[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 8, 2010
No. 09-16346
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 09-21320-CV-JLK
CABANA CLUB APARTMENTS ASSOCIATES, LTD.,
Plaintiff-Appellant,
versus
PACIFIC INSURANCE COMPANY, LTD.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 8, 2010)
Before CARNES, MARCUS and HILL, Circuit Judges.
PER CURIAM:
This is an appeal from the grant of a motion to dismiss with prejudice by the
district court, the Honorable James Lawrence King, in favor of defendant/appellee
Pacific Insurance Company, Ltd. (Pacific), against plaintiff/appellant, Cabana
Club Apartments Associates, Ltd. (Cabana Club).
Cabana Club is a low-income elderly housing project consisting of a West
Building and an East Building in Miami, Florida. Pacific insured the two
buildings for property damage.
In 2005, Hurricane Wilma struck South Florida and both Cabana Club
buildings suffered significant damage as a result. There is no dispute between the
parties that damage incurred by the hurricane was a covered loss under the Pacific
policy.
A dispute arose when both parties could not agree on the dollar amount of
damage caused by the hurricane and proceeded to appraisal. Included in the
appraisal amount determined was $95,000 for elevator repairs. It was awarded to
Cabana Club and Pacific paid the claim.
Thereafter, Cabana Club filed a second claim with Pacific for supplemental
monies alleged to be needed to bring its elevators up to code standards. Pacific
denied Cabana Club’s claim. Cabana Club then filed a one-count breach of
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contract action for Pacific’s failure to consider its supplemental claim.
The district court found that the Florida Elevator Safety Code provides that
an elevator may be altered after a qualified elevator contractor secures a permit
from the Department of Business and Regulation. Fla. Stat. § 399.03(1).
However, it determined that, in this case, a permit is not required to make repairs
because these are not new elevators being “erected, constructed or installed.” Id.
The statute expressly excludes repairs (of old elevators) from the definition
of alterations (to new elevators). Fla. Stat. § 399.01(1). In addition, as Cabana
Club did not show that any permit request had been rejected, the district court
concluded that it was not plausible that Cabana Club was or would be denied a
permit to repair.
The district court dismissed Cabana Club’s complaint with prejudice. This
appeal ensued.
We have reviewed the record, the briefs and the arguments of counsel. We
find no error. We affirm the judgment of the district court.
AFFIRMED.
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