                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 12-1373
                                     _____________

           HOLIDAY VILLAGE EAST HOMEOWNER’S ASSOCIATION,
                                           Appellant

                                             v.

           QBE INS CORPORATION; QBE INSURANCE GROUP, LTD.;
          COMMUNITY ASSOCIATION UNDERWRITERS OF AMERICA.

                                     _____________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                           (District Court No. 1-11-cv-05765)
                       District Judge: Honorable Joseph E. Irenas
                                     _____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 December 17, 2012
                                   _____________

   BEFORE: McKEE, Chief Judge, and SLOVITER and VANASKIE, Circuit Judges

                                  (Filed: April 22, 2013)
                                      _____________

                                       OPINION
                                     _____________


McKEE, Chief Judge.

       Holiday Village East Home Owners Association, Inc. (“HVE”) appeals the

District Court’s order denying relief to alter or amend a grant of final judgment, and
denying leave to file a second amended complaint. For the reasons discussed below, we

will affirm.1

                                                 I.

       Because we write primarily for the parties who are familiar with this case, we only

briefly recite essential facts.

       In its well-reasoned December 19, 2011 and January 25, 2012 opinions, the

District Court explained why HVE’s amended complaint failed to state a claim, and why

final judgment was warranted.2

       After HVE’s amended complaint was dismissed for failure to state a claim under

Fed. R. Civ. P. 12(b)(6), HVE sought reconsideration pursuant to Fed. R. Civ. P. 59(e)

and 60(b)(1), and leave to file a second amended complaint pursuant to Fed. R. Civ. P.

15(a). Both motions were denied, and this appeal followed.3

                                           II.


1
  HVE’s appeal encompasses the District Court’s underlying ruling on the merits of
HVE’s claims for declaratory relief and damages. See, e.g., Lorenz v. CSX Corp., 1 F.3d
1406, 1414 (3d Cir. 1993) (reviewing the merits of appellant’s underlying claim on an
appeal from a district court’s denial of leave to amend based on, inter alia, futility).
2
  References to QBE include QBE’s corporate affiliates that were also named
defendants.

3 “We exercise plenary review [over] the District Court[’s] grant of a motion to dismiss
under Federal Rule[] of Civil Procedure 12(b)(6). The District Court’s denial of a motion
to amend pursuant to Federal Rule of Civil Procedure 15(a), is reviewed for abuse of
discretion. We review the District Court denial of a Rule 59(e) motion to amend the
complaint for abuse of discretion, but we review the District Court’s underlying legal
determinations de novo and factual determinations for clear error.” Burtch v. Milberg
Factors, Inc., 662 F.3d 212, 220 (3d Cir. 2011) (internal citations omitted); see also
Winer Family Trust v. Queen, 503 F.3d 319, 325 (3d Cir. 2007).
                                            2
       Contrary to HVE’s contentions, the District Court properly found that the Policy’s

use of the present tense merely described what had to occur “abruptly” in order to merit

coverage under the Policy’s collapse provision. See Holiday Village East Home Owners

Association, Inc , 830 F. Supp. 24, 27 (D.N.J. 2011), and 803 F. Supp.2d 28, 30 (D.N.J.

2012) (denying motions to amend judgment and file second amended complaint); see

also Hardy ex rel. Dowdell v. Abdul-Matin, 198 N.J. 95, 103-104 (N.J. 2009) (noting that

insurance policy provisions are interpreted as a whole rather than in isolation).

Furthermore, the word “abrupt,” along with the Policy’s disclaimer of coverage even if

the “building has been declared . . . to be in an imminent state of collapse,” narrows the

meaning of “collapse” under the Policy by limiting coverage to an immediate, rather than

gradual, collapse. “[A]brupt” also distinguishes this case from Ercolani v. Excelsior

Insurance Co., 830 F.2d 31, 34-35 (3d Cir. 1987), which held that there was coverage

under an ambiguous contract provision that did not expressly limit coverage to immediate

incidents. Thus, because the Policy’s “collapse” provision unambiguously excludes

coverage for HVE’s claim, there was no basis for the District Court to find that HVE

stated, or can state, a claim for relief. See President v. Jenkins, 180 N.J. 550, 562 (N.J.

2004) (“If the policy terms are clear, courts should interpret the policy as written and

avoid writing a better insurance policy than the one purchased.”). Accordingly, HVE’s

claims fail as a matter of law.4


4
   We also conclude that HVE’s contentions regarding the District Court’s interpretation
of factual allegations, and application of pleading standards are without merit. See
Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009); Bell Atlantic v. Twombly, 550 U.S. 544, 555
(2007).
                                              3
                                     III.

We will affirm substantially for the reasons set forth by the District Court.




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