by hurricane irma and the insurance company in this case denied coverage for the interior of the buildings that were damaged by hurricane arma there was ample evidence in the records showing that the damage to the interior of the building which was covered appeal agreed with the th district that ensured bust the prejudice by an alleged noncompliance with policy conditions as as a result of that decision is this clear that the court erred as a matter of law and never considered issue prejudice d which it must have likewise the court never made the decision to not follow other appellate decisions which have held that insurance company ways compliance with policy condition brief sets forth some of the testimony that the district court must have found to support the claim and this clearly erroneous when there was ample evidence from both the insured engineer and even the insurers engineer that there was damage caused to the interior of the property which after the property through when created that is clearly a factual dispute with the primary issue in this case and one that the district court improperly insured named on the declaration states to identify the damage building was not sufficient the both the policy is clear that the nose provided in this case was sufficient as well as case law which makes  actual notice or know this from an additional ensure it's sufficient and in this case is undisputed that the insurance company had notice that there was damage to the building that investigated the damage to the buildings and then  e that the damage to the interior of the building was not couple both actually yes i'm looking at what bothered me about the case is the expert opinion from alfredo who the plaintiffs expert and as i read the expert's report he stopped short after he concluded in our professional opinion that when pressure wind gusts in airborne the debris produced by hurricane that that water actually entered and damaged property and is better than the state of the adjuster a report from the insurance company the adjuster went in and looked at it and said whatever damage was there was old show damages then the d shift to the insurance company show that the damages excluded there's no dispute that there was damage to the insurance company was attempting to say that this water damage somehow the not and for the property when created open i certainly agree that the link doesn't say and as a result of that water and or d an all of the following property was damaged in the sense the insurer have the obligation to establish that in order to to a substantial amount of his deposition testimony as well which goes into that more detail and we also point to the insurance company's own engineer in deposition which the insurance companies are very on edge and near testified that there was an antenna blown off the roof by when that caused the hole that allowed water to enter and then despite even the insurance company's own engineer making that confirmation the insurance company denied coverage for the interior of the damage clearly even by the insurance they didn't deny complete coverage they what they did instead was day said we're going to give you coverage for what we find to offend caused by the rain that came in as a result of this hurricane but we're not going to give you coverage for water down the edge that appears to have preexisted what happened before the hurricane in my mis understanding maybe i am i think that's pretty that's pretty much it yeah they didn't dispute that there was some water intrusion into the interior you know they were attempting to say that yeah that's the interior but it was not did not enter as a result of the hurricane and as i just pointed out that that water damage entered the property through when created opening so without a doubt i'm sorry it was evident how does that how does that contradict how does i mean if they're experts that wind and the hole the economy but it was limited to this amount down which is that what you're saying or is it your position they're saying something else yes my position would be that they are indeed saying something else we had an estimate at nine hundred thousand all supported by expert opinion in this case and they have no testimony to establish that they paid for the damage that even they admit it so we have an expert saying that all of the interior damage is caused by  created opening their own expert agrees that a good portion of it was and they never pay that and they have no evidence to pay and on the reply brief on page ten dollars we cite the testimony from their so called expert that supposedly paid the proper amount and he quite clearly says he has no opinion as to what the amount was owed and because they never knew and actually expected there were so we had you know we presented in this case ample evidence that nine hundred thousand dollars in damages was covered it was supported by affidavit that we've filed make clear they were under no obligation to sign that proof of loss what the insurance company said will pay you fifty two thousand however you have to agree under oath that that's the amount of the claim even though we're aware that your claim to get your damage wou be foreclosed from pursuing that in the future without affidavits making clear why that is improper they can't make a payment contingent on the insured refusing to pay the other nine hundred thousand insured believe is owed and that's why they improperly added that because it's a it's a problem for you and i just i want you to go live i mean maybe you can address it already but i think there are definitely problems with the the district court order in this case but at the end of the day doesn't stand up against the expert testimony given by the insurance company i mean if you're not saying that as a matter i mean i just i've what is your best answer to facts so that's that's a big that's a broadening of the requirement for a jury trial the way i understand an issue of material fact and certainly the insured is saying that the cover damages are nine one hundred thousand the insurance company is saying they're fifty thousand that's an issue of material fact likewise when the insurance company is saying there's no win created openings and the insured a saying well we have evidence from our engineer that it please the court my name is taylor davis and i represent defendant apple e houston casualty company which i'll refer to as h c c the question before the court in this case is whether the southern district of florida correctly dismissed with prejudice on judgment this breach of contract case involving a dispute over insurance coverage for alleged commercial property damages arising out of hurricane irma the court's dismissal was based on three grounds all of which should be affirmed st the court lacked subject matter jurisdiction under article three of the constitution because each of the three plaintiffs lacked standing to bring the claims asserted plaintiffs new south communications inc or new south lacked standing because it has no insurable interest in any of the property at issue plaintiff florida keys media l l c or florida keys and robert holiday a natural person lacked standing because they never claimed reimbursement under the policy none of them has suffered an injury in fact thus there is no case or controversy standing is a threshold issue that the court should decide st nd none of the plaintiffs submitted a proof of loss to h d c which is a condition precedent to coverage and a filing suit under the terms of the policy i'll explain why even in light of recent case law from florida's rd district court of appeal dismissal on this basis should be affirmed finally h c c did not breach the policy by applying its unambiguous interior of buildings limitation which precludes coverage for interior damage caused by rain unless the rain entered through an opening in the building caused by a name peril in this case wind storm as the panel seems to have picked up on there is no evidence in the record that specific damages fell within the exception to that exclusion other than the ones that my client identified during the adjustment of the claim each of these three ground separately and independently calls for it is missile with prejudice so the court need only affirm on one for the dismissal to stand but h c c submit that all three holdings should be affirmed subject to any questions the court might have i plan to focus my time on clearing up certain misrepresentation think it's a standing problem i think you know the question is does the policy call for you to pay or not you know for what it's i don't know i haven't talked to my colleagues about  i think it's a misnomer to refer to does the standing lobby happy to address that judge martin st of all there are two different issues with respect to new south on the one hand and then florida keys media and holiday on the other so so it's clear that new cell has no standing as the other two they know the issue is not who provided notice of the loss which plaintiff appellant spent a lot of time arguing that  to notify c c of the loss as the st named insured under the policy but this is actually a red herring the point is at no time did a new south florida keys or holiday ever tell h c c that florida keys and all this court held in payroll management incorporated versus lexington insurance company that additional insureds or additional name insurance under a policy cannot piggyback on the claim made by another insured that they each have to make a claim for their own damages under the policy i mean if you think about the claim they're making it's a breach of contract claim but they never asked for money these two plaintiffs never asked my client for reimbursement under the policy the claim was always presented as that of new cells and in fact it wasn't until discovery in the case that we confirmed that new south has no insurable interest in these properties there are a number of different properties that are insured under the policy and there are something like twenty five different insurance but each insured has to submit its own damages and in the case i'm sorry to interrupt but i just want to be sure that i give you a chance to cover that it seems to me like the case is distinguishable from lexington you know in this case as i said the policy defined you'd included to be the name insured and all three of these are names and sure and so one of the names in short notifies you and it turns out well in this case the two entities that are that we're discussing we never made an appearance in the entire life of the claim until plaintiff knew self amended the complaint to add them as parties so it is in our view an ogous to the payroll management case versus lexington because there was no indication that these two insureds under the policy were in any way aggrieved they were not seeking damages under the policy and in the factually analogous case of g m s holdings l l c versus continental casualty company out of the northern district of indiana which was affirmed by the th circuit that court held that the aggrieved party and a breach of insurance contract contract case is one who filed an insurance claim and did not receive sufficient payment so here these two parties never filed an insurance claim yes my client was aware of the damages but they had no idea that these two insureds were the ones who actually will interest in the property they can't claim for breach of contract when they never asked for money under the policy and that's exactly what they're trying to do and from a public policy standpoint allowing a party to file a breach of contract claim out of the blue however not having never notified its contractual the party with which it contract ed that it was seeking damages would lead to a fraud of litigation a waste of resources and it's just contrary to the notion of standing that you have to have a case and controversy and injury in fact which they don't have the problem in the drafting of the language in the policy as opposed to i mean we go on these things  on the drafting of the language in the policy and we're required under florida law to construe ambiguities against the insurer and here it seems you know you use the term you and you define it and one of the  one of the people who qualifies and you provided a client provided information about a claim and it pertains to two of the others under the u i mean why why is the draft the policy the problem everything had gone according to plan and they had returned the proof of loss then conceivably my client would have paid the wrong entity which is new self because no one ever told you so let me get to the proof of last  we have to look to see whether the insured showed that your client was not prejudiced and why shouldn't the insured of had an opportunity to do that i mean the district court did not address that not the standard rather they have to prove a lack of prejudice because as you noted there is a presumption of prejudice based on the failure to comply with the policy condition but the only evidence in the record that they've offered as to why there was prejudice or excuse me why there was not prejudice is that is the opinion of their public adjuster kevin downs who said h c c quote could not have been prejudiced because it did not request that it's insured submit a proof of law setting forth its insurance claim close quote that's a docket forty dash for this does not satisfy their burden of showing a lack of prejudice and as the standard overview is to know though this court can consider the record evidence and determined that plaintiffs have not disproved prejudice as your client had an opportunity to go in conduct and claim adjustment you know review the damage that was done what else would your client have done if it had received the proof law well it's hard to say because that didn't happen but as we note in our brief on page forty in footnote seven there were a number of issues that remained open at the time st of all plaintiffs never submitted presumably would have paid the wrong party they would have paid new south because that was the only insure that ever made a claim and that would have been impossible because that didn't happen that didn't happen so how do you prejudiced well i thought you were saying if they're if if my client had paid without the proof of loss but if but just looking to the fact that they never responded to the statement of loss that these adjuster provided that set forth the undisputed actual cash value of the claim they never gave my client an opportunity to try to resolve the claim pre suit instead they just hauled off and filed this lawsuit and now my client has had to include incurred the costs of litigation when this whole dispute potentially could have been resolved your certainly judge solomon and yes this i will reiterate that any one of these three issues if affirmed would justify the dismissal with prejudice so to your point about the interior of buildings or iow be limitation it's clear that this exclusion was triggered in the st instance because the damages to the inside of the buildings were caused by rain the exclusion my client has the burden of proving application of exclusion but then the burden shifts to the insured to show application of the exception to the exclusion which is for any damages that may i conclude the answer judge martin please thank you so the burden shifts to the insured to prove the exclusion which is for damages that were caused by rain entering and opening caused by wind storm and there is no dispute as to the two areas of damage that no issue about those it's the other damages which not even plaintiff's expert mr briggs whaler can point to any specific damages that he says work caused by water entering through a hole that was created in the building by wind storm so for that reason they have failed to establish as they must on summary judgment by more than conclusory statements that they have satisfied their burden that the exception to the exclusion applies therefore we ask for a firm and on all grounds thank you thank you openings caused by hurricane firma that allowed for moisture intrusion in paragraph ten he explained based on my review of the documents and inspections is my professional opinion within a reasonable degree of engineering certainty that the property raised by the insurance company in their motion for summary judgment time as a time for the motion for summary judgment that was never at issue the only issue was whether that exclusion applied or not clearly that sufficient evidence to show the exclusion did not apply issues as to the amount paid by the insurance company was not raised that was raised the court just on its own without it being raised by the insurance company said yes i think the fifty thousand terms companies paid with right and should have been accepted that would never raise it was never any evidence submitted by the insurance company even with that even with not being raised we point out some examples of evidence that we had including the public adjuster who filed an affidavit setting forth the damages that nine hundred thousand and we that was never raised by the insurance company only she was raised with whether there was one created openings from irma that allowed water intrusion and not and we filed ample evidence showing that there was insurance companies filed no summary judgment evidence  with that information ever supplied to you prior to the this use of litigation prior to the initiation that was not because as the bryant versus g o berry case make clear and their denial letter makes clear said yeah we agree we're liable for fifty two thousand dollars worth of damage to your position now as you know it's nine hundred thousand but you never supply any shocking as hastened to the insurance companies to say because the insurer himself mr holiday as is in the record sent to several page letter detailing their position and explaining that these damages are not all d they occurred after hurricane irma and they're from opening them from the hurricane and after the position was made covered the insurance company was aware of that claim where of the reasons for it that provided factual explanations for it and the insurance company said no our expert says that it's not called by the hurricane and as you can see from page ten as an example when there the actual evidence from the expert says for example you have any opinion they say no did you inspect the property they said no we didn't even inspect the roof well they're all very own experts said that they did not even expect the roof on this property but