Lonnie Love v. State Farm Florida Insurance Company

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13514
Non-Argument Calendar
____________________
LONNIE LOVE,
Plaintiff-Appellant,
versus
STATE FARM FLORIDA INSURANCE COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cv-00786-ELR
____________________
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2 Opinion of the Court 22-13514
Before J ORDAN, NEWSOM , and BRANCH, Circuit Judges.
PER CURIAM:
Lonnie Love claims that robbers stole $137,000 of jewelry
from his car, which they took during a gunfight in a strip-club park-
ing lot. Love filed a claim with his insurance carrier, State Farm.
In a series of follow-up letters, State Farm asked for numerous doc-
uments and an examination under oath to help it assess the claim.
Love, thinking many of the requests burdensome and irrelevant,
sat for the examination but only supplied some of the documents
and never completed the follow-up paperwork.
When State Farm—which never received the requested doc-
uments—failed to promptly pay the claim, Love sued for breach of
contract. State Farm sought summary judgment, arguing that
Love’s premature suit was itself a breach of the policy. It points to
several provisions in the insurance contract to which Love agreed:
8. Examination Under Oath. You agree:
a. to be examined under oath and subscribe to the
same as often as we reasonably require;
. . .
d. to produce such records as we may need to verify
the claim and its amount, and to permit copies of such
records to be made if needed.
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22-13514 Opinion of the Court 3
9. Suit Against Us. No action will be brought unless:
a. there has been compliance with the policy provi-
sions
Doc. 1-1 at 27. In State Farm’s view, Love’s failure to provide all
the requested documents violated Condition 8 and his filing of the
suit while violating Condition 8 was itself a violation of Condition
9. The district court agreed and granted summary judgment to
State Farm.
On appeal, Love presents two arguments.1 First, Love ar-
gues that summary judgment is inappropriate because there is a
1 Love’s opening brief’s “Statement of the Issues” includes an additional issue:
“Whether the district court erred in granting summary judgment on Appel-
lant’s other claims while discovery remained pending and Appellant had not
yet had an opportunity to establish a record regarding the claims under inves-
tigation through discovery.” Other than a conclusory statement in the fact
section that “the denial of Appellant’s other claims were premature,” Love
advances no arguments to support this claim. Accordingly, he has forfeited it.
See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014)
(“We have long held that an appellant abandons a claim when he either makes
only passing references to it or raises it in a perfunctory manner without sup-
porting arguments and authority.”).
Love also makes a cursory argument that State Farm’s failure to agree
to a dismissal waived the breach of Condition 9. But because Love admits that
the facts are not in the record and does not cite any legal authorities, he has
likewise forfeited that argument.
See id. at 682 (“The brief makes no argument
and cites no authorities to support those conclusory assertions.”); Fed. R. App.
P. 28(a)(8) (“The appellant’s brief must contain . . . (8) the argument, which
must contain: (A) appellant's contentions and the reasons for them, with cita-
tions to the authorities and parts of the record on which the appellant relies.”).
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4 Opinion of the Court 22-13514
genuine dispute about whether he violated Condition 8. Second,
Love disputes the remedy. He claims that even if he sued too
soon—before he complied with Condition 8—the remedy should
be dismissal of his suit to allow him to satisfy the conditions rather
than granting judgment on the merits of his contract claim.
After careful review, we agree with the district court and af-
firm summary judgment for State Farm.
I
Love claims that there is a genuine dispute about whether
he breached the contract.2 In the alternative, he argues that State
Farm’s own bad faith precludes summary judgment even if he
breached.
A
Love provided a police report, appraisals and photos related
to some of the jewelry, and a sworn statement, and he sat for an
examination under oath. But, as the district court explained, Love
“does not appear to deny that he has failed to produce the majority
of the documents” that State Farm requested: numerous financial
records related to the purchase of the jewelry, the police inventory
2 Under Georgia law, a breach of contract claim requires showing “(1) breach
and the (2) resultant damages (3) to the party who has the right to complain
about the contract being broken.”
McAlister v. Clifton, 873 S.E.2d 178, 183
(Ga. 2022).
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22-13514 Opinion of the Court 5
of the stolen car, information about a recent flight, and a signed
errata sheet for his examination under oath. Doc. 47 at 8–9.
On appeal, Love argues that whether the records he failed
to provide were “need[ed] to verify the claim and its amount”—as
that phrase is used in Condition 8—is a jury question. He disputes
the applicable Georgia law standard for measuring compliance.
Echoing the district court’s reasoning, State Farm contends
that
Halcome v. Cincinnati Insurance Co., 334 S.E.2d 155, 157 (Ga.
1985), does two important things: It (1) makes the focus whether
any material information wasn’t provided and (2) holds that this
issue
can be decided as a matter of law. We agree. For insurance
contracts like the one here, we’ve already interpreted
Halcome to
require “an insured to provide any ‘material information’ to the in-
surer that the insurer is entitled to receive under the insurance pol-
icy” and said that “absent an excusable failure to do so” that failure
would “constitute[] a breach of the insurance contract.”
Hines v.
State Farm Fire & Cas. Co., 815 F.2d 648, 651 (11th Cir. 1987). And
at least in appropriate circumstances, this can be decided by a court
as a matter of law. Indeed, the
Halcome court itself decided that
the income records of the couple suspected of multiple insurance
frauds in that case were material to their claim. 334 S.E.2d at 157.
The withheld documents here are, if anything, more mate-
rial than the records in
Halcome, which merely bore on the poten-
tial motive for the fraud. Here, for example, the financial docu-
mentation regarding Love’s purchase of a “Band Ring” was neces-
sary to establish that he ever owned an item that he claimed was
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6 Opinion of the Court 22-13514
stolen. This is important because State Farm had a reasonable basis
to question whether he did. Love could not recall when or from
whom he had purchased it. And the appraisal he provided didn’t
include his name. And as the district court held, other material re-
quests went to determining the value of the jewelry and whether
Love possessed it on the night it was stolen.
Love’s failure to provide these records would not be fatal to
his claim if he had a reasonable excuse. In
Hines, we held that an
insured’s inability to provide documents because they had been de-
stroyed by a fire was reasonable and that there was a jury question
about whether the documents had been destroyed. 815 F.2d at 652.
But here, Love does not claim that the documents are unavailable.
And he offers no excuse other than that he doesn’t think that they
are material.3
Instead, Love points to
Diamonds & Denims, Inc. v. First of
Georgia Insurance Co., 417 S.E.2d 440 (Ga. App. 1992), whose lan-
guage, he says, suggests that
partial failures to provide information
always give rise to a jury question regarding compliance.
Id. at
441–42. But
Diamonds—a lower court case—explicitly distin-
guished
Halcome—the controlling Georgia Supreme Court deci-
sion—on two bases, saying that
Halcome didn’t apply (1) when
3 In his reply brief, Love advances—for the first time—the argument that he
“provided [State Farm] with the records that he was able to locate.” We do
not, however, consider arguments raised for the first time in a reply brief.
United States v. Martinez, 83 F.3d 371, 377 n.6 (11th Cir.1996).
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22-13514 Opinion of the Court 7
there was no suspicion of fraud and (2) when the records had been
destroyed.
Id. at 442. Unfortunately for Love, this case is like
Hal-
come—not
Diamonds—on both scores.
There is no genuine dispute about whether Love failed to
provide material requests to State Farm.
B
Love also relies on a second statement in
Diamonds that
“the insurer’s failure to act with diligence and good faith in securing
the necessary information also will preclude the grant of summary
judgment to the insurer on the issue of the insured’s compliance
with policy prerequisites.” 417 S.E.2d at 442 (citing
Saft Am., Inc.
v. Ins. Co. of N.A., 271 S.E.2d 641 (Ga. App. 1980);
St. Paul Fire &
Marine Ins. Co. v. Gordon, 158 S.E.2d 278 (Ga. App. 1967)). But
the insurer’s dilatory conduct must relate to the specific “necessary
information” that constituted the breach. For example, the
Saft
court refused to penalize the insured for failing to complete an ex-
amination under oath when the insurer failed to fulfill its steps nec-
essary to scheduling the examination. 271 S.E.2d at 642. In
Dia-
monds, the insured notified the insurer that the requested records
were destroyed in a fire. 417 S.E.2d at 442. The insurer then
merely “reiterate[d] in general language the policy requirement for
production of ‘books and records’” but never “followed up these
generalized statements with specific requests, sought releases from
[the insured] in order to obtain records from other sources, or oth-
erwise pursued the matter further.”
Id. So—using
Halcome’s
phrasing—in
Saft and
Diamonds, the insurer’s actions contributed
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8 Opinion of the Court 22-13514
to the “excusable failure” of the insured to produce the specific
items alleged to constitute the breach.
See 334 S.E.2d at 157.
Love’s claim is different. He isn’t saying that State Farm
somehow contributed to his failure to provide the requested infor-
mation. Instead, Love objects that State Farm didn’t continue pro-
cessing his claim while it waited for his responses. But he points us
to no legal authority which would require that or otherwise sug-
gest how it would excuse his breach.
* * *
The district court properly determined that there is no gen-
uine dispute about (1) whether Love failed to provide material in-
formation and (2) whether Love’s failure was unexcused. The dis-
trict court, therefore, properly granted summary judgment to State
Farm.
II
Love also argues that a dismissal without prejudice would
be the appropriate remedy because even if he breached the con-
tract, it isn’t void. But he cites no authority explaining why a party
who satisfies Rule 56’s requirements for obtaining summary judg-
ment isn’t entitled to a
judgment.
What Love actually seems to seek is clarity about his pro-
spective rights. In essence, he seems to ask us to say that the con-
tract remains in effect and that, if he cures the conditions, he can
refile his suit. But that question is one about the preclusive effect
of the judgment, not whether the judgment itself is appropriate.
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22-13514 Opinion of the Court 9
And whether the judgment in this case has preclusive effect is not
a question presented in
this case; it is a question to be answered in
any ensuing suit. Were we to answer it here, we would, in essence,
be issuing an advisory opinion.
E.g.,
Personalized User Model, LLP
v. Google Inc., 797 F.3d 1341, 1350 (Fed. Cir. 2015). Accordingly,
we lack the authority to give Love the clarity he seeks.
See Church
of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992).
III
For the foregoing reasons, we affirm.
AFFIRMED.
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