CTL’s Property Insurance Case Law: Fall Update Thru 11.10.21

Property Insurance Case Law Update: Florida DCA Opinions from 8/14/21 – 11/10/21

Clayton Trial Lawyers (“CTL”) remains committed to providing its clients with premier, best in class representation. As part of this steadfast commitment, CTL is excited to inform our clients about the latest developments in the property insurance space by summarizing the most recent property insurance cases considered and decided by Florida’s District Courts of Appeal. This post summarizes the cases decided from August 14th, 2021, through November 10th, 2021. For your convenience, each summary includes a hyperlink that will bring you directly to the court’s written opinion.

1st DCA:

No Written Opinions on Property Insurance Cases

2nd DCA:

State Farm Florida Insurance Company v. Orilinda Gonzalez and Hormodio Diaz: On appeal, the insurer challenged the trial court’s entry of final judgment in the insureds’ favor. The trial court found the insurer liable for fungus-related damages that were a resulting loss from a septic tank overflow. The insurer successfully argued on appeal that the trial court failed to properly consider the homeowner policy’s endorsement provision, which explicitly stated that fungus-related losses were “losses not insured.” The Second DCA also held that the insurer did not waive any coverage defenses simply by invoking appraisal. Accordingly, the Second DCA reversed the trial court’s final judgment.

American Coastal Insurance Company v. Ironwood Inc.: The Second DCA reversed a trial court’s order staying the litigation and compelling appraisal because the directive to submit to an appraisal was premature. The insured filed an additional claim in 2019 for alleged damages to its condominium association’s windows and doors resulting from Hurricane Irma in 2017. It soon filed suit and moved the trial court to compel appraisal, but it had yet to fully comply with the insurer’s request for documents pursuant to the policy’s post-loss obligations. Because of the insured’s failure to comply with its post-loss obligations, which in turn prevented the insurer from making a coverage determination on the potential supplemental claim, the Second DCA held that the trial court erred in entering its order, compelling appraisal.

3rd DCA:

Union Restoration, Inc., a/a/o Aimee Valdes v. Citizens Property Insurance Corporation: The Third DCA affirmed the trial court’s entry of final summary judgment for the insurer when the record below reflected that the restoration company had altered the written assignment several times, including adding the insured’s initials to the alterations. Thus, the Court of Appeal had “no difficulty” upholding the judgment for the insurer.

Odalys Alvarez and Jorge Garcia v. Citizens Property Insurance Corporation: The insureds appealed a trial court’s entry of final summary judgment in favor of the insurer, and argued that the trial court improperly weighed summary judgment evidence from the insureds’ engineer, whose assessment of the floor damage at issue was central to the damages claimed. The Third DCA agreed with the insureds and reversed the trial court, holding that despite the inconsistencies and potential speculation in the engineer’s report and deposition, the trial court improperly weighed the credibility of the evidence rather than determining whether a genuine issue of material fact existed.

State Farm Florida Insurance Company v. Vernon Shotwell: The Third DCA affirmed in part and reversed in part a trial court’s motion to compel the full payment of the appraisal award. The insurer objected to the appraisal award on a number of grounds, specifically citing that explicit “tear-out” policy language excluding payment for the cost required to tear out and replace kitchen cabinets, a concrete slab, and corroded piping – repairs that were necessary to prevent further water damage. The Court of Appeal agreed, but affirmed part of the summary judgment order that compelled payment of additional living expenses that accrued during the duration of time it took to repair water damage that resulted from an overflowing toilet.

All Insurance Restoration Services, Inc. a/a/o Miguel Cediel and Mariela Cediel v. Citizens Property Insurance Corporation: The Third DCA considered whether an EMS company’s email demanding payment for emergency mitigation services performed in an amount above and beyond the policy limit constituted a “request” that required the insurance company’s approval within 48 hours. The court rejected the restoration company’s argument and determined that the email and submission of the invoice is nothing more than a demand for payment for services already rendered, rather than a “request” under the policy. Therefore, the court concluded, that the trial court’s entry of summary judgment in favor of the insurance company was proper since it paid the policy limit.

Citizens Property Insurance Corporation v. Joseph Casanas and Nancy Cervantes: The insurer successfully argued on appeal that the trial court’s award of attorneys’ fees was not supported by competent, substantial evidence. Below, the underlying claim settled during mediation for $35,000 dollars prior to any substantial litigation activity. Notwithstanding, the trial court awarded a total fee award of $150,600. The Third DCA reversed, holding that the trial court arbitrarily determined the lodestar amount and the fee multiplier rate, and that the alleged number of hours billed by the plaintiffs’ attorney was unsupported on the record below.

4th DCA:

Maria Ruckdeschel and Michael Ruckdeschel v. People’s Trust Insurance Company: The insureds appealed a nonfinal order compelling them to pay the insurer’s contractor the policy deductible and to allow the contractor to make necessary repairs. The Fourth DCA reversed the trial court’s order and held that it granted injunctive relief to the insurer that was never supported by a corresponding pleading that requested such relief. Namely, because the insurer never filed a counterclaim to the insured’s complaint demanding the insured’s specific performance under the insurance contract pursuant to the “Preferred Contractor Endorsement,” the insurer was not entitled to the requested relief in its motion to compel. Thus, the trial court erred in granting the motion and entering its order.

Margaret Gregoire and Lesly Gregoire v. Citizens Property Insurance Corporation: The Fourth DCA denied the insurer’s motion for rehearing on the court’s order denying an award of attorneys’ fees because the insurer’s motion did not cite any contractual or statutory basis showing that it was entitled to an award for fees as the prevailing party. The Court of Appeal specifically cited to applicable statutes and the contractual language in the insurer’s release, highlighting that neither provide the insurer with a basis to request fees.

Winston Dias and Kathleen Dias v. Universal Property and Casualty Insurance Company: The Fourth DCA reversed the trial court’s entry of summary judgment for the insurer that dismissed the claim for relief because a genuine issue of material fact existed as to whether the insurer was prejudiced by the insured’s failure to comply with post-loss obligations within the time period provided in the policy. Specifically, the Court of Appeal noted that an insured can rebut the presumption of prejudice against the insurer that attaches when an insured fails to comply with post-loss obligations. It held that the record below contained evidence presented by the insured that allegedly rebutted the presumption of prejudice, and therefore, a genuine issue of material fact existed regarding the existence of prejudice against the insurer. Accordingly, the trial court erred in granting summary judgment.