[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 14, 2010
No. 09-12128 JOHN LEY
________________________ CLERK
D. C. Docket No. 07-61038-CV-KAM
VANTAGE VIEW, INC.,
Plaintiff-Appellee,
versus
QBE INSURANCE CORPORATION,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 14, 2010)
Before BARKETT and MARCUS, Circuit Judges, and HOOD,* District Judge.
PER CURIAM:
*
Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
Vantage View, Inc., a condominium association that owns a 20-story,
174-unit high-rise condominium building sued its insurer QBE Insurance
Corporation (“QBE”) for reimbursement under the policy for damage to the
building as a result of Hurricane Wilma. The jury rendered a verdict in favor of
Vantage View 1 and QBE now appeals.
On appeal, QBE argues that it is entitled to a new trial because the district
court abused its discretion in excluding the minutes of a condominium board
meeting, which QBE claims were relevant to its defense that the policy had been
voided by the submission of a fraudulent claim. QBE also argues that it is entitled
to judgment as a matter of law because, under its policy, it is liable for damage to
the windows and the doors only if Vantage View actually completed all repairs or
replacements prior to submitting its claim, which Vantage View did not do.
We have considered the record, the briefs of the parties and the oral
1
The jury awarded Vantage View $1,538,640, which was comprised of the following
amounts:
Roof: $214,000
Windows, sliding glass doors, and exterior doors: $910,500
Pool: $ 18,000
Air Conditioning Screen: $ 89,200
All other damages: $306,940
Total: $1,538,640
From the jury’s total award, the district court subtracted the policy deductible of
$454,863 and added prejudgment interest in the amount of $119.078.57 for a total final judgment
entered of $1,197,855.50.
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argument of counsel, and affirm the judgment. We find no merit in QBE’s
contention that the district court erred in excluding the minutes of Vantage View’s
special board meeting. The district court’s determinations that the minutes were
protected by the attorney-client privilege, which had not been waived, and that the
minutes did not suggest fraud to exempt them from the privilege did not amount to
an abuse of discretion.
We also reject QBE’s argument that it is entitled to a judgment as a matter of
law because Vantage View did not actually repair or replace the windows and
doors at issue. QBE tried the entire case on the theory that Vantage View was
guilty of fraud, i.e. that Vantage View had voided QBE’s policy obligation because
it had allegedly submitted a fraudulent inflated estimate for the repairs. The
defense that Vantage View could only recover after it had made the repairs was
never presented or argued to the jury. Indeed it was never pleaded nor included in
the pretrial stipulation. Nor did QBE present this theory to the judge pre-trial or
during trial, but only after the close of the evidence. Under the particular
circumstances of this case, we view the issue as having been waived.
AFFIRMED.
3