Property Insurance Case Law Update: Florida DCA Opinions from August 2021

Property Insurance Case Law Update: Florida DCA Opinions from 6/7/21 – 8/13/21

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 July 7, 2021, through August 13, 2021. For your convenience, each summary includes a hyperlink that will bring you directly to the court’s written opinion.

1st DCA:

American Integrity Insurance Company of Florida v. Floyd Venable and Betty Venable: The First quashed the trial court’s order requiring the insurer to produce documents that were part of an underwriting file on the insured property in a claim for breach of contract against the insurer. Specifically noting that claim files and underwriting files are not subject to disclosure in a breach of contract action, the Court of Appeals held that the trial court should have conducted an in-camera inspection of any documents the insurer claimed were privileged or confidential.

2nd DCA:

Mary Iwanicki v. Safepoint Insurance Company: An insured appealed after a directed verdict at trial on the two counts, arguing that the trial court erred in determining whether the insured filed suit prematurely and whether the insurer had exercised its option to repair – since it had not done so in writing. The Court reversed on both counts and remanded for a new trial, holding 1) that the “clock started” well before the time-stamped by the trial court, thus the insurer timely filed; and 2) that there was ample evidence on the record for a jury to make the determination as to whether the insurer had exercised its option to repair, regardless of the fact that it had not done so in writing.

3rd DCA:

Dulce Kermes v. Citizens Property Insurance Corporation: An insurer appealed the trial court’s denial of its motion to dismiss arguing that the insured failing to join her estranged husband of 15 years to her complaint. However, because the insurer had not adequately established jurisdiction for the appellate court to review the trial court’s decision, the Third District denied the appeal and dismissed the petition.

Yolanda Alvarez, et al. v. Citizens Property Insurance: The Third reversed a trial court’s dismissal of a complaint where there was insufficient justification for such a sanction. The trial court dismissed the insureds’ complaint as a sanction when one of the three homeowners failed to attend a mediation. The Court explained that such a decision used as a sanction was too severe on the facts of the case – the Court noted that “less draconian, rule-based alternatives” were readily available to the trial court to resolve the issue.

Avatar Property and Casualty Insurance Company v. Maria De Caires: An insurance company appealed a trial court’s denial of its motion for a directed verdict and the court’s entry of a directed verdict in favor of the insured. Although the Third District affirmed the trial court’s decision to deny the insurer’s motion for a directed verdict – because the insurer waived the right to challenge this claim in pretrial proceedings – the Court reversed and remanded a new trial, holding the trial court erred in letting the jury make a determination as to the amount of damages awarded even though the insurer did not call any witnesses after the insured rested its case.

Heritage Property Insurance Company v. Virginia Gardens Condominium Association: The Third District reviewed a trial court’s decision to compel appraisal on the insured’s motion for same. In holding that the trial court properly rejected the insurer’s argument that the repair estimate constituted a supplemental claim, the Court emphasized that it remains within the trial court’s discretion to determine “the order in which issues of damages and coverage are to be determined by arbitration and the court.”

Celerina Nunez v. Universal Property and Casualty Insurance Company: The Third affirmed a trial court’s determination to issue a directed verdict due to the insured’s failure to comply with her post-loss obligation to attend her EUO and affirmed the trial court’s order granting a new trial in light of the Third DCA’s opinion in American Integrity Insurance, Co. v. Estrada, 276 So. 3d 905 (Fla. 3d DCA 2019). Importantly, the issue to be considered during the retrial will focus on whether the insured can prove that the insurer was not prejudiced by the material breach of contract that resulted from a failure to comply with post-loss obligations.

4th DCA:

Heather Silversmith v. State Farm Insurance Company: The insured appealed the trial court’s denial of its motion for summary judgment and finding that no one may audio/video record an inspection of the homeowner’s property. The Fourth held the trial court erred in making such a finding because there was nothing in the insurance policy, case law, or applicable statutes that would preclude a homeowner from videotaping an inspection of her home. Accordingly, the Court reversed and remanded the trial court’s decision.

5th DCA: No Property Insurance Cases

CTL continues to keep its finger on the pulse of the DCA’s recent property insurance cases. As always, CTL will continue to inform our clients of the latest updates in the law in this space. so that the clients receive first-class legal representation.