Southern Realty Management, Inc. v. Aspen Specialty Insurance Company

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 16, 2011
No. 10-11513
JOHN LEY
________________________
CLERK

D. C. Docket No. 1:08-cv-00572-JOF

SOUTHERN REALTY MANAGEMENT, INC.,
DUNWOODY FOREST ASSOCIATES, LLC,

Plaintiffs-Appellants,

versus

ASPEN SPECIALTY INSURANCE COMPANY,
HOMELAND INSURANCE COMPANY OF NEW YORK,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(May 16, 2011)

Before CARNES, ANDERSON, and FARRIS,* Circuit Judges.

PER CURIAM:

___________________
*Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
 We held oral argument in this appeal on Thursday, May 12, 2011. We have

carefully studied the briefs, the two opinions of the district court, the relevant case

law, and relevant portions of the record. We conclude that the two opinions of the

district court, in Docket 97 and Docket 117, reach the appropriate resolution of this

case. Although appellants’ briefs on appeal make numerous arguments, and

although we have carefully considered each, we readily conclude that the

arguments are wholly without merit. Indeed, the sales documents, which appellants

refused to provide to appellee during its investigation, are so obviously relevant

and material that it is hard for us to imagine why appellants did not understand that.

To take only one example, after appellants rejected the idea that the scheduled loss

limit of $941,000 was applicable, the facts and the policy language strongly

indicated that a likely alternative loss calculation would be the actual cash value of

the loss, in other words a comparison of value before and after the loss. It is a

simple matter of common sense that the sales documents would be relevant and

material to that determination.

We have also examined sufficient parts of the record to conclude that before

filing suit, appellants never provided appellee with any justification for the

documents being confidential except a bald, conclusory assertion that they were

confidential. The record reveals no reason why the documents were confidential.

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Appellants provided the district court with no reasons at all. On appeal in their

initial brief, appellants provided no reason at all as to why the sales documents

were confidential, and the reasons listed in their Reply brief for the first time are

wholly unpersuasive. Reasons for confidentiality of some of the relevant

documents were proffered for the first time, but belatedly, at oral argument.

Under all the circumstances, we conclude that the sales documents were

obviously relevant and material, and that appellants asserted no adequate

justification for withholding them. We conclude that on this record no reasonable

jury could find that appellants made a good faith effort to cooperate in the

investigation and provide relevant and material documents. Under the law of

Georgia, the district court correctly held that appellants’ recovery under the policy

was barred.

AFFIRMED.

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