Great Lakes Insurance SE v. Concourse Plaza A Condominium Association, Inc.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13141
Non-Argument Calendar
____________________
GREAT LAKES INSURANCE SE,
Plaintiff-Counter Defendant
Appellee,
versus
CONCOURSE PLAZA A CONDOMINIUM
ASSOCIATION, INC.,
Defendant-Counter Claimant
Appellant.
____________________
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2 Opinion of the Court 22-13141
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cv-21873-BB
____________________
Before R OSENBAUM , GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
This insurance coverage dispute asks whether Fla. Stat.
§ 627.70132 required that Concourse Plaza’s notice of a
supplemental claim to its insurer, Great Lakes Insurance SE,
include an estimate of damages. Consistent with Patios West One
Condominium Association, Inc. v. American Coastal Insurance Co., No.
3D22-1895, 2024 WL 24782 (Fla. Dist. Ct. App. Jan. 3, 2024), we
conclude that it did not. Accordingly, we reverse the district
court’s grant of summary judgment for Great Lakes and remand
for further proceedings.
I.
Concourse Plaza, a condominium association, purchased a
commercial property insurance policy from Great Lakes with a
deductible of $195,210 for the policy year May 17, 2017 through
May 17, 2018. On September 10, 2017, Hurricane Irma made
landfall in Florida and struck Concourse Plaza’s building, causing
wind and water damage. After being notified by Concourse Plaza
of the damage, Great Lakes sent an insurance adjuster to inspect
the property. This adjuster found that the damages to Concourse
Plaza’s building were $31,035.21, well below the policy’s
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22-13141 Opinion of the Court 3
deductible. Accordingly, in March 2018, Great Lakes sent
Concourse Plaza a letter advising that the net amount of the claim
was zero.
Concourse Plaza responded on September 4, 2020—just shy
of three years after the date its claim accrued. In its letter,
Concourse Plaza disputed Great Lakes’s damages estimate but did
not include a competing estimate, instead stating that Concourse
Plaza was “currently in the process of effecting its own damage
assessment.” The letter also advised that Great Lakes should
“consider this correspondence as the Insured’s notice of its intent
to pursue additional insurance benefits under the Policy for the
Loss” in accordance with both the policy’s notice provisions and
Fla. Stat. § 627.70132.
On April 8, 2021, Concourse Plaza formally submitted a
proof of loss statement, providing a damages estimate of
$6,403,728.62. Because Concourse Plaza and Great Lakes disputed
the amount of damages, Concourse Plaza also invoked its
contractual appraisal remedy. Concourse Plaza later lowered its
estimate to $3,276,080.50 while maintaining its appraisal demand.
After receiving Concourse Plaza’s appraisal demand, Great
Lakes filed suit. It sought a declaratory judgment ruling that
Concourse Plaza’s September 2020 letter did not constitute a valid
notice of a supplemental insurance claim under Fla. Stat.
§ 627.70132 and that Concourse Plaza had therefore failed to
provide qualifying notice within the statutory three-year period
following landfall of the hurricane. Concourse Plaza
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4 Opinion of the Court 22-13141
counterclaimed, seeking to compel its contractual appraisal
remedy and damages for breach of contract.
Both parties moved for summary judgment. Relying on
Goldberg v. Universal Property & Casualty Insurance Co., 302 So. 3d
919 (Fla. Dist. Ct. App. 2020), the district court held that Fla. Stat.
§ 627.70132 requires an insured party’s notice of a supplemental
claim to include an estimate of claimed damages. Because
Concourse Plaza’s September 2020 letter did not do so, the court
ruled Concourse Plaza had failed to provide qualifying notice
within three years as required by the statute. Accordingly, the
court granted summary judgment to Great Lakes. Concourse
Plaza appeals.
II.
We review a district court’s interpretation of state law de
novo. Jones v. United Space All., L.L.C., 494 F.3d 1306, 1309 (11th
Cir. 2007).
III.
We begin with the proper interpretation of Fla. Stat.
§ 627.70132. At the time of the dispute, the relevant portion of that
statute read:
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
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22-13141 Opinion of the Court 5
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.
Fla. Stat. § 627.70132 (2011).1
Concourse Plaza argues that the plain text of the statute
requires only that an insured’s notice of a supplemental claim
comply “with the terms of the policy,” meaning that the notice
need not include an estimate of damages if none is required by the
insurance contract. Great Lakes, on the other hand, argues that
any notice of a supplemental claim under the statute must include
an estimate of damages by the insured.
When interpreting state law, a federal court “is bound to
adhere to decisions of the state’s intermediate appellate courts
absent some persuasive indication that the state’s highest court
would decide the issue otherwise.” Silverberg v. Paine, Webber,
Jackson & Curtis, Inc., 710 F.2d 678, 690 (11th Cir. 1983). “A federal
court is bound by this rule whether or not the court agrees with
the reasoning on which the state court’s decision is based or the
outcome which the decision dictates.” Id. If the state’s appellate
1 Fla. Stat. § 627.70132 has since been amended. Both parties agree that the
pre-amendment version of the statute, in effect from June 1, 2011 to June 30,
2021, applies to this dispute.
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6 Opinion of the Court 22-13141
courts disagree on a principle of state law, “we look to the decisions
of the [state] appellate court that would have had jurisdiction over
an appeal in this case had it been filed in state court.” Bravo v. United
States, 532 F.3d 1154, 1164 (11th Cir. 2008).
In this case, there are no relevant decisions from the Florida
Supreme Court interpreting § 627.70132. Two Florida appellate
courts, however, have weighed in. The first is Goldberg v. Universal
Property & Casualty Insurance Co., from Florida’s Fourth District
Court of Appeal. In Goldberg, the court examined whether an
insured party “was required to submit a supplemental claim before
filing suit for additional payment for” its loss. 302 So. 3d at 923.
Finding that the insured’s attempt to claim additional payment for
an already adjusted loss qualified as a supplemental claim under
§ 627.70132, the court concluded that the insured “was required to
file a supplemental claim setting forth those damages he sought in
excess of what the insurance company had already paid.” Id. The
court stated that a “competing estimate by an insured’s
independent adjuster, or by a prospective contractor” would
suffice. Id. at 924.
The second state appellate court decision on point was
issued after the district court granted summary judgment to Great
Lakes below. In Patios West One Condominium Association, Inc. v.
American Coastal Insurance Co., Florida’s Third District Court of
Appeal held that § 627.70132 does not require a notice of a
supplemental claim to contain an estimate of additional damages.
2024 WL 24782, at *5. Instead, the statute requires only that “the
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22-13141 Opinion of the Court 7
notice of a supplemental or reopened claim (1) be ‘given to the
insurer in accordance with the terms of the policy’ and
(2) constitute an ‘additional claim for recovery’ for losses from ‘the
same hurricane.’” Id. (quoting Fla. Stat. § 627.70132).
The Patios court explicitly rejected Goldberg’s statement that
§ 627.70132 required a damages estimate, reasoning that the
statute’s plain text did not contain any such requirement and that
the statute was not a “supplemental claim statute” but a “notice of
supplemental claim statute,” delineating only the time period in
which an insured must give notice to its insurer of the existence
(but not the precise amount) of a supplemental claim. Id. It also
dismissed this portion of Goldberg as nonbinding dicta. Id. at *4–5,
*5 n.6.
Concourse Plaza urges this Court to follow Patios, arguing
that Goldberg is both factually distinguishable and wrongly decided.
We need not determine whether Goldberg would apply to this case,
however, because as a federal court applying state law, we are
bound to apply Patios in any event. This lawsuit originated in the
Miami Division of the United States District Court for the Southern
District of Florida. “State courts located there are within the
territory of, and are bound to follow decisions issued by, the Third
District Court of Appeal.” Bravo, 532 F.3d at 1164. Therefore,
because this is an appeal of a case arising out of the Miami Division,
we apply the Third District Court of Appeal’s Patios decision.2 To
2 Although Patios was issued after the district court’s summary judgment order
in this case, we still must apply it on appeal. Erie requires this Court to give
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8 Opinion of the Court 22-13141
the extent Patios conflicts with Goldberg, we follow Patios, as
Goldberg was decided by the Fourth District Court of Appeal.
Accordingly, in order for Concourse Plaza’s September 2020 letter
to qualify as a valid notice of a supplemental claim under
§ 627.70132, it must have been “given to the insurer in accordance
with the terms of the policy” and “constitute an additional claim
for recovery for losses from the same hurricane.” Patios, 2024 WL
24782, at *5 (quotation omitted).
No one disputes that Concourse Plaza’s September 2020
letter sought additional recovery for losses from the same
hurricane—Hurricane Irma—as the original claim. And Great
Lakes concedes that the insurance policy by itself “does not impose
a requirement to provide an estimate of damages.” Concourse
Plaza’s September 2020 letter therefore qualifies as a notice of a
supplemental claim under Fla. Stat. § 627.70132. Because it was
sent within three years of the date Hurricane Irma made landfall,
the provisions of Fla. Stat. § 627.70132 were satisfied.
the same effect to an intervening appellate decision that Florida’s state
appellate courts would. Cf. Samuels v. Doctors Hosp., Inc., 588 F.2d 485, 488–89
(5th Cir. 1979). In Florida, the rule is clear: a subsequent panel of a district
court of appeal must follow a precedent set by a prior panel unless that
precedent is overturned by the Florida Supreme Court or the district court of
appeal sitting en banc. Nat’l Med. Imaging, L.L.C. v. Lyon Fin. Servs., Inc., 347
So. 3d 63, 64 n.2 (Fla. Dist. Ct. App. 2020). Therefore, because the Third
District Court of Appeal would apply Patios here, so must we.
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22-13141 Opinion of the Court 9
* * *
We REVERSE the district court’s grant of summary
judgment to Great Lakes and REMAND for further proceedings.
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