The Breakwater Commons Association, Inc. v. Empire Indemnity Insurance Company

Filing 55

ORDER granting 32 Motion for Deferment of Ruling on the Motion for Summary Judgment; and denying without prejudice as premature 27 Motion for Summary Judgment. Signed by Magistrate Judge Nicholas P. Mizell on 3/31/2021. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
THE BREAKWATER
COMMONS ASSOCIATION,
INC.,
Plaintiff,
v.

Case No. 2:20-cv-31-JLB-NPM

EMPIRE INDEMNITY
INSURANCE COMPANY
Defendant.
ORDER
Before the Court is Plaintiff’s Motion for Deferment of Ruling Under Rule
56(d) (Doc. 32). And with leave of Court, Defendant filed a Response (Doc. 38). For
the reasons discussed below, the Court grants the Motion for Deferment (Doc. 32)
and as a result denies the Motion for Summary Judgment (Doc. 27) without prejudice
as premature.
Plaintiff The Breakwater Commons Association, Inc. (“Breakwater”) brings
this action for breach of contract related to a dispute between it and Defendant
Empire Indemnity Insurance Company (“Empire”) regarding insurance coverage
and the amount of loss for damages caused by Hurricane Irma. (Doc. 3).

In part, Breakwater opposes summary judgment under Rule 56(d). Rule 56(d)
provides:
If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its
opposition, the court may: (1) defer considering the motion or
deny it; (2) allow time to obtain affidavits or declarations or to
take discovery; or (3) issue any other appropriate order.

Fed. R. Civ. P. 56(d). While there is no blanket prohibition against granting summary
judgment before the close of discovery, summary judgment should not be granted
until the opposing party has had an adequate opportunity to conduct discovery.
Estate of Todashev by Shibly v. United States, 815 F. App’x 446, 450 (11th Cir.
2020) (citations omitted). “Rule 56(d) provides shelter against a premature motion
for summary judgment ‘when facts are unavailable to the nonmovant.’” Id. at 450
(citing Fed. R. Civ. P. 56(d)). It qualifies Rule 56(c)’s requirement on the nonmoving party to establish there are genuine issues of material fact in dispute to defeat
the motion for summary judgment when the non-moving party has not had the
opportunity to discover information vital to its opposition. Id.
Breakwater’s argument on incomplete discovery is well taken. The original
discovery deadline was October 30, 2020. (Doc. 20, p. 1). Empire moved for
summary judgment over five months before the original discovery deadline. (Doc.
27). And the parties have now jointly requested two extensions of the remaining
deadlines, making the discovery period ending in July 2021. (Docs. 41, 51).

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Moreover, the entire thrust of Empire’s summary-judgment briefing and the affidavit
it has supplied in support is that Breakwater never made a claim for ACV benefits.
But this argument is advanced by completely ignoring the May 9, 2019 Sworn
Statement in Proof of Loss in which Breakwater expressly states an ACV
calculation. (Doc. 37-1). Discovery would undoubtedly answer the question: why?
Discovery may also shed light on why Empire has paid nearly $2 million in ACV
benefits if Breakwater never, in fact, made a claim for ACV benefits.
Accordingly, the Court GRANTS the Motion for Deferment of Ruling on the
Motion for Summary Judgment (Doc. 32) and DENIES without prejudice as
premature the Motion for Summary Judgment (Doc. 27).
DONE and ORDERED in Fort Myers, Florida on March 31, 2021.

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