A+ Restorations, Inc. v. Liberty Mutual Fire Insurance Company , 714 F. App'x 923 ( 2017 )

Case: 17-11387 Date Filed: 10/23/2017 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11387
Non-Argument Calendar
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D.C. Docket No. 4:16-cv-00122-LGW-GRS
A+ RESTORATIONS, INC.,
Plaintiff - Appellant,
versus
LIBERTY MUTUAL FIRE INSURANCE COMPANY,
Defendant - Appellee.
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Appeal from the United States District Court
for the Southern District of Georgia
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(October 23, 2017)
Before JORDAN, ROSENBAUM and BLACK, Circuit Judges.
PER CURIAM:
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A+ Restorations, Inc. (A Plus) brought suit against Liberty Mutual Fire
Insurance Company (Liberty) for denial of coverage under an insurance policy
issued by Liberty to a customer of A Plus. Liberty moved for dismissal or, in the
alternative, for judgment on the pleadings. The district court determined the action
was barred by a suit-limitation provision in the applicable insurance policy and
granted Liberty’s motion. A Plus appealed, and after review, 1 we affirm.
I. BACKGROUND
This lawsuit arises out of a homeowners insurance policy (the Policy) issued
by Liberty to Larry and Nancy Mitchell of Savannah, Georgia. On or about March
7, 2014, the Mitchells discovered that raccoons had taken up residence in the attic
and crawl space of their Savannah home. The unwelcome animals caused
extensive damage to the premises. Accordingly, the Mitchells entered into a
contract with A Plus to remedy the situation. In exchange for repair and
restoration work on the home, the Mitchells assigned A Plus certain rights under
the Policy, including the right to collect benefits for the services performed by A
Plus directly from the insurer, as well as “all rights to proceed against the insurance
company obligated to provide such benefits, including, but not limited to, initiating
legal suit to enforce such payments.”
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We apply the same de novo review to a judgment on the pleadings as we do to a
dismissal for failure to state a claim. Cunningham v. Dist. Attorney's Office for Escambia Cty.,
592 F.3d 1237, 1255 (11th Cir. 2010).
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Once the work was completed, A Plus tendered invoices to Liberty for the
materials and services provided on the project. Liberty remitted a portion of the
claim, but refused to reimburse A Plus for the full amount, leaving $98,794.79
unpaid. In August 2014, A Plus submitted to Liberty a final demand seeking
payment of the full amount, but Liberty declined. On April 20, 2016, nearly two
years later, A Plus filed a complaint against Liberty in state court, asserting breach
of contract. A Plus included a count for quantum meruit and unjust enrichment in
the complaint.
Liberty removed the case to the Southern District of Georgia and
immediately moved for dismissal or in the alternative for judgment on the
pleadings. The court initially denied the motion because neither party had
presented the assignment contract to the court. Liberty renewed its motion and
attached the assignment. The district court granted the renewed motion because
the Policy contained a suit-limitation provision. The provision read as follows:
Suits Against Us. No action can be brought unless the policy
provisions have been fully complied with and the action is started
within two years after the date of loss.
The court determined the suit-limitation clause applied to the right to sue assigned
by the Mitchells to A Plus. Since A Plus failed to file its complaint within two
years of the loss under the policy, it was barred. The district court determined A
Plus’s quantum meruit and unjust enrichment claims were barred under the
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provision as well. It entered judgment in favor of Liberty, and A Plus now
appeals.
II. DISCUSSION
A Plus contends the suit-limitation provision found in the policy did not
apply to it because the assignment was limited. Specifically, the assignment
contained a provision that stated, in bold, capitalized letters, that the agreement
was “not intended to assign rights beyond that necessary to collect, or enforce
collection, of the charges for services rendered by [A Plus] and is not an
assignment of, nor an attempt to assign the insurance policy itself.” Thus, the
Mitchells assigned only the right to sue, but not the suit-limitation provision found
in the Policy. A Plus asserts that the six-year limitation period for breach of
contract actions provided under Georgia law prevails instead, and thus its claim is
still viable. See O.C.G.A. § 9-3-24.
We reject A Plus’s argument. When it accepted the Mitchells’ assignment
in exchange for its services, A Plus received the right to “stand[ ] in the shoes” of
the Mitchells under the policy. See S. Telecom, Inc. v. TW Telecom of Ga. L.P.,
741 S.E.2d 234, 237 (Ga. Ct. App. 2013) (quotation omitted). As the Mitchells’
assignee, A Plus could “obtain[ ] no greater rights than the [Mitchells] possessed at
the time of the assignment.” Id. It is abundantly clear that the Mitchells’ right to
sue Liberty under the policy was contractually limited by the suit-limitation
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provision. By deduction, the right of A Plus to sue, assigned to it by the Mitchells,
was limited as well.
Next, A Plus asserts that even if the two-year limitation period applies, A
Plus filed its complaint within the prescribed period. That is, the two-year limit
did not begin to run when the Mitchells discovered the raccoon damage in March
2014, but rather at the time Liberty finally refused A Plus’s demand for payment in
August 2014. However, this strained reading of the Policy proves too much.
“Like any other contract, an insurance policy must be construed according to its
plain language and express terms.” Georgia Farm Bureau Mut. Ins. Co. v.
Kephart, 439 S.E.2d 682, 683 (Ga. Ct. App. 1993). Though “loss” is not defined
in the Policy, it clearly does not mean “the refusal of the insurer to pay a claim,” as
A Plus essentially argues. Rather, a fair reading of the Policy (and common sense)
makes clear that a “loss” is an adverse event for which coverage is available—i.e.,
bodily injury, property damage, in some cases theft. In other words, “loss” takes
on its ordinary meaning here. See W. Pac. Mut. Ins. Co. v. Davies, 601 S.E.2d 363,
367 (Ga. Ct. App. 2004) (“In construing a contract of insurance to ascertain the
intent of the parties, the court should give a term or phrase in the contract its
ordinary meaning or common signification as defined by dictionaries, because they
supply the plain, ordinary, and popular sense unless the words are terms of art.”);
Loss, Black’s Law Dictionary (10th ed. 2014) (“The amount of financial detriment
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caused by an insured person’s death or an insured property’s damage, for which
the insurer becomes liable.”); Loss, Merriam-Webster’s Third International
Dictionary, Unabridged, http://unabridged.merriam-webster.com/unabridged/loss
(last visited Sept. 13, 2017) (“[T]he amount of an insured’s financial detriment due
to the occurrence of a stipulated contingent event (as death, injury, destruction, or
damage) in such a manner as to charge the insurer with a liability under the terms
of the policy.”). In this case, the date of the loss was—at the latest—March 2014,
when the Mitchells discovered the damage to their attic and crawlspace. See
Thornton v. Ga. Farm Bureau Mut. Ins. Co., 695 S.E.2d 642, 643–44 (Ga. 2010)
(holding that a suit under a policy with a provision similar to the one in this case
was barred because the limitations period began to run on the date the loss
occurred, rather than on the date the insurer’s investigation window expired).
A Plus waited until April 2016 to file its complaint. It is thus contractually barred
from bringing the suit. See Suntrust Mortg., Inc. v. Ga. Farm Bureau Mut. Ins.
Co., 416 S.E.2d 322, 323 (Ga. Ct. App. 1992) (noting that Georgia courts have
held that suit-limitation provisions are binding).
Lastly, A Plus submits that its equitable claims are unaffected by the suit-
limitation period and should proceed because its work unjustly enriched Liberty
without regard to the Policy or the assignment. We reject this argument as well.
The suit-limitation provision bars any “action;” it is not by its terms limited to suits
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at law. See McCoury v. Allstate Ins. Co., 561 S.E.2d 169, 171 (Ga. Ct. App. 2002)
(holding that a suit-limitation provision barred action for negligent failure to
provide adequate coverage because “[a]lthough this is not an action for breach of
the policy, it is certainly an action brought by the plaintiffs by virtue of their status
as policyholders”). It thus encompasses A Plus’s quantum meruit and unjust
enrichment count.
III. CONCLUSION
For the foregoing reasons, the district court did not err in finding that A
Plus’s claims were time barred. Accordingly, we affirm.
AFFIRMED.
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