Flamingo South Beach I Condomi v. Selective Insurance Company of

Filing

Opinion issued by court as to Appellant Flamingo South Beach I Condominium Association, Inc.. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Signed.

Case: 11-14061

Date Filed: 10/10/2012

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
No. 11-14061
_____________________________
D.C. Docket No. 1:10-cv-21840-JLK

FLAMINGO SOUTH BEACH I CONDOMINIUM ASSOCIATION, INC.,
Plaintiff-Appellant,
versus
SELECTIVE INSURANCE COMPANY OF SOUTHEAST,
a North Carolina corporation,
Defendant-Appellee.
____________________________
Appeal from the United States District Court
for the Southern District of Florida
____________________________
(October 10, 2012)
Before MARCUS and BLACK, Circuit Judges, and EVANS,* District Judge.
EVANS, District Judge:

*

The Honorable Orinda Evans, United States District Judge for the Northern District of
Georgia, sitting by designation.

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This case arises from a breach of contract claim brought by a property owner,
Flamingo South Beach I Condominium Association, Inc. ("Flamingo") against a
property insurer, Selective Insurance Company of Southeast ("Selective") for failure
to pay under the terms of a flood insurance policy. The appeal follows the district
court's grant of summary judgment to Selective.
On June 5, 2009, a severe rainstorm struck Miami Beach causing 9.88 inches
of rain to fall within two hours.

Flamingo's claim is that water entered the

condominium lobby from an adjacent deck, causing significant damage. Flamingo
makes three arguments: (1) the district court erred as a matter of law in finding that
no coverage existed under the policy for damage caused by heavy rainfall which
pooled on an elevated deck and ran into the condominium lobby; (2) the district court
abused its discretion in striking an expert declaration based on untimely disclosure;
and (3) the district court erred in determining that no genuine issue of material fact
remained which precluded summary judgment in Selective’s favor on an alternate
theory of liability. After careful consideration of Flamingo's arguments, we conclude
that the district court did not abuse its discretion in striking the expert report and that
it properly granted summary judgment to Selective.

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BACKGROUND
Flamingo owns a 562 unit high rise condominium building in Miami Beach,
Florida. It purchased a standard flood insurance policy from Selective. The policy
was issued pursuant to the provisions of the National Flood Insurance Act of 1968,
42 U.S.C. § 4001 et seq., which authorized the Administrator of the Federal
Emergency Management Agency ("FEMA") to create a national flood insurance
program. 42 U.S.C. § 4011. The Act authorizes private insurers to offer a standard
flood insurance policy ("SFIP"). While these policies are written by private firms, the
federal government acts as the guarantor and reinsurer. SFIP claims are ultimately
paid by the U.S. Treasury. Selective appears in this action in a fiduciary capacity as
the fiscal agent of the United States. 44 C.F.R. § 62.23(f-g).
On August 5, 2011, the district court granted Selective's motion for summary
judgment. The district court concluded that the policy did not provide coverage for
Flamingo's claim that the accumulated water on the deck constituted " surface waters"
(a requirement of the policy) because the water on the elevated deck "did not make
any contact with the surface of the earth." Flamingo S. Beach I Condo. Ass’n v.
Selective Ins. Co. of Se., No. 10-CV-21840-KING, at *7 (S.D. Fla. Aug. 5, 2011).
It also rejected Flamingo's alternate theory that a deck drain backup caused by flood

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surface waters caused the lobby damage. The district court concluded that Flamingo
had not carried its evidentiary burden. Selective had proffered expert testimony that
such a drain backup could not have occurred and did not occur. Flamingo's evidence
only showed that lobby damage caused by water from the claimed drain backup was
a "mechanical possibility." Prior to granting Selective's motion, the district court had
struck the declaration of Rene Basulto, one of Flamingo's expert witnesses, because
Basulto had not been timely disclosed as an expert witness.
DISCUSSION
I.

The District Court's Determination That There Was No Policy Coverage for
Heavy Rainfall Which Pooled on the Deck Surface and Entered the Lobby
The South Tower of Flamingo's condominium building, at issue here, has an

elevated lobby with an adjacent 30,000 square foot promenade deck. The deck
surface has an upper area and a contiguous sunken area (down two steps from the
upper area). The slope of the deck is such that water drains toward the sunken level.
The sunken level is adjacent to a lobby which incurred water damage during the
storm. Flamingo contends that this damage was the result of “surface waters” as that
phrase is used in the SFIP and is, therefore, a covered event under the policy and that
the district court erred in concluding that it was not.

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The policy at issue here, the SFIP, was established by regulation and is codified
at 44 C.F.R. pt. 61, App. A(3). The SFIP provides coverage for direct physical loss
caused by flood. The term "flood" is defined in the SFIP as:
1.

A general and temporary condition of partial or complete
inundation of two or more acres of normally dry land area or of
two or more properties (one of which is your property) from . . .
b.

Unusual and rapid accumulation or runoff of surface waters
from any source

The term "surface waters" is not defined in the policy.
The policy excludes from coverage "[w]ater or water-borne material that . . .
backs up through sewers or drains . . . unless there is a flood in the area and the flood
is the proximate cause of the sewer or drain backup . . . ." Policy, § V.(D)(5).
Policies under the National Flood Insurance Program are contracts and must
be interpreted by first examining the natural and plain meaning of a policy's language.
Carneiro Da Cunha v. Standard Fire Ins. Co./Aetna Flood Ins. Program, 129 F.3d 581,
585 (11th Cir. 1997). The interpretation of SFIP contracts is a matter of federal law
under standard insurance law principles rather than state law. Newton v. Capital
Assurance Co., 245 F.3d 1306, 1309 (11th Cir. 2001); Carneiro Da Cunha, 129 F.3d
at 584; Hanover Bldg. Materials v. Guiffrida, 748 F.2d 1011, 1013 (5th Cir. 1984);
Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 135 (1st Cir. 1984). If the policy

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language is unambiguous, it is applied directly. Studio Frames Ltd. v. Standard Fire
Ins. Co., 483 F.3d 239, 245 (4th Cir. 2007). "[A]mbiguity does not exist simply
because a contract requires interpretation or fails to define a term." Key v. Allstate
Ins. Co., 90 F.3d 1546, 1549 (11th Cir. 1996) (citing Dahl-Eimers v. Mut. of Omaha
Life Ins. Co., 986 F.2d 1379, 1382 (11th Cir. 1993)); see Tackitt v. Prudential Ins.
Co. of Am., 758 F.2d 1572, 1575 (11th Cir. 1985). Contract interpretation is a
question of law which we review de novo. Bragg v. Bill Heard Chevrolet, Inc., 374
F.3d 1060, 1065 (11th Cir. 2004).
There are no Eleventh Circuit opinions which define the phrase “surface
waters” in an SFIP. Though authority from other circuits of the United States Court
of Appeals, not binding on this Court, may be considered for its persuasive value,
United States v. Diamond, 430 F.2d 688, 692 (5th Cir. 1970)1, no other circuit court
has addressed the meaning of the phrase “surface waters” in an SFIP.
The parties have cited two opinions from United States district courts which
have addressed the meaning of the phrase “surface waters” in an SFIP. In Cross
Queen, Inc. v. Director, FEMA, 516 F. Supp. 806, 807-08 (D.V.I. 1980), the District
Court of the Virgin Islands held that the collection of water on upper balconies which

1

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
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seeped into upper floor rooms could not be considered surface waters because it did
not "emanate from the inundation of normally dry land areas." The court determined
that the phrase has commonly been interpreted to mean rain which has diffused itself
over the surface of the earth. Id. at 808. Selective argues that this case is on point.
Flamingo argues that Cross Queen is inapposite because the definition of “flood” in
the SFIP has been amended since it was issued.2 A Louisiana district court has also
addressed the meaning of “surface waters” in an SFIP. The district court in the
Eastern District of Louisiana in Cali v. Republic Fire & Casualty Insurance Co., CIV.
A. 08-5010, 2009 WL 5064469, at *4 (E.D. La. Dec. 16, 2009) interpreted “surface
waters”in an SFIP to include rainwater pooling on the ground and seeping into a
home through weep holes at the base of the home’s brick facade. The water that
damaged Flamingo’s lobby did not pool on the ground as in Cali; it pooled on an
elevated deck several feet above the ground.

The facts of the Cali case were

dissimilar to those here; that case does not illuminate whether water pooling on an
elevated deck would be considered surface waters. Cross Queen, Inc. is on point and
2

Cross Queen, Inc. was decided under a prior version of the SFIP which defined flood as: "A
general and temporary condition of partial or complete inundation of normally dry land areas from
. . . surface waters." 516 F. Supp. at 807. The definition of "flood" in SFIPs has since been
expanded. Unlike the SFIP in Cross Queen, Inc., Flamingo's policy defined flood as either the
"inundation of normally dry land areas" or "inundation. . . of two or more properties" from surface
waters. Flamingo argues that this change in language broadened the definition of flood to include
the accumulation of water on its elevated deck. We disagree. The change in the definition of "flood"
did nothing to alter the definition of "surface waters" at issue here.
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is persuasive.
Several courts have discussed the meaning of the phrase “surface water” in allrisk insurance policies. See Front Row Theatre, Inc. v. Am. Mfrs. Mut. Ins. Cos., 18
F.3d 1343, 1347-48 (6th Cir. 1994); Crocker v. Am. Nat'l Gen. Ins. Co., 211 S.W.3d
928, 931 (Tex. Ct. App. 2007); Cameron v. USAA Prop. & Cas. Ins. Co., 733 A.2d
965, 967 (D.C. 1999); Sherwood Real Estate & Inv. Co. v. Old Colony Ins. Co., 234
So.2d 445, 448 (La. Ct. App. 1970). Only a few of these cases are even close to being
factually on point. These cases each interpret all-risk policies which, unlike the SFIP,
exclude damage resulting from surface waters from coverage. See Front Row
Theatre, Inc., 18 F.3d at 1345; Crocker, 211 S.W.3d at 930-31; Cameron, 733 A.2d
at 966; Sherwood Real Estate & Inv. Co., 234 So.2d at 446. Further, the majority of
these cases do not involve water pooled on a surface significantly elevated from the
surface of the ground. Front Row Theatre, Inc., 18 F.3d at 1345 (discussing damage
caused by water flowing from parking lot through theater door); Crocker, 211 S.W.3d
at 936 (discussing water pooling on patio twelve inches off the ground); Cameron,
733 A.2d at 966 (discussing water from melting snow on a patio graded with the
ground’s surface). Because these cases do not involve SFIP policies, they are neither
controlling nor persuasive and do not guide the Court’s interpretation of the meaning
of the phrase “surface waters.”
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We next consider Flamingo’s argument that the phrase “surface waters” is
ambiguous as to whether it includes rainwater which ran from the elevated deck into
the lobby. Flamingo argues that policy ambiguities should be construed in favor of
coverage.
Although it is not defined in the policy, the term “surface waters” is not
ambiguous because it has a generally accepted meaning. Legal treatises uniformly
define "surface waters" as waters that "fall on the land from the skies or arise in
springs and diffuse themselves over the surface of the ground, following in no
defined course or channel." 93 C.J.S. Waters § 254 (2012); see also 78 Am. Jur. 2d
Waters § 174 (2012) ("The term 'surface water' is . . . generally defined as that which
is derived from falling rain or melting snow, or which rises to the surface in springs,
and is diffused over the surface of the ground, while it remains in such diffused state
or condition."), Black's Law Dictionary, 1729 (9th ed. 2009) ("Water lying on the
surface of the earth but not forming part of a watercourse or lake. . . . Surface water
most commonly derives from rain, springs, or melting snow."), COUCH

ON INS.

§ 153:49 (". . . [A] a flood is water that escapes from a watercourse, while surface
water is water diffused over the surface of the land, without forming a body of water
or following a channel." (footnotes omitted)). None of these common definitions of
"surface waters" would encompass the water which pooled on the surface of
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Flamingo's deck.
Flamingo lastly argues that the district court's interpretation of the policy would
lead to what it deems the "absurd result" of a gap in coverage in which waters may
be excluded from coverage under both SFIP and all-risk policies. Even if that is so,
the Court must enforce the terms of the policy. St. Paul Fire & Marine Ins. Co. v.
ERA Oxford Realty Co. Greystone, LLC, 572 F.3d 893, 898 (11th Cir. 2009).
In summary, rainwater that accumulated on Flamingo’s deck is not surface
waters under the SFIP.
II.

Flamingo's Alternate Theory
Flamingo also argues that flood surface waters backed up from ground level

through a drain pipe, onto the elevated deck and then into the lobby. Selective does
not dispute that there would be coverage for such an event; it disputes that it
occurred. The District Court struck the testimony of Rene Basulto, Flamingo's key
expert witness, based on untimely disclosure. It then granted summary judgment to
Selective.

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A.

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The District Court’s Striking of Basulto's Expert Declaration

Flamingo argues that Rene Basulto's opinion was timely disclosed in his
June 23, 2011 declaration and that the district court erred in striking it. After
considering the Southern District of Florida's local rule pertaining to disclosure of
expert reports, certain undisputed facts in the record, and the date of disclosure of
Basulto's opinion, we conclude that Basulto's opinion was not timely disclosed. As
discussed below, his June 23 declaration was not "solely in rebuttal" to the opinion
of John Pistorino, Selective's expert witness, as expressed in Pistorino's June 6
affidavit. Under Local Rule 16.1, Basulto's expert opinion should have been
disclosed by May 13, 2011. The June 23 disclosure was untimely. This conclusion
is not an exercise of judicial discretion; it is simply an application of the local rule to
the facts. We review the District Court's decision on this point de novo.
Southern District of Florida Local Rule 16.1(k) provides:
Where expert opinion evidence is to be offered at trial, summaries of the
expert's anticipated testimony or written expert reports . . . shall be
exchanged by the parties no later than ninety (90) days prior to the
pretrial conference . . . provided, however, that if the expert opinion
evidence is intended solely to contradict or rebut evidence on the same
subject matter identified by another party's expert, then the expert
summary or report for such evidence shall be served no later than 30
days after the expert summary or report is served by the other party.
S.D. Fla. L.R. 16.1(k).

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The undisputed facts concerning Flamingo's deck and its drainage system are
the following:
The South Tower of Flamingo's condominium building, at issue here, has an
elevated lobby with an adjacent 30,000 square foot promenade deck. The deck
surface has an upper area and a contiguous sunken area which adjoins the
condominium lobby through a glass door. The entire deck forms the ceiling for the
garage below. The upper deck surface is about ten feet above ground level. The
garage floor is about two feet below ground level. Entry to the garage is down a ramp
from a ground level parking lot.
The slope of the deck is such that water drains toward the sunken level. As
described in the expert reports, there are three deck drains in the sunken level of the
deck which empty water through one or more vertical pipes down to a pump basin.
The pump basin is in the pump room in the garage. As accumulated water reaches the
top of the pump basin, a hydraulic pump or pumps3 force the water to an overhead
outflow pipe.

3

When the garage was originally constructed in 2001, the plans called for two hydraulic
pumps. When Carlos Perez was hired by Flamingo in late 2010, his inspection revealed one
hydraulic pump which was nonfunctional. There is no evidence in the record as to whether there
were one or two hydraulic pumps in place on the day of the flood and whether or not there was any
operational pump in place.
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There are numerous deck drains in the upper deck. Some of these drains
connect to a system of pipes under the deck which feed into the same outflow pipe
as does water from the hydraulic pump. The outflow pipe slopes downward and
ultimately goes through the garage wall. It continues underneath the outdoor parking
lot surface to one or more underground catch basins which feed water to underground
drainage wells. The parking lot surface has manholes over each catch basin. The
manholes are capped by grates through which water can drain.
On January 10, 2011, the district court entered a revised scheduling order
setting June 1 as the deadline for conducting discovery and June 6 as the deadline for
filing all motions. Under S.D. Fla. L.R. 16.1(k), the parties were required to
exchange expert witness disclosures by May 9, 2011, 90 days before the pretrial
conference which was set by the scheduling order for August 5. The parties agreed
to extend the exchange date to May 13, 2011, and also to extend the date set by Local
Rule 16.1(k) for disclosing rebuttal expert reports to June 13, 2011.
Timely expert witness disclosures were made by both sides on May 13, 2011.
Flamingo designated Carlos Perez, a plumbing contractor, as an expert witness.
Selective designated John Pistorino, an engineer, as an expert witness.4 Selective

4

There were issues besides the coverage issue discussed in this opinion which involved other
experts. Reference to these other experts and their reports is omitted.
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previously had provided to Flamingo a report by Pistorino entitled "Evaluation of
Water Damage Claim." On May 13, it provided another report entitled "Supplemental
Report Evaluation of Water Damage Claim." Pistorino’s initial report concluded that
rainwater had drained from the upper deck to the sunken area and then into the lobby.
It stated: "This type of water is associated with a drainage problem having to do with
design or maintenance of the Roof Deck drainage system. Rising waters from a
ground source or other ground conditions did not occur here." Report at 5. The
report concluded "the Lobby Area is not considered to be a flood event," id. at 15,
though it nonetheless went on to estimate the dollar amount of damage to the lobby.
Pistorino’s Supplemental Report noted that after his original report had been
issued, the “owner's representatives” had asserted that water flow into the lobby had
been caused by water backups from three drains in the sunken area which had stopped
draining due to flooding in the garage below. In that regard, the Supplemental Report
found that rainwater from the pipes below the three drains in the sunken area
would simply spill into the pump room below and contribute to the
water that was in the floor of the garage. No measurable restriction of
flow out of these pipes could be realized unless the water level in the
garage reached the underside of the elevated deck where the drains are
located. . . . Rising waters from a ground source or other ground
conditions did not occur here.
Pistorino Supplemental Report at 4.

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On May 13, 2011, Flamingo provided to Selective the expert report of Carlos
Perez. The gist of this report is that the damage was caused by the backup of water
from the deck drains which flowed out onto the deck and then into the lobby. The
water backed up because the catch basins were filled to capacity, restricting the speed
with which the water could flow to the underground wells. Also, the intensity of the
storm limited the speed with which the system could convey water to the catch basins.
Perez Report at 1-2.
On May 31, 2011, Selective took Carlos Perez's deposition. This deposition
is in the record and was relied upon by the district court in ruling on Selective's
motion for summary judgment. In the deposition Perez explained his opinion. He
began by stating that Flamingo's representative told him when he was hired as an
expert witness in December 2010 that dirty water had been seen on the deck on the
day of the flood,5 raising the possibility that water had come up from the garage on
the day of the flood. He later decided that heavy drainage through the outflow pipe
from the upper deck drains when mixed with the water being forced upward from the
hydraulic pump could have caused water in the outflow pipe to flow back out onto

5

There is no direct evidence in the record that any dirty water was seen on the deck on the
day of the flood.
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the deck through the upper deck drain openings. Perez termed this explanation a
"mechanical possibility." Perez Dep. at 80-81, 108-109.
On June 6, 2011, Selective filed its motion for partial6 summary judgment. It
argued that water damage to the lobby had not been caused by a "flood" as that term
is defined in the relevant policy because rainwater on the deck did not constitute
flood “surface waters" as required by the policy. Also, there was no evidentiary basis
for a conclusion that the lobby damage was caused by flood water from deck drains
which backed up and spilled into the lobby. Selective’s arguments were supported
by a June 6, 2011 affidavit of John C. Pistorino, which said:
4.

In the course of my investigation and meetings at the site, I was
provided information by FLAMINGO representatives that the rain
water entered the condominium lobby area from a two level
exterior deck through an exterior entry door flush with the lower
deck. The exterior deck is approximately 10 feet above the floor
of the underlying garage and pump room.

5.

During subsequent site visits and meetings with FLAMINGO
representatives I was advised that not only did rainwater from the
decks come into the lobby, but also that water somehow was
pumped up and came out of the drains located on the decks from
the underlying garage area and pump room. At first, I was told
that the involved drains were on the lower deck; subsequently I
was told that the involved drains were on the upper deck.

6

This motion did not address claims pertaining to damage in the garage and in the spa area.
Apparently, these claims were settled while Selective’s motion for partial summary judgment was
pending.
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6.

Upon being given this information, I conducted further
investigation to determine the validity of such claims, including
an in depth inspection of the drainage system at issue. I also
performed hydraulic calculations to determine the validity of
these assertions. My investigation, analysis and calculations
confirmed that it was not possible for water from below the deck,
emanating from the pump room and garage, to have come up out
of the drains onto either of the two upper decks.

7.

Attached hereto are my reports confirming these conclusions:
The first is my initial Evaluation of Water Damage Claim (Exhibit
“B” hereto); the second is the Supplemental Report of the
Evaluation of Water Damage Claim at Flamingo South Beach I
Condominium (Exhibit “C” hereto) in which I address issues
relating [to] the drainage system generally and particularly
address the assertion that was being made at that time that water
came up out of the drains on the lower deck; and the third is my
Rebuttal Report of the Evaluation of Water Damage Claim at
Flamingo South Beach I Condominium (Exhibit “D” hereto), in
which I address the later claim that water came out of the drains
on the upper deck.

8.

As set forth in detail in those Reports, it is my expert opinion that
none of the water which seeped into the condominium lobby from
the two decks could have come up out of the drains from the
garage and pump room.

9.

It is my expert opinion that the waters which entered the lobby
and adjoining areas were in no way proximately caused by flood
waters which may have come into the garage and pump room
approximately 10 feet below the exterior decks.

Pistorino's Rebuttal Report, as referenced in his affidavit, was first disclosed
to Flamingo on June 6 when it was filed in support of Selective's motion for summary
judgment. This Rebuttal Report was in rebuttal to Perez's expert report which had
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been disclosed on May 13. The disclosure of Pistorino's Rebuttal Report was
therefore timely. The Rebuttal Report expressed, based on Pistorino's hydraulic
calculations (based on the assumed presence of two functioning hydraulic pumps) and
water flow calculations for the outflow pipe, that backed up water flowing from the
upper deck drain pipes onto the deck was not mechanically possible.
Flamingo filed a cross-motion for partial summary judgment on June 6, 2011.
In this motion, Flamingo moved for summary judgment solely on Selective’s
affirmative defenses of failure to mitigate damages and failure to timely submit a
Proof of Loss, and the issue of whether a general condition of flooding existed in the
spa and garage areas of the condominium property. Flamingo did not rely on expert
disclosures in support of this motion for partial summary judgment, though it did rely
on the deposition of Denis Solano in describing the severity of the storm.
Flamingo took Pistorino's deposition on June 10, 2011, apparently with the
consent of Selective. The deposition is in the record. Pistorino gave testimony
consistent with the opinions earlier expressed in his various reports and his affidavit.
On June 23, 2011, Flamingo filed a pleading entitled Response in Opposition
to Defendant's Motion for Partial Summary Judgment, Cross-Motion for Partial
Summary Judgment, and Incorporated Memorandum of Law. In support of its
response to Selective’s motion and also in support of its own second cross-motion,
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Flamingo filed the declarations of Rene Basulto and Carlos Perez. This was the first
time Basulto had been identified as an expert witness.
The gist of Basulto's declaration was: on the day of the flood the catch basins
in the parking lot were saturated with ground water, which would have slowed the
water flow in the outflow pipe; flood water would have been discharged from the
catch basins onto the surface of the parking lot; the flood water would have run from
the parking lot down the ramp into the garage; the flood water in the garage would
have entered the pump room and the pump basin, activating the pumps; the pumps
would have forced the flood water upward into the "already saturated outflow pipe,"
which would have caused water to flow out onto the upper deck and from there to the
sunken level and into the lobby. Basulto Decl. at 2-3. Basulto also opined that
Pistorino had miscalculated the slope of the outflow pipe; the actual, lesser slope
would slow the rate of drainage. Perez’s supporting declaration contained the
calculation of slope which Basulto relied on. Perez also adopted Basulto's assertion
that the water in the pump room would have entered the pump basin on account of the
flooding of the garage. He offered as verification his observation of a "visible water
line" in the pump room. Perez Decl. at 1-2.
On July 1, 2011, Selective filed a motion to strike Flamingo’s second crossmotion for partial summary judgment on grounds that it had been filed beyond the
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June 6 cutoff for filing motions. It also moved to strike the declaration of Basulto on
grounds that Basulto had not been identified as an expert witness within the Court’s
deadline or as extended by agreement of the parties. Therefore, Selective had been
deprived of the opportunity to depose Basulto. In an order entered July 8, 2011, the
court struck Flamingo's second cross-motion for partial summary judgment because
it had been filed late and struck Basulto's declaration because his expert opinion had
not been timely disclosed.
In an order of August 5, 2011 the district court granted Selective's motion for
summary judgment and entered final judgment in its favor.
Basulto's June 23 declaration did undermine, and in that sense sought to rebut
Pistorino's water flow calculations which were set forth in Pistorino's June 6 affidavit
and attached June 2 Rebuttal Report. However, Basulto's declaration was not solely
for that purpose. Basulto also enlarged Perez's original theory by adding an assertion
that some of the water that entered the lobby originated as parking lot flood waters
which flowed to the garage, entered the pump basin, and were pumped upwards back
through the upper deck drains. Basulto's declaration adopted Perez's original opinion
that slow movement of the water in the outflow pipe contributed to the drainage
backup. This was not in rebuttal to Pistorino's June 6 affidavit or in rebuttal of any
of Pistorino's expert reports which were referenced in Pistorino's affidavit. Plaintiff's
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late addition of Basulto was in reality an effort to substitute Basulto as Plaintiff's
expert witness in place of Perez.
Although Basulto's opinion was not timely disclosed, the district court had the
discretion to allow it. We review the striking of the declaration for abuse of
discretion. OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1360
(11th Cir. 2008). "This scope of review will lead to reversal only if the district court
applies an incorrect legal standard, or applies improper procedures, or relies on
clearly erroneous factfinding, or if it reaches a conclusion that is clearly unreasonable
or incorrect." Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1226 (11th Cir.
2005).
Flamingo argues that, assuming Basulto's opinion was not timely disclosed,
the late disclosure was substantially justified or harmless such that striking the expert
declaration was an inappropriate sanction. Flamingo argues that: (1) Basulto's
declaration creates a genuine issue of material fact as to whether the a drain backup
caused flooding; (2) Basulto's declaration could not have been offered prior to
Pistorino's June 6, 2011 Rebuttal Report because it refutes the engineering opinions
contained therein; and (3) Selective would not be prejudiced because the declaration
was disclosed four months prior to trial, and less severe sanctions, such as re-opening
discovery could have cured any prejudice.
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While it may be that Basulto's declaration would have created a material issue
of fact precluding summary judgment (because it undermined Pistorino's water flow
calculations), it is also true that the opinions expressed in his declaration could and
should have been formulated much earlier within the time set for discovery, based on
an examination of Flamingo's premises and the plans for the premises which were
available for inspection. Flamingo did not need to wait for Pistorino's affidavit or
Rebuttal Report to do this. Flamingo has not provided justification for its delay.
Especially given that the discovery and motions schedule had been pushed back once
already, and a rescheduling of all deadlines would have been necessary to
accommodate Basulto's deposition, we cannot say that the belated disclosure was
harmless. Finally, we cannot say that Flamingo suffered manifest injustice when
Basulto's declaration was struck. Accepting the declaration at face value, it leaves
many loose ends. It is based on an assumption that the hydraulic pumps were
operational on the day of the flood. Also, there is no direct evidence that anyone saw
dirty water on the deck. Basulto's declaration does not dispute Pistorino's hydraulic
calculations and offered no water flow calculations of his own. Overall, Basulto's
declaration is an assertion of a theory, not an explanation based on demonstrated
facts.

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The district court did not abuse its discretion in striking Basulto's declaration
based on untimely disclosure of his opinion.
B.

The District Court’s Grant of Selective’s Motion for Summary Judgment

Flamingo lastly argues that a genuine issue of material fact remains as to
whether the damage to the lobby is covered notwithstanding the SFIP's exclusion of
coverage for loss caused by "[w]ater or water-borne material that: . . . backs up
through sewers or drains; . . . unless there is a flood in the area and the flood is the
proximate cause of the sewer or drain backup . . . ." Policy, § V.(D)(5). The parties
agree that there was a flood in the area, including the garage below the deck.
Therefore, Flamingo urges that an issue of fact remained for trial regarding whether
this flooding in the garage was the proximate cause of water backing up through the
drains onto the deck and subsequently entering the lobby. The only evidence in the
record on this point is the deposition of Flamingo’s expert, Carlos Perez, Perez's
expert report, which he testified about in his deposition, and Perez's declaration.
We review the district court’s grant of summary judgment de novo construing
the evidence in the light most favorable to the non-moving party and drawing all
reasonable inferences in its favor. Eli Lilly & Co. v. Air Exp. Int’l USA, Inc., 615
F.3d 1305, 1313 (11th Cir. 2010). We may grant summary judgment only after
determining that "there is no genuine dispute as to any material fact and [that] the
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movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). An issue
is not "genuine" if it is unsupported by the evidence or is created by evidence that is
"merely colorable" or "not significantly probative." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986). A mere scintilla of evidence in support of the
nonmoving party's position is insufficient to defeat a motion for summary judgment;
there must be evidence from which a jury could reasonably find for the non-moving
party. Id. at 252.
The drainage system of the deck, as described supra Part II.A., and viewed in
the light most favorable to Flamingo, directs water from the deck, through a series of
pipes and pumps located in the parking garage, to basins in the outdoor parking lot.
The sunken level of the deck contains three drains which empty water through one
or more vertical pipes down to a pump basin. As accumulated water reaches the top
of the pump basin, a hydraulic pump or pumps force the water to an overhead outflow
pipe. There are additional deck drains in the upper deck. Some of these drains
connect to a system of pipes under the deck which feed into the same outflow pipe
as does water from the hydraulic pump. The outflow pipe slopes downward and
ultimately goes through the garage wall to one or more underground catch basins
which feed water to underground drainage wells.

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Flamingo maintains that the flooding in the garage caused the pump(s) in the
garage to activate and pump water into an already saturated system, causing water in
the outflow pipe to discharge back onto the elevated deck. Flamingo believes this
caused an accumulation of water which then seeped into its lobby. Selective’s expert,
John Pistorino, repeatedly asserts that no drain backup occurred. Regarding the
possibility of water backing up through drains from the garage floor, Pistorino’s
report indicated, "Such a backup could not have taken place as the Roof Deck drains
in the promenade are a full 12 feet above the floor of the garage and hydraulically this
could not have occurred." Pistorino Report at 9. Pistorino further opined that:
While it is conceivable that individual drains may have temporarily
become overwhelmed with the quantity of water trying to enter the
system, the actual amount of water entering the main pipe line of the
drainage system is such that the main pipe would have always
discharged out the south end of the garage building into the parking lot
drainage system.
Pistorino Rebuttal Report at 4.
Flamingo claims that its expert submissions refute this evidence and raise a
question of material fact as to whether such a backup did occur. The only expert
opinion timely disclosed by Flamingo is that of Carlos Perez. In the three sentences
related to the backup theory in his report, Flamingo’s expert, Carlos Perez, states:
On the day of the flood, due to the intensity of the storm, the catch
basins filled to capacity. This restricted the speed in which the system
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conveys water from the catch basins to the wells. . . . The intensity of
the storm limited the speed in which this system can convey storm water
to the catch basins . . . . In my opinion, the water intrusion into the
Flamingo lobby was a result of the backup described above [the backup
of water from the sundeck drains into Flamingo's lobby], coupled with
the pooling of storm water on the lower portion of the upper pool deck.
Perez Report at 2. Regarding the water backup theory, Perez said the following in his
deposition:
Q:
A:

Are you sure that the dirty water [that flooded the lobby] came
from the pumps?
I'm saying that the mechanical possibility of it happening could
happen. I think the sunken area was challenged.

Perez Dep. at 108. In light of the testimony offered by Perez, the district court
correctly concluded that "[A]t best, Plaintiff has put forth evidence that a drain
backup on the day of the storm was mechanically possible."7 Flamingo S. Beach I
Condo. Ass’n Inc., No. 10-CV-21840-KING, at *11 . The opinion that a backup was
“mechanically possible” provides a mere scintilla of evidence, which is insufficient
for overcoming summary judgment on its claim. Flamingo failed to produce a
sufficient amount of evidence to create a genuine issue of fact for trial.
CONCLUSION
We AFFIRM the district court’s grant of summary judgment to Selective.

7

This conclusion is not undermined by Perez's declaration, which was offered to support
Basulto's declaration.
26