                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-14266                ELEVENTH CIRCUIT
                                                           JANUARY 19, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                            ACTING CLERK

                  D. C. Docket No. 07-00058-CV-WSD-3

RUFUS PRATER,
CAMELLIA RENEE PRATER,


                                                        Defendants-Appellees,

                                  versus

ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY,

                                                           Plaintiff-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                            (January 19, 2010)

Before DUBINA, Chief Judge, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
      Appellant Allstate Property & Casualty Insurance Company (“Allstate”)

appeals the district court’s order denying its post-trial motions for judgment as a

matter of law, or, in the alternative, a new trial. After reviewing the record, and

reading the parties briefs, we conclude that the district court correctly denied both

motions and affirm its order and the judgment entered on the jury’s verdict.

                                 I. BACKGROUND

      This appeal stems from a breach of contract action brought by Appellees

Camellia and Rufus Prater against Appellant Allstate. Allstate provided the Praters

with homeowner’s insurance coverage during a period that included June 3, 2006,

the day on which fire damaged a structure covered by the policy. After receiving

no definitive answer about the status of their claim, the Praters sued Allstate on

May 31, 2007, to adjudicate its liability on the insurance policy.

      At trial, Allstate contested the accuracy of the inventory list submitted by the

Praters that sought to itemize household items destroyed by the fire. Allstate

alleged that the Praters breached the insurance contract by making material

misstatements in their claim of loss. Additionally, Allstate alleged that the Praters

breached the insurance contract by withholding from Allstate access to an off-site

storage facility where Rufus Prater stored household items after the fire. Allstate

claimed that the Praters’ refusal to grant access violated their duty of cooperation



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under the policy and thwarted Allstate’s attempts to properly adjust the claim of

loss. A jury rejected Allstate’s arguments and awarded the Praters recovery under

the policy for damages to the structure and its contents.

                            II. STANDARD OF REVIEW

      We review the denial of a motion for judgment as a matter of law de novo.

Chaney v. City of Orlando, 483 F.3d 1221, 1227 (11th Cir. 2007). We review the

denial of a motion for a new trial for an abuse of discretion. McWhorter v. City of

Birmingham, 906 F.2d 674, 677 (11th Cir. 1990).

                                  III. DISCUSSION

      Our review of motions made under Fed. R. Civ. P. 50 “is squarely and

narrowly focused on the sufficiency of the evidence.” Chaney, 483 F.3d at 1227.

Allstate contends that it presented overwhelming evidence from which no

reasonable jury could conclude that the Praters had fulfilled their contractual

obligations or met their burden of production at trial. Specifically, Allstate claims

that the Praters materially misrepresented their damages in their proof of loss form,

that they failed to cooperate with Allstate it its adjustment of their claim, and that

the Praters failed to produce evidence from which a jury could award damages

without undue speculation. All parties agree that Georgia law governs this contract

dispute.



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      After our thorough and independent review of the record, we conclude that

the district court correctly denied Allstate’s motion for judgment as a matter of

law, and, consequently, did not abuse its discretion in denying Allstate’s motion

for a new trial. First, the evidence presented at trial showed a legitimate factual

dispute about the existence and materiality of the Praters’ alleged

misrepresentations. Under Georgia law, it is generally “a jury question as to

whether a misrepresentation may have actually affected the action of the insurer

with respect to settling or adjusting a claim.” Ga. Farm Bureau Mut. Ins. Co. v.

Richardson, 457 S.E.2d 181, 184 (Ga. Ct. App. 1995). Although the Praters

admitted that some of the items included in their proof of loss form were not

actually damaged by the fire, it was up to the jury to decide whether those

particular items–most notably a set of wall clocks and neon lights–were material

with respect to the Praters’ overall claim, in excess of $200,000.

      Second, the Praters’ compliance with the contract’s cooperation requirement

was a factual question appropriately reserved for the jury. Under Georgia law, a

“total failure” to cooperate under the policy’s terms may preclude recovery as a

matter of law, but if “the insured cooperates to some degree or provides an

explanation for its noncompliance, a fact question is presented for resolution by a

jury.” Diamonds & Denims, Inc. v. First of Ga. Ins. Co., 417 S.E.2d 440, 441-42



                                           4
(Ga. Ct. App. 1992). Here, Mr. Prater’s single refusal to allow Allstate to inspect

the storage facility, when considered in context with his decision to move the

contents of the facility back to the damaged property before Allstate’s inspection

and his other acts of cooperation during the adjustment period, does not amount to

a “total failure” of cooperation that precludes recovery under the policy as a matter

of law.

      Finally, the damage estimates presented to the jury allowed it to arrive at its

verdict with the “reasonable certainty” required by Georgia law. See Crankshaw v.

Stanley Homes, Inc., 207 S.E.2d 241, 243 (Ga. Ct. App. 1974). Testimony about

the amount of damages by the party claiming loss is sufficient evidence from

which to calculate an award. See id. at 243-44. Here, the amount of damage to the

Praters’ structure is undisputed, and the Praters’ testimony about the contents of

the inventory list and value of those items was sufficient evidence from which the

jury could make an award with reasonable certainty.

                                 IV. CONCLUSION

      The district court correctly denied Allstate’s motions made under Fed. R.

Civ. P. 50. The district court properly submitted to the jury questions about the

materiality of the errors on the Praters’ proof of loss form and the sufficiency of

their cooperation with Allstate under the policy’s terms. Finally, it was permissible



                                           5
for the jury to credit the Praters’ testimony about their damages in calculating the

damage award. Accordingly, we affirm the district court’s order and its judgment

entered on the jury’s verdict.

      AFFIRMED.




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