James River Insurance Company v. Yalonda Ventura

NOT FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________

No. 25-11139

Non-Argument Calendar ____________________

JAMES RIVER INSURANCE COMPANY,

Plaintiff-Appellee,

versus

R.I.C., INC., et al., Defendants,

YALONDA VENTURA,

as Personal Representative of the Estate of, Desmond Eugene Owens,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:23-cv-22907-BB ____________________

Before JILL PRYOR, BRANCH, and LUCK, Circuit Judges.

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2 Opinion of the Court 25-11139

P ER CURIAM:

In this insurance coverage action, James River Insurance Company sought a declaratory judgment against Yalonda Ventura that a sublimit to the insurance policy applied and the policy had been exhausted via a state-court settlement which paid that sub- limit. The district court granted summary judgment for James River. After careful review, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

James River issued a surplus lines insurance policy to RIC, Inc., which owned a shopping center. The policy provided $1,000,000 per occurrence and $2,000,000 aggregate limits for dam- ages from bodily injury, with a $2,500 deductible. But under the policy's assault and battery sublimit, "the most [James River] w[ould] pay" for bodily injury "arising out of, resulting from, or in connection with . . . [a]ssault or battery" was $25,000 per occurrence up to $50,000 total, after which it had no

"duty to defend any claim or 'suit' or to pay any settlement or judg- ment or defense costs." The sublimit defined "[a]ssault" as "any threatened harmful or offensive contact" and "[b]attery" as "any actual harmful or offensive contact" between two or more people and covered negligence actions. And if "payment of settle- ments . . . prior to final settlement, judgment or award" exhausted the sublimit, James River had the "right to withdraw from any fur- ther defense."

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25-11139 Opinion of the Court 3 This dispute arises from a tragic mass shooting at a Hialeah shopping center owned by RIC. Three people died and at least twenty were injured. Ventura is the personal representative of the estate of one of the decedents. Ventura and others sued RIC for negligence in Florida state court. James River paid one of the state- court plaintiffs, Charlene Michelle Peterson, the full $50,000 assault and battery sublimit to settle her claim.

While the state-court lawsuits were pending, James River sought declaratory relief in federal court against RIC and the re- maining state-court plaintiffs. James River asked the district court to declare that: (1) the assault and battery sublimit, not the general limit, applied to the remaining state-court lawsuits; and (2) the Pe- terson settlement had exhausted the sublimit, so James River had no further obligation to defend or indemnify RIC. James River moved for summary judgment. It argued that the shooting was an assault or battery, so the $50,000 sublimit ap- plied and the Peterson settlement exhausted the sublimit. In sup- port, James River included a declaration from Gary Korner, its claims examiner for the shooting, who averred that James River paid the sublimit to settle Peterson's claim.

After discovery closed, Ventura moved to extend the discov- ery deadline to: (1) depose Korner and RIC; and (2) compel pro- duction of the claims file for the shooting. The district court denied the motion because Ventura did not show good cause to modify the scheduling order.

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4 Opinion of the Court 25-11139 Ventura then responded to James River's summary-judg- ment motion. She argued that: applying the deductible and sub- limit made the policy illusory; her claims were for pain and suffer- ing and "not necessarily" for bodily injury; and the summary-judg- ment motion should be stricken because James River didn't file a separate exhibit index as the scheduling order required. Ventura attached two affidavits: (1) one from her explaining that she read the policy and it did not exclude coverage for pain and suffering; and (2) one from her attorney swearing that, on the attorney's re- view, the insurance policy was illusory. James River moved to strike the affidavits as improper legal conclusions. The district court granted James River's motions to strike and for summary judgment. The district court determined that:

(1) portions of Ventura's affidavits were legal conclusions not based on personal knowledge; (2) there was no timely discovery dispute before the court; and (3) James River was entitled to sum- mary judgment because the assault and battery sublimit applied to claims arising from the shooting, and the Peterson settlement ex- hausted the $50,000 sublimit and the policy.

Ventura moved to alter or amend the judgment under Fed- eral Rule of Civil Procedure 59(e), arguing that Korner's affidavit should've been stricken because it was "inadmissible hearsay"

made without personal knowledge. The district court rejected the hearsay argument as improper because it was raised for the first time in a postjudgment motion.

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25-11139 Opinion of the Court 5

STANDARD OF REVIEW

We review for abuse of discretion the denial of a motion to alter or amend a judgment under rule 59(e), provided that the mo- tion does not turn on a question of law. EEOC v. St. Joseph's Hosp., Inc., 842 F.3d 1333, 1343 (11th Cir. 2016). "A district court abuses its discretion if it applies an incorrect legal standard, applies the law in an unreasonable or incorrect manner, follows improper proce- dures in making a determination, or makes findings of fact that are clearly erroneous." Savoia-McHugh v. Glass, 95 F.4th 1337, 1342 (11th Cir. 2024) (citation modified). Discovery and evidentiary rul- ings are reviewed under the same standard, and we will reverse only in cases where substantial prejudice exists. See Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1259 (11th Cir. 2004); Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011). We review de novo a district court's grant of summary judg- ment. Rich v. Sec'y, Fla. Dep't of Corr., 716 F.3d 525, 530 (11th Cir. 2013). We apply the same legal standard used by the district court, drawing all inferences in the light most favorable to the non-mo- vant and recognizing that summary judgment is only appropriate when there are no genuine issues of material fact. Id. We review de novo the interpretation of an insurance contract under Florida law. Dahl-Eimers v. Mut. of Omaha Life Ins. Co., 986 F.2d 1379, 1381 (11th Cir. 1993).

DISCUSSION

Ventura raises five issues on appeal. She argues that the dis- trict court erred by: (1) not striking Korner's declaration; (2) not

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6 Opinion of the Court 25-11139 reopening discovery; (3) striking portions of Ventura's affidavits;

(4) ruling the assault and battery sublimit didn't render coverage illusory; and (5) finding no genuine dispute of material fact that the applicable sublimit had been exhausted.

Korner declaration and additional discovery

To start, Ventura contends that the district court abused its discretion by not striking Korner's declaration and by denying an extension of the discovery deadline. We disagree. Korner declaration

"The only grounds for granting" a motion to alter or amend the judgment under rule 59(e) "are newly-discovered evidence or manifest errors of law or fact." In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999). "[A] [r]ule 59(e) motion [cannot be used] to relit- igate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment." Michael Linet, Inc.

v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005). The denial of a rule 59(e) motion raising new arguments is "especially"

sound "when the party has failed to articulate any reason for the failure to raise [an] issue at an earlier stage in the litigation." Lussier

v. Dugger, 904 F.2d 661, 667 (11th Cir. 1990). The district court did not abuse its discretion in denying Ventura's motion to alter or amend. See St. Joseph's Hosp., Inc., 842 F.3d at 1343. Ventura never asked the court to strike the Korner declaration until after the judgment, and she did not explain why she didn't raise the issue earlier. See Lussier, 904 F.2d at 667.

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25-11139 Opinion of the Court 7 But even if Ventura could explain her failure to raise the hearsay argument before judgment was entered, it would still fail. Ventura maintains that Korner's declaration should've been stricken because he reviewed "documents [from the claims file] prepared by other unknown third parties." And Korner's LinkedIn page showed his employment at James River began in March 2022, so he couldn't have been the claims examiner assigned to the claim in May 2021, when the shooting occurred. But Korner needn't have been the first claims examiner assigned to the shooting claim to have personal knowledge of how James River handled the claim. For example, the part of his declaration the district court relied on in granting summary judgment was about the Peterson settlement, which happened after the shooting when Korner was assigned as the claims adjuster.

Discovery extension

A party seeking the extension of an already-expired schedul- ing order deadline must show both good cause and excusable ne- glect. Fed. R. Civ. P. 6(b)(1), 16(b)(4). To establish good cause, the party seeking the extension must establish that the schedule could not be met despite the party's diligence. Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1232 (11th Cir. 2008). In determining whether a party has shown "excusable ne- glect" warranting an extension, a court must consider all pertinent circumstances—what we call the Pioneer factors—including "the danger of prejudice to the nonmovant, the length of the delay and

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8 Opinion of the Court 25-11139 its potential impact on judicial proceedings, the reason for the de- lay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." Advanced Estimating Sys. v. Riney, 77 F.3d 1322, 1325 (11th Cir. 1996) (citation modified); see Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship,

507 U.S. 380, 395 (1993). "Primary importance should be accorded to the absence of prejudice to the nonmoving party and to the in- terest of efficient judicial administration." Riney, 77 F.3d at 1325. The district court did not abuse its discretion in denying Ven- tura's request to extend the discovery deadline because she did not show good cause for why the schedule could not have been met before the deadline. See Oravec, 527 F.3d at 1232. Korner's declara- tion tracked the allegations in James River's complaint. Nothing he said was new, and Ventura has not given any reasons she could not have sought discovery on these same allegations. And: (1) James River would have been prejudiced by additional discovery because it had already filed its motion for summary judgment; (2) the inter- est in judicial economy weighed against granting the motion; and

(3) Ventura presented no valid reason for the delay. See Riney, 77 F.3d at 1325; Pioneer, 507 U.S. at 395.

Pushing back, Ventura asserts that by denying further dis- covery, the district court prevented her from uncovering what James River's claims expenses were—a fact she alleges was "mate- rial" to her opposition. She also discusses Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992), where a district court abused its discre-

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25-11139 Opinion of the Court 9 tion by granting summary judgment while wholly ignoring a pend- ing motion to compel. But here, unlike Dean, there was no discov- ery motion pending when the district court granted summary judgment. And the amount of James River's claims expenses wasn't material to Ventura's argument that coverage under the pol- icy was illusory because whether coverage under an insurance pol- icy is illusory is a question of law. See Dahl-Eimers, 986 F.2d at 1381. In any event, Ventura never told the district court why she wanted more discovery. Instead, she made a vague request to depose Korner and RIC and to compel production of the claims file with- out explaining how it was relevant to her summary-judgment re- sponse. Without knowing more, the district court did not abuse its discretion in denying further discovery. See Josendis, 662 F.3d at

1307.

Ventura affidavits Next, Ventura contends that the district court wrongly struck portions of her affidavits in support of her summary-judg- ment response. We disagree.

Because the "interpretation of a contract is a question of law," Horizons A Far, LLC v. Plaza N. 15, LLC, 114 So. 3d 992, 994 (Fla. Dist. Ct. App. 2012), testimony—even from an expert—about how to interpret a contract is improper, see Palm Beach Cnty. v. Town of Palm Beach, 426 So. 2d 1063, 1070 (Fla. Dist. Ct. App. 1983). Ven- tura's affidavits were improper. Ventura and her attorney gave their opinions on whether coverage under the policy was illusory and whether the assault and battery sublimit excluded damages

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10 Opinion of the Court 25-11139 based on pain and suffering. But these are questions of law for the court, and not issues of fact, see Horizons, 114 So. 3d at 994, so the district court was right not to consider the affidavits. Ventura responds that her affidavits were "based on direct perception" because both she and her counsel read the policy. But there's no direct perception of the law. Interpreting an insurance contract is a legal question for the court, and not a point of fact for a jury. See Allstate Ins. Co. v. Ortho. Specialists, 212 So. 3d 973, 975-

76 (Fla. 2017) (requiring courts to interpret insurance policies). Substantive issues on summary judgment

Finally, Ventura asserts that coverage under the policy was illusory and there was a fact dispute about whether the assault and battery sublimit was exhausted, precluding summary judgment. We take these arguments in turn.

Coverage under the policy was illusory

Ventura argues that the policy is illusory because the sub- limit effectively eliminated all coverage. "Coverage is illusory un- der Florida law only if the insurance policy grants coverage with one hand and then with the other completely takes away the en- tirety of that same coverage." Travelers Indem. Co. of Connecticut v. Richard Mckenzie & Sons, Inc., 10 F.4th 1255, 1265 (11th Cir. 2021).

"[W]here a limitation on coverage does not completely swallow the insuring provision, the policy is not illusory." Warwick Corp. v. Turetsky, 227 So. 3d 621, 625 (Fla. Dist. Ct. App. 2017) (citation modified).

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25-11139 Opinion of the Court 11 The assault and battery sublimit did not completely swallow the insuring provision. The sublimit applies only to a small subset of claims—those arising out of an assault or battery—and, even then, it does completely take away coverage. The insured is still entitled to relief—just less. The district court was thus correct to rule that the sublimit did not render coverage illusory. See Travel- ers, 10 F.4th at 1265.

Policy exhaustion

Nor did the district court err in ruling that the Peterson set- tlement exhausted the policy. James River provided Korner's dec- laration that the $50,000 settlement was paid. And there was no evidence to the contrary.

Ventura contends, however, that "payments of . . . claims ex- penses and [] application of the deductible" created genuine issues of material fact as to exhaustion that precluded summary judg- ment. But there is no evidence that anything other than the Peter- son settlement met the $50,000 coverage sublimit. Because the sublimit applied and there was no dispute about exhaustion, we af- firm the district court's summary judgment for James River.

AFFIRMED.

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