                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 19a0065n.06

                                          No. 18-5440

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                    FILED
 SOUTH FIFTH TOWERS, LLC,                               )                      Feb 08, 2019
                                                        )                  DEBORAH S. HUNT, Clerk
        Plaintiff-Appellant,                            )
                                                        )
 v.                                                     )      ON APPEAL FROM THE
                                                        )      UNITED STATES DISTRICT
 ASPEN INSURANCE UK, LTD. and TENCO                     )      COURT FOR THE WESTERN
 SERVICES, INC.,                                        )      DISTRICT OF KENTUCKY
                                                        )
        Defendants-Appellees.                           )
                                                        )


       BEFORE:        BOGGS, KETHLEDGE, and STRANCH, Circuit Judges.

       BOGGS, Circuit Judge. South Fifth Towers, LLC owns an apartment building in

Louisville, Kentucky. After the building suffered water damage in a rainstorm, South Fifth’s

insurance carrier, Aspen Insurance UK, Ltd., declined to cover demolition and repair costs. South

Fifth sued Aspen and Tenco Services, Inc., Aspen’s adjuster, for breach of contract (among other

claims). The district court granted Aspen and Tenco’s motion for summary judgment. Because

South Fifth waited twelve days to tell Aspen about the water damage—and during this time, started

and nearly finished demolishing the damaged areas of the building, causing substantial prejudice

from the delay—we affirm. We also affirm the district court’s order that the attorney-client and

work-product privileges shield documents that South Fifth sought in discovery.
No. 18-5440, S. Fifth Towers, LLC v. Aspen Ins. UK, Ltd., et al.


                                                  I

       South Fifth owns Kentucky Towers, a high-rise apartment building in downtown

Louisville. Aspen provided South Fifth with commercial-property insurance.

       Thunderstorms caused 2.69 inches of rain in Louisville on June 26, 2013. A tenant on the

ground floor of Kentucky Towers noticed water streaming down the walls of her shop. Kevin

Landrum, the building’s maintenance supervisor, came to investigate. He discovered that water

was entering the building through the ceiling of a closet on the second floor; a pipe above the closet

had separated from a roof drain. There was about an inch of standing water in the second-floor

hallways.

       That same evening, Landrum told South Fifth what had happened. South Fifth contacted

its New York insurance broker either that evening or the next day. The broker, Judah Perlstein, did

not notify Aspen. Instead, Perlstein’s first move was to hire a public adjuster to inspect the damage

and write a report. It was his practice to “put a PA on almost every loss.” R. 109–7 at 2134. He did

this for several reasons: “to get our facts straight” and avoid reporting “erroneous information” to

the insurer and “to protect” his “client,” as “insurance companies are always looking for a reason

not to pay.” Ibid. Finding a public adjuster in Louisville took Perlstein until June 28.

       Next, on July 2 or July 3, South Fifth hired a restoration contractor, The Drying Team. The

Drying Team sent 18 people to Louisville. They arrived from Nashville on July 8 and began

demolition the same day. They tore out “virtually all” of the second floor. R. 109–9 at 2175.

       Perlstein finally told Aspen what had happened on July 8—twelve days after the storm and

the same day that The Drying Team began demolition. Aspen then sent its own adjusters

(employed by co-defendant Tenco), and they arrived on July 10. By this time, almost all of the

demolition was already done.



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No. 18-5440, S. Fifth Towers, LLC v. Aspen Ins. UK, Ltd., et al.


        South Fifth eventually claimed a loss of $1,312,091.04. By January 2015, Aspen had yet

to either decline coverage or pay up. South Fifth then sued Aspen and Tenco, alleging breach of

contract by Aspen, violations of Kentucky insurance statutes by Aspen and Tenco, and various

other claims. In September 2015, Aspen formally declined coverage. After a discovery dispute,

the district court denied in part South Fifth’s motion to compel production of certain documents.

The district court then granted Aspen and Tenco’s motion for summary judgment, holding that

South Fifth’s failure to provide timely notice of the loss and the policy’s rain limitation precluded

coverage. South Fifth timely appeals the discovery order and the order granting summary judgment

for Aspen and Tenco.

                                                        II

        We begin with the discovery dispute. Aspen and Tenco withheld 27 documents prepared

by various adjusters and investigators, and South Fifth moved to compel production. A magistrate

judge reviewed the documents in camera and denied South Fifth’s motion in part, holding that the

attorney-client and work-product privileges applied to all but one of the requested documents.1

The district court affirmed the magistrate judge’s order. On appeal, South Fifth’s primary argument

is that the withheld documents are not privileged because they were prepared for a business

purpose: handling the insurance claim. South Fifth offers minimal evidence for this contention,

and its other arguments are unconvincing, so we affirm the district court’s discovery order.




1
 The outlier was a September 25, 2013 report by a Tenco adjuster, which the magistrate judge held was prepared for
business reasons.

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No. 18-5440, S. Fifth Towers, LLC v. Aspen Ins. UK, Ltd., et al.


                                                        A

           The district court held that the attorney-client privilege protects most of the requested

documents.2 Reviewing the issue de novo, see Reed v. Baxter, 134 F.3d 351, 355 (6th Cir. 1998),

we agree.

           Kentucky law governs.3 See Fed. R. Evid. 501 (“[I]n a civil case, state law governs

privilege regarding a claim or defense for which state law supplies the rule of decision.”).

Kentucky’s attorney-client privilege protects:

      1. “[A] confidential communication”
      2. between, as relevant here,
               a. “the client or a representative of the client and the client’s lawyer or a
                  representative of the lawyer,” or
               b. “representatives of the client or between the client and a representative of
                  the client”
      3. “for the purpose of facilitating the rendition of professional legal services to the
         client.”

Ky. R. Evid. 503(b)(1), (4). The privilege does not protect communications “made for business

reasons, not legal reasons.” Lexington Pub. Library v. Clark, 90 S.W.3d 53, 60 (Ky. 2002).

           The magistrate judge analyzed each document and gave particularized reasons for applying

the privilege, and the district court endorsed the magistrate judge’s conclusions in its own thorough

opinion. Instead of challenging the document-specific analysis, South Fifth argues that when the

reports and emails were written, Aspen’s counsel was acting as a claims handler, not an attorney.

But South Fifth offers very little evidence of this. It merely points out that the documents were



2
 These are: ten “periodic reports” to Aspen from its claims administrator; two reports from Tenco to Aspen’s claims
administrator and counsel; two emails from Aspen’s agent Robert Klipera to Aspen’s claims administrator, which
forwarded them to Aspen’s counsel; a chain of emails between Aspen’s counsel, fraud investigators Aspen hired, and
Aspen’s claims administrator; an email from Tenco to Aspen’s claims administrator; and a chain of emails between
Aspen’s counsel, its claims administrator, and Aspen’s agent Doug Pinelli.
3
    We explain why in Section III-B below.

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No. 18-5440, S. Fifth Towers, LLC v. Aspen Ins. UK, Ltd., et al.


prepared in 2013 and 2014, before litigation and before Aspen formally denied the claim. But this

timeline does not suggest that the documents had no legal purpose. As the district court observed,

“[e]ach time the Magistrate Judge found a document to be privileged, he cited or described

language in the document indicating that it contained confidential communications with Aspen’s

attorney regarding the impending litigation.” R. 97 at 1862 (emphasis added). South Fifth gives

us no reason to doubt this. We see no error in the district court’s analysis of the attorney-client

privilege.

                                                         B

         The district court held that the work-product privilege protects all but one of the remaining

documents.4 South Fifth’s arguments on this front fare no better.

         “The work-product doctrine is a procedural rule of federal law; thus, Federal Rule of Civil

Procedure 26 governs this diversity case.” In re Professionals Direct Ins. Co., 578 F.3d 432, 438

(6th Cir. 2009). The work-product privilege protects documents “prepared in anticipation of

litigation . . . by or for another party or its representative.” Fed. R. Civ. P. 26(b)(3)(A). Our test

“asks (1) whether a document was created because of a party’s subjective anticipation of litigation,

as contrasted with an ordinary business purpose, and (2) whether that subjective anticipation of

litigation was objectively reasonable.” United States v. Roxworthy, 457 F.3d 590, 594 (6th Cir.

2006). “We review a district court’s work product privilege determination for abuse of discretion.”

Id. at 592.




4
  These are: a report to Tenco from HAAG Construction, which inspected the damage; five reports to Aspen from its
claims administrator; a report to Aspen from its fraud investigator; and two emails from Aspen’s agent Robert Klipera
to Aspen’s claims administrator, which forwarded them to Aspen’s counsel. As with the attorney-client-privileged
documents, the magistrate judge reviewed the reports and emails in camera and gave particularized reasons for
applying the work-product privilege, which the district court accepted.

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No. 18-5440, S. Fifth Towers, LLC v. Aspen Ins. UK, Ltd., et al.


        South Fifth has three arguments against applying the work-product privilege, none of

which persuade us that the district court abused its discretion. First, it makes the same claim it

made regarding attorney-client privilege: that the documents were prepared for business reasons.

Again, though, this is not much more than a conclusory assertion. South Fifth cites a district-court

opinion holding that certain insurance-investigation documents were prepared for business

purposes despite the involvement of counsel. St. Paul Reinsurance Co., Ltd. v. Commercial Fin.

Corp., 197 F.R.D. 620, 638 (N.D. Iowa 2000). But the Northern District of Iowa made its (fact-

intensive) privilege determination de novo; its holding does not tell us whether the district court

abused its discretion in this case. South Fifth is making a “deference mistake.” See Jonathan S.

Masur and Lisa Larrimore Ouellette, Deference Mistakes, 82 U. Chi. L. Rev. 643, 645 (2015).

        Next, South Fifth contends, there is insufficient evidence that Aspen reasonably anticipated

litigation when it (or its representatives) prepared the documents. South Fifth argues that the

magistrate judge and district court overrelied on a November 6, 2013 letter from South Fifth’s

counsel to Aspen’s counsel. The letter warned that “failure to attend to South Fifth’s insurance

claim would ‘lead to the conclusion that Aspen is in breach of its policy.’” R. 97 at 1858. As the

district court observed, “[g]iven that ‘breach of contract’ is a common cause of action in insurance

disputes, it was reasonable for the Magistrate Judge to find that a letter warning the opposing party

that it would be ‘in breach of its policy’ . . . created both a subjective[ ] and objectively reasonable

anticipation of litigation.” Id. at 1859. South Fifth has no response to this common-sense

conclusion.

        Finally, South Fifth claims that even if the work-product privilege applies, it is entitled to

the documents under the substantial-need exception. Documents “may be discovered”

notwithstanding the work-product privilege if the party requesting them “shows that it has



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No. 18-5440, S. Fifth Towers, LLC v. Aspen Ins. UK, Ltd., et al.


substantial need for the materials to prepare its case and cannot, without undue hardship, obtain

their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii). South Fifth must show

that it has no other way of obtaining the “information” the reports contain, not just that it has no

other way of obtaining the reports themselves. Stampley v. State Farm Fire & Cas. Co., 23 F.

App’x 467, 471 (6th Cir. 2001). It does not make this showing. South Fifth had exclusive access

to the building for almost two weeks, and after Aspen and Tenco arrived, it had equal access. There

was ample opportunity for South Fifth’s own experts to inspect the damage and draw their own

conclusions. The district court did not abuse its discretion.

                                                       III

        We now turn to the summary-judgment order. The insurance policy required South Fifth

to give Aspen “prompt notice of the loss or damage,” including, “[a]s soon as possible, . . . a

description of how, when and where the loss or damage occurred.” R. 109–1 at 2009. Yet South

Fifth waited twelve days to tell Aspen about the water damage to its building—and during this

time, started and nearly finished demolition of the damaged areas. There can be no genuine dispute

that Aspen likely suffered substantial prejudice from this delay. We therefore affirm the district

court’s grant of summary judgment to Aspen and Tenco.5

                                                        A

        “We review the district court’s grant of summary judgment de novo.” Donald v. Sybra,

Inc., 667 F.3d 757, 760 (6th Cir. 2012). Aspen and Tenco are entitled to summary judgment if they

can “show[ ] that there is no genuine dispute as to any material fact” and they are “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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248


5
  The district court held that summary judgment for Aspen on the breach-of-contract claim compelled summary
judgment for Aspen and Tenco on all the remaining claims. South Fifth does not challenge this holding on appeal.

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No. 18-5440, S. Fifth Towers, LLC v. Aspen Ins. UK, Ltd., et al.


(1986). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a

verdict for” either party. Ibid. “The inferences to be drawn from the underlying facts must be

viewed in the light most favorable to” South Fifth, as the non-moving party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (cleaned up).

                                                         B

         We interpret the insurance contract between South Fifth and Aspen according to state law.

See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). The policy does not have a choice-of-law

clause, and the parties dispute whether New York or Kentucky law governs. We hold that

Kentucky law controls.6

         Kentucky is the forum state, so we apply its choice-of-law rules. See Klaxon Co. v. Stentor

Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Kentucky uses § 188 of the Restatement (Second) of

Conflict of Laws “to resolve choice of law issues that arise in contract disputes.” State Farm Mut.

Auto. Ins. Co. v. Hodgkiss-Warrick, 413 S.W.3d 875, 878 (Ky. 2013). Under this approach, the

law of the state with “the most significant relationship to the transaction and the parties” controls.

Restatement (Second) of Conflict of Laws § 188(1) (1971). Kentucky also tends to “look to . . .

other Restatement provisions” to resolve choice-of-law questions. Wallace Hardware Co. v.

Abrams, 223 F.3d 382, 398 (6th Cir. 2000).

         Two factors weigh in favor of applying Kentucky law. First, in most insurance cases, the

Restatement gives “[t]he location of the insured risk . . . greater weight than any other single

contact,” particularly “when the insurance covers an immovable object, such as a house.”

Restatement § 193 cmt. b; see also Hodgkiss-Warrick, 413 S.W.3d at 879 (“With respect to


6
  “We review de novo the district court’s choice-of-law determination.” Newberry v. Silverman, 789 F.3d 636, 640
(6th Cir. 2015). Here, though, the district court did not make a choice-of-law determination. It noted arguments on
each side and then concluded that Aspen was entitled to summary judgment under both Kentucky and New York
law.

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No. 18-5440, S. Fifth Towers, LLC v. Aspen Ins. UK, Ltd., et al.


casualty insurance contracts in particular, a key factor is the expectation of the parties concerning

the principal location of the insured risk.”). Second, “Kentucky courts have apparently applied

Kentucky substantive law whenever possible.” Harris Corp. v. Comair, Inc., 712 F.2d 1069, 1071

(6th Cir. 1983); see also Wallace Hardware Co., 223 F.3d at 391 (approvingly quoting the district

court’s “observation that ‘Kentucky courts are egocentric concerning choice of law questions’”

and explaining that “we likewise have noted this provincial tendency in Kentucky choice-of-law

rules”).

           Admittedly, the insurance policy was issued in New York, South Fifth obtained it through

a New York broker, and South Fifth is a New York citizen. However, the building’s location and

Kentucky’s strong choice-of-law bias outweigh these New York connections. Thus, we will use

Kentucky law to interpret the policy.

                                                  C

           South Fifth first argues that it provided “prompt” notice, as required by the insurance

policy, because it contacted Aspen within twelve days. The policy does not define “prompt,” so we

give that term its ordinary meaning. See James Graham Brown Found., Inc. v. St. Paul Fire

& Marine Ins. Co., 814 S.W.2d 273, 279 (Ky. 1991). “Prompt” means “performed readily or

immediately,” or “given without delay.” Webster’s Third New International Dictionary

1816 (2002). Moreover, the insurance policy construed as a whole supports this definition, since

the policy also required South Fifth to give Aspen a description of the loss or damage “as soon as

possible.” R. 109–1 at 2009. South Fifth could not give Aspen a description of the loss or damage

until South Fifth had notified Aspen about the loss or damage in the first place. Thus, the policy

required South Fifth to provide notice as soon as it could.




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No. 18-5440, S. Fifth Towers, LLC v. Aspen Ins. UK, Ltd., et al.


         Here, South Fifth did not provide notice as soon as it could have—it notified Aspen eleven

days after it notified its insurance broker, Perlstein. Indeed, when Perlstein was asked about this

delay, he could not explain why Aspen had not been notified sooner. And on appeal, South Fifth

fails to explain the delay. To be sure, whether the insured party gave timely notice is typically a

question of fact left for the jury. See Falls City Plumbing Supply Co. v. Potomac Ins. Co., 237 S.W.

376, 378 (Ky. 1922). Yet, given the undisputed facts of this case, “the lapse of time [was] so long

as to be obviously [noncompliant] with the [policy].” Ibid. Hence South Fifth failed to give

“prompt” notice.

                                                 D

         Late notice of a loss lifts the insurer’s coverage obligations as long as “it is reasonably

probable that the insurance carrier suffered substantial prejudice from the delay in notice.” Jones

v. Bituminous Cas. Corp., 821 S.W.2d 798, 803 (Ky. 1991). There is no genuine dispute that South

Fifth’s twelve-day delay in notice created a reasonable probability of substantial prejudice to

Aspen.

         The late notice deprived Aspen of the chance to see the water damage before demolition

began. This meant that Aspen had no way of assessing how much of the demolition was necessary

or of objecting to needless or too-costly demolition before it happened. Had Aspen’s adjusters

been present when the demolition contractor first arrived at Kentucky Towers, they could have

watched and interjected as the contractor took moisture readings and mapped out which portions

of the second floor to tear out. According to Richard Michelson, South Fifth’s public adjuster,

“[i]t’s certainly helpful if the [insurance company’s] adjuster is there” for this process. R. 109–8

at 2160. Admittedly, Aspen’s adjusters and engineers were able to take their own moisture

readings once they arrived, and they could review the demolition contractor’s invoices. They could



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No. 18-5440, S. Fifth Towers, LLC v. Aspen Ins. UK, Ltd., et al.


also inspect waterlogged rubble in dumpsters. But no matter how much they learned from these

steps, the demolition was already done, and Aspen had no chance to inspect the damage, view pre-

demolition moisture readings (which the contractor did not retain), or ask the contractor to do

anything different in such extensive—and expensive—demolition.

       Even if all of the demolition was appropriate, the late notice made it impossible for Aspen

to consult and coordinate with the demolition contractor and South Fifth. Michelson, the public

adjuster, explained that it “would be . . . normal protocol” for him to keep in contact with Aspen’s

adjusters. R. 109–8 at 2158. “[A]bsolutely you want the insurance adjuster to see the loss,” in order

“to walk and scope damages and discuss action plans and get on the same page.” Id. at 2159. With

this kind of coordination, “the claim tends to go smoother.” Ibid. Scott Tarpley, who led the

demolition contractor’s team, explained that “[w]hen adjusters are available early on,” they can

discuss which tests, tools, and techniques to use. R. 109–9 at 2175. For this reason, Tarpley was

“slightly appalled that [Aspen] did not have qualified people there earlier on.” Id. at 2177.

       Thus, the undisputed facts and the testimony of South Fifth’s own public adjuster and

demolition contractor show a reasonable probability of substantial prejudice to Aspen. South Fifth

offers two arguments to the contrary; neither persuades us.

       First, South Fifth argues that its contractual duty “to protect the Covered Property from

further damage” required it to commence demolition when it did. R. 109–1 at 2009. As public

adjuster Michelson put it, “the concern is that you get microbial growth, mold . . . . The building

doesn’t get any better while it’s sitting there wet, it only gets worse and degrades.” R. 113–3 at

2611. This was all the more reason not to wait twelve days before notifying Aspen. South Fifth

knew that the damage was significant and would require extensive demolition. According to its




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No. 18-5440, S. Fifth Towers, LLC v. Aspen Ins. UK, Ltd., et al.


insurance broker, Judah Perlstein, “[t]here was no downside” to notifying Aspen the day of the

rainfall. R. 109–7 at 2135. But South Fifth dawdled, presenting Aspen with a fait accompli.

        Second, South Fifth points out that one of its expert reports called the notice timely.

Howard Wolf, “a certified master restorer and restoration consultant,” opined that South Fifth gave

notice to Aspen within “usual and customary timeframes.” R. 108–1 at 1937, 1944. But Wolf based

this opinion on a factual error. He wrote that “the public adjuster filed an official claim within five

days of the loss,” but it is undisputed that South Fifth took twelve days to notify Aspen. Id. at 1944.

Also, Wolf’s report supports the conclusion that the late notice prejudiced Aspen. Wolf explained

that “[t]ypically, owner and carrier representatives actively participate in the execution of the

[restoration] project through communication and agreement of work performed in each phase.”

Ibid. South Fifth’s late notice prevented this communication and agreement—even though “[t]his

project is a clear example of a project high in complexity and exposure to the owner and carrier.”

Ibid.

        Thus, the record reveals no genuine dispute that South Fifth’s late notice created a

reasonable probability of substantial prejudice to Aspen.

                                                  E

        South Fifth tries to get around this conclusion by claiming that it waited at most one day to

notify Aspen, not twelve. The argument is that South Fifth’s insurance broker, Judah Perlstein,

acted as Aspen’s agent for the purpose of receiving notices of loss. South Fifth told Perlstein about

the water damage on either the evening of the storm or the next day. But Kentucky law and

Perlstein’s testimony make clear that he was not Aspen’s agent.

        The general rule in Kentucky is “that in the absence of statutory authority or some special

indicia of authority,” an insurance broker “is the agent of the insured and not of the insurer.” J.



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No. 18-5440, S. Fifth Towers, LLC v. Aspen Ins. UK, Ltd., et al.


Inmon Ins. Agency, Inc. v. Kentucky Farm Bureau Mut. Ins. Co., 549 S.W.2d 516, 518 (Ky. Ct.

App. 1977). Consequently, “notice to this broker is not notice to the insurer.” Ibid.

       South Fifth does not point to any “statutory authority or special indicia of authority”

justifying an exception to the default rule and showing Perlstein to be Aspen’s agent. Ibid. Instead,

it cites Pan-Am. Life Ins. Co. v. Roethke, 30 S.W.3d 128 (Ky. 2000). The case is inapposite. The

Roethke court relied on a (now defunct) statutory provision defining “agent” as

       an individual, firm, . . . [or] corporation . . . appointed by an insurer to solicit
       applications for insurance or annuity contracts or to negotiate insurance or annuity
       contracts on its behalf, and if authorized to do so by the insurer, to effectuate and
       countersign insurance contracts.

Id. at 131 (quoting then–Ky. Rev. Stat. § 304.9–020). Perlstein does not meet this definition of

“agent”: No evidence in the record suggests that Aspen “appointed” Perlstein to “solicit,”

“negotiate,” or “effectuate” insurance contracts.

       Roethke aside, Perlstein’s testimony confirms that he was not Aspen’s agent. In his

deposition, he testified that he got a public adjuster involved because “I knew I have [a] client that

I have to protect” from the possibility of Aspen refusing to pay. R. 109–7 at 2132, 2134. He boasted

about his use of “grandstanding” and “threat[s]” to get his clients better prices or “better terms and

conditions” from insurance carriers. Id. at 2131. He admitted that he did not “know why carriers

ask or don’t ask” for certain information in coverage applications, and he said that despite decades

in the industry, carriers “surprise me every day.” R. 119–1 at 2649. These statements make clear

that Perlstein was not Aspen’s agent.

                                              F

       To summarize, the insurance policy required South Fifth to promptly notify Aspen—not

just Perlstein—of any loss. It breached the policy when it waited twelve days to give Aspen the

required notice, and this undisputedly caused Aspen substantial prejudice. This relieved Aspen of

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No. 18-5440, S. Fifth Towers, LLC v. Aspen Ins. UK, Ltd., et al.


liability under the policy, and Aspen and Tenco are entitled to summary judgment on this basis

alone. We need not reach the district court’s alternative holding that the policy’s rain limitation

also precluded coverage.

       The judgment of the district court is AFFIRMED.




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