It’s a new year, and as always, CTL strives to continue to offer “best-in-class” service to our client. In keeping with this practice, CTL is pleased to provide the latest legal developments in the property insurance space in Florida’s District Courts of Appeal through January 17, 2023. Hyperlinks to the written opinions are included in each of the case names, below.
First District Court of Appeal
No New Written Opinions on Property Insurance Cases
Second District Court of Appeal
- American Home Insurance Company, Inc. v. John Robert Sebo: In an insured’s bad-faith case against its insurer, the Second DCA considered the insurer’s petition for certiorari to review a trial court’s order affirming a magistrate’s order that compelled production of certain documents over the insurer’s assertion of work product and attorney-client privilege protections. In denying the petition, holding that the petition sought relief not yet determinable, the appellate court upheld the magistrate’s order that only addressed a portion of the total documents submitted for in-camera In other words, the Second DCA was satisfied that the magistrate’s review provided a sufficient “guide” for the insurer to ascertain which documents it should produce in accordance with the order.
- Robert Wallace v. Citizens Property Insurance Corporation: The Second DCA reversed the trial court’s order compelling the deposition of the insured’s non-testifying consulting expert. After an analysis of Florida Rule of Civil Procedure 1.280(b)(5)(B), the appellate court criticized the trial court’s lack of consideration of whether exceptional circumstances required the insurer’s deposition of the consulting expert per the Rule, but only reversed the trial court’s order to the extent that the consulting expert was required to testify on matters outside the scope of the report because it was previously produced in discovery.
Third District Court of Appeal
- Raymond Erb v. Chubb National Insurance Company: In determining that the applicable contractual provision requiring a party to invoke its right to resolve disputes through arbitration within one year was unambiguous, the Third DCA reversed the trial court’s order compelling arbitration because the insurer did not move to compel arbitration within the one-year period following the notice of claim—as required by the insurance contract.
Fourth District Court of Appeal
- People’s Trust Insurance Company v. Errol A. Polanco: In a written opinion reversing the trial court’s award of attorneys’ fees following an appraisal award, the Fourth DCA held that the property insurance litigation was not a “necessary catalyst” to resolve the dispute and force the insurer to comply with its obligations of the insurance policy. Specifically, the appellate court reasoned that because the insured never disputed the coverage position of the insurer prior to filing suit the insurer never had a prior opportunity outside of litigation to invoke its right to appraisal to settle the dispute—because none had existed prior to litigation. Thus, the lawsuit itself could not be a “necessary catalyst” to resolving a dispute if one had not existed but for the filing of the lawsuit.
- Air Quality Experts Corporation a/a/o Brian and Tricia Gerard v. Family Security Insurance Company: On appeal, the assignee of benefits challenged the trial court’s dismissal of the insurer’s motion to dismiss on the basis that the policy holder’s AOB contract failed to comply with section 627.7152, Florida Statutes—which requires that the contract included an itemized summary of the services to be performed. Here, the appellate court agreed with the trial court’s finding that the “price list” of potential services to be performed that was attached to the AOB contract was insufficient to meet the requirements of the statute. Therefore, the assignment was invalid and unenforceable and thus, the restoration company lacked standing to bring its suit against the insurer.
- Yuval Lugassy and Susan Lugassy v. United Property and Casualty Insurance Company: Here, the Fourth DCA considered whether the insurer’s Civil Remedy Notice (“CRN”) met the statutory requirements of section 624.155(3)(b), Florida Statutes, such that it could support its lawsuit for bad faith against the insurer. The appellate court reversed the trial court’s order dismissing the case on the grounds that the CRN sufficiently outlined the statutory violations alleged, the individuals involved, and the actions and/or omissions that caused the purported violations. Specifically, the appellate court explained that the CRN need not include a “cure amount” in order to satisfy the requirements of the statute, and thus, the insured’s bad faith lawsuit was supported by the CRN and could proceed through the litigation process.
Fifth District Court of Appeal
- The Kidwell Group, LLC d/b/a Air Quality Assessors of Florida a/a/o Jatin Patel v. ASO Preferred Insurance Corp.: The Fifth DCA, here, affirmed the trial court’s dismissal of the assignee’s action against the insurer, specifically holding that the agreement purporting to assign the policy holder’s benefits failed to comply with the requirements of section 627.7152, Florida Statutes. The appellate court rejected the assignee’s argument that the insurer lacked standing to challenge the assignment based on the notion that even a defective assignment renders the contract merely voidable, rather than void. The opinion neatly reasoned that the statute’s use of the words “invalid” and “unenforceable” undermines the assignee’s claims, and thus, the trial court properly dismissed the suit.
- Thomas Demase and Joanne Demase v. State Farm Florida Insurance Company: Considering an insureds’ appeal from a trial court’s grant of summary judgment in favor of the insurer on the insureds’ bad faith claim, the Fifth DCA affirmed the trial court’s reasoning that the insurer’s CRN failed to adhere with the statutory requirements of section 624.155, Florida Statutes. The appellate court specifically rejected the insureds’ argument that the CRN “substantially complied” with the statutory requirements, and that even under some lesser standard, the CRN would fail to satisfy the statute. Thus, because the CRN was insufficient to support the insureds’ bad faith suit, the court affirmed summary judgment in favor of the insurer.
- Marisol Rosa v. Safepoint Insurance Company: Affirming the trial court’s grant of final summary judgment in favor of the insurer, the Fifth DCA held that the insurance policy’s “Water Damage Exclusion.” The question on appeal was whether rust or corrosion was an “act of nature” as used in the policy—if it was, then the exclusion operated to bar coverage. Holding that an “act of nature” can be construed as referring to anything that “naturally occurs,” the trial court reasoned that rust and corrosion is the type of damage that results from a “natural occurrence.” Therefore, the property damage fell within the application of the exclusion, and the coverage sought was barred by the policy itself. Accordingly, the Fifth DCA affirmed the trial court’s ruling in favor of the insurer.
Sixth District Court of Appeal
- In CTL’s next case law update, look out for written opinions in property insurance case law space from Florida’s newest appellate court: The Sixth District Court of Appeal. Back in June 2022, Governor DeSantis signed HB 7072, which established new Florida appellate court boundaries starting January 1, 2023. Thus, in subsequent months, we expect to see many property insurance law opinions from the Sixth DCA—comprised of the Ninth, Tenth, and Twentieth Judicial Circuits.