                                                                         [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                            No. 11-12027                NOVEMBER 4, 2011
                                        Non-Argument Calendar               JOHN LEY
                                                                              CLERK
                                      ________________________

                                D.C. Docket No. 1:10-cv-00174-TWT

RYAN MAHENS,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellant,

                                               versus

ALLSTATE INSURANCE COMPANY,

llllllllllllllllllllllllllllllllllllllll                                   Defendant-Appellee.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________

                                           (November 4, 2011)

Before HULL, PRYOR and FAY, Circuit Judges.

PER CURIAM:

         Ryan Mahens, proceeding pro se,1 appeals the district court’s grant of

         1
         While Mahens filed the instant appeal pro se, all of his pleadings in the district court
have been counseled.
summary judgment in favor of Allstate Property and Casualty Insurance Company

(“Allstate”) in his diversity lawsuit alleging a breach of an insurance contract. For

the reasons stated below, we affirm.

                                          I. FACTS

       Mahens purchased a house in Marietta, Georgia, and insured it through

Allstate’s home insurance policy.2 He never moved into the house and never

resided there; in fact, the policy declarations section indicated that Mahens’s

mailing address was in Florida. However, Mahens hired Laura Restrepo to

manage the property for him, and, for some time, the house was used by

Restrepo’s relatives and other tenants. At some point, Restrepo and Mahens

decided to renovate the property and sell it, leaving the house unoccupied.

Restrepo’s acquaintance, Clifford Ochemba, would occasionally visit the property

to assess the status of the renovations and to show the house to prospective buyers.



       2
           The policy described the covered property as “Your dwelling including attached
structures.” The term “dwelling” was defined as “a one, two, three or four family building
structure, identified as the insured property on the Policy Declarations, where you reside and
which is principally used as a private residence.” The policy contemplated occasions where the
insured property is unoccupied. For example, the policy did not cover damage caused by frozen
plumbing while the building stood vacant, unless heat was maintained on the property, and the
policy also excluded coverage for vandalism or malicious mischief occurring more than 30 days
after the property became unoccupied. Regarding any changes in coverage, the policy provided:
“When Allstate broadens coverage during the premium period without charge, you have the new
features if you have the coverage to which they apply. Otherwise, the policy can be changed only
by endorsement.”

                                               2
In March 2009, approximately eight months after the house became vacant, it was

discovered that a water leak occurred on the property and caused substantial

damage.

       At first, Allstate questioned its liability, but approximately two weeks after

the discovery of the leak, Allstate sent an independent claims adjuster, Irving

Emmert, to the property to inspect the damage. While there, Emmert met with

Restrepo, Ochemba, and Shannon Allred, a representative of Integrity Renovation

& Remodeling, Inc. (“Integrity”). According to Mahens, Emmert introduced

himself as Allstate’s representative, made recommendations regarding the

necessary repair work, assured Restrepo that Allstate would pay for the repairs,

and told Allred to bill Allstate directly.3 Restrepo signed a form authorizing

Integrity to commence repair work on the property and to bill Allstate directly.

The form warned that the customer bore responsibility for all charges not

reimbursed by the insurance company.

       On March 30, 2009, after substantial repair work had been done on the

house, Restrepo received a letter from Allstate, advising her that she would receive

a check for $42,366, the amount payable under the policy. However, in June



       3
         Emmert testified at his deposition that he never authorized Integrity to commence work
on the property and never indicated that Allstate would pay for the repairs.

                                               3
2009, Allstate informed Restrepo that it would not honor the claim, despite the

letter. Allstate also sent an e-mail to Restrepo, stating that it would settle with

Integrity for $15,000, provided that Mahens sign a waiver releasing Allstate from

all liability. Neither Restrepo nor Mahens signed the release waiver.

      Subsequently, Mahens filed a lawsuit against Allstate, alleging a bad-faith

breach of the insurance contract, and Allstate removed the suit to federal court

pursuant to 28 U.S.C. § 1332. After discovery, Allstate moved for summary

judgment, arguing, among other things, that its policy did not cover the water

damage to Mahens’s property because he did not reside there, as required by the

terms of the policy. Mahens also moved for summary judgment, contending that

the policy did not require him to reside on the property, that principles of waiver

and estoppel precluded Allstate from denying coverage based on non-residency,

and that Allstate acted in bad faith.

      The district court granted summary judgment to Allstate and denied the

same to Mahens. It found, in relevant part, that Allstate’s policy did not cover

Mahens’s property because he did not reside there; that a waiver of the residency

requirement could be accomplished only through endorsement, which was lacking

in this case; that principles of implied waiver and estoppel under Georgia law

could not be used to waive the residency requirement, as doing so would expand

                                           4
coverage to include risks not covered by the policy; and that Allstate did not act in

bad faith, having reasonable grounds on which to deny coverage. The instant

appeal followed.

                                       II. ANALYSIS

       Mahens raises three main issues on appeal.4 First, he argues that he had

satisfied the residency requirement of Allstate’s policy because his absence was

only temporary, and, in any event, the residency provision of the policy was

ambiguous and should have been construed against Allstate. Second, Mahens

contends that Allstate’s actions waived the residency requirement and estopped it

from denying coverage. Finally, he asserts that Allstate acted in bad faith by

refusing to pay his insurance claim.

       We review “the granting of summary judgment de novo, and the district

court’s findings of fact for clear error.” Robinson v. Tyson Foods, Inc., 595 F.3d

1269, 1273 (11th Cir. 2010). A district court shall grant summary judgment “if the


       4
           Mahens also raises two claims that are not subject to our review. Specifically, he
argues that he had actually settled the insurance claim with Allstate, and its letter promising to
send a check for $42,366 evidenced the settlement agreement. Mahens also argues that the
doctrine of promissory estoppel precluded Allstate from denying coverage because, acting
through Emmert, Allstate promised to pay for the repairs, and Mahens relied on this promise to
his detriment. We decline to review these claims because Mahens did not raise them before the
district court, and no exceptions warrant a review of these claims for the first time on appeal.
See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331-32 (11th Cir. 2004) (stating
that this Court does consider claims raised for the first time on appeal and describing five
circumstances where an exception to this principle might apply).

                                                5
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). If the

movant satisfies the burden of production showing that there is no genuine issue

of fact, “the nonmoving party must present evidence beyond the pleadings

showing that a reasonable jury could find in its favor.” Shiver v. Chertoff, 549

F.3d 1342, 1343 (11th Cir. 2008) (quotation omitted). “We draw all factual

inferences in a light most favorable to the non-moving party.” Id. Nevertheless,

the non-moving party cannot create a genuine issue of material fact through

speculation, id., or evidence that is “merely colorable” or “not significantly

probative,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct.

2505, 2511, 91 L.Ed.2d 202 (1986).

                             A. Residency Requirement

      Under Georgia law, “[n]o construction of an insurance contract is required

or even permissible when the language is plain, unambiguous, and capable of only

one reasonable interpretation.” Ga. Farm Bureau Mut. Ins. Co. v. Kephart, 439

S.E.2d 682, 683 (Ga. App. 1993). However, an insurance contract “should be

construed by the court where the language is undisputed but the meaning of that

language is in dispute.” Grange Mut. Cas. Co. v. DeMoonie, 490 S.E.2d 451, 453

(Ga. App. 1997). “Like any other contract, an insurance policy must be construed

                                          6
according to its plain language and express terms.” Kephart, 439 S.E.2d at 683.

Moreover, the policy “should be read as a layman would read it and not as it might

be analyzed by an insurance expert or an attorney.” Banks v. Bhd. Mut. Ins. Co.,

686 S.E.2d 872, 874 (Ga. App. 2009) (quotation omitted).

      The insurance policy issued by Allstate defined the covered premises as

“Your dwelling including attached structures.” The term “dwelling” meant “a one,

two, three or four family building structure, identified as the insured property on

the Policy Declarations, where you reside and which is principally used as a

private residence.” This language plainly and unambiguously required Mahens to

reside at the property listed on the policy. In fact, the Georgia Court of Appeals

has previously construed similar language to require residency. See Kephart, 439

S.E.2d at 683 (determining that a residency requirement existed where the

insurance policy defined the covered “residence premises” as “the one family

dwelling, other structures, and grounds; or . . . that part of any other building;

where you reside”); DeMoonie, 490 S.E.2d at 453-54 (concluding that a residency

requirement existed where the policy defined the covered premises as “the one or

two family dwelling where you reside”).

      It is true that Allstate’s policy contemplated temporary absences by

specifically excluding certain risks during times of vacancy, such as frozen pipe

                                           7
damage or vandalism. However, the record clearly shows that Mahens had never

resided at the property and that his absence was not temporary. Moreover, the

aforementioned exclusions did not make Allstate’s policy ambiguous or

contradictory, such as to negate the residency requirement. See DeMoonie, 490

S.E.2d at 453 (stating that provisions in a policy excluding specific items from

coverage in the event of vacancy “do not negate the requirement that the insured

reside in the insured premises). Because Mahens did not fulfill the residency

requirement of Allstate’s policy, his house was excluded from coverage.

                               B. Waiver and Estoppel

      Mahens points to four actions by Allstate that could have waived the

residency requirement or estopped it from denying coverage: (1) Allstate mailed

the policy documents to Mahens’s address in Florida, implying knowledge that he

did not reside at the insured property; (2) Allstate’s agent, Emmert, told Restrepo

that Allstate would pay for the repairs to the property; (3) Allstate sent a letter

indicating that it would issue a check for $42,366 to cover the repairs performed

by Integrity; and (4) Allstate tried to settle with Integrity for $15,000.

      To begin, Allstate’s attempt to settle with Integrity could not have waived

the residency requirement of the policy, as Georgia law specifically provides that

an insurer’s “engaging in negotiations looking toward a possible settlement of any

                                           8
loss or claim,” shall not be deemed “to constitute a waiver of any provision of a

policy or of any defense of the insurer under the policy.” O.C.G.A. § 33-24-40(3).

      Allstate’s other actions also did not result in waiver or estoppel. In Fire

& Cas. Ins. Co. of Conn. v. Fields, 96 S.E.2d 502, 503-04 (Ga. 1957), the

insurance policy in question contained a residency requirement, as well as a

provision that all waivers or changes to the policy must be made in writing. Id. at

503. The insurer’s agent knew that the insured property was vacant, but received a

premium from the insureds and informed them that their property was covered

despite the vacancy. Id. The Georgia Supreme Court held that the agent’s

knowledge regarding the vacancy and his oral assurances that the property was

covered did not estop the insurer from asserting a breach of the residency

condition, and the insurer’s continued receipt and retention of premiums did not

prevent it from relying on the written-waiver requirement. Id. at 504; see also Am.

Mut. Fire Ins. Co. v. Durrence, 872 F.2d 378, 379 (11th Cir. 1989) (holding that,

despite the insurer’s knowledge that the insured property was vacant, and despite

the agent’s assurances that the property was covered, the insurer was not estopped

from denying coverage based on a lack of residency because, under Georgia law,

“oral assurances of waiving policy terms do not estop the insurer from relying on

the defense of a written-waiver requirement” where the insured had possession of

                                         9
the policy). Moreover, it is “well-established . . . that the doctrines of implied

waiver and estoppel, based upon the conduct or action of the insurer, or its agent,

are not available to bring within the coverage of a policy risks not covered by its

terms, or risks expressly excluded therefrom.” Danforth v. Gov’t Emps. Ins. Co.,

638 S.E.2d. 852, 858-59 (Ga. App. 2006) (quotations and alteration omitted).

      In this case, Allstate’s policy provided that, “[w]hen Allstate broadens

coverage during the premium period without charge, you have the new features if

you have the coverage to which they apply. Otherwise, the policy can be changed

only by endorsement.” Nothing in the record suggests that Allstate broadened its

insurance coverage during Mahens’s premium period to include unoccupied

dwellings, and Mahens points to no evidence that Allstate issued any endorsement

waiving the residency requirement. Furthermore, waiving the residency

requirement would expand Allstate’s coverage to include a risk not covered by the

policy’s terms, namely, a risk that a problem occurring in a vacant building, such

as a leak, would go unnoticed and cause extensive damage that otherwise could

have been prevented through prompt attention. Accordingly, Allstate was not

estopped from denying coverage based on non-residency, even though it mailed

policy documents to Mahens’s Florida address, orally assured Restrepo (through

Emmert) that it would pay for the repairs, and sent a letter indicating that a check

                                          10
for the repairs was forthcoming. See Fields, 96 S.E.2d at 503-04; Durrence, 872

F.2d at 379; Danforth, 638 S.E.2d. at 858-59.

                                     D. Bad Faith

      To establish a claim of bad faith on the part of the insurer under Georgia

law, “the insured must prove two conditions: (1) that a demand for payment was

lodged against the insurer at least 60 days prior to filing suit and (2) that the

insurer’s failure to pay was motivated by bad faith.” Primerica Life Ins. Co. v.

Humfleet, 458 S.E.2d 908, 910 (Ga. App. 1995); O.C.G.A. § 33-4-6. “A refusal to

pay in bad faith means a frivolous and unfounded denial of liability. If there are

any reasonable grounds for an insurer to contest the claim, there is no bad faith.”

Swyters v. Motorola Emps. Credit Union, 535 S.E.2d 508, 510 (Ga. App. 2000)

(quotation omitted).

      Mahens cannot prevail on a bad-faith claim. As described above, his

property was not covered by the insurance policy because he did not reside there.

Therefore, Allstate had reasonable grounds for denying coverage and could not

have acted in bad-faith by doing so. See Swyters, 535 S.E.2d at 510; Collins v.

Life Ins. Co. of Ga., 491 S.E.2d 514, 517 (Ga. App. 1997) (holding that the insurer

did not act in bad faith by refusing to pay for a benefit that was clearly not covered

by the insurance contract).

                                           11
      Having reviewed the record and the parties’ briefs, we conclude that the

district court did not err in granting summary judgment to Allstate and denying

summary judgment to Mahens. Accordingly, we affirm.

      AFFIRMED.




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