic Coast. See National Weather Service Weather
Forecast Office, “Hurricane Wilma,” http://www.srh.noaa.gov/mfl/?n=wilma (last visited June
25, 2015).
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photographs identified the property and depicted certain damage, including a

suspended ceiling tile in a gym common area; damage to two windows in the gym;

and damage to a window in one particular unit.

      After receiving the sub-contractor’s report, the contractor informed QBE’s

third-party managing agent that 200 Leslie’s estimated damages were $250,000.

On December 9, 2005, the managing agent advised 200 Leslie that the loss amount

was below its policy deductible and that QBE would pay no benefits.

                      II. 200 LESLIE FILES SUIT IN 2010

      The matter appeared closed, as 200 Leslie took no steps to challenge the

damage estimate after hearing from QBE’s managing agent. But nearly five years

and 30 Atlantic hurricanes later, 200 Leslie filed this action. We recount the facts

surrounding the initiation of this lawsuit.

A.    200 Leslie’s Third Amended Complaint in 2012

      In the summer of 2010, 200 Leslie’s current counsel, Jeffrey Golant,

approached the principal of a public adjustment and loss consulting company (the

“public adjuster”) with information regarding several condominium associations

that did not receive payments from QBE for claims related to the 2005 Hurricane

Wilma.

      The public adjuster approached 200 Leslie, and 200 Leslie allowed him to

inspect the building’s roof and certain units that 200 Leslie identified as having


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problems with their windows and sliding glass doors. On June 10, 2010, 200

Leslie entered into a contract with the public adjuster’s company for its services on

a 20-percent contingency fee. Thereafter, 200 Leslie retained current counsel

Golant to represent it in this action for a 40-percent contingency fee.

      On October 18, 2010, 200 Leslie filed its complaint against QBE in the

United States District Court for the Southern District of Florida. The following

day, and nearly five years after the claim seemed to be settled, 200 Leslie notified

QBE that it was challenging the prior assessment and demanding an appraisal of its

losses from the 2005 Hurricane Wilma.

      Eventually, on July 12, 2012, QBE filed a Third Amended Complaint. In

Count I, 200 Leslie sought a judgment declaring that glass windows and sliding

glass doors that provide access to a single condominium unit were covered under

the policy. In Count II, 200 Leslie sought a judgment declaring that it was entitled

to have the amount of its Hurricane Wilma damage determined through the

appraisal process identified in the policy.

B.    QBE Denies 200 Leslie’s 2010 Claim

      While its lawsuit was pending, 200 Leslie provided QBE with a sworn

Statement in Proof of Loss (the “proof of loss”) on a form supplied by QBE. The

proof of loss was executed by Richard Vilain, a member of 200 Leslie’s board of

directors. In the proof of Loss, 200 Leslie stated that its “whole loss and damage”


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from Hurricane Wilma was $10,934,677.49. However, 200 Leslie attached cost

estimates for roof and window replacements, which totaled $10,934,677.49 and

$7,907,404.43, respectively.

      200 Leslie altered the proof of loss form supplied by QBE. The proof of

loss form supplied by QBE also included a statement that “no articles are

mentioned herein or in the annexed schedules but such as were destroyed or

damaged at the time of said loss” (emphasis added). Counsel Golant struck a line

through that language, and Vilain placed his initials next to the marking. Golant

struck the language because he believed that it was not an accurate description of

the benefits under the policy given that, based on his interpretation of the policy,

200 Leslie was entitled to certain benefits beyond the replacement value of items

that were directly damaged by the hurricane. Specifically, Golant concluded that it

was not possible to give a figure for 200 Leslie’s “whole loss and damage” while

also stating that the figure included only damaged property.

      After 200 Leslie submitted the altered proof of loss, QBE’s third-party

managing agent requested that 200 Leslie provide an inventory of damaged and

undamaged property, pursuant to the policy’s terms. By the time of the bench trial

in the district court, QBE had not received from 200 Leslie the inventory of

damage and undamaged property that it had requested. Furthermore, the

attachments to the proof of loss do not specify which windows were damaged and


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which were not. Indeed, nobody associated with 200 Leslie knew which windows

or sliding doors were damaged and which were not damaged. This impacted the

work of Andrew Bertucci, the claims adjuster working for QBE’s third-party

managing agent in 2010.

      QBE also sent 200 Leslie a letter demanding an examination under oath of

the 200 Leslie representative with the most knowledge of (1) the quantum of loss;

(2) the cause of the loss; (3) the maintenance history of the buildings; (4) the

preparation of the claim; (5) any repairs of the damaged property and any estimates

for repair; and (6) whether 200 Leslie or the owners of individual units are

responsible for repairing or replacing windows and sliding glass doors that provide

access to single units.

      In response, 200 Leslie produced Vilain, who was then the president of 200

Leslie’s board, for an examination under oath. In his only preparation for the

examination, Vilain met with Golant and reviewed the proof of loss for

approximately five minutes. As a result, Vilain did not know the answers to many

of the questions asked at the examination.

      On September 21, 2012, while 200 Leslie’s Third Amended Complaint was

pending in the district court, QBE sent to 200 Leslie a letter denying its claim in

the entirety. QBE based its decision on, inter alia, its conclusion that 200 Leslie

failed to comply with its post-loss obligations.


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           III. THE DISTRICT COURT’S FINDINGS OF FACTS AND
                          CONCLUSIONS OF LAW

       On August 28, 2013, and after a bench trial, the district court issued its

findings of fact and conclusions of law as to Count II of the Third Amended

Complaint, which was the count in which 200 Leslie sought a declaratory

judgment that it was entitled to an appraisal of its Hurricane Wilma damages. 2

A.     Findings of Fact

       As to the altered proof of loss form, the district court found that “200 Leslie

did not send QBE a sworn proof of loss on a form provided by QBE containing

information requested by QBE, as required by the QBE policy.” The district court

noted that “the problem created by the inclusion of undamaged property in the

$10,934,677.49 Proof of Loss figure was not remedied by striking the subject

language because, due to such inclusion, the figure did not actually equate to 200

Leslie’s ‘whole loss and damage.’” The district court therefore “d[id] not find

Golant’s explanation for striking out the language in the Proof of Loss form . . . to

be reasonable or justified.”

       As to the inventory of damaged and undamaged property, the district court

found that “200 Leslie did not provide QBE with complete inventories of the

damaged and undamaged property, . . . as required by the QBE policy.” The

       2
        The district court dismissed as moot Count I, which sought a judgment declaring that
glass windows and sliding glass doors that provide access to a single condominium unit were
covered under the policy.
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district court further found that, “[w]ithout the information regarding the

damaged/undamaged breakdown,” Bertucci, the claims adjuster working for

QBE’s third-party managing agent, “could not determine what [QBE] was required

to pay under the terms of the QBE policy; and the distinction is important because

it shows what needs to actually be repaired or replaced from hurricane damage.”

      Finally, as to the examination under oath, the district court found that Vilain,

the 200 Leslie board member and representative at the examination, “did not

reasonably prepare for the [examination under oath] and, as a result, did not

adequately respond to QBE’s inquiries regarding matters relating to the insurance

or the claim . . . as required by the QBE policy.” Accordingly, the district court

also found that “200 Leslie did not fully comply with the QBE policy requirement

that its representative submit to examination about any matter relating to the

insurance or the claim.”

B.    Conclusions of Law

      Based on its foregoing fact findings, the district court concluded that 200

Leslie failed to comply with the three post-loss obligations 

: (1) the

requirement that 200 Leslie provide to QBE a sworn proof of loss, (2) the

requirement that 200 Leslie provide QBE with complete inventories of the

damaged and undamaged property, and (3) the requirement that 200 Leslie produce

its representative to submit to an examination under oath about any matter relating


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to the insurance or the claim. Accordingly, the district court concluded that 200

Leslie breached the policy terms as to each provision.

       Turning to the effect of the breaches, the district court stated that, because

the three post-loss requirements were “conditions precedent to appraisal, 200

Leslie had the burden to show at trial that QBE was not prejudiced by its failure to

comply with these post-loss conditions.” The district court found that 200 Leslie

failed to establish that no prejudice resulted from its breaches. Specifically, the

district court stated, in relevant part:

              200 Leslie did not offer any evidence at trial that QBE was not
       prejudiced by its breaches of the Proof of Loss, Inventories of
       Damaged and Undamaged Properties[,] and Examination Under Oath
       post-loss conditions. It did not elicit any testimony from Bertucci that
       QBE could go to appraisal despite these breaches. On the contrary,
       Bertucci’s credible testimony was that appraisal is not appropriate
       because QBE does not know 200 Leslie’s actual valuation of its
       Hurricane Wilma damages.             According to Bertucci, without
       information regarding the damaged/undamaged breakdown, he could
       not determine what it was required to pay under the terms of the QBE
       policy; and the distinction is important because it shows what needs to
       actually be repaired or replaced from hurricane damage. Because 200
       Leslie did not carry its burden of showing prejudice, it cannot avoid
       the conditions precedent to appraisal with which it did not comply.

The district court therefore ruled that “QBE has prevailed as to Count II of the

Third Amended Complaint.”

       Pursuant to Rule 58 of the Federal Rules of Civil Procedure, the district

court entered a separate final judgment in favor of QBE and against 200 Leslie.



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       On September 23, 2013, 200 Leslie moved for a new trial, which the district

court denied. 200 Leslie timely appealed.

                                       II. DISCUSSION

       On appeal, 200 Leslie contends that the district court erred in finding that it

failed to comply with the three post-loss requirements. In addition, 200 Leslie

contends that, even if it failed to comply with the post-loss requirements, the

district court erred in placing the burden on 200 Leslie to show that QBE was not

prejudiced by the breach. Rather, 200 Leslie contends, Florida law places the

burden on QBE to establish that it was prejudiced for any breach to bar appraisal.

       We first consider whether the district court erred in finding that 200 Leslie

failed to comply with the policy’s terms. We then turn to the prejudice issue. 3

A.     Compliance with the Policy’s Post-Loss Obligations

       Although 200 Leslie contends the district court erred with regard to each of

the three post-loss requirements, we need not decide whether the district court

erred in finding (1) that 200 Leslie failed to comply with the requirement to submit

       3
          We review de novo a district court’s interpretation of an insurance policy. Hegel v. First
Liberty Ins. Corp., 

, 1219 (11th Cir. 2015). Likewise, whether the district court
placed the burden of proving prejudice on the correct party is a question of law subject to de
novo review. Cf. Sterling v. Stewart, 

, 1202 (11th Cir. 1998) (“Whether the
district court applied the correct burden of proof [to a settlement of a class-action lawsuit] is a
question of law reviewed de novo.”).
         However, we review the district court’s underlying findings of fact for clear error. See
U.S. Commodity Futures Trading Comm’n v. Hunter Wise Commodities, LLC, 

,
974 (11th Cir. 2014). “A finding of fact is clearly erroneous if, upon reviewing the evidence as a
whole, we are left with the definite and firm conviction that a mistake has been committed.” 

omitted).
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a sworn proof of loss and (2) that 200 Leslie failed to comply fully with the

requirement to produce a representative to submit to an examination under oath.

Rather, we can resolve this case based solely on the district court’s findings

regarding 200 Leslie’s obligation to provide an inventory of damaged and

undamaged property.

      The district court concluded that 200 Leslie’s failure to submit any inventory

of damaged and undamaged property constituted a breach of the post-loss

inventory requirement. We agree. By refusing to submit an inventory of damaged

and undamaged property, 200 Leslie failed to identify the windows, doors, and

other items that QBE would have to inspect before making a determination

regarding the claim.

      200 Leslie contends that this Court must construe the inventory requirement

as being limited to a listing of only personal property items because of the meaning

of the word “inventories” and alleged ambiguity in the inventory provision’s use of

the word “property.” Under this theory, 200 Leslie was not required to itemize

parts of the building itself that were damaged (such as particular windows or

doors). This argument is without merit.

      First, none of the dictionary definitions supplied by 200 Leslie indicate that

an “inventory” can include only personal property within a building, rather than

fixtures attached to the structure, including a roof, windows, or doors. Second,


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there is nothing ambiguous about the term “property” in the inventory provision

requiring us to construe it as including only personal property. Where the policy

sought to cover only personal property, it did so by using the term “personal

property.” And it did so repeatedly. It did not do so here.

      Accordingly, we conclude that the district court did not err in finding that

200 Leslie failed to comply with the policy’s requirement that it submit an

inventory of damaged and undamaged property.

B.    Burden of Proving Prejudice

      Turning to the prejudice issue, we begin by noting that the relevant Florida

case law does not provide a clear answer as to which party bore the burden of

proving or disproving prejudice in this case. Indeed, when the issue is whether an

insured may compel an appraisal despite the insured’s failure to comply with the

policy’s terms, there are at least three possible approaches.

      First, the rule could be that the trial court need not consider prejudice where

the policy specifies that failure to comply with the policy’s terms bars appraisal.

See, e.g., U.S. Fid. & Guar. Co. v. Romay, 

, 471 (Fla. Dist. Ct. App.

1999) (en banc) (“No reasonable and thoughtful interpretation of the policy could

support compelling appraisal without first complying with the post-loss

obligations.”); Goldman v. State Farm Fire Gen. Ins. Co., 

, 306 (Fla.

Dist. Ct. App. 1995) (holding that an examination under oath was “a condition


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precedent to suit” under a homeowner’s policy and that the insured’s failure to

comply “preclude[d] an action on the policy regardless of a showing of prejudice

by the insurer”).

       Second, the rule could be that an insured may compel an appraisal, despite

its failure to comply with post-loss obligations, if the insured establishes that its

failure to comply caused no prejudice to the insurance company. Cf. Bankers Ins.

Co. v. Macias, 

, 1218 (Fla. 1985) (holding that a presumption of

prejudice arises from an insured’s failure to give timely notice of a claim and that

an insured thus cannot recover unless the insured proves lack of prejudice);

Soronson v. State Farm Fla. Ins. Co., 

, 952–53 (Fla. Dist. Ct. App.

2012) (holding that an insured who failed to submit a timely notice of loss and a

timely sworn proof of loss could not recover under a homeowner’s policy because

the insured did not rebut the presumption that the insurer suffered prejudice). 4

       Third, the rule could be that, where an insured fails to comply with post-loss

obligations, it may nonetheless compel an appraisal unless the insurer establishes

that the failure to comply caused it prejudice. For this proposition, 200 Leslie cites

State Farm Mutual Automobile Insurance Co. v. Curran, though that case involved

a compulsory medical examination for uninsured-motorist coverage and only three
       4
        We note that both Macias and Soronson indicate in dicta that, in other circumstances, the
burden of proving or disproving prejudice is reversed—and placed on the insurer—if the insurer
claims that the insured breached a policy term, and the court determines that the term is a
cooperation clause rather than a notice requirement. See 

; 

.
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justices joined the plurality opinion on which 200 Leslie relies. 

,

1073–74, 1081 (Fla. 2014); see also Whistler’s Park, Inc. v. Fla. Ins. Guar. Ass’n,

, 845–47 (Fla. Dist. Ct. App. 2012) (holding that the failure of an

insured under a homeowner’s policy to sit for an examination under oath precludes

recovery only if the insurer proves prejudice).

      We need not—and do not—decide this difficult issue of Florida law. Even

assuming arguendo that the district court should have placed the burden on QBE to

prove that any failure to comply with the policy’s terms prejudiced it, the outcome

would have been the same.

      QBE offered uncontroverted evidence that it was, in fact, prejudiced by 200

Leslie’s failure to submit an inventory of the damaged and undamaged property.

And the district court made findings of fact that clearly demonstrate that QBE was

so prejudiced. Specifically, the district court found that, “[w]ithout the information

regarding the damaged/undamaged breakdown, Bertucci could not determine what

[QBE] was required to pay under the terms of the QBE policy; and the distinction

is important because it shows what needs to actually be repaired or replaced from

hurricane damage.” The district court also “accept[ed] as legitimate the

reasons given by Bertucci why QBE needed the separate inventory of damaged and

undamaged property that it had requested.”




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      At trial, 200 Leslie did not introduce any facts to challenge this evidence of

prejudice to QBE. And on appeal, it points to none. Put simply, even assuming

arguendo that the district court wrongly placed the burden on 200 Leslie to show

that QBE was not prejudiced, QBE nonetheless introduced evidence that

affirmatively proved that it was prejudiced, and 200 Leslie failed to counter that

evidence.

      Accordingly, we need not decide which of the three possible rules applies in

this case. QBE established that 200 Leslie failed to comply with the policy’s post-

loss inventory requirement, and that such failure prejudiced QBE. Thus, under any

of the possible rules, 200 Leslie is not entitled to an appraisal and the district

court’s judgment is due to be affirmed.

                                 III. CONCLUSION

      For the foregoing reasons, we affirm the district court’s entry of judgment in

favor of QBE on Count II of 200 Leslie’s complaint.

      AFFIRMED.




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