            Case: 15-13020   Date Filed: 07/19/2016   Page: 1 of 13


                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 15-13020
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 3:14-cv-00031-MMH-JRK

DIVINE MOTEL GROUP, LLC,
d.b.a. Royal Inn,

                                                             Plaintiff-Appellant,

                                     versus

ROCKHILL INSURANCE COMPANY,

                                                           Defendant-Appellee.

                        ________________________

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

                               (July 19, 2016)

Before MARCUS, WILLIAM PRYOR, and FAY, Circuit Judges.

PER CURIAM:

     Divine Motel Group, LLC (“Divine”) appeals the district court’s grant of

Rockhill Insurance Company’s (“Rockhill”) motion for summary judgment on

Divine’s complaint raising one count of breach of contract. On appeal, Divine
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argues that the district court (1) misinterpreted its insurance contract, and (2) erred

by discounting its proffered evidence. After careful review, we affirm.

                                          A.

      The relevant factual background is this.             On June 20, 2012, Divine

purchased the Royal Inn, a two-building property in Live Oak, Florida. The

property had previously been run as a motel, until the previous owner defaulted on

its mortgage and then ceased operations in November 2011. Rockhill issued an

insurance policy to Divine, insuring the Royal Inn against the risk of physical loss

for the period from June 20, 2012, through June 20, 2013. The policy contained a

coverage exclusion for rain damage to the building interiors (“the interior-rain-

damage exclusion”), which said: “[Rockhill] will not pay for loss of or damage to

. . . [t]he interior of any building or structure, or to personal property in the

building or structure, caused by or resulting from rain, . . . whether driven by wind

or not.”   The policy contained an exception to this exclusion, providing that

Rockhill would pay for damage to the interiors caused by rain if “[t]he building or

structure first sustains damage by a Covered Cause of Loss to its roof or walls

through which the rain . . . enters.” The policy listed “windstorm” as a covered

cause of loss.

      On June 25, 2012, Tropical Storm Debby struck the Live Oak area. During

the storm, a significant amount of rainwater entered the Royal Inn buildings,


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causing damage to the carpeting, drywall, and furnishings. Divine filed a claim

under the insurance policy, which Rockhill denied based on the interior-rain-

damage exclusion. Divine then sued Rockhill for breach of contract in state court,

and Rockhill removed the case to federal district court. In district court, Divine

argued that the exception to the interior-rain-damage exclusion applied because

rainwater from Tropical Storm Debby entered the Royal Inn through portions of

the roofs and walls that had been damaged by the storm. Rockhill moved for

summary judgment, which the district court granted, concluding that Divine failed

to proffer sufficient evidence for a reasonable jury to conclude that the exception

applied. Divine filed this timely appeal.

                                            B.

      We review a district court order granting summary judgment de novo,

applying the same legal standard as the district court. Nat’l Parks Conservation

Ass’n v. Norton, 324 F.3d 1229, 1236 (11th Cir. 2003). We also review de novo

legal questions, including a district court’s interpretation of an insurance contract.

Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1321 (11th Cir. 2014).

      At the summary-judgment stage, we view the material presented and draw

all factual inferences in the light most favorable to the nonmoving party. Animal

Legal Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1213-14 (11th Cir. 2015).

Summary judgment is appropriate if the movant demonstrates that “there is no


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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). The substantive law applicable to the case

determines which facts are material. United States v. Four Parcels of Real Prop.,

941 F.2d 1428, 1437 (11th Cir. 1991).

      If the burden of proof is on the nonmovant, the movant must either:

(1) demonstrate that the nonmovant has failed to proffer sufficient evidence to

support an essential element of its case; or (2) proffer affirmative evidence

demonstrating that the nonmovant will be unable to prove an essential element at

trial. Id. at 1437-38. If the movant demonstrates the absence of a genuine factual

dispute by either method, the burden then shifts to the nonmovant, which must

show that a genuine issue remains for trial. Id. at 1438. To discharge this burden,

the nonmovant “must do more than simply show that there is some metaphysical

doubt as to the material facts.”       Scott v. Harris, 550 U.S. 372, 380 (2007)

(quotation omitted). “Where the record taken as a whole could not lead a rational

trier of fact to find for the nonmoving party, there is no genuine issue for trial” and

the moving party is entitled to summary judgment. Id. (quotations omitted). “An

issue is not ‘genuine’ if it is unsupported by the evidence or is created by evidence

that is ‘merely colorable’ or ‘not significantly probative.’” Baloco v. Drummond

Co., Inc., 767 F.3d 1229, 1246 (11th Cir. 2014) (quotation omitted), cert. denied,

136 S. Ct. 410 (2015). In other words, “[a] mere scintilla of evidence in support of


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the nonmoving party’s position is insufficient to defeat a motion for summary

judgment; there must be evidence from which a jury could reasonably find for the

[nonmoving] party.” Id.

                                          C.

      This diversity case arises in Florida, and it is undisputed that the substantive

law of Florida applies. Under Florida law, courts must construe insurance policies

according to their plain meaning and resolve ambiguities in favor of the insured.

Intervest Constr. of Jax, Inc. v. Gen. Fid. Ins. Co., 133 So. 3d 494, 497 (Fla. 2014).

However, the insured has the burden to prove its claim is covered under the policy.

E. Fla. Hauling, Inc. v. Lexington Ins. Co., 913 So. 2d 673, 678 (Fla. 3d Dist. Ct.

App. 2005). Where, as here, the policy is an “all-risk” policy, “recovery . . . will as

a rule be allowed for all fortuitous losses not resulting from misconduct or fraud

unless the policy contains a specific provision expressly excluding the loss from

coverage.” Phoenix Ins. Co. v. Branch, 234 So. 2d 396, 398 (Fla. 4th Dist. Ct.

App. 1970). Once the insured establishes “a loss apparently within the terms of the

policy,” the burden shifts to the insurer to prove an exclusion applies. Id. If an

exception to the exclusion exists, the burden shifts back to the insured to prove the

exception applies.    E. Fla. Hauling, 913 So. 2d at 678; see LaFarge Corp. v.

Travelers Indem. Co., 118 F.3d 1511, 1516 (11th Cir. 1997).




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       The operative issue in this case is whether Divine satisfied its burden -- at

the summary-judgment stage -- to prove that the exception to the interior-rain-

damage exclusion applied, by showing that Tropical Storm Debby damaged parts

of the Royal Inn’s roofs or walls through which rainwater entered.

                                                D.

       Divine first argues that the district court erred by relying on Florida

Windstorm Underwriting v. Gajwani, 934 So. 2d 501 (Fla. 3d Dist. Ct. App. 2005),

and requiring it to prove that wind from Tropical Storm Debby created an

“opening” in the Royal Inn’s roofs or walls through which rainwater entered.

Divine contends that, unlike in the policy at issue in Gajwani,1 the exception in its

insurance policy requires only “damage” to the roof or walls through which rain

enters, not an “opening.”           Divine maintains that the deposition testimony of

structural engineer Michael Linehan, who performed a cause-and-origin analysis of

the rain damage for Rockhill, demonstrated that rainwater entered the Royal Inn

through damage to the walls.



       1
           The policy in Gajwani stated:

       We will not pay for loss or damage to the interior of any building or structure, or
       the property inside the building or structure, caused by rain . . . whether driven by
       windstorm or not, unless the direct force of Hurricane, other Wind, or Hail
       damages the building or structure causing an opening in the roof or wall and the
       rain . . . enters through this opening.

934 So. 2d at 505-06.

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      Linehan performed a visual assessment of the property on July 12, 2012 --

about two weeks after the storm -- and he issued his cause-and-origin report about

a month and a half later, on August 28, 2012. In his report, Linehan identified the

two buildings making up the Royal Inn as Building A and Building B.               He

concluded that rainwater from Tropical Storm Debby entered both buildings

through gaps under the exterior entry doors and sliding glass doors of the

individual room units. He opined that rainwater also entered Building B via

“[l]eaks through the exterior two-story south concrete masonry unit (CMU) wall as

a result of a temporary overwhelming and saturation of the referenced CMU wall

components in response to wind-driven rain with Tropical Storm Debby.” Linehan

explained that concrete block walls like Building B’s south CMU wall:

      [are made of] cementitious material, so they . . . absorb moisture. It’s
      considered a mass wall type system. So even if it’s covered with
      cladding, like stucco, which is also cementitious, it is very normal for
      water to be absorbed and then dry out over time.

      That does not typically create a problem to the interior finishes
      because the mass of the wall is so great that water will typically not
      penetrate through the depth of the cladding and the complete width of
      the wall to negatively affect the interior finishes.

      In this case, Tropical Storm Debby was a severe rain event and there
      [were] also other issues independent of simply having a mass wall.
      There are cracks in the wall. There were other factors where water
      could have entered because of the cracks or deficient waterproofing.

      But, in general, it was such a severe rain event that I do believe it was
      possible water could have seeped all the way through the block wall
      without these other issues.

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      Divine focuses on Linehan’s statement that heavy rains from Tropical Storm

Debby caused temporary saturation of Building B’s south CMU wall. It contends

that the saturation constituted “damage” through which the rainwater entered.

However, Divine has not pointed to any evidence that the CMU wall was, in fact,

damaged during the storm. Linehan testified that it is normal for concrete block

walls to absorb water and that Building B’s south CMU wall “temporarily” became

saturated during the storm so that rainwater likely seeped through it into the

interior of the building. Linehan’s testimony indicates that the wall functioned as

it was designed to function and, because of the quantity of rain that fell during

Tropical Storm Debby, some rainwater penetrated into the interior of Building B.

Divine has not pointed to any evidence indicating the wall was not able to “dry out

over time” -- as Linehan testified these walls are designed to do -- or that Tropical

Storm Debby otherwise caused damage to the wall through which the rainwater

entered. Accordingly, the district court did not err in rejecting Divine’s argument

that saturation of Building B’s south CMU wall constituted “damage by a Covered

Cause of Loss to [Royal Inn’s] roof or walls through which the rain . . . enter[ed].”

                                         E.

      Divine next argues that, even if an opening is required for the exception to

apply, it proffered sufficient evidence to show that winds from Tropical Storm

Debby created openings in the Royal Inn’s roofs through which rainwater entered.


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Divine relies on the deposition testimony of: (1) Rockhill’s insurance adjuster,

Brian O’Connor; (2) Linehan; and (3) Thomas Miller, an engineer Divine retained

to perform a “water intrusion assessment.”

         O’Connor inspected the Royal Inn about a week after Tropical Storm Debby

hit. During his inspection, O’Connor observed “three areas of the roof which were

pulled up from the membrane.” The areas consisted of “three strips measuring

approximately six inches in width and varied in length from 5 feet to 8 feet.”

O’Connor could not tell if the strips had been damaged by wind from Tropical

Storm Debby, nor could he tell if rainwater had entered through the strips.

Consequently, Rockhill retained Linehan to conduct a cause-and-origin analysis.

         Linehan concluded that rainwater did not enter Building B through the roof

during Tropical Storm Debby.         However, on Building A, Linehan observed

“deteriorated sealants” and “unadhered, overlapped cap sheet of the modified

bitumen roofing membrane” which, he concluded, allowed rain to enter during the

storm. Linehan opined, however, that these openings existed prior to Tropical

Storm Debby, and had not been created or even exacerbated by winds from the

storm.     He based this conclusion on the weathering patterns surrounding the

openings and the “distinct lack of wind-related damage” to the roof as a whole,

such as heavier patterns of damage to the edges of the roof, torn or missing

portions of cap sheet, and missing or torn away gutters and downspouts.


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      During his deposition, Rockhill’s counsel questioned Linehan about an

appraisal of the Royal Inn, done in April 2012 -- nearly three months before

Tropical Storm Debby hit the Live Oak area. The appraisal report concluded that:

      [T]he subject motel facility is in poor condition and several items of
      deferred maintenance and damage to the buildings were noted . . . .
      The exterior of the building requires painting and based on interior
      signs of roof leakage, the roofs either need to be repaired or replaced.
      Damage to the interior rooms of the facility noted included several
      holes in the drywall walls, damaged ceramic tile in the guest rooms,
      missing or damaged acoustical ceiling tiles, water damaged drywall
      ceilings, soiled carpets, and mildewed and damaged furniture.

Linehan testified that he had not been aware of the appraisal report at the time he

conducted his cause-and-origin analysis, but the report supported his conclusions.

In particular, the fact that the furniture was mildewed “strongly suggest[ed] a

moisture problem,” which was “consistent with [the] preexisting roof leaks . . .

documented in [his] report.”

      Thomas Miller conducted his water intrusion assessment in March 2014,

almost two years after Tropical Storm Debby.         Based on his inspection and

conversations with the property owner, Miller documented significant water

damage to the interior of the Royal Inn, including the carpeting, ceiling, and

drywall. He concluded, “within a reasonable professional probability,” that water

intrusion from Tropical Storm Debby was the cause of the damage. Miller testified

that Divine did not ask him to determine whether Tropical Storm Debby had

caused any wind damage to the roofs or walls of the Royal Inn buildings, and his

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assessment report did not address that issue.     However, Miller was aware of

Linehan’s August 28, 2012 report, which concluded that the buildings had not

sustained any wind damage during the storm. Miller disagreed with Linehan’s

conclusion. He identified a photograph in Linehan’s report, which he included in

his own assessment report, depicting a breach in the roof about one square foot in

size. Miller believed the breach could have been caused by winds from Tropical

Storm Debby. He clarified, however, that he had not been asked to assess whether

the buildings had sustained any wind damage, and he was “not saying that [the

photo depicted] wind damage.” He was “just saying [he couldn’t] rule it out.”

      Divine maintains that the testimony of O’Connor, Linehan, and Miller

created a genuine factual dispute about whether Tropical Storm Debby created

openings in the Royal Inn’s roofs through which rainwater entered. The district

court rejected this argument. It concluded that Miller’s statement that he could not

rule out wind as a cause of the roof damage Linehan documented amounted to a

mere scintilla of evidence, from which a reasonable jury could not conclude that

Tropical Storm Debby, in fact, caused roof damage to the Royal Inn through which

rainwater entered. The district court noted that Miller’s statement concerning the

cause of the roof damage was outside the scope of his investigation. The court also

noted that Miller did not opine that wind had actually caused roof damage and he

provided no analysis that contradicted Linehan’s reasoning.


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      Divine argues that the district court erred in finding that its proffered

evidence on the cause of the roof damage amounted to a mere scintilla that was

insufficient to survive summary judgment.        We disagree.     While O’Connor,

Linehan, and Miller all investigated the damage inflicted on the Royal Inn by

Tropical Storm Debby, none of them came to the conclusion that the property

sustained roof damage during the storm through which rainwater entered.

O’Connor testified only that he observed three areas of the roof that could have

been damaged by winds from Tropical Storm Debby, but he was unsure whether

the damage pre-existed the storm. Linehan testified that winds from Tropical

Storm Debby had not caused any roof damage at the Royal Inn and that the roof

damage he observed pre-existed the storm.        Miller, whom Divine retained to

investigate water intrusion at the Royal Inn, did not form an opinion as to whether

Tropical Storm Debby caused roof damage. He merely identified a photograph in

Linehan’s report depicting roof damage and stated -- without any supporting

analysis -- that he could not rule out wind as a cause of the damage.

      On this record -- which includes the pre-storm appraisal report noting the

need for roof repairs and the presence of mildew on the Royal Inn’s furniture -- we

conclude that Miller’s testimony failed to “do more than simply show that there is

some metaphysical [possibility]” that Tropical Storm Debby damaged the Royal

Inn’s roofs. Scott, 550 U.S. at 380. Miller’s testimony that he could not rule out


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wind from Tropical Storm Debby as a cause of the roof damage depicted in one of

Linehan’s photos constituted “merely colorable” evidence that Tropical Storm

Debby created openings in the Royal Inn’s roofs through which rainwater entered.

See Baloco, 767 F.3d at 1246. Accordingly, the district court correctly concluded

that Miller’s testimony amounted to a mere “scintilla” of evidence, which was

insufficient to survive Rockhill’s motion for summary judgment. See id.

      Divine also argues that the district court erroneously resolved a credibility

dispute between Linehan and Miller in favor of Rockhill. Again, we disagree. It’s

true that Miller’s statement that he could not rule out wind from Tropical Storm

Debby as a cause of damage to the Royal Inn’s roofs was at odds with Linehan’s

expert opinion that the Royal Inn did not sustain any roof damage during the storm.

However, as discussed above, Miller did not offer an opinion as to the cause of the

roof damage and he did not testify that the damage was caused by the storm. The

district court did not discredit Miller’s testimony. Instead, the court found that the

testimony was insufficient to prove that winds from Tropical Storm Debby did, in

fact, cause roof damage through which rainwater entered. And as we’ve already

concluded, the district court did not err in determining that Miller’s testimony was

insufficient to discharge Divine’s burden at summary judgment to create a genuine

factual dispute on this issue.

      AFFIRMED.


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