USCA11 Case: 22-10668 Document: 40-1 Date Filed: 02/02/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10668
Non-Argument Calendar
____________________
MARY ANN GUZY,
Plaintiff-Appellant,
versus
QBE SPECIALTY INSURANCE COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-23169-MGC
____________________
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2 Opinion of the Court 22-10668
Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges.
PER CURIAM:
QBE Specialty Insurance Company insured a Miami
residential property owned by Mary Ann Guzy. In late November
or early December 2016, a pipe leaked and caused damage to
Guzy’s unit. The parties disputed the value of the loss and
ultimately entered into an appraisal agreement. That agreement
provided that the “Award of Appraisal shall address only loss or
damage caused by the reported water loss occurring on or about
November 30, 2016, and shall not consider damage caused by any
other events or non-covered perils.” In this action, Guzy argues
that QBE breached this agreement by sending an email to the
appraisal umpire with evidence that the damage Guzy claimed
resulted from the November 2016 leak instead resulted from a
subsequent 2017 leak. The district court dismissed Guzy’s Second
Amended Complaint with prejudice, and we affirm. The appraisal
agreement required the consideration of other losses to ensure that
the final appraisal award related only to the November 2016 loss.
Accordingly, Guzy has not stated a claim for breach of the appraisal
agreement.
I.
In April 2016, Guzy and QBE entered into a residential
insurance agreement covering Guzy’s Miami condominium unit.
The policy period was effective for one year. In late November or
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22-10668 Opinion of the Court 3
early December 2016, a pipe leaked above Guzy’s unit and caused
damage to her property. She timely filed a claim with QBE and
QBE issued various payments to Guzy totaling $367,000.
About sixty days after the first leak, Guzy’s property suffered
a second loss. Guzy alleges that she notified QBE of this second
loss and QBE indicated that no further payments stemming from
the first loss would be made. Guzy then filed an action in state
court for breach of contract. Guzy claimed that the actual value of
the first loss exceeds the $367,000 she received up to that point.
QBE removed that action to the Southern District of Florida, and
about a year later that lawsuit was dismissed without prejudice on
a joint stipulation of the parties. The parties instead entered into a
Memorandum of Appraisal. The terms of the appraisal agreement
provided that an appraisal panel would be established consisting of
one appraiser chosen by each party and an umpire chosen by the
appraisers. The agreement of two out of the three was required to
set the amount of the loss.
In this action, Guzy alleges that QBE violated the appraisal
agreement. The agreement provides that the “Award of Appraisal
shall address only loss or damage caused by the reported water loss
occurring on or about November 30, 2016, and shall not consider
damage caused by any other events or non-covered perils.” Guzy
says that QBE caused this provision to be violated when its
appraiser sent an objection email to the umpire stating that the
second loss was the “more significant event” and caused a
“majority of the damage.” Guzy’s theory is that this violated the
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4 Opinion of the Court 22-10668
appraisal agreement because it forced a determination of the size
and scope of the second loss. 1
Shortly after QBE’s email, Guzy withdrew from the
appraisal process and filed this suit in state court. QBE again
removed the action to the Southern District of Florida. Guzy’s
complaint was dismissed twice without prejudice before she filed
the now-operative Second Amended Complaint. That complaint
brings two counts for breach of the appraisal agreement and breach
of the underlying insurance policy.
The district court dismissed the Second Amended
Complaint with prejudice. The court found that QBE’s email urges
the umpire “not to consider damage that occurred after the
November 30, 2016 incident.” This request was therefore
consistent with the terms of the appraisal agreement and did not
amount to a breach. And because Guzy did not allege a breach of
the appraisal agreement, the district court held that she also did not
allege a breach of the underlying policy. This appeal followed.
1 Guzy also alleges that QBE violated the term of the appraisal agreement that
required the parties to “make their best efforts” to “complete the appraisal
within 90 days.” Though the appraisal process was not complete within 90
days, the appraisal agreement also provides that failure to do so shall not be
considered a breach of the agreement. The district court held that Guzy
abandoned this claim by not addressing it in opposition to QBE’s motion to
dismiss, and she does not raise it on appeal.
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II.
We review the dismissal of a complaint for failure to state a
claim de novo. Henley v. Payne,
945 F.3d 1320, 1326 (11th Cir.
2019). We must accept allegations in the complaint as true and
construe them in the light most favorable to the plaintiff.
Id. “To
survive a motion to dismiss, a plaintiff needs to allege facts that are
‘plausible on their face,’ and ‘raise a right to relief above the
speculative level.’” Dorman v. Aronofsky,
36 F.4th 1306, 1312
(11th Cir. 2022) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544,
555, 570 (2007) (alterations adopted).
III.
On appeal, Guzy acknowledges that to “measure the
amount only of the covered loss required intentional knowledge of
and exclusion of the second loss.” Nonetheless, Guzy maintains
that the appraisal agreement “prohibited” consideration of the
second loss evidence. Guzy’s position appears to be that the
appraisal agreement both required the appraisal process to separate
out the damage caused by the two losses and prohibited entirely
consideration of the second loss.
We do not agree with this absurd result. The appraisal
agreement requires that the “Award of Appraisal” shall not
consider damage caused by other events. As a matter of logic, to
ensure that the award only covered damage caused by the
November 2016 leak, the appraisal process necessarily must
consider other possible causes for the damage claimed. As a matter
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of law, the Florida Supreme Court has stated that “an assessment
of the amount of a loss” necessarily includes a determination
“whether or not the requirement for a repair or replacement was
caused by a covered peril or a cause not covered.” State Farm Fire
& Cas. Co. v. Licea,
685 So. 2d 1285, 1288 (Fla. 1996). Guzy’s
reading of the appraisal agreement contravenes this basic principle
and is implausible.
The appraisal agreement thus required the appraisal process
to determine the extent of the damage caused by the November
2016 loss, rather than any subsequent loss event. QBE’s objection
email was consistent with the terms of the agreement. In the email,
QBE identifies newly received photographs documenting the
second leak that dispute Guzy’s claim that the leak was only a
minor event that caused minimal damage. QBE was clear that it
raised the second leak because the “appraisal may only determine
the damage arising from the November 29, 2016 loss.” In QBE’s
view, the photographs demonstrated that “a majority of the
damage that Ms. Guzy relates to the claim at issue resulted from a
second loss and other losses afterward.” And in the end, the
resulting appraisal award—issued after Guzy’s withdrawal—values
the damages resulting only from the November 2016 loss. Guzy’s
allegations, taken as true, do not establish a breach of the appraisal
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agreement. Accordingly, we affirm the district court’s order
dismissing the Second Amended Complaint.2
Finally, the district court did not abuse its discretion in
dismissing with prejudice. Guzy did not move to amend her
complaint another time. As a counseled civil litigant, she is
therefore not entitled to leave to amend. See Wagner v. Daewoo
Heavy Indus. Am. Corp.,
314 F.3d 541, 542 (11th Cir. 2002) (en
banc). And even if she had moved to amend, a district court is not
required to allow an amendment where, as here, there has been
“repeated failure to cure deficiencies by amendments previously
allowed.” Bryant v. Dupree,
252 F.3d 1161, 1163 (11th Cir. 2001).
* * *
The district court’s order dismissing the Second Amended
Complaint with prejudice is AFFIRMED.
2On appeal Guzy does not challenge the dismissal of the Second Amended
Complaint’s claim that QBE breached the underlying insurance policy.
