                                                                     [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS
                                                                            FILED
                           FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                             ________________________   ELEVENTH CIRCUIT
                                                                        SEPT 14, 2010
                                    No. 09-12128                         JOHN LEY
                              ________________________                     CLERK


                         D. C. Docket No. 07-61038-CV-KAM

VANTAGE VIEW, INC.,


                                                                        Plaintiff-Appellee,

                                           versus

QBE INSURANCE CORPORATION,

                                                                     Defendant-Appellant.


                              ________________________

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

                                   (September 14, 2010)

Before BARKETT and MARCUS, Circuit Judges, and HOOD,* District Judge.

PER CURIAM:


       *
       Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
       Vantage View, Inc., a condominium association that owns a 20-story,

174-unit high-rise condominium building sued its insurer QBE Insurance

Corporation (“QBE”) for reimbursement under the policy for damage to the

building as a result of Hurricane Wilma. The jury rendered a verdict in favor of

Vantage View 1 and QBE now appeals.

       On appeal, QBE argues that it is entitled to a new trial because the district

court abused its discretion in excluding the minutes of a condominium board

meeting, which QBE claims were relevant to its defense that the policy had been

voided by the submission of a fraudulent claim. QBE also argues that it is entitled

to judgment as a matter of law because, under its policy, it is liable for damage to

the windows and the doors only if Vantage View actually completed all repairs or

replacements prior to submitting its claim, which Vantage View did not do.

       We have considered the record, the briefs of the parties and the oral


       1
        The jury awarded Vantage View $1,538,640, which was comprised of the following
amounts:

       Roof:                                              $214,000
       Windows, sliding glass doors, and exterior doors: $910,500
       Pool:                                              $ 18,000
       Air Conditioning Screen:                           $ 89,200
       All other damages:                                 $306,940
       Total:                                            $1,538,640

       From the jury’s total award, the district court subtracted the policy deductible of
$454,863 and added prejudgment interest in the amount of $119.078.57 for a total final judgment
entered of $1,197,855.50.

                                               2
argument of counsel, and affirm the judgment. We find no merit in QBE’s

contention that the district court erred in excluding the minutes of Vantage View’s

special board meeting. The district court’s determinations that the minutes were

protected by the attorney-client privilege, which had not been waived, and that the

minutes did not suggest fraud to exempt them from the privilege did not amount to

an abuse of discretion.

      We also reject QBE’s argument that it is entitled to a judgment as a matter of

law because Vantage View did not actually repair or replace the windows and

doors at issue. QBE tried the entire case on the theory that Vantage View was

guilty of fraud, i.e. that Vantage View had voided QBE’s policy obligation because

it had allegedly submitted a fraudulent inflated estimate for the repairs. The

defense that Vantage View could only recover after it had made the repairs was

never presented or argued to the jury. Indeed it was never pleaded nor included in

the pretrial stipulation. Nor did QBE present this theory to the judge pre-trial or

during trial, but only after the close of the evidence. Under the particular

circumstances of this case, we view the issue as having been waived.

AFFIRMED.




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