[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14509

____________________

TRAVELERS PROPERTY CASUALTY COMPANY OF 

AMERICA, 

Plaintiff-Counter Defendant-Appellant,

FLYHOPCO LLC, et al.,

Plaintiffs,

versus

OCEAN REEF CHARTERS LLC, 

Defendant-Counter Plaintiff-Appellee,

STONEGATE BANK, 

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2 Opinion of the Court 21-14509

Defendant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 9:18-cv-81270-RAR

____________________

Before NEWSOM, LUCK, and TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge:

This is the second time this Court has considered this insurance coverage dispute between Travelers Property Casualty Company of America (“Travelers”) and Ocean Reef Charters LLC, 

(“Ocean Reef”), a Florida Limited Liability Company. Ocean Reef 

owned a 92-foot yacht, the M/Y My Lady, which was destroyed during Hurricane Irma in September 2017. Ocean Reef had a $2 million insurance policy with Travelers covering property damage to 

the yacht. One of the My Lady’s representatives for Ocean Reef 

with respect to the boat, Richard Gollel, moored the yacht to a 

dock behind his Pompano Beach, Florida residence as the hurricane 

approached. But the yacht was destroyed by what registered as a 

Category 4 storm.

Travelers tried to avoid paying for the loss by preemptively 

seeking a declaratory judgment that the policy did not cover the

loss because Ocean Reef did not have a full-time, licensed captain 

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and crew for the yacht during the hurricane, as required under warranties in the insurance policy. It brought the declaratory action in 

the Western District of New York, alleging that Ocean Reef had an 

office and its principal place of business in Rochester, New York.1

Under New York state law, an insured forfeits coverage by violating a marine insurance warranty, regardless of whether the violation had any effect on the accident.2 The same is true under federal 

admiralty law as applied to at least some marine insurance warranties. Travelers Prop. Cas. Co. of Am. v. Ocean Reef Charters LLC, 996 

F.3d 1161, 1167–68 (11th Cir. 2021).

The Western District of New York granted Ocean Reef’s 

motion to transfer the case to the Southern District of Florida under 28 U.S.C. § 1404(a). The Court found venue proper in the 

Southern District of Florida because the convenience of witnesses 

favored Florida, New York bore little connection to the dispute, 

and, for the purposes of considering the motion to transfer, the 

1 The Travelers insurance policy for the My Lady stated Ocean Reef was in care 

of Gollel’s company, Richard Gollel & Co., Inc., which has a Rochester, New 

York address.

2 See Com. Union Ins. Co. v. Flagship Marine Servs., Inc., 190 F.3d 26, 31–32 (2d 

Cir. 1999) (discussing how, “[u]nder . . . the law of most states,” including New 

York, “warranties in maritime insurance contracts must be strictly complied 

with, even if they are collateral to the primary risk that is the subject of the 

contract, if the insured is to recover” (citing N.Y. Ins. L. § 3106(c))). “However, unlike New York and the majority of states, Florida does not require 

strict compliance with all warranties, but it does preclude recovery where the 

‘breach or violation increased the hazard by any means within the control of 

the insured.’” Id. at 32 (quoting Fla. Stat. § 627.409(2)).

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choice-of-law analysis favored applying Florida law rather than

New York law. After the transfer, Ocean Reef—relying on Florida 

law—counterclaimed for damages on the theory that Travelers 

breached the insurance contract by refusing to cover the loss. It

claimed it had a right to recover the policy maximum, as no deductible applied because the accident was a total loss of the yacht. 

Ocean Reef also sought declaratory judgments that the warranties 

did not preclude coverage. Under Florida law, an insured remains 

covered for an accident despite violating a policy warranty, unless 

the violation “increased the hazard by any means within the control of the insured.” Fla. Stat. § 627.409(2).

On cross-motions for summary judgment, the District 

Court granted summary judgment for Travelers, agreeing with it 

that federal law applied, and that Ocean Reef therefore forfeited its 

insurance coverage. On appeal, we reversed, holding that under 

Wilburn Boat Co. v. Fireman’s Fund Insurance Co., 348 U.S. 310, 75 S. 

Ct. 368 (1955), Florida law applied because we did not find that any 

“entrenched federal maritime rules governing captain or crew warranties” existed. Travelers, 996 F.3d at 1169, 1171. That meant 

Travelers would have to prove on remand that the failure to retain 

a full-time captain “play[ed] [a] part in the loss” under Florida’s antitechnical statute.3 Id. at 1170 (quoting parenthetically Pickett v. 

Woods, 404 So. 2d 1152, 1153 (Fla. 5th Dist. Ct. App. 1981)).

3 Florida Statute § 627.409(2) is a “so-called ‘anti-technical statute.’” Travelers, 

996 F.3d at 1164. The statute “was ‘designed to prevent the insurer from 

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On remand, because Travelers offered no expert witness—

such as a licensed captain competent to speak to the issue—to 

prove that the lack of a full-time captain and crew played a role in 

the destruction of the yacht during Irma, the District Court granted 

summary judgment to Ocean Reef. We affirm.

I.

A.

Ocean Reef first obtained insurance from Travelers for the 

My Lady in 2014. Coverage under that plan ran from October 10, 

2014, through October 10, 2015. Ocean Reef renewed its policy for 

two more terms, so that in September 2017, it was covered by a 

policy running from October 10, 2016, through October 10, 2017. 

The policy covered Ocean Reef for up to $2,000,000 of property 

damage.

Ocean Reef’s insurance policy had contained two express 

warranties since Ocean Reef first insured the My Lady with Travelers in 2014. One was called the “Captain Warranty.” The Captain 

Warranty provides:

It is warranted you employ a professional captain for 

the yacht shown on the Declarations Page of this policy. Such captain shall be employed full time and approved by us. We will pay up to $1,500 for the cost 

of hiring a replacement captain, approved by us, if 

avoiding coverage on a technical omission playing no part in the loss.’” Id. at 

1170 (quoting parenthetically Pickett v. Woods, 404 So. 2d 1152, 1153 (Fla. 5th 

Dist. Ct. App. 1981)).

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your captain is unable to perform his regular duties 

due to a medically certified cause.

The other warranty was called the “Crew Warranty.” The 

Crew Warranty provides:

You employ 1 full time or part time professional crew 

for your yacht shown on the Declarations Page of this 

policy. We also provide coverage for any additional, 

temporary crew you employ.

Travelers initially issued the insurance policy with the Captain and Crew Warranties only after Ocean Reef amended its application to represent that it would employ Jason Gabriel—a professional, licensed captain—as the full-time captain. Gabriel resigned later that year. Ocean Reef then hired Captain Michael 

McCall—another licensed, professional captain—in January 2015. 

Captain McCall accompanied Gollel and his family on a two-week 

trip to the Bahamas shortly after he began his duties. He remained 

captain of the My Lady until April 2015, though he noted in his deposition that he did not consider the role a “full-time assignment” 

after the Bahamas trip.

The parties generally dispute the extent to which Ocean 

Reef complied with the Captain and Crew Warranties between 

April 2015 and September 2017; they also dispute Travelers’ willingness to pay out claims in prior cases when Ocean Reef was noncompliant. Travelers paid a claim for damages to the yacht caused 

by a lightning strike in 2016, though it now claims it only “honored” the claim “after Ocean Reef provided proof that it had a proUSCA11 Case: 21-14509 Document: 38-1 Date Filed: 06/23/2023 Page: 6 of 30
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fessional, full-time licensed captain[,] albeit one not previously submitted to Travelers for approval.” The captain when lightning 

struck the boat was Captain Daniel Tam. Ocean Reef claims that, 

in paying out this claim, “Travelers did not rely on the retroactive 

approval alone, and it was irrelevant,” because Travelers’ internal 

documents discussing the claim provided that Travelers also “determined that the ‘capt[ain] was not material to this loss.’” (quoting a note by the Travelers adjuster assigned to review the claim). 

Ocean Reef says this note meant Travelers covered the loss because it knew “Florida’s anti-technical statute” applied.

On the other hand, Travelers denied a claim for the loss of a 

jet ski that was stolen from the yacht in June 2017 while the My 

Lady was in the Bahamas. Travelers denied coverage “because the 

Vessel did not have a professional, licensed captain approved by 

Travelers at the time of the theft.” Ocean Reef does not dispute 

the facts surrounding the denial of coverage for the theft of the jet 

ski. By August 2017, a Travelers underwriter had emailed management recommending that the company not renew Ocean Reef’s 

coverage—which would expire on October 10, 2017—due to a 

“very shady” claims history.4 Travelers then sent Ocean Reef a 

“notice of nonrenewal of insurance” dated August 14, 2017.

4 The email read: “Per discussions with Tom & Joe, I was told we should look 

to non-renew this account due to a very shady 2016 claim. I was told [that]

the PWC theft is also suspect and when the first claim happened the Capt. said 

he was not full time and then he was, according to Joe, it just seems very 

shady.” The email also noted the yacht had “a 655% loss ratio” due to the 

claims described above.

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Hurricane Irma approached Florida in early September 

2017. On September 4, Gollel contacted Captain McCall—the former captain—to see if he could retake the helm as “temporary captain” of the My Lady during the storm. McCall said he was in Provincetown, Massachusetts, but would track the storm forecasts and 

fly down to move the yacht if appropriate.

The following afternoon, McCall called Gollel back.5 

McCall testified at his deposition that he “told him that after looking at the latest forecast, that [he] didn’t see a safe place to take the 

boat.” The hurricane forecast had changed, and it was projected 

“to go close to south Florida and then turn and go straight up the 

east coast.” Gollel “agreed and told [McCall] that he had called a 

marina close by and he was waiting to hear back from them.”

On September 6, Gollel then had his insurance agent reach 

out to Travelers’ agent to request Travelers’ permission to move 

his yacht, even though, per the email, Gollel was “in between captains.” The email said Gollel was “requesting to be able to move 

the vessel himself, to a safe harbor in the vicinity, for the approaching Hurricane Irma.” The email said Gollel “has been boating his 

whole life” and ultimately wanted advice on whether he should instead “leave it where it is & just secure it with additional lines, 

bumpers, etc.”

5 McCall testified in his deposition that he made the last phone call regarding 

temporary service as captain three days after the first call, but that he had no 

reason to dispute his phone records showing a call the following day.

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Travelers’ agent responded that evening by emailing Gollel’s agent that she had “not yet heard back from [T]ravelers” about 

Gollel moving the boat himself and “would say to not move the 

boat until we have confirmation from the carrier. The insured is 

already in breach of warranty by not having a full-time captain so 

we don’t want to chance it.” Travelers’ agent then reached back 

out on the morning of September 7 to inform Gollel’s agent that 

Travelers had “requested an updated hurricane plan as this will 

need to go to home office for approval prior to anyone other than 

the [full-time] captain operating the boat.”

Later that morning, Gollel’s agent responded to Travelers’ 

agent. She said: “[T]he insured is leaving the vessel docked where 

it is usually docked in lieu of moving it to inside the [Intracoastal 

waterway] where he feels it will be safer & suffer less damage.” She 

then asked if there was “any way” the agent could get Travelers’

underwriting department “on the phone quickly to see if they 

would prefer he move the vessel.” Early that afternoon, Travelers’

agent relayed the following from the insurer: “Given the impending weather threat and short notice given by the insured, the policy 

cannot be changed.” Gollel explained in his deposition that he 

thought the nearby Intracoastal waterway would be a “more protected” place during the storm—presumably meaning “more protected” from waves and wind.

Gollel ended up securing the yacht to the dock behind his 

residence before the hurricane struck. His two sons assisted. Gollel testified at his deposition that they “tied the boat up with extra 

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ropes,” positioned “extreme commercial bumpers between the 

boat and the dock,” and “disconnected the anchor and chained the 

boat to a secure tree.” They also secured loose items. They tied 

the yacht to ten concrete pilings that “ran perpendicular to the 

dock,” and then to two “dolphin pilings” that were adjacent to the 

dock.

Hurricane Irma struck between September 10 and 11. During the storm, the My Lady sank. The parties describe the sinking’s 

cause differently but generally agree that a mooring pile came 

loose, the boat hit Gollel’s cement sea wall—which caused the hull

to break—and it sank. The boat sustained enough damage to 

amount to a “total loss” under Ocean Reef’s policy.

B.

Within a day after the hurricane, Ocean Reef submitted a 

claim for coverage of the loss of the My Lady and requested that 

Travelers front the money for raising the yacht out of the water. 

Travelers considered this request, and then informed Gollel on 

September 21 that it would front the money for raising the vessel 

but would still investigate whether it would cover the loss. Travelers then sent Ocean Reef a “reservation of rights” letter dated 

September 25, 2017, informing Ocean Reef that it reserved the 

right to deny coverage and to seek reimbursement for fronting the 

cost of raising the yacht out of the water.

On September 26, Travelers filed for a declaratory judgment 

in the Western District of New York—where it claimed Ocean 

Reef’s principal place of business was located. The action sought a 

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declaration that Ocean Reef failed to comply with the Captain and 

Crew Warranties, and that the My Lady’s sinking was therefore not 

covered.

On November 9, 2017, Travelers sent Gollel a letter indicating it would continue to front the money to finish raising and securing the vessel, but that it declined coverage for his claim because 

he failed to comply with the Captain Warranty and Crew Warranty. The letter also noted that Travelers had filed for a declaratory judgment in the Western District of New York “in support of 

th[e] Declination.”

* * *

As indicated supra, Travelers likely engaged in a strategy to 

avoid the application of Florida’s anti-technical statute, Fla. Stat. 

§ 627.409(2). Under that statute, it would need to prove that the 

lack of a full-time captain and crew played a material role in the My 

Lady’s sinking to avoid paying Ocean Reef. On the other hand, under the federal rule that applies to some marine insurance warranties, Travelers, 996 F.3d at 1167–68, “and the law of most states,” 

including New York, “warranties in maritime insurance contracts 

must be strictly complied with, even if they are collateral to the 

primary risk that is the subject of the contract, if the insured is to 

recover.” Com. Union Ins. Co. v. Flagship Marine Servs., Inc., 190 F.3d 

26, 31–32 (2d Cir. 1999) (citing N.Y. Ins. L. § 3106(c)). When the 

Western District of New York granted Ocean Reef’s motion to 

transfer the case to the Southern District of Florida, it found—for 

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the purposes of that order—that “the choice-of-laws analysis disfavors New York and favors the State of Florida, which appears to 

have more relevant contacts.” Travelers had to know that Florida 

law may apply, even if Wilburn Boat’s framework causes “confusion” as to which marine insurance warranties fall under federal 

rules requiring strict compliance. See Travelers, 996 F.3d at 1167–

68. The following reviews the evidence each side gathered about 

the accident.

* * *

In October 2017, Gollel spoke with Captain McCall. McCall

then emailed Gollel and Lisa Steinhoff, a manager at Ocean Reef. 

The email explained McCall’s arrangement with Gollel as Irma approached:

I Captain Mike McCall was hired by Mr. Gollel on 

September 5 thru September 15 2017 as temporary 

Captain. At that time I was on another boat in New 

England but was going to make arrangements to fly 

down. Due to uncertainty of where to move the 

boat, Hurricane forecast, and miscommunications 

with Mr. Gollel I never made the arrangements and 

therefore [was] not present at the time.

Ocean Reef never compensated Captain McCall for this temporary 

captain assignment.

Neither party disclosed Captain McCall as an expert witness. 

So, at trial, he could only testify based on his “personal 

knowledge.” Fed. R. Evid. 602. Any opinions he might give would 

need to be “rationally based on” his first-hand observations and 

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“not based on scientific, technical, or other specialized knowledge.” 

Fed. R. Evid. 701(a), (c).

When Travelers deposed Captain McCall, it asked him 

about his prior experience preparing various boats for hurricanes 

as their captain. It also asked, in various ways, whether it is “generally” better to move a boat out of the path of a hurricane. The 

following exchange illustrates:

Travelers’ Counsel: Would you leave a vessel like 

the My Lady tied up to a concrete bulkhead during the 

storm that was anticipated?

McCall: If that was the only option, yes.

Travelers’ Counsel: If there was—would there be 

an[y] preferable options that you can think of to leaving a vessel tied to a concrete bulkhead in the conditions that you were anticipating?

McCall: Yes. To move the vessel.

Travelers’ Counsel: What sort of locations would 

you consider to be a better option?

[intervening objection to form]

McCall: A long ways away from where the storm was 

projecting to hit.

McCall also noted that whether the Ocean Reef Marina would be 

“an appropriate place to leave the My Lady during hurricane conditions” would “depend[] on the conditions” and the particular circumstances of the storm.

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McCall then clarified on cross-examination by Ocean Reef’s 

counsel that using straps and ropes to secure a boat would be “typical” when moving a boat out of a storm’s path was not a viable 

option. He also said that he did not “see a good option . . . for 

moving [the My Lady] to avoid the storm entirely” because the 

storm was forecasted to move up the East Coast, where he had 

previously considered moving it.

Travelers did not disclose an expert witness for its case-inchief to discuss what a captain would have done with the My Lady

during Irma. On January 28, 2019, however, Travelers disclosed a 

rebuttal expert, Captain Joseph Ahlstrom, notifying Travelers that 

“Captain Ahlstrom may be called to rebut any testimony that 

Ocean Reef Charters LLC had a full-time, professional captain at 

any relevant time.” It made this disclosure assuming a federal 

strict-compliance rule applied.

On February 25, 2019, Ocean Reef disclosed Captain 

Thomas Danti and Allister Dredge, a marine surveyor, as expert 

witnesses. They attached both experts’ reports to the disclosure. 

The disclosure included both experts’ qualifications, their opinions, 

and the bases for their opinions. See Fed. R. Civ. P. 26(a)(2). Captain Danti opined, after interviewing Gollel and inspecting the site, 

that the “storm preparations by Mr. Gollel met the standard of care 

of a professional Mariner.” He also opined that “[t]he main cause 

of the vessel’s damage was unforeseeable failure of a mooring pile.” 

So, “[t]he lack of a full time captain would not have prevented the 

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yacht [from] becoming a total loss.” Danti’s bottom-line conclusion was: “There was no increase[d] hazard in risk to the vessel by 

not having a full time captain at the time of the incident.” Dredge, 

the surveyor, also opined that the damage to the yacht was a “constructive total loss,” as repairs would cost $2.5 million.

Captain Danti fleshed out his opinion when Travelers’ counsel deposed him. Danti answered various questions about moving 

boats away from hurricanes. The upshot of his answers was that 

there is “no magical formula” to preparing for a hurricane “except 

to try to do the best you can to protect your vessel in a particular 

location. So you have to take that into consideration, the size of 

the vessel, where it’s located, how congested it is in the area,” along 

with the weather conditions and how the vessel could be secured.

Captain Danti also discussed how finding an available place 

for a boat as a hurricane approaches can be challenging. He noted 

that, “if you go down any of the canals in Florida today, you’ll see 

that they’re all developed, that the ability to even put a boat in the 

mangroves has gone away because of development.” As to the Intracoastal waterway, it “is very congested today, loaded with private docks and private yachts and is very limited as far as any locations that may be applicable for use that I know of.” And as to 

whether hauling a boat out of the water is better than securing it 

in the water, he explained that “[t]he vessels that were damaged 

during Hurricane Irma in the islands, a lot of those boats were 

hauled out of the water and then once the storm came through, it 

was like a domino effect.”

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Travelers had thirty days from Ocean Reef’s submission of 

Captain Danti’s report on February 25, 2019, to disclose expert “evidence [that was] intended solely to contradict or rebut evidence 

on the same subject matter.” Fed. R. Civ. P. 26(a)(2)(D)(ii). Thirty 

days from then was March 27, 2019. In a letter postmarked on April 

1, 2019, Travelers mailed Ocean Reef a report—with March 29, 

2019, as the date in the header—by Captain Ahlstrom purporting 

to rebut Captain Danti’s opinions. In it, Ahlstrom opined, “Any 

competent captain would have recognized that the My Lady was in 

a perilous position moored behind Mr. Gollel’s house at Hillsboro 

Inlet and needed to be relocated to a more sheltered location.” He 

also opined that, “[d]uring the hurricane, the vessel pushed on pilings and the cement seawall[,] exactly the risk a competent captain 

would have recognized and sought to avoid by moving the vessel.”

* * *

After we remanded the case for consideration under Fla. 

Stat. § 627.409(2), the parties held an unreported status conference 

on June 8, 2021. The District Court did not reopen discovery, and 

neither party claims it requested that the Court do so. Ocean Reef 

then renewed its motion for summary judgment and renewed a

motion it had filed along with its first motion for summary judgment.6 In the latter motion, Ocean Reef moved to either (1) strike 

Captain Ahlstrom’s rebuttal report as untimely and beyond the initial disclosure—that he would rebut evidence offered to show 

6 Ocean Reef also argued in its renewed motion for summary judgment that 

Travelers could not meet its burden with a rebuttal expert.

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Ocean Reef had employed a full-time captain; or (2) preclude Travelers from calling Captain Ahlstrom to testify in its case-in-chief, 

and thereby exclude the report from consideration for summary 

judgment purposes.

Travelers responded to Ocean Reef’s motion on Ahlstrom’s 

report by making two arguments pertinent to this appeal. One was 

titled, “Travelers Timely Disclosed Captain Ahlstrom as its Expert, 

and any Delay in Producing Captain Ahlstrom’s Rebuttal Report 

was Harmless” under Federal Rule of Civil Procedure Rule 37. See 

Fed. R. Civ. P. 37(c)(1) (“If a party fails to provide information or 

identify a witness as required by Rule 26(a) or (e), the party is not 

allowed to use that information or witness to supply evidence on a 

motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”). It argued that even if it sent Ocean 

Reef the report too late, the delay was “hardly time for any prejudice to Ocean Reef.” Travelers “alternatively pray[ed] for a brief 

extension of the expert disclosure deadline to bring its service of 

Captain Ahlstrom’s report into compliance with Rule 

26(a)(2)(D)(ii),” which provides the 30-day deadline for disclosure 

of expert rebuttal evidence. The second argument was titled, 

“Captain Ahlstrom’s Report is Proper Rebuttal Testimony,” meaning “Ocean Reef’s Motion” to strike the report “should be denied 

because Captain Ahlstrom’s report squarely rebuts Mr. Danti’s 

opinions.”

The District Court granted Ocean Reef’s motion to exclude

Ahlstrom from testifying in Travelers’ case-in-chief and then 

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granted summary judgment for Ocean Reef because Travelers 

lacked competent evidence to prove its case under Florida law. 

The District Court held that Ocean Reef was “entitled to $2 million—the full coverage amount of the Vessel . . . in case of complete 

loss.” As to Ahlstrom’s report, the Court only reached the issue of 

whether to exclude Ahlstrom from testifying in Travelers’ case-inchief but did not strike the report as untimely and implicitly assumed that it was proper rebuttal evidence, even if it went beyond 

the scope of Travelers’ initial, January 2019 disclosure. This appeal 

followed.

II.

We review the District Court’s grant of summary judgment 

de novo. Penley v. Eslinger, 605 F.3d 843, 848 (11th Cir. 2010). Summary judgment is proper when “there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter 

of law.” Fed. R. Civ. P. 56(a). A party can show there is no genuine 

dispute of material fact by “showing that the materials cited do not 

establish the absence or presence of a genuine dispute, or that an 

adverse party cannot produce admissible evidence to support the 

fact.” Fed. R. Civ. P. 56(c)(1)(B).

Travelers bore the burden of proof under Florida law. See 

infra, Part II.A. In moving for summary judgment, Ocean Reef 

bore “the initial responsibility of informing the district court of the 

basis for its motion,” and then Rule 56 “mandate[d] the entry of 

summary judgment, after adequate time for discovery and upon 

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motion, against” Travelers if it “fail[ed] to make a showing sufficient to establish the existence of an element essential to [its] case, 

and on which [it would] bear the burden of proof at trial.” Celotex 

Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S. Ct. 2548, 2552–53

(1986). “‘In such a situation, there [could] be ‘no genuine issue as 

to any material fact,’ since a complete failure of proof concerning 

an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.’” Grange Mut. Cas. Co. v. Slaughter, 

958 F.3d 1050, 1057 (11th Cir. 2020) (quoting Celotex, 477 U.S. at 

322–23, 106 S. Ct. at 2552). For the reasons discussed in Travelers 

Property Casualty Co. of America v. Ocean Reef Charters LLC, 996 F.3d 

1161 (11th Cir. 2021), Florida law applies.

This case boils down to two issues. One is whether, under 

Florida’s anti-technical statute, the insurance company must prove 

that the breach of the Captain Warranty “contribute[d] to” the specific accident. Pickett, 404 So. 2d at 1153. Travelers claims that all 

it must show is that the lack of a full-time captain generally makes 

vessels more susceptible to damage from hurricanes. Under Travelers’ theory, Florida law does not require it to prove that Ocean 

Reef’s noncompliance with the Captain Warranty actually caused 

this accident to any extent.

The second, related issue is whether, in meeting its burden 

of proof under Florida law, Travelers needed to introduce expert 

testimony in its case-in-chief about what would have been different 

if Ocean Reef had complied with the applicable warranties. TravUSCA11 Case: 21-14509 Document: 38-1 Date Filed: 06/23/2023 Page: 19 of 30
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elers argues it could show that the lack of a full-time captain increased the hazard to the My Lady during Hurricane Irma without 

an expert witness in its case-in-chief. Instead, it claims it could meet 

its burden with lay testimony by Gollel that he wanted to move the 

My Lady as Hurricane Irma approached, and so-called “hybrid factexpert witness testimony” by Captain McCall. Appellant’s Br. at 

23. Travelers also claims, “the District Court’s decision to grant 

Ocean Reef’s [motion] to the [sic] limit the testimony of Travelers’ 

expert (Captain Ahlstrom) solely to rebuttal and, in turn, employ 

the general rule that the testimony of a rebuttal expert cannot be 

used to avoid summary judgment was an abuse of discretion.” Appellant’s Br. at 37.

Travelers is wrong on all counts. We address each issue in 

turn.

A.

The Florida anti-technical statute we must apply provides:

A breach or violation by the insured of a warranty, 

condition, or provision of a wet marine or transportation insurance policy, contract of insurance, endorsement, or application does not void the policy or 

contract, or constitute a defense to a loss thereon, unless such breach or violation increased the hazard by 

any means within the control of the insured.

Fla. Stat. § 627.409(2). “The statute is designed to prevent the insurer from avoiding coverage on a technical omission playing no 

part in the loss.” Pickett, 404 So. 2d at 1153. Whether an insured 

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increased the hazard by noncompliance with a warranty “is typically a question of fact for the jury.” Serendipity at Sea, LLC v. Underwriters at Lloyd’s of London Subscribing to Pol’y No. 187581, 56 F.4th 

1280, 1290 (11th Cir. 2023) (citing Pearl Assurance Co. v. S. Wood 

Prods. Co., 216 F.2d 135, 136 (5th Cir. 1954)).7

The Florida District Court of Appeal discussed the significance of the state’s anti-technical statute in Pickett. There, an insurance company tried to avoid covering a claim for a death in a plane

crash.8 Pickett, 404 So. 2d at 1152–53. The insurer claimed that the 

loss was not covered because the policy did not apply to an insured 

“who operates or permits the operation of the aircraft, while in 

flight, unless its airworthiness certificate is in full force and effect.” 

Id. at 1152. After the jury found, on a special verdict form, that the 

plane lacked a valid airworthiness certificate during the accident, 

the trial court entered judgment for the insurance company. Id.

The Florida District Court of Appeal reversed and remanded. The court explained that, “[f]rom the facts as stated” by 

the insured, “the crash was due to pilot error,” as “the plane flew 

7 Decisions of the former Fifth Circuit issued before October 1, 1981, constitute binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 

F.2d 1206, 1209 (11th Cir. 1981) (en banc).

8 The decedent had originally planned “to return [home] by commercial airline 

to Daytona Beach from a golfing trip in North Carolina.” Tracie S. Boone, 

Case Note, Pickett v. Woods, 404 So. 2d 1152 (Fla. 5th DCA 1981), 10 FLA. ST.U.

L. REV. 737, 741 (1983) (citing Appellant’s Initial Br. at 5, Pickett, 404 So. 1152 

(No. 80-1112)). He changed his mind and “accepted a ride home in a friend’s 

Cessna 310,” a propeller plane, “and played nine more holes of golf.” Id.

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into the ground while attempting to land in bad weather.” Id. at 

1153. The crash was not, however, “the result of any malfunction,” 

so “the failure to have a valid airworthiness certificate did not contribute to the accident.” Id. The court held that the anti-technical 

statute “should apply and prevent the insurance company from relying on the exclusion to deny coverage” if the trial court found on 

remand that the breach did not increase the hazard to the plane. 

Id. The court emphasized that if the insurer’s “interpretation” of 

the anti-technical statute “were accepted, it would actually be to 

the insurer’s advantage that the insured failed to renew the airworthiness certificate. In such event, the insurer would collect a 

premium but would have no exposure to risk because the policy 

would no longer be effective.” Id.

We recently applied Florida’s anti-technical statute in a case 

involving the destruction of a yacht during Hurricane Dorian. See 

Serendipity at Sea, 56 F.4th at 1282. There, the insurer, not the insured, hired Captain Danti as an expert witness. Id. The insurer 

claimed Captain Danti offered “undisputed testimony” that the insured’s failure to “employ a full-time licensed captain in violation 

of the policy’s Captain Warranty” increased the hazard to the 

yacht. Id. In essence, he opined that a full-time captain would have 

moved the boat away from the Bahamas—where the yacht was 

moored, and where the hurricane hit head on—and back to Cape 

Canaveral, the yacht’s primary mooring location. Id. at 1287. The 

District Court found Captain Danti’s opinion on the matter undisputed because the insured did not offer an opposing expert and

granted summary judgment to the insurer. Id.

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We reversed the District Court because we found Captain 

Danti’s expert opinion relied on facts about which there was reasonable dispute. See id. at 1288. Specifically, we explained that the 

insured cited weather reports in its motion for summary judgment 

that showed Hurricane Dorian was unpredictable, and that as of 

the day before the storm hit the Bahamas—where the yacht was 

moored—it was projected to hit Cape Canaveral, not the Bahamas. 

Id. at 1283, 1289. That undermined Captain Danti’s opinion that a 

full-time captain would have moved the yacht from the Bahamas 

to Cape Canaveral. See id. at 1287–89. So, there was a genuine 

factual issue for the jury as to whether the lack of a full-time captain 

increased the hazard to the yacht. Id. at 1290–91.

The rule from these cases is clear: to meet its burden under 

Florida’s anti-technical statute, the insured must show that, under 

the circumstances of the specific accident at issue, the breach of the 

warranty had some material effect on the loss. Otherwise, the insurer could “avoid[] coverage on a technical omission playing no 

part in the loss.” Pickett, 404 So. 2d at 1153.

B.

The next question is whether Travelers has admissible evidence that raises a genuine issue of material fact about whether the 

lack of a full-time captain or crew played a material role in causing 

the My Lady’s sinking. Because Travelers did not disclose an expert 

to testify in its case-in-chief, it lacks evidence from which a jury 

could reasonably find in its favor.

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The effect of Ocean Reef’s failure to retain a full-time captain 

and crew leading up to and during Hurricane Irma is exactly the 

kind of issue that requires expert testimony. The question is hypothetical. Discussing what would have happened if a captain were in 

charge of the My Lady during Hurricane Irma necessarily requires 

hypothesizing. “And the ability to answer hypothetical questions 

is ‘[t]he essential difference’ between expert and lay witnesses.” 

United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005) (citation omitted) (alteration in original).

As Rule 701 provides, a lay witness could not competently 

offer an opinion on what a captain would have done with the My 

Lady if one were in charge. Federal Rule of Evidence 701, Opinion 

Testimony by Lay Witnesses, states:

If a witness is not testifying as an expert, testimony in 

the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other 

specialized knowledge within the scope of 

Rule 702.

Fed. R. Evid. 701.

So, a lay witness can only speak to what he in fact observed. 

Rule 701 permits opinions, but only those “rationally based on the 

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witness’s perception” that help clarify the lay witness’s actual observations, and which do not rely “on scientific, technical, or other 

specialized knowledge.” Id. A lay witness cannot offer a hypothesis about what caused the My Lady to sink or what professional captains or crews might have done to change the outcome. Indeed, 

the question here is what experts would have done differently to 

avoid the accident.

Travelers’ attempts to avoid this fundamental problem with 

its case-in-chief do not work. There is no such thing as “hybrid factexpert witness testimony” in the sense that Travelers claims. Appellant’s Br. at 23. Of course, a properly disclosed and qualified 

expert can testify as both an expert and a fact witness. But the Advisory Committee’s note to the 2000 amendment to Rule 701—the 

amendment that added Rule 701(c)—explicitly says that the 

amendment was designed to “eliminate the risk that the reliability 

requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing.” Fed. 

R. Evid. 701 advisory committee’s note to 2000 amendment. And 

so, “[b]y channeling testimony that is actually expert testimony to 

Rule 702, the amendment also ensures that a party will not evade 

the expert witness disclosure requirements set forth in Fed. R. Civ. 

P. 26 and Fed. R. Crim. P. 16 by simply calling an expert witness in 

the guise of a layperson.” Id.

True, a lay witness who has a job requiring expertise may 

acquire first-hand, “particularized knowledge” of probative facts

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while performing her duties. Id. For example, a physician’s observation of a patient’s injury during treatment is permissible lay testimony (assuming it is otherwise admissible). See Henderson, 409 

F.3d at 1300. But a hypothesis about causation is outside a lay witness’s competency, even if the lay witness happens to have the expertise to draw such conclusions.9 See id.; see also 4 Weinstein’s Federal Evidence § 701.03[1] (2023) (“Regardless of the degree to which 

9 There is some gray area between lay and expert testimony when the lay witness has expertise and used that expertise to make first-hand observations. For 

example, in Henderson, we noted that a treating physician’s “diagnosis of the 

injury itself, that [the victim’s] jaw was fractured, would be permissible lay 

testimony.” 409 F.3d at 1300. But we have not held that any treating physician 

can testify as a lay witness about any diagnosis she made while treating the 

patient. The plain language of Federal Rule of Evidence 701(c) prohibits lay 

opinions “based on scientific, technical, or other specialized knowledge within 

the scope of Rule 702.” Fed. R. Evid. 701. A diagnosis requiring more complex 

diagnostic reasoning than that required to notice a broken jaw may fall under 

Rule 701(c)’s prohibition. See Stephen A. Saltzburg et al., 3 Federal Rules of 

Evidence Manual § 701.02[7] (Matthew Bender 12th ed.) (“When the [treating] 

physician testifies that the plaintiff was coughing and running a fever, this is 

lay witness testimony governed by Rule 701. However, if the physician also 

testifies that he diagnosed the patient as having Reactive Airways Dysfunction 

Syndrome caused by exposure to a toxic chemical, then this is testimony based 

on scientific, technical, or other specialized knowledge and must be qualified 

under Rule 702.”) (citing Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312, 

1317–18 (11th Cir. 2011)). We also note that the Tenth Circuit cases we cited 

for the so-called “treating physician” doctrine, under which “[a] treating physician is not considered an expert witness if he or she testifies about observations based on personal knowledge, including the treatment of the party,”

Davoll v. Webb, 194 F.3d 1116, 1138 (10th Cir. 1999), both predated the 2000 

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a witness’s lay opinion is based on specialized knowledge, it seems 

clear that the witness’s personal perception will remain a fundamental prerequisite to admissibility.”).

Accordingly, Captain McCall—whom Travelers did not disclose as an expert witness—could not provide his opinion on what 

would have happened to the My Lady if a licensed, professional captain were employed full-time. He could discuss the weather forecasts he observed and relate what Gollel asked of him. But those 

facts would leave the jury to speculate about what a captain would 

have done differently to avoid the storm under the specific circumstances of this case.

amendment to Rule 701. The other case was Weese v. Schukman, 98 F.3d 542 

(10th Cir. 1996).

In Williams v. Mast Biosurgery USA, we summarized “our discussion” of the 

treating physician doctrine in Henderson as follows: “[W]hen a treating physician’s testimony is based on a hypothesis, not the experience of treating the 

patient, it crosses the line from lay to expert testimony, and it must comply

with the requirements of Rule 702.” 644 F.3d at 1317–18. We also emphasized 

that “[t]he testimony of treating physicians presents special evidentiary problems that require great care and circumspection by the trial court,” id. at 1316, 

and “that trial courts [must] be vigilant in ensuring that the reliability requirements set forth in Rule 702” are not “‘evaded through the simple expedient of 

proffering an expert in lay witness clothing.’” Id. at 1317 (quoting Henderson, 

409 F.3d at 1300 (quoting Fed. R. Evid. 701 advisory committee’s note to 2000 

amendment)).

Here, the issue is what would have happened if the My Lady had a captain, a 

hypothetical that McCall cannot speak to as a lay witness. In an appropriate 

case, we should clarify when a lay witness goes too far in discussing observations that he made using his expertise.

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Nor does evidence of Gollel’s subjective desire to move the 

My Lady before the hurricane change the equation. Gollel, who is 

not a professional captain, thought his yacht might have been safer

somewhere else. But where the yacht would have actually been

safer was not within the competence of a nervous boat-owner as 

the storm approached.

Finally, Travelers cannot rely on potential testimony from 

Captain Ahlstrom to avoid summary judgment because it only disclosed him as a rebuttal expert. If the case went to trial, Travelers 

would first present its case-in-chief as plaintiff. It would need to 

prove that the lack of a captain had some material effect on the My 

Lady’s demise. It would not have an expert to present in its casein-chief. After it rested, Ocean Reef would move for judgment as 

a matter of law under Rule 50 of the Federal Rules of Civil Procedure. The District Court would grant the motion because “a reasonable jury would not have a legally sufficient evidentiary basis to 

find for” Travelers. Fed. R. Civ. P. 50(a)(1). We can therefore grant 

summary judgment for Ocean Reef because Travelers does not 

have a legally sufficient case to present.

III.

Travelers’ remaining argument is that the District Court 

abused its discretion in refusing to consider Captain Ahlstrom’s report for summary judgment purposes. Specifically, Travelers argues that it was “effectively seeking to use a rebuttal expert as a 

primary expert, [which] was akin to a motion to add or substitute 

an expert.” Appellant’s Br. at 39. Travelers emphasizes that after 

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remand, the burden of proof flipped in that it had to prove the lack 

of a full-time captain played a role in the accident. So, Travelers 

claims the District Court “should have employed its discretion to 

allow Travelers a modicum of flexibility to adjust to that change (at 

the time Ocean Reef filed and Travelers responded to Ocean Reef’s 

Motion to Strike Captain Ahlstrom) by allowing Travelers some 

flexibility with regard to Captain Ahlstrom’s use as an expert.” Id.

at 38. Travelers claims there was “‘good cause’ to re-designate or 

effectively substitute Captain Ahlstrom as Travelers’ primary expert in this case.” Id. at 38–39 (quoting Fed. R. Civ. P. 16(b)(4) (“A 

schedule may be modified only for good cause and with the judge’s 

consent.”)).

When reviewing the District Court for abuse of discretion, 

we must affirm unless the District Court made a legal error—such 

as “appl[ying] an incorrect legal standard” or “follow[ing] improper 

procedures in making a determination”—or made “clearly erroneous” factual findings. Equal Emp. Opportunity Comm’n v. 

Eberspaecher N. Am. Inc., 67 F.4th 1124, 1130 (11th Cir. 2023) (internal quotation marks and citation omitted). The District Court did 

not consider a motion to redesignateCaptain Ahlstrom as an expert 

for Travelers’ case-in-chief because Travelers did not file one. In 

its response to Ocean Reef’s motion to exclude Captain Ahlstrom’s 

report, Travelers asked the District Court not to strike Ahlstrom’s 

rebuttal report as untimely. And it argued that his report rebutted 

Captain Danti’s opinions as if it did not have the burden of proof

or did not need an expert to meet that burden. The District Court 

did not strike the report. But Travelers did not move the Court to

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redesignate Ahlstrom as a case-in-chief expert. And the District 

Court correctly applied Rule 56 by refusing to consider rebuttal evidence as evidence that could meet Travelers’ burden of proof. We

will not reverse the District Court for failing to sua sponte rescue 

Travelers’ case.

IV.

All told, without expert testimony about what a professional 

captain would have done differently to avoid harm to the My Lady 

during Hurricane Irma, the jury would have had to speculate to 

find for Travelers under Florida’s anti-technical statute. And we 

see no need to give Travelers another bite at the apple. The District Court’s grant of summary judgment is

AFFIRMED.

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