           Case: 12-14576    Date Filed: 09/18/2013   Page: 1 of 5


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-14576
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:11-cv-00261-SPM-GRJ


JAMES REVELS,

                                                            Plaintiff-Appellant,

                                   versus


FEDERATED LIFE INSURANCE COMPANY,

                                                           Defendant-Appellee.

                     ___________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                    ____________________________

                            (September 18, 2013)

Before MARCUS, JORDAN, and KRAVITCH, Circuit Judges.

PER CURIAM:
               Case: 12-14576     Date Filed: 09/18/2013    Page: 2 of 5


      James Revels appeals the grant of summary judgment in favor of Federated

Life Insurance Company on his claim for breach of a disability insurance contract.

Mr. Revels argues that Federated unconditionally accepted a late payment and

thereby waived the right to claim that the policy lapsed. Mr. Revels also argues

that Federated is estopped from claiming that the policy lapsed because he

detrimentally relied on a misleading representation by Federated. After reviewing

the record, we affirm.

      Mr. Revels purchased a disability insurance policy from Federated in 2003.

The policy allows a 31-day grace period for late premium payments. If the

premium remains unpaid during the grace period, the policy lapses on the 32nd

day. The term “lapse” is not defined in the policy. Though a lapsed policy may be

reinstated, it “will cover only disability that results from an injury that occurs after

the date of reinstatement or a sickness that starts more than 10 days after such

date.” D.E. 1-1 at 13.

      It is undisputed that Mr. Revels failed to make a payment due on December

4, 2008. He also did not pay the premium during the grace period, and his policy

therefore lapsed. Federated sent Mr. Revels a “notice of lapse” letter on January 5,

2009, stating that “[t]he policy may be reinstated now by merely paying the past

due premium subject to the conditions below.” D.E. 19-2 at 34. The letter did not

mention the coverage restrictions on reinstated policies.


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      Mr. Revels submitted the late payment by check dated January 22, 2009,

apparently under the belief that there would be no interruption in coverage, and

Federated reinstated the policy on January 29, 2009. Several months later, Mr.

Revels submitted a claim for a back injury. It is undisputed that his symptoms for

that injury began in October of 2008. Federated initially denied the claim for lack

of medical documentation, but upon further review determined that it was not

covered because the injury arose before the policy was reinstated. The district court

agreed and granted summary judgment in favor of Federated.

      We review an order granting summary judgment de novo. Summary

judgment is appropriate when there is no genuine dispute of material fact and the

movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). See

also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

      Mr. Revels contends that the “notice of lapse” letter offered to extend the

grace period for late payments, see Appellant’s Br. at 11, but that is not what the

notice says. Rather, it states that the policy “is no longer in effect” and “may be

reinstated,” which necessarily implies that the policy did in fact lapse. See D.E. 19-

2 at 34. An extension of the grace period, on the other hand, would mean that the

policy would not have lapsed—a position that directly contradicts the notice.

      Mr. Revels did not make his December 2008 payment until after the grace

period had expired, and the policy states that when a lapsed policy is reinstated, it


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only covers injuries that occur after the date of reinstatement. See Swire Pac.

Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla. 2003) (“[I]nsurance

contracts must be construed in accordance with the plain language of the

policy.”). 1 Given that Mr. Revels’ back injury occurred before the date of

reinstatement, Federated was entitled to summary judgment. See Gas Kwick, Inc. v.

United Pac. Ins. Co., 58 F.3d 1536, 1539 (11th Cir. 1995).

       Mr. Revels contends that Federated waived the right to assert lapse, and cites

to Mixson v. Allstate Ins. Co., 388 So. 2d 608, 609 (Fla. 3d DCA 1980). Mixon,

however, dealt with the “unconditional acceptance” of a late premium payment.

There is no indication that the contract in Mixson involved a prospective

reinstatement provision as we have here. Florida law, moreover, generally allows

an insurer to prospectively reinstate a policy without waiving the right to deny

coverage. See Progressive Express Ins. Co. v. Camillo, 80 So. 3d 394, 400 (Fla.

4th DCA 2012) (holding that “where a policy expires without the insured making a

renewal payment, and a loss occurs after the expiration of the policy period, the

insurer may subsequently accept premium payments and reinstate the policy

prospectively without waiving the right to deny coverage for the loss”).2


       1
           The parties agree that Florida law governs.
       2
         We recognize that Camillo involved a loss that occurred after the policy had expired,
whereas Mr. Revels’ loss purportedly occurred before he missed a payment. The fact remains,
however, that he did not make a claim until after the policy had been prospectively reinstated
under the express terms of the contract.

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Furthermore, there can be no waiver or estoppel when “there was no course of

conduct by the insurer which in any way could have led the insured to believe . . .

that the policy had not lapsed.” Hutchinson v. Equitable Life Assurance Soc’y, 335

F.2d 592, 594 (5th Cir. 1964). Federated’s “notice of lapse” letter clearly stated

that the policy was no longer in force. We cannot say that Federated intended to

waive any rights, particularly given the unambiguous policy language.

      AFFIRMED.




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