           Case: 18-11967   Date Filed: 10/31/2019   Page: 1 of 15


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-11967
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:17-cv-22254-FAM



THE S.O. BEACH CORP.,
LARIOS ON THE BEACH, INC.,

                                                          Plaintiffs-Appellants,

versus

GREAT AMERICAN INSURANCE COMPANY OF NEW YORK,

                                                          Defendant-Appellee.

                       ________________________

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

                            (October 31, 2019)

Before ED CARNES, Chief Judge, WILSON, and HULL, Circuit Judges.

PER CURIAM:
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       Plaintiffs S.O. Beach Corp. and Larios on the Beach, Inc. (we will

collectively refer to them as “Larios” for ease of reference) appeal the district

court’s grant of summary judgment to defendant Great American Insurance

Company of New York, the court’s denial of Larios’ motion to reconsider the

summary judgment order, and the court’s refusal to grant Larios leave to amend its

complaint.

                                              I.

       Larios owns and operates a building on Ocean Drive in Miami Beach,

Florida. Sometime between March 4, 2013 and April 19, 2013, Larios discovered

that parts of the first three floors of its building had caved in to varying degrees.

The primary cause of this purported collapse, 1 Larios determined, was that a

wooden support beam called a sill plate had severely rotted. When Larios

examined the sill plate, it also found a broken pipe that was gushing water onto the

sill plate; that gushing water was a cause of the sill plate’s deterioration. Larios

was forced to evacuate the building until it finished repairing the damage.

       Before it finished the repairs, Larios submitted a coverage claim in May

2013 to its insurer, Great American. Larios had purchased a series of all-risk

insurance policies from Great American to cover damages to the building. Each



       1
         We use the term “purported collapse” because the parties disagree about the meaning of
the term “collapse” as it is used in the insurance policy at issue.


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policy covered a one-year time period, and the policy at issue in this case covered

March 1, 2013 through March 1, 2014.

      An all-risk insurance policy “provides coverage for all fortuitous loss or

damage other than that resulting from willful misconduct or fraudulent acts” —

“[u]nless the policy expressly excludes the loss from coverage.” Fayad v.

Clarendon Nat’l Ins. Co., 899 So. 2d 1082, 1085 (Fla. 2005); see also id. at 1086

(“Although the term ‘all-risk’ is afforded a broad, comprehensive meaning, an ‘all-

risk’ policy is not an ‘all loss’ policy, and thus does not extend coverage for every

conceivable loss.”) (citation omitted). Although the “Exclusions” section of the

March 2013 policy generally excludes coverage for “Collapse,” the “Additional

Coverages” section provides coverage for damage “caused by collapse of a

building or any part of a building that is insured” under the policy, so long as the

“collapse” is caused by (as relevant here) a “specified cause of loss” or “decay that

is hidden from view, unless the presence of such decay is known to an insured

prior to collapse.” The “Additional Coverages” section defines “collapse” as “an

abrupt falling down or caving in of a building or any part of a building with the

result that the building or part of the building cannot be occupied for its intended

purpose.” (Emphasis added). We will refer to these provisions as the collapse

coverage provisions.




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      Similarly, the “Exclusions” section generally excludes coverage for

“‘fungus,’ wet or dry rot or bacteria,” but the “Additional Coverages” section of

the policy includes limited coverage for “loss or damage by ‘fungus,’ wet or dry

rot or bacteria” caused by a “specified cause of loss” or by “flood.” The policy

defines “Specified Cause of Loss” to include (as relevant here) “water damage.”

And for the purposes of that definition, the policy defines “water damage” as

“accidental discharge or leakage of water or steam as the direct result of the

breaking apart or cracking of any part of a system or appliance (other than a sump

system including its related equipment and parts) containing water or steam.” We

will refer to these provisions as the rot coverage provisions.

      Great American had not made a coverage decision on Larios’ claim as of

May 2017, so Larios filed a breach of contract action in Florida state court against

Great American claiming coverage for the damage under the March 2013 policy.

Great American removed the action to the Southern District of Florida based on

diversity jurisdiction. It then moved for summary judgment and Larios moved for

partial summary judgment. After holding a hearing on the motions, the district

court granted Great American’s motion and denied Larios’ motion. In doing so,

the court also denied what it construed as a motion for leave to amend the

complaint from Larios. Larios filed a motion to reconsider the summary judgment

order, which the court summarily denied. This is Larios’ appeal.



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                                          II.

      We review de novo a district court’s grant of summary judgment. Hulsey v.

Pride Rests., LLC, 367 F.3d 1238, 1243 (11th Cir. 2004). A district court “shall

grant summary judgment 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). “A ‘material’ fact is one that ‘might affect the outcome of the suit

under the governing law.’” Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1303

(11th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106

S. Ct. 2505, 2510 (1986)). And a “dispute about a material fact is ‘genuine’ . . . if

the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.

      We review both a denial of a motion to reconsider summary judgment and a

denial of leave to amend a complaint for abuse of discretion. See Woldeab v.

Dekalb Cty. Bd. of Educ., 885 F.3d 1289, 1291 (11th Cir. 2018); Chapman v. AI

Transp., 229 F.3d 1012, 1023 (11th Cir. 2000).

                                         III.

      Larios offers three contentions on appeal, one substantive and two

procedural. Its substantive contention is that Great American is not entitled to

summary judgment on the issue of whether the damage caused by the purported

collapse is covered under the collapse coverage provisions of the policy. Larios’



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first procedural contention is that the issue of rot coverage under the policy was not

properly before the district court on summary judgment and, as a result, the court

erred both by granting Great American total summary judgment and by denying

Larios’ motion to reconsider that part of its summary judgment order. Larios’

second procedural contention is that the district court abused its discretion by

denying Larios leave to amend its complaint after Great American filed its motion

for summary judgment. We address each contention in turn.

                                         A.

      Under Florida law, “an insured claiming under an all-risks policy has the

burden of proving that the insured property suffered a loss while the policy was in

effect. The burden then shifts to the insurer to prove that the cause of the loss was

excluded from coverage under the policy’s terms.” Jones v. Federated Nat’l Ins.

Co., 235 So. 3d 936, 941 (Fla. 4th DCA 2018) (quotation marks omitted). If the

insurer carries that burden, then the insured must prove that an exception to that

exclusion applies. See Fla. Windstorm Underwriting v. Gajwani, 934 So. 2d 501,

506 (Fla. 3d DCA 2005).

      There is no dispute that Larios carried its initial burden of showing that a

loss — the purported collapse — happened while the March 2013 policy was in

effect. So the burden shifted to Great American to prove that the cause of the

purported collapse was excluded under the terms of the policy.



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      Great American offered a variety of evidence to show that the purported

collapse was not covered under the policy’s collapse coverage provisions. It

produced documentary evidence along with testimony from expert witnesses and

fact witnesses showing that the purported collapse of Larios’ building was gradual,

not abrupt. Because the collapse coverage provisions provide coverage only for

abrupt collapses, Great American’s evidence showed that the purported collapse

was not covered under those provisions and thus was subject to the policy’s

general exclusion for damages caused by collapse.

      So the burden shifted back to Larios. The district court found that Larios

failed to offer evidence that the purported collapse was abrupt and failed to rebut

Great American’s evidence to the contrary, which meant that Larios failed to offer

evidence of a “collapse” and thus was not entitled to collapse coverage.

      Larios argues that because the collapse coverage provisions are ambiguous

and because, under Florida law, “[a]mbiguous policy provisions are interpreted

liberally in favor of the insured,” Auto-Owners Ins. Co. v. Anderson, 756 So. 2d

29, 34 (Fla. 2000), we should effectively excise the abrupt requirement from the

policy’s collapse coverage provisions. The reason the collapse coverage

provisions are ambiguous, according to Larios, is that the policy defines a collapse

as abrupt but also expressly includes gradual decay as a potential cause of a

covered collapse. Larios describes this as “a conflict between an ‘abrupt’ collapse,



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which implies a sudden event, and a collapse from ‘decay,’ which implies a

deterioration over time.” That conflict, Larios asserts, makes the collapse coverage

provisions ambiguous, and we should resolve that ambiguity by not applying the

abrupt requirement when determining whether the damage caused by the purported

collapse is covered under the policy.

      But there is no conflict between explicitly covering collapses that result from

a gradual cause like decay and limiting coverage to collapses that are abrupt.

Decay is just one of over a dozen covered causes listed in the policy’s collapse

coverage provisions. Some of those causes are abrupt, like “lightning” or an

“explosion.” Others are gradual, like “decay” or “water damage.” But regardless

of whether the cause of a collapse was gradual or abrupt, the collapse itself is

covered only if it was abrupt. We see no contradiction because we reject the

assumption underlying Larios’ argument: that abrupt collapses result only from

abrupt causes and not from gradual causes. To the contrary, it is easy to find

examples of abrupt collapses resulting from a gradual cause like decay. See, e.g.,

Gaia Pianigiani, Elisabetta Povoledo and Richard Pérez-Peña, Corrosion at

‘Unthinkable Pace’ Before Italy Bridge’s Deadly Fall, N.Y. Times, Aug. 15, 2018,

at A1. As a result, we reject Larios’ assertion that the collapse coverage provisions

are ambiguous on this point.




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      Because the collapse coverage provisions are not ambiguous, we “must

interpret [those provisions] in accordance with the plain meaning of the language

used so as to give effect to the policy as it was written.” Travelers Indem. Co. v.

PCR Inc., 889 So. 2d 779, 785 (Fla. 2004). That means the damage caused by the

purported collapse is covered only if the purported collapse was abrupt.

      Because Larios’ collapse coverage arguments were apparently contingent

upon the abrupt requirement not applying, Larios failed to rebut Great American’s

evidence that the purported collapse was gradual, and Larios did not identify any

evidence that would allow a reasonable factfinder to conclude that the purported

collapse was abrupt. In fact, it is not clear from the record when exactly the

purported collapse occurred. Larios’ briefing narrows the timeframe to sometime

between March 14, 2013, and April 19, 2013. Based on that timeframe and

without additional evidence, a reasonable factfinder could only speculate as to

exactly how long the purported collapse took and thus whether it was abrupt

(taking only seconds or maybe minutes) or gradual (taking days, weeks, or more

than a month). That is not enough to avoid summary judgment for Great American

on this issue. See Melton v. Abston, 841 F.3d 1207, 1219 (11th Cir. 2016) (per

curiam) (“Inferences based on speculation and a mere scintilla of evidence in

support of the nonmoving party will not suffice to overcome a motion for summary

judgment.”) (quotation marks omitted).



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                                          B.

      The district court’s summary judgment order was not limited to the issue of

collapse coverage. Instead, the court granted total summary judgment to Great

American. Even though the court did not explicitly address the rot coverage

provisions, the court’s grant of total summary judgment made it clear that the court

found Larios was not entitled to coverage under those provisions or any other part

of the policy.

      Larios contends that the court’s summary judgment order was overbroad.

Specifically, it argues that the court erred — as a matter of procedure — by

granting summary judgment to Great American on the issue of whether any of the

damage to its building was covered under the rot coverage provisions of the policy.

(The district court did not mention those provisions in its summary judgment

order.) Larios also argues that the court “compounded the error” by denying

Larios’ motion to reconsider the court’s summary judgment order.

      According to Larios, the issue of whether it was entitled to coverage under

the rot coverage provisions was not properly before the district court on summary

judgment. Larios asserts that it did not have notice of the rot coverage issue and

thus did not have an opportunity to address it because Great American did not seek

summary judgment on that issue and the court did not give the parties the requisite

notice to allow the court to address the issue sua sponte, see Fed. R. Civ. P. 56(f).



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       But Great American did raise the rot coverage issue in its motion for

summary judgment. It raised the issue generally by moving for total (not partial)

summary judgment. And it raised the issue specifically by devoting a section of its

motion, on pages 16–19,2 to the policy’s general exclusion of coverage for

damages caused by “‘fungus,’ wet or dry rot or bacteria.” Great American

acknowledged, in footnote 13 on page 17, the rot coverage provisions that Larios

focuses on. But on page 19, Great American clearly implied that any rot damage

Larios suffered was caused by “the general humidity indigenous to Miami Beach,”

not by a “‘specified cause of loss’ other than fire or lightning,” such as water

damage, or by “flood.” Rot damage caused by humidity is not covered under the

rot coverage provisions, so Great American clearly implied that any rot damage

Larios suffered was not covered under the rot coverage provisions but instead fell

under the policy’s general exclusion of coverage for damage caused by “‘fungus,’

wet or dry rot or bacteria.”

       Larios now argues that section of Great American’s summary judgment

motion was not enough to move for summary judgment on the issue of rot

coverage. But it was enough to prompt Larios to address the issue on pages 2 and

10 of its response to Great American’s motion. There, Larios interpreted that


       2
        The page numbers in Great American’s summary judgment motion and Larios’
response to that motion refer to the electronic screen page number shown at the top of each page
by the Court’s CM/ECF software.


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section of Great American’s motion as “conced[ing] coverage exists under the

Limited Coverage for ‘Fungus,’ Wet Rot, Dry Rot, and Bacteria.” (Great

American, in its reply, denied making such a concession.) That purported

concession, Larios argued, “precludes summary judgment in [Great American’s]

favor.”

       Because Larios addressed the rot coverage issue in its summary judgment

briefing, we reject its argument that it did not have notice or a chance to be heard

on the issue. We also reject Larios’ contention that the rot coverage issue was not

properly before the district court when the court granted total summary judgment

to Great American. And because that contention was the only part of Larios’

motion to reconsider the summary judgment order that Larios has raised on

appeal, 3 we hold that the district court did not abuse its discretion by summarily

denying Larios’ motion to reconsider.

       We have not addressed the merits of whether Larios’ loss was covered under

the rot coverage provisions of the policy. That is because Larios does not address

the merits of that question in its briefing to this Court and instead focuses purely on




       3
         In its motion to reconsider, Larios also contended that it had newly discovered evidence
establishing that the purported collapse happened on January 2, 2013. Larios has not raised that
issue on appeal, so we consider it abandoned. See AT&T Broadband v. Tech Commc’ns, Inc.,
381 F.3d 1309, 1320 n.14 (11th Cir. 2004) (“Issues not raised on appeal are considered
abandoned.”).



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its procedural argument.4 Larios thus waived any merits arguments it may have on

the rot coverage issue for the purposes of this appeal. See Cont’l Tech. Servs., Inc.

v. Rockwell Int’l Corp., 927 F.2d 1198, 1199 (11th Cir. 1991) (per curiam) (“An

argument not made is waived . . . .”).

                                              C.

       That leaves the district court’s denial of leave for Larios to amend its

complaint. That complaint mentions only one insurance policy: “Policy number

MAC0479038-00, with effective dates from March 1, 2013 through March 1,

2014.” Great American noted as much in its motion for summary judgment:

“[A]lthough Great American issued coverage to Plaintiffs for several previous

policy periods, Plaintiffs have only sought coverage in this lawsuit under the

Policy issued for the one year period commencing on March 1, 2013.”

       In its response to Great American’s motion for summary judgment, Larios

indicated in a footnote that it would “amend the Complaint to conform to the

evidence” if the district court “determine[d] that coverage exists under the previous

policies issued by Great American, or the facts adduced at trial show[ed] that a



       4
         According to Larios, its “potential arguments” on the merits are “speculative” because
those arguments “will necessarily be based on the currently unknown grounds [Great American]
may raise if [Great American] chooses to move for summary judgment on Rot Coverage.”
Similarly, Larios claims it cannot know what evidence to introduce because its evidentiary
submission “depends on the arguments [Great American] makes and the evidence [Great
American] relies on.” But Larios did not need to speculate because Great American did move
for summary judgment on the rot coverage issue.


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prior Great American [policy] was implicated.” During the summary judgment

hearing, the district court described that footnote as “kind of like a pseudo motion,”

and Larios called the footnote an “[o]re tenus” motion. 5 Larios also asserts in its

appellate briefing that it “made repeated ore tenus requests to amend at the

summary judgment hearing.”

       In its summary judgment order, the district court denied Larios’ “delayed,

conditional request for leave to amend its complaint,” which it deemed futile.

Larios appeals that ruling, arguing that the district court abused its discretion by

not giving Larios leave to amend its complaint at the summary judgment stage.

       We disagree. First, the footnote in Larios’ response brief was not a proper

motion to amend. White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1200

(11th Cir. 2015) (“[P]laintiffs may not raise new claims at the summary judgment

stage. At the summary judgment stage, the proper procedure for plaintiffs to assert

a new claim is to amend the complaint . . . . A plaintiff may not amend her

complaint through argument in a brief opposing summary judgment.”) (citations

and quotation marks omitted). Second, even if Larios had moved for leave to

amend at the summary judgment hearing (the transcript is less than clear on this

point), a district court need not allow a plaintiff to amend its complaint as far into



       5
        An “ore tenus motion” is an oral motion. See Ore Tenus, Black’s Law Dictionary (10th
ed. 2014). Of course, a footnote in a brief is not an oral motion.


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the proceedings as a summary judgment hearing. Cf. Gordon v. Terry, 684 F.2d

736, 739 (11th Cir. 1982) (affirming a district court’s denial of a motion to amend,

in part because the motion was filed “[t]he day before the District Court’s

scheduled summary judgment hearing”). So the district court did not abuse its

discretion by denying Larios leave to amend.

      AFFIRMED.




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