CASE LAW UPDATE: Property Insurance Cases in Florida’s Courts of Appeal (7/15/22 – 8/16/22)

1st DCA – No Property Insurance Written Opinions

2nd DCA – No Property Insurance Written Opinions

3rd DCA

                – Water Restoration Guys, Inc., a/a/o Felisa Sanchez v. Citizens Property Insurance Corporation: The 3^rd DCA reversed summary judgment entered by the trial court in the insurance company’s favor. On appeal, the assignee of benefits to the policy argued that the insurance company’s acknowledgment of the assignment of benefits waived the policy’s requirement that certain documentation be submitted to the insurance company as a prerequisite for filing suit. The appellate court agreed and stated that the case could be decided simply by looking at Citizen’s denial letter, which referenced the assignment of benefits to the appellee. Therefore, any reading of the policy that would require compliance with the policy terms after the determination to deny the claim had been determined would be—in the court’s words—“absurd.” Accordingly, the 3^rd DCA reversed and remanded for further proceedings.

4th DCA

–  Ronaldo Perez and Yadira Perez v. Citizens Property Insurance Corporation: In reversing the trial court’s ruling in favor of the insurance company on its motion for summary judgment, the 4^th DCA explained that even though there was no genuine issue of material fact as to late notice provided by the insured, the insurance company failed to show that there was no issue of material fact as to whether the company had been prejudiced by the late notice. The court found unconvincing the insurance company’s argument that the insured’s expert’s affidavit failed to rebut Citizen’s claim of prejudice, and so the court reversed summary judgment for the insurance company and remanded for further proceedings.

– Mold Buster Detection Services, LLC, a/a/o Abraham Solano v. Citizens Property Insurance Corporation: In a short, to-the-point opinion, the 4^th DCA affirmed a trial court’s dismissal of the assignee’s complaint. The insured argued on appeal that the insurance company could not challenge the insured’s assignment of benefits under the policy because the policy’s language failed to incorporate language from section 627.7153, Florida Statutes. The appellate court disagreed and held that section 627.7153 is inapplicable to the determination of the sufficiency of an insured’s assignment of benefits to a third party under section 627.7152, Florida Statutes. Therefore, because the assignment of benefits failed to comply with section 627.7152, the trial court properly dismissed the action below.

– Theresa Gromann v. Avatar Property & Casual Insurance Company: Florida Rule of Civil Procedure 1.510(c)(4) requires that affidavits or declarations filed in support of a motion for summary judgment be based on personal knowledge, that the affiant or declarant would be competent to testify at trial, and that the facts relied upon would be admissible at trial. Here, however, the 4^th DCA reversed summary judgment for the insurance company when: 1) the insurance company’s affidavit failed to include a statement of personal knowledge by the affiant, and 2) the affidavit was a “copy and paste” of the insurance company’s motion for summary judgment. Moreover, the appellate court called out Avatar for its habit of filing fatally deficient affidavits like the one in this case, citing to other cases where they had been reversed on appeal for the exact same reason.

– Linda Comisar and Bernard Comisar v. Heritage Property & Casualty Insurance Company: The 4^th DCA reversed a trial court’s dismissal of a complaint with prejudice for failing to properly plead a cause of action for declaratory relief. The trial court dismissed the complaint’s declaratory action because it determined that it was a disguise for a breach of contract claim. The appellate court decided that even if the trial court’s inclination was correct, it had no bearing on whether the insured had properly pled a cause of action for declaratory relief. Ultimately, the appellate court disagreed with the trial court’s determination on the sufficiency of the complaint and remanded for further proceedings because, in its determination, the complaint properly pled the elements for declaratory relief.

– Angelo Panettieri v. People’s Trust Insurance Company: The District Court of Appeal affirmed a trial court’s decision on summary judgment that ruled in favor of the insurance company on two grounds. The insured argued on appeal that the insured was entitled to payment for “tear out” costs because 1) “tear out” costs associated with remedying water damaged were not limited under the policy’s water damage policy limit of $10,000 and 2) even if the “tear out” costs were included in the limitation, the limit should not apply because “tear out” were explicitly provided for elsewhere in the policy. After analyzing the text of the “all risk” policy, the appellate court held that even though the “tear out” costs were not included in the policy limits of $10,000 for water damage, “tear out” costs were—in fact—excluded altogether under the policy. Therefore, the court determined that the trial court properly ruled below that the insured’s claim was limited to the $10,000 policy limit for water damage.

5th DCA – No Property Insurance Written Opinions