Gulfpoint Construction Company, Inc. v. Westfield Insurance Company

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12195
Non-Argument Calendar
____________________
GULFPOINT CONSTRUCTION COMPANY, INC.,
Plaintiff-Appellant,
versus
WESTFIELD INSURANCE COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:22-cv-00086-SPC-NPM
____________________
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2 Opinion of the Court 23-12195
Before WILSON, BRANCH , and L UCK , Circuit Judges.
PER CURIAM:
In this case, the district court granted summary judgment to
Westfield Insurance Company on Gulfpoint Construction
Company’s breach of contract claim. The district court held that
Westfield was entitled to summary judgment for two reasons.
First, Gulfpoint failed to give timely notice to Westfield, its
insurance company, of property damage from Hurricane Irma, and
failed to rebut the presumption of prejudice that arises from that
failure. Second, even if Gulfpoint’s late notice did not preclude
insurance coverage, the insurance contract did not allow Gulfpoint
to recover replacement cost value (“RCV”) damages on property it
had not yet repaired or replaced.
After review, we vacate the grant of summary judgment and
remand. To start, we agree with Gulfpoint that the evidence
creates a genuine issue of material fact on rebutting the
presumption of prejudice. But even so, the damages issue is
potentially dispositive in Westfield’s favor. Gulfpoint does not
contest the district court’s ruling that it cannot recover RCV
damages under the circumstances, it merely argues that the district
court’s conclusion does not end the case because it also seeks the
actual cash value (“ACV”) of the property. The district court never
ruled on that argument, so, rather than decide the issue in this
posture, we vacate the grant of summary judgment and remand
for the district court to consider the matter in the first instance.
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23-12195 Opinion of the Court 3
I. Background
A. Factual Background
This case involves claims for roof and interior damage made
after Hurricane Irma made landfall in Florida on September 10,
2017. Westfield insured property owned by Gulfpoint. The policy
at issue in this case included two relevant provisions. First, the
notice provision says:
E. Loss Conditions
. . .
3. Duties In The Event Of Loss Or Damage
a. You must see that the following are done in the
event of loss or damage to Covered Property:
. . .
(2) Give us prompt notice of the loss or
damage. Include a description of the property
involved.
Second, the Replacement Cost provision says:
G. Optional Coverages
. . .
3. Replacement Cost
a. Replacement Cost (without deduction for
depreciation) replaces Actual Cash Value in the
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4 Opinion of the Court 23-12195
Valuation Loss Condition, of this Coverage
Form.
. . .
d. We will not pay on a replacement cost basis
for any loss or damage:
(1) Until the lost or damaged property is
actually repaired or replaced; and
(2) Unless the repairs or replacement are
made as soon as reasonably possible
after the loss or damage.
Shortly after the Hurricane, Gulfpoint hired Crowther
Roofing and Construction Services to inspect the damage and
perform emergency repairs. Crowther fixed the damage that it
found. Gulfpoint did not notify Westfield of the damage or repairs
at that time.
Two years later, however, Gulfpoint decided that the roof
and interior damage was worse than it originally thought and
submitted a claim to Westfield on September 6, 2019. Westfield
retained an engineer, Blake Shatto, to inspect the building and
evaluate any roof or water damage. Relying on Shatto’s report,
Westfield determined that there was not covered wind damage to
the roof or an opening in the roof or walls that allowed water to
enter.
Westfield denied coverage. Its initial denial letter stated that
“[t]he claim was reported . . . on 9/6/2019, with a reported date of
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23-12195 Opinion of the Court 5
loss presented as 9/10/2017,” meaning “the claim was presented to
Westfield Insurance Company 2 years after the claimed date of
loss.” The first letter also explained that the damages “did not
appear to have been caused by a wind event,” and ended with a
reservation of rights:
Please be aware that neither this letter nor any actions
taken by Westfield Insurance Company or any of its
representatives are intended to waive any of the
terms or conditions of our policy of insurance with
you and should not be construed as a waiver of any
rights or defenses under said policy. Also, please be
advised that this letter is not intended to set forth all
issues of coverage which may arise from this loss
under your policy of insurance with Westfield
Insurance Company.
After receiving the letter, Gulfpoint retained an expert,
James Hartney, to inspect the property as well. Hartney wrote a
report disputing Shatto’s conclusions, opining that the damage was
“exceedingly likely to be due to high winds caused by Hurricane
Irma.” Gulfpoint submitted the report to Westfield and asked it to
reconsider.
Westfield refused to reconsider its coverage denial. It sent a
second coverage denial letter in early January 2020, in which it
stated that “no information presented in Mr. Hartney’s report
alters the conclusions in [Westfield’s earlier engineering] report.”
Thus, “Westfield’s position remain[ed] as stated in [the first claim
denial letter]” and, “[a]s such, no claim payment [would] be made.”
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6 Opinion of the Court 23-12195
Westfield again “expressly reserve[d] all of its rights and defenses
under the policy of insurance or otherwise.”
B. Procedural History
Gulfpoint filed this breach of contract lawsuit in Florida state
court. Westfield removed the case to federal court based on
diversity jurisdiction.
Gulfpoint retained two experts relevant to this appeal. First,
Gulfpoint retained a general contractor, Dennis James, to provide
an expert opinion about the cost of repairing Gulfpoint’s property.
In its expert report disclosure, Gulfpoint specifically stated that
James would “offer an opinion regarding the value of the necessary
repairs in order to restore [Gulfpoint’s] tile roof systems to their
pre-loss conditions.”1
Second, Gulfpoint retained Byron Anderson to conduct an
engineering evaluation of the damage to the property. Anderson
explained that he “was able to formulate [his opinions]” despite
reviewing the property two years after the storm “and was in no
way prejudiced by the timing of [the] inspection,” especially
because “no other windstorm event occurred at this location
1 The parties debate whether that disclosure was sufficient to put Westfield on
notice of a claim for ACV damages—which is usually measured as
“replacement cost minus depreciation,” Trinidad v. Florida Peninsula Insurance
Company, 121 So. 3d 433, 443 (Fla. 2013)—in light of the fact that James
mentioned ACV occasionally in the report itself. As discussed below, we leave
that question to the district court to decide in the first instance. See Section
III.B & n.3.
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23-12195 Opinion of the Court 7
between the time of Hurrican Irma and [Mr. Anderson’s]
inspection which could have resulted in the damage observed to
[Gulfpoint’s] building and its roof system.” Anderson ultimately
concluded that the damage to Gulfpoint’s roof system and the
interior water damage were the result of Hurricane Irma.
Gulfpoint deposed Shatto regarding his investigation. Asked
to explain “how having had to inspect that damage almost two
years after Irma negatively impacted or limited [his] ability to”
determine “the cause of any portion of the damage or rule out
other potential competing causes of the same damage,” Shatto said
this:
[T]ime is going to do things . . . . It’s going to weather
surfaces . . . . So, yeah, it does make it harder to date
when things have happened, but at the end of the day,
wind damage is wind damage. It’s a permanent
deformation or movement of a material.
But, he said, work invoices he was provided regarding the earlier
repairs to the property demonstrated that the condition of the
property had not materially changed since those repairs:
Now, as far as the work invoices go, those were
great. . . . because . . . they showed a couple of
fractures with that dirty weathering of conditions
that have been there for years. They pretty much showed
the exact condition that I saw, and then they showed a
couple of tiles that had been moved and some
flashing that looked like wind damage. So if I were to
inspect that roof—if I had inspected that roof hand in
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8 Opinion of the Court 23-12195
hand with the Crowther Roof people, my report would have
been identical . . . . I would have found the same partially
formed cracks . . . . [M]y report wouldn’t have changed.
(emphasis added).
Westfield sought summary judgment based on two
affirmative defenses. First, Westfield argued that “Gulfpoint [] did
not give Westfield the prompt notice of the loss or damage” that
was required to recover under the insurance contract. As a result,
Westfield argued, “[it] and its experts were deprived of a fresh
examination of the unrepaired damage to the roof.” Second,
Westfield argued that Gulfpoint could not recover the cost of
replacing its roof because it had not yet replaced the roof, as
required by the policy.
Gulfpoint opposed the motion. Among other things,
Gulfpoint argued that Westfield was precluded from arguing that
Gulfpoint had failed to give prompt notice of the damage.
Gulfpoint also argued that it was also seeking the ACV of the
property—not merely RCV. Gulfpoint distinguished a case in
which the plaintiff had only sought RCV damages, explaining that
James’s expert report “differentiate[d] the RCV with the ACV being
claimed in this lawsuit.” See CMR v. Empire Indem. Ins. Co., 843 Fed.
App’x 189 (11th Cir. 2021).
The district court granted Westfield’s motion. First, the
district court explained, Gulfpoint’s claim was barred by its failure
to give prompt notice. The district court rejected Gulfpoint’s
argument that Westfield should be precluded from asserting a
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23-12195 Opinion of the Court 9
prompt-notice defense because Westfield had “[taken] issue . . .
with Gulfpoint’s two-year delay in notifying the insurer” in its
initial letter and expressly reserved all its rights and defenses under
the Policy in both letters. Next, under the circumstances, the court
concluded that the two-year delay in notifying Westfield of
Hurricane damage “constitute[d] untimely notice.” Then,
“[h]aving determined that Gulfpoint’s notice to Westfield . . . was
untimely, the [c]ourt [then] presume[d],” as required by Florida
law, that “Westfield was prejudiced by the delay”—and it found
that Gulfpoint had not rebutted the presumption. In particular, the
court reasoned that the fact that “both parties can form . . . different
opinions about causation [of the damages] cannot rebut the
presumption of prejudice,” especially because Gulfpoint’s
argument was “complicated by the ‘emergency repair work’ [that]
it undertook in the days following Hurricane Irma.”
Second, the district court separately agreed that Westfield
was entitled to summary judgment because Gulfpoint could not
recover the RCV of the property because it had not, as the policy
required, replaced the damaged property. Without addressing
Gulfpoint’s argument that it had also asserted a claim for ACV
damages, the district court concluded that, “[u]nder the Policy . . .
Gulfpoint may not recover RCV damages” and so “Westfield [was]
also entitled to summary judgment on this ground.”
The district court entered judgment and Gulfpoint appealed.
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10 Opinion of the Court 23-12195
II. Standard of Review
“We review de novo a district court’s grant of summary
judgment, applying the same standard as the district court.” Bailey
v. Allgas, Inc., 284 F.3d 1237, 1242 (11th Cir. 2002). Namely,
summary judgment is appropriate “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). In
applying this standard, the court must view all evidence in the light
most favorable to the non-moving party and draw all reasonable
inferences in the non-movant’s favor. See Burton v. City of Belle
Glade, 178 F.3d 1175, 1187 (11th Cir. 1999) (quotation omitted).
III. Discussion
On appeal, Gulfpoint argues that the district court erred in
granting summary judgment on both the prompt notice and
damages issues. We agree (in part) on prompt notice. As to
damages, however, we conclude that the district court failed to
address a potentially dispositive argument—so we vacate the grant
of summary judgment and remand for the district court to consider
that argument in the first instance.
A. Prompt Notice
Gulfpoint argues that the district court erred in granting
summary judgment on prompt notice both because (1) Westfield
is estopped from raising the defense and (2) Gulfpoint rebutted the
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23-12195 Opinion of the Court 11
presumption that Westfield was prejudiced by the delay.2 We
reject the first argument, but we agree that Gulfpoint has created a
genuine issue of material fact about whether it rebutted the
presumption of prejudice.
i. Westfield is not estopped from raising a
prompt notice defense.
Gulfpoint argues that Westfield “waived” any prompt notice
rights under the insurance contract because it “investigated the loss
and reached a decision based on the merits of the case,” i.e., that
“the damage was caused by perils excluded under the policy,”
failing to mention prompt notice until this litigation. Thus,
Gulfpoint contends, under Florida’s “mend the hold” doctrine—a
species of estoppel—Westfield cannot shift its defense now that
litigation has commenced. We disagree.
Florida courts recognize a species of estoppel known as the
“mend the hold” doctrine. “[T]he phrase is a nineteenth-century
wrestling term, meaning to get a better grip (hold) on your
opponent.” Harbor Ins. Co. v. Continental Bank Corp., 922 F.2d 357,
362 (7th Cir. 1990). Florida courts have applied the doctrine such
that a litigant may not change his position on contested issues after
litigation commences to prejudice his opponent’s case. In O’Bryan
v. Linton, the Florida Supreme Court described the principle this
way: “a party who gives a reason for his conduct on anything
2 Gulfpoint does not dispute that the two-year delay in giving notice to
Westfield was not sufficiently prompt under the circumstances.
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12 Opinion of the Court 23-12195
involved in a controversy cannot, after litigation has started,
change his ground and put his conduct upon a different
consideration[.]” 41 So. 2d 169, 171 (Fla. 1949) (quotation omitted).
Later cases demonstrate the same principle. See, e.g., Hodkin v.
Perry, 88 So. 2d 139, 140 (Fla. 1956) (affirming estoppel against the
plaintiff appellant questioning the validity of a bylaw that he had
“actively supported and voted for the adoption of” because it was
inequitable that the plaintiff “had no objection to the by-law so
long as it was to be used only against other doctors . . . and it was
not until it was enforced against him that it became illegal.”);
Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337, 1339 (Fla. 3d DCA
1979) (“[H]aving successfully claimed that mediation was a
required condition precedent to the filing of this action, the
defendant may not now be heard to say that the delay specifically
caused by the pendency of that very proceeding has resulted in the
running of the statute of limitations.”)
We need not discern the precise contours of the doctrine,
however, because Gulfpoint’s argument fails even on a robust
understanding of the doctrine’s sweep. Here, Westfield has not
taken any new or different position because the coverage denial
letters plainly reserved all rights under the insurance contract.
Unlike the cases Gulfpoint cites (those discussed above), this
reservation of rights put Gulfpoint on notice that all of the potential
defenses under the insurance contract were available. What is
more, Westfield expressly alluded to the timeliness of the notice
when it noted, in the first letter, that “the claim was presented to
Westfield . . . 2 years after the claimed date of loss.” Thus, the
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23-12195 Opinion of the Court 13
assertion of the prompt notice defense in this litigation was not a
new or different position for purposes of Florida’s “mend the hold”
doctrine.
Gulfpoint resists this conclusion, arguing that “[i]t is
undisputed Westfield did not deny Gulfpoint’s claim based on any
failure by Gulfpoint to promptly report the loss,” but rather
because the damage was not caused by Hurricane Irma. But the
fact that Westfield passed specifically on the question of whether
the claimed damages were covered does not mean that it did not
also reserve all its rights and defenses under the insurance
contract—especially since Westfield also mentioned the delay in
receiving notice in the first claims denial letter. Gulfpoint points to
no authority suggesting that Florida’s “mend the hold” doctrine
estops an insurer from raising contractual defenses where the
insurer notes the factual basis for the defense and reserves all rights
under the contract.
Thus, we conclude that Gulfpoint has not shown that
Westfield was prohibited from raising the prompt notice defense
by Florida’s “mend the hold” doctrine.
ii. Gulfpoint rebutted the presumption of
prejudice.
Having concluded that Westfield was not estopped from
raising the prompt notice defense, we turn to Gulfpoint’s second
argument on the prompt notice defense—that it successfully
rebutted the presumption of prejudice. Gulfpoint argues that the
district court “failed to appreciate all the evidence that showed
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14 Opinion of the Court 23-12195
[that] Gulfpoint had rebutted the presumption of prejudice[.]”
Gulfpoint points out that, “based on the reports of [Westfield’s]
expert and Gulfpoint’s expert, there would have been no material
difference had Gulfpoint reported the claim earlier.” So, while
Westfield’s expert (Mr. Shatto) believed that the damage to
Gulfpoint’s property was caused by normal wear-and-tear, not
Hurricane Irma, his testimony did not suggest (and in fact disputes)
that he was unable to investigate the loss because of elapsed time.
We agree.
“A notice of damage is” often, and is here, “a pre-condition
to a claim.” De La Rosa v. Fla. Peninsula Ins. Co., 246 So.3d 438, 441
(Fla. 4th DCA 2018). “If an insured breaches the notice provision”
of an insurance policy, “prejudice to the insurer will be presumed,
but [that presumption] may be rebutted by a showing that the
insurer has not been prejudiced by the lack of notice.” Id. (quoting
Stark v. State Farm Fla. Ins. Co., 95 So.3d 285, 287–88 (Fla. 4th DCA
2012)).
“Whether the presumption of prejudice to the insurer has
been overcome is ordinarily” a question of fact, so, to grant
summary judgment, the record must “conclusively foreclose the
insured’s ability to overcome the presumption of prejudice. Id.
(alterations accepted) (quotation omitted). So, for example, in
Shapiro v. First Protective Insurance Company, a Florida court found
that whether the insureds had overcome the presumption was a
fact question because their engineer, “based on his inspection,
opined not only that the homeowners’ roof more likely than not
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23-12195 Opinion of the Court 15
had been damaged as a direct result of Hurricane Irma in 2017, but
also that this damage still could be observed as late as 2022, five
years after Hurricane Irma.” 359 So.3d 777, 782 (Fla. 4th DCA
2023); see also Stark v. State Farm Fla. Ins. Co., 95 So.3d 285 (Fla. 4th
DCA 2012) (similar). Conversely, in De La Rosa, “the record
foreclose[d] the insured’s ability to overcome the prejudice to the
insurer in evaluating the extent of the damage because of the delay
in making the claim” because the insurer “would not be able to
determine the damage at the time of the incident.” 246 So.3d at 441–
42 (emphasis added). De La Rosa distinguished Stark on the ground
that “even though there may be disputed issues of fact as to
whether the insurer was prejudiced in determining the cause of the
loss, the facts . . . show[ed] that the insurer would be prejudiced by
the passage of time in investigating the extent of the loss, and thus,
the cost of repair.” Id. at 442 (emphasis in original).
Here, we cannot say that the record “conclusively
foreclose[s]” Gulfpoint’s ability to overcome the presumption of
prejudice under Florida law. Stark, 95 So.3d at 288 (quotation
omitted). For one thing, much like in Shapiro, Gulfpoint’s expert
testified that he “was able to formulate [his] opinions” despite
reviewing the damage years after the fact, “and was in no way
prejudiced by the timing of [the] inspection”—to the contrary, he
said, “no other windstorm event occurred at [the property’s]
location between the time of Hurricane Irma and [his inspection]
which could have resulted in the damage observed to the
[Gulfpoint’s] Building and its roof system.” See Shapiro, 359 So.3d
at 782 (concluding that “the homeowners’ engineer’s affidavit”
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16 Opinion of the Court 23-12195
stating that the damage was caused by Hurricane Irma and still
observable five years later “created issues of material fact as to
whether the homeowners could overcome the presumed
prejudice”).
Indeed, Westfield’s own expert, Shatto, made clear that his
investigation was not prejudiced by the passage of time. Asked to
explain “how having to inspect that damage almost two years after
Irma negatively impacted or limited [his] ability to” determine “the
cause of any portion of the damage or rule out other potential
competing causes of the same damage,” Shatto said this:
if I were to inspect that roof—if I had inspected that
roof hand in hand with the Crowther Roof people
[who conducted the inspection and repairs days after
the hurricane], my report would have been identical
. . . . I would have found the same partially formed
cracks . . . . my report wouldn’t have changed.
Thus, as in Shapiro, there is plainly evidence from which a jury
could infer that Westfield did not suffer prejudice in its
investigation because of Gulfpoint’s delay in notifying them.
Westfield’s argument to the contrary is principally based on
De La Rosa. See 246 So.3d 438. Westfield contends that the district
court correctly recognized that “the analysis of prejudice was
complicated by the emergency repairs and the fact that Westfield
had no opportunity to observe the damage prior to the repairs.”
And it suggests that, as in De La Rosa, “Gulfpoint provides no
testimony . . . to show that had an investigation been conducted
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23-12195 Opinion of the Court 17
before the emergency repairs it would not have revealed anything
materially different from the delayed investigation[.]”
The problem for Westfield is that, in De La Rosa, the insured
had renovated the entire bathroom after the water backup—so
there could be no dispute that the insurer’s ability to evaluate the
extent of the damage was hampered. See id. at 439. The insured
contested the presumption of prejudice with evidence showing
that “the only possible event that could have caused [that] type of
damage was a one-time waste line water backup” and that such
damages “would have been evident upon an inspection by the
insurer.” Id. at 440 (emphasis added). But there was no dispute
that the insurer was prejudiced “in evaluating the extent of the
damage because of the delay in making the claim.” Id. at 441
(emphasis added).
Here, by contrast, the experts apparently agree that their
investigations into the damage were not hampered—in any way—
by the passage of time and minor repairs. So, unlike in De La Rosa,
there is at least a fact issue on whether Gulfpoint’s delay in making
a claim prejudiced Westfield. At a minimum, we cannot say that
the record “conclusively foreclose[s]” Gulfpoint’s ability to
overcome the presumption of prejudice under Florida law. Stark,
95 So.3d at 288 (quotation omitted).
*
Thus, while Westfield was not estopped from asserting the
prompt notice defense, there is a genuine dispute of material fact
as to whether that delay prejudiced Westfield.
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18 Opinion of the Court 23-12195
However, the district court also granted summary judgment
on an alternative ground: damages. We thus turn to Gulfpoint’s
second argument—that the district court’s grant of summary
judgment on its bid for RCV damages was not enough to end this
case because it also seeks ACV damages.
B. Damages
Gulfpoint argues that granting summary judgment based on
the contractual unavailability of RCV damages was error because
the district court ignored Gulfpoint’s bid for ACV damages.
Because the district court never ruled on this potentially dispositive
argument, we conclude the proper course is to vacate and remand
for the district court to consider it in the first instance.
As discussed above, the policy here establishes repair or
replacement of damaged property as a prerequisite to recover
replacement-cost value. Gulfpoint does not dispute that it has not
made all the repairs on the claimed damage, so we agree that the
district court correctly granted summary judgment on Gulfpoint’s
claim for RCV damages. Ceballo v. Citizens Prop. Ins. Corp., 967 So.
2d 811, 815 (Fla. 2007) (explaining that, under Florida insurance
contracts, replacement cost damages typically do not arise unless
and until the repairs or replacement have actually been
completed).
On appeal, Gulfpoint does not argue otherwise—it merely
argues that this conclusion about RCV damages does not end the
case because it also seeks ACV damages. And, though its argument
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23-12195 Opinion of the Court 19
below was less clear, it raised the same issue in its summary
judgment brief.
The problem is that the district court did not address
Gulfpoint’s argument about ACV damages below. The district
court took Westfield at its word that “Gulfpoint’s expert disclosure
suggests [that] Gulfpoint is seeking RCV damages,” and,
interpreting the contract, agreed that “Gulfpoint has not
performed the roof replacement it claims it requires.” Thus,
without addressing the argument that Gulfpoint also sought ACV
damages, the district court concluded that “Westfield is also
entitled to summary judgment on this ground.”
Because the district court appeared to rule that the RCV
damages question was an independently sufficient basis for
summary judgment, the question of whether Gulfpoint could or
did also seek ACV damages is potentially dispositive. Rather than
decide that question in the place of the district court, we conclude
the better course is to vacate the grant of summary judgment and
remand for the district court to consider the matter in the first
instance.3
3 Though we do not purport to prejudge the issue, and certainly not to suggest
any particular outcome when the district court exercises its discretion in this
matter, we pause to highlight two pertinent issues.
First, while a plaintiff typically is not required to plead damages with
particularity, see Fed. R. Civ. P. 8(a)(3) (requiring only “a demand for the relief
sought, which may include relief in the alternative or different types of relief”),
one question might be whether the complaint adequately apprised Westfield
or the court of Gulfpoint’s bid for ACV damages. See D.C. Docket No. 2:22-
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20 Opinion of the Court 23-12195
IV. Conclusion
For these reasons, we vacate the grant of summary
judgment and remand for the district court to consider whether
Gulfpoint sought ACV damages, and thus whether the grant of
summary judgment on RCV damages disposes of this case.
VACATED AND REMANDED.
cv-00086, Doc. 22 ¶ 21 (asserting that Westfield breached the contract by
“[f]ailing to pay all benefits due”); see id. at 4 (praying for “judgment against
the Defendant . . . for damages, interest, attorneys’ fees and costs . . . and for
such other and further relief as the Court deems just and proper”). After all,
“[a] plaintiff may not amend [its] complaint through argument in a brief
opposing summary judgment.” Gilmour v. Gates, McDonald & Co., 382 F.3d
1312, 1315 (11th Cir. 2004).
Second, “[i]n order to make a proper [expert] disclosure, parties must, by the
deadline, disclose the identity of their experts ‘accompanied by a written
report,’” which, in turn, “must contain a complete statement of all opinions
the witness will express and the basis and reasons for them,” not merely “the
facts or data considered by the witness in forming them.” Guevara v. NCL
(Bahamas) Ltd., 920 F.3d 710, 718 (11th Cir. 2019) (quoting Fed. R. Civ. P.
26(a)(2)(B), 26(a)(2)(B)(i)–(ii)). And, under Rule 37, “[i]f a party fails to provide
information . . . as required by Rule 26(a) or (e), the party is not allowed to use
that information . . . to supply evidence on a motion . . . unless the failure was
substantially justified or [is] harmless.” Fed. R. Civ. P. 37(c)(1). As discussed,
the parties debate whether Gulfpoint’s expert disclosure adequately identified
an opinion on ACV damages, as well as RCV damages. Thus, the district court
might also consider whether Gulfpoint failed to disclose an expert opinion on
ACV or supplement its disclosure with such an opinion—and, if so, whether
that does or should preclude the use of such evidence. See, e.g., Romero v.
Drummond Co., 552 F.3d 1303, 1323 (11th Cir. 2008).
USCA11 Case: 23-12195 Document: 32-1 Date Filed: 04/24/2024 Page: 20 of 20

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