A+ Restorations, Inc. v. Liberty Mutual Fire Insurance Company

Case: 17-11387 Date Filed: 10/23/2017 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 17-11387
Non-Argument Calendar
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D.C. Docket No. 4:16-cv-00122-LGW-GRS

A+ RESTORATIONS, INC.,

Plaintiff - Appellant,

versus

LIBERTY MUTUAL FIRE INSURANCE COMPANY,

Defendant - Appellee.

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Appeal from the United States District Court
for the Southern District of Georgia
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(October 23, 2017)

Before JORDAN, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
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A+ Restorations, Inc. (A Plus) brought suit against Liberty Mutual Fire

Insurance Company (Liberty) for denial of coverage under an insurance policy

issued by Liberty to a customer of A Plus. Liberty moved for dismissal or, in the

alternative, for judgment on the pleadings. The district court determined the action

was barred by a suit-limitation provision in the applicable insurance policy and

granted Liberty’s motion. A Plus appealed, and after review, 1 we affirm.

I. BACKGROUND

This lawsuit arises out of a homeowners insurance policy (the Policy) issued

by Liberty to Larry and Nancy Mitchell of Savannah, Georgia. On or about March

7, 2014, the Mitchells discovered that raccoons had taken up residence in the attic

and crawl space of their Savannah home. The unwelcome animals caused

extensive damage to the premises. Accordingly, the Mitchells entered into a

contract with A Plus to remedy the situation. In exchange for repair and

restoration work on the home, the Mitchells assigned A Plus certain rights under

the Policy, including the right to collect benefits for the services performed by A

Plus directly from the insurer, as well as “all rights to proceed against the insurance

company obligated to provide such benefits, including, but not limited to, initiating

legal suit to enforce such payments.”

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We apply the same de novo review to a judgment on the pleadings as we do to a
dismissal for failure to state a claim. Cunningham v. Dist. Attorney's Office for Escambia Cty.,
592 F.3d 1237, 1255 (11th Cir. 2010).

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Once the work was completed, A Plus tendered invoices to Liberty for the

materials and services provided on the project. Liberty remitted a portion of the

claim, but refused to reimburse A Plus for the full amount, leaving $98,794.79

unpaid. In August 2014, A Plus submitted to Liberty a final demand seeking

payment of the full amount, but Liberty declined. On April 20, 2016, nearly two

years later, A Plus filed a complaint against Liberty in state court, asserting breach

of contract. A Plus included a count for quantum meruit and unjust enrichment in

the complaint.

Liberty removed the case to the Southern District of Georgia and

immediately moved for dismissal or in the alternative for judgment on the

pleadings. The court initially denied the motion because neither party had

presented the assignment contract to the court. Liberty renewed its motion and

attached the assignment. The district court granted the renewed motion because

the Policy contained a suit-limitation provision. The provision read as follows:

Suits Against Us. No action can be brought unless the policy
provisions have been fully complied with and the action is started
within two years after the date of loss.

The court determined the suit-limitation clause applied to the right to sue assigned

by the Mitchells to A Plus. Since A Plus failed to file its complaint within two

years of the loss under the policy, it was barred. The district court determined A

Plus’s quantum meruit and unjust enrichment claims were barred under the

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provision as well. It entered judgment in favor of Liberty, and A Plus now

appeals.

II. DISCUSSION

A Plus contends the suit-limitation provision found in the policy did not

apply to it because the assignment was limited. Specifically, the assignment

contained a provision that stated, in bold, capitalized letters, that the agreement

was “not intended to assign rights beyond that necessary to collect, or enforce

collection, of the charges for services rendered by [A Plus] and is not an

assignment of, nor an attempt to assign the insurance policy itself.” Thus, the

Mitchells assigned only the right to sue, but not the suit-limitation provision found

in the Policy. A Plus asserts that the six-year limitation period for breach of

contract actions provided under Georgia law prevails instead, and thus its claim is

still viable. See O.C.G.A. § 9-3-24.

We reject A Plus’s argument. When it accepted the Mitchells’ assignment

in exchange for its services, A Plus received the right to “stand[ ] in the shoes” of

the Mitchells under the policy. See S. Telecom, Inc. v. TW Telecom of Ga. L.P.,

741 S.E.2d 234, 237 (Ga. Ct. App. 2013) (quotation omitted). As the Mitchells’

assignee, A Plus could “obtain[ ] no greater rights than the [Mitchells] possessed at

the time of the assignment.” Id. It is abundantly clear that the Mitchells’ right to

sue Liberty under the policy was contractually limited by the suit-limitation

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provision. By deduction, the right of A Plus to sue, assigned to it by the Mitchells,

was limited as well.

Next, A Plus asserts that even if the two-year limitation period applies, A

Plus filed its complaint within the prescribed period. That is, the two-year limit

did not begin to run when the Mitchells discovered the raccoon damage in March

2014, but rather at the time Liberty finally refused A Plus’s demand for payment in

August 2014. However, this strained reading of the Policy proves too much.

“Like any other contract, an insurance policy must be construed according to its

plain language and express terms.” Georgia Farm Bureau Mut. Ins. Co. v.

Kephart, 439 S.E.2d 682, 683 (Ga. Ct. App. 1993). Though “loss” is not defined

in the Policy, it clearly does not mean “the refusal of the insurer to pay a claim,” as

A Plus essentially argues. Rather, a fair reading of the Policy (and common sense)

makes clear that a “loss” is an adverse event for which coverage is available—i.e.,

bodily injury, property damage, in some cases theft. In other words, “loss” takes

on its ordinary meaning here. See W. Pac. Mut. Ins. Co. v. Davies, 601 S.E.2d 363,

367 (Ga. Ct. App. 2004) (“In construing a contract of insurance to ascertain the

intent of the parties, the court should give a term or phrase in the contract its

ordinary meaning or common signification as defined by dictionaries, because they

supply the plain, ordinary, and popular sense unless the words are terms of art.”);

Loss, Black’s Law Dictionary (10th ed. 2014) (“The amount of financial detriment

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caused by an insured person’s death or an insured property’s damage, for which

the insurer becomes liable.”); Loss, Merriam-Webster’s Third International

Dictionary, Unabridged, http://unabridged.merriam-webster.com/unabridged/loss

(last visited Sept. 13, 2017) (“[T]he amount of an insured’s financial detriment due

to the occurrence of a stipulated contingent event (as death, injury, destruction, or

damage) in such a manner as to charge the insurer with a liability under the terms

of the policy.”). In this case, the date of the loss was—at the latest—March 2014,

when the Mitchells discovered the damage to their attic and crawlspace. See

Thornton v. Ga. Farm Bureau Mut. Ins. Co., 695 S.E.2d 642, 643–44 (Ga. 2010)

(holding that a suit under a policy with a provision similar to the one in this case

was barred because the limitations period began to run on the date the loss

occurred, rather than on the date the insurer’s investigation window expired).

A Plus waited until April 2016 to file its complaint. It is thus contractually barred

from bringing the suit. See Suntrust Mortg., Inc. v. Ga. Farm Bureau Mut. Ins.

Co., 416 S.E.2d 322, 323 (Ga. Ct. App. 1992) (noting that Georgia courts have

held that suit-limitation provisions are binding).

Lastly, A Plus submits that its equitable claims are unaffected by the suit-

limitation period and should proceed because its work unjustly enriched Liberty

without regard to the Policy or the assignment. We reject this argument as well.

The suit-limitation provision bars any “action;” it is not by its terms limited to suits

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at law. See McCoury v. Allstate Ins. Co., 561 S.E.2d 169, 171 (Ga. Ct. App. 2002)

(holding that a suit-limitation provision barred action for negligent failure to

provide adequate coverage because “[a]lthough this is not an action for breach of

the policy, it is certainly an action brought by the plaintiffs by virtue of their status

as policyholders”). It thus encompasses A Plus’s quantum meruit and unjust

enrichment count.

III. CONCLUSION

For the foregoing reasons, the district court did not err in finding that A

Plus’s claims were time barred. Accordingly, we affirm.

AFFIRMED.

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