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United States Court of Appeals for the Eleventh Circuit
January 26, 2021, Decided
No. 20-11524 Non-Argument Calendar
[*190] PER CURIAM:
This case involves a commercial property insurance dispute between Empire Indemnity [*191] Insurance Company, the insurer, and CMR Construction and Roofing, LLC, who has been assigned the rights of the insured, The Orchards Condominium Association, Inc. CMR sued Empire for breach of contract, and later moved to compel appraisal and stay litigation. The district court denied that motion, and after discovery it granted summary judgment to Empire. CMR appeals both of those orders.
The Orchards, a condominium association in Naples, Florida, had an insurance policy issued by Empire when Hurricane Irma caused damage to [**2] 31 of its buildings. The policy lets the insured choose to receive one of two types of payment, or both. It can choose to receive the actual cash value, which is the replacement cost minus depreciation; or it can choose the replacement cost value, which is the replacement cost without the deduction for depreciation; or it can make a claim based on both the actual cash value and the replacement cost value if it notifies Empire of its intent to do so within 180 days of the property damage. The policy provides that Empire will not pay the replacement cost value, however: "(1) Until the lost or damaged property is actually repaired or replaced; and (2) Unless the repairs or replacements are made as soon as reasonably possible after the loss or damage."
After Hurricane Irma, The Orchards reported to Empire that its buildings had been damaged. Empire inspected the property and, based on its estimate of the repair cost and factoring in the deductible and depreciation, it paid The Orchards $96,763.53. It is not clear from the record or the parties' arguments why Empire issued this payment, whether it was meant to be for the actual cash value, or whether it was obligated to make this payment [**3] at all.
After Empire issued that payment, The Orchards assigned its rights to CMR, which was the company that would make the repairs. Then, about five months after Empire's payment to The Orchards, CMR sent Empire an estimate for the replacement cost value, which CMR said was $4,953,000.00. CMR had not completed any repairs. Empire did not pay the amount in CMR's estimate but sent CMR its own estimate and invited questions for its expert's consideration.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
843 Fed. Appx. 189 *; 2021 U.S. App. LEXIS 2088 **; 2021 WL 246201
CMR CONSTRUCTION AND ROOFING, LLC, A/A/O The Orchards Condominium Association, Inc., Plaintiff-Appellee, versus EMPIRE INDEMNITY INSURANCE COMPANY, Defendant-Appellant.
Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
Prior History: [**1] Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 2:18-cv-00779-TJC-NPM.
CMR Constr. & Roofing, LLC v. Empire Indem. Ins. Co., 2020 U.S. Dist. LEXIS 57517, 2020 WL 1557887 (M.D. Fla., Apr. 1, 2020)CMR Constr. & Roofing, LLC v. Empire Indem. Ins. Co., 2019 U.S. Dist. LEXIS 89373, 2019 WL 2281678 (M.D. Fla., May 29, 2019)
repairs, replacement cost, appraisal, actual cash value, district court, estimate, breached, insurance policy, discovery, replaced, lawsuit, costs
Civil Procedure, Appeals, Standards of Review, De Novo Review, Summary Judgment Review, Standards of Review, Insurance Law, Claim, Contract & Practice Issues, Policy Interpretation, Plain Language, Ambiguous Terms, Unambiguous Terms, Coverage, Real Property, Appraisals