Florida Property Insurance Case Law Update: June-July 2021

As part of Clayton Trial Lawyer’s (“CTL”) steadfast commitment to serving our clients, CTL is excited to relay the newest Florida case law update in the property insurance world. This case law update includes summaries of important written opinions from Florida’s District Courts of Appeal issued in the month of June. Specifically, CTL looked directly at opinions issued from June 1, 2021, to July 6, 2021. Each case summary includes a hyperlink to the PDF opinion for your convenience.

1st DCA – No Property Insurance Written Opinions

2d DCA

American Home Insurance Company, Inc. v. John Robert Sebo: The 2d DCA considered whether the trial court caused material injury for the remainder of the proceedings in a bad faith action for damages when it entered a discovery order. Below, the court ordered an in-camera review to determine whether certain documents at issue were discoverable despite the insurer’s objections and assertion of work product and attorney-client privilege. The District Court of Appeals denied the insurer’s petition for certiorari, reasoning that the trial court correctly ordered an in-camera review because although an insured generally cannot discover privileged documents during the underlying action in a bad faith claim, the court can determine if the documents are material to the bad faith claims in the present action.

3d DCA

Aundrea Cole v. Citizens Property Insurance Corporation, etc.: Reviewing a trial court’s order granting the insurer’s motion to dismiss, the 3d DCA considered whether a complaint had adequately alleged that an insured still maintained an insurable interest in the insured property when it changed the ownership structure of the property and whether the newly structured LLC that owned the property had standing to recover under the policy.  The 3d DCA reversed the trial court’s order because consideration of these factual issues is not proper on a motion to dismiss, and the complaint’s allegations regarding insurable interest and standing were to be accepted as true at such early stages in the litigation.

Juan Hidalgo and Elizabeth Hidalgo v. Citizens Property Insurance Corporation: The trial court below compelled discovery production from the insured’s expert engineer witness seeking various financial and business records. The insured’s argument on appeal was that the compelled production was warranted so it could examine the potential biases of the expert witness. The 3d DCA rejected the argument and quashed the discovery order. Citing Fla. R. Civ. P. 1.280(b)(5)(A)(iii)(4), the Court held that the circumstances of the case did not show “the most unusual or compelling circumstances” that would require discovery of the requested documents as provided by the rule.

4th DCA

Certified Priority Restoration a/a/o James Krempler v. Citizens Property Insurance Corporation: The 4th DCA reviewed the trial court’s order granting summary judgment in favor of the insurer when the assignee of benefits failed to submit a valid request under the policy to recover payment for mitigation services performed when that payment exceeded the policy limit of $3,000. The communication that the Court examined was an email sent by the assignee to the insurer, which attached 18 pages of documents including the invoice for work performed and the assignment of benefits.  Buried in the document containing assignment of benefits was a paragraph that notified that the assignment would operate as a direct request for payment over the policy limit. The 4th DCA affirmed the trial court’s order and held that the record supported the trial court’s determination that the assignee’s email was sent as a “gotcha-tactic,” and therefore did not amount to a proper request for payment under the policy.

Gene Dodge and Kathleen Dodge v. People’s Trust Insurance Company: The 4th DCA was presented with the challenge of defining the phrase, “act of nature,” as used in the insurance policy in order to determine whether the insureds could recover monies in excess of the $10,000 policy limit for damage resulting from a burst in their plumbing system caused by rust and corrosion in the cast-iron pipes. If the rusting was considered an “act of nature,” then it was excluded from coverage by the policy language. The insureds argued that the phrase “act of nature” was narrowly defined as synonymous to an “act of God,” i.e., something “exceptional” or “unpreventable.” The 4th DCA disagreed and affirmed the trial court’s order granting summary judgment for the insurer – limiting the amount of recovery. Utilizing ordinary dictionary definitions of “act” and “nature,” the Court defined the phrase at issue to mean “the doing of the inherent character of the thing.” Accordingly, the 4th DCA held that rust and corrosion occurring in water pipes fit within the definition. Therefore, the excess damages were properly excluded from coverage by the trial court.

Anchor Property and Casualty Insurance Company v. Alex Trif and George Trif: The insurer appealed a final judgment and jury verdict for insurers, arguing that the insurers made misrepresentations and false statements regarding the estimates for their roof damage that bars them from recovery under the “Concealment or Fraud” provision of the policy. In a lengthy opinion, the 4th DCA reviewed the evidence presented at trial on the issue, required a finding of intent for coverage to be barred for making “false statements” under the “Concealment or Fraud” provision, and affirmed the jury’s verdict for the insureds because it was entitled to rely on the conflicting evidence on the record as to whether the insureds knowingly made false statements with the intent to cheat or defraud the insurance company.

5th DCA – No Property Insurance Written Opinions

CTL continues to monitor Florida’s appellate courts to certify our expertise in property insurance case law in Florida – all so that we can continue to provide our clients with the very best legal representation in the field.  We look forward to our next case law update and to informing our clients of all of the changes in case law, no matter how small.