                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                          OCTOBER 8, 2010
                             No. 09-16346
                                                             JOHN LEY
                         Non-Argument Calendar                CLERK
                       ________________________

                    D.C. Docket No. 09-21320-CV-JLK


CABANA CLUB APARTMENTS ASSOCIATES, LTD.,


                                                     Plaintiff-Appellant,

                                  versus



PACIFIC INSURANCE COMPANY, LTD.,


                                                     Defendant-Appellee.


                       ________________________

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

                             (October 8, 2010)

Before CARNES, MARCUS and HILL, Circuit Judges.
PER CURIAM:

      This is an appeal from the grant of a motion to dismiss with prejudice by the

district court, the Honorable James Lawrence King, in favor of defendant/appellee

Pacific Insurance Company, Ltd. (Pacific), against plaintiff/appellant, Cabana

Club Apartments Associates, Ltd. (Cabana Club).

      Cabana Club is a low-income elderly housing project consisting of a West

Building and an East Building in Miami, Florida. Pacific insured the two

buildings for property damage.

      In 2005, Hurricane Wilma struck South Florida and both Cabana Club

buildings suffered significant damage as a result. There is no dispute between the

parties that damage incurred by the hurricane was a covered loss under the Pacific

policy.

      A dispute arose when both parties could not agree on the dollar amount of

damage caused by the hurricane and proceeded to appraisal. Included in the

appraisal amount determined was $95,000 for elevator repairs. It was awarded to

Cabana Club and Pacific paid the claim.

      Thereafter, Cabana Club filed a second claim with Pacific for supplemental

monies alleged to be needed to bring its elevators up to code standards. Pacific

denied Cabana Club’s claim. Cabana Club then filed a one-count breach of

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contract action for Pacific’s failure to consider its supplemental claim.

      The district court found that the Florida Elevator Safety Code provides that

an elevator may be altered after a qualified elevator contractor secures a permit

from the Department of Business and Regulation. Fla. Stat. § 399.03(1).

However, it determined that, in this case, a permit is not required to make repairs

because these are not new elevators being “erected, constructed or installed.” Id.

      The statute expressly excludes repairs (of old elevators) from the definition

of alterations (to new elevators). Fla. Stat. § 399.01(1). In addition, as Cabana

Club did not show that any permit request had been rejected, the district court

concluded that it was not plausible that Cabana Club was or would be denied a

permit to repair.

      The district court dismissed Cabana Club’s complaint with prejudice. This

appeal ensued.

      We have reviewed the record, the briefs and the arguments of counsel. We

find no error. We affirm the judgment of the district court.

      AFFIRMED.




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