Flamingo South Beach I Condominium Association, Inc. v. Selective Insurance Company of Southeast
492 F. App'x 16
11th Cir.2012Background
- Flamingo S. Beach I Condo. Ass’n sues Selective under SFIP flood policy for lobby damage from rainfall.
- A June 5, 2009 storm dumped ~9.88 inches in two hours; water allegedly entered the lobby from an adjacent deck.
- District court granted summary judgment for Selective, finding no coverage for deck-raised surface waters and for lack of evidentiary support for a drain-backup theory.
- The district court also struck Flamingo’s expert Basulto for untimely disclosure, and Flamingo’s alternate theory remained unresolved.
- On appeal, this Court affirms the district court’s rulings, including the exclusion of Basulto’s declaration and the grant of summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether deck pooling constitutes surface waters under SFIP | Flamingo argues rainwater on the deck qualifies as surface waters | Selective contends surface waters do not include elevated deck pooling | Not surface waters under SFIP; no coverage under this theory |
| Whether deck-drain-backup caused lobby damage remained a jury issue | Backups could have caused lobby flooding | Evidence shows backups could not have occurred; no genuine issue | No material fact showing backup caused flood; judgment for Selective affirmed |
| Whether Basulto declaration was properly struck for untimely disclosure | Basulto’s June 23 declaration was timely | Declaration untimely under Local Rule 16.1(k) | District court did not abuse discretion in striking Basulto’s declaration |
Key Cases Cited
- Carneiro Da Cunha v. Standard Fire Ins. Co./Aetna Flood Ins. Program, 129 F.3d 581 (11th Cir. 1997) (interpretation of SFIP contracts under federal law)
- Newton v. Capital Assurance Co., 245 F.3d 1306 (11th Cir. 2001) (contract interpretation of SFIP)
- St. Paul Fire & Marine Ins. Co. v. ERA Oxford Realty Co. Greystone, LLC, 572 F.3d 893 (11th Cir. 2009) (enforces policy terms despite coverage gaps)
- Bragg v. Bill Heard Chevrolet, Inc., 374 F.3d 1060 (11th Cir. 2004) (summary judgment standard; de novo review of law)
- Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (binding precedent via the prior Fifth Circuit)