Clayton Trial Lawyers (“CTL”) specializes in defending property insurance claims in South Florida. As part of our commitment to providing the very best service for our clients, we add this blog post to our website so our clients and others can be informed and up-to-date on key decisions in the property insurance space – the law never sits still.
Because it is our duty to be educated and informed on new decisions that may impact our clients, we have included summaries from important decisions from Florida’s District Courts of Appeal that have been published in recent months, specifically from March 1, 2021 through June 1, 2021. While we concentrated on case law from the most recent past, we also include the two very important cases that predate this time frame: Citizens Property Ins. Co. v. Manor House LLC out of the Florida Supreme Court in January 2021, and Vazquez v. Citizens Property Ins. Co out of the 3d DCA from March 2020.
March 1, 2021 through June 1, 2021
2nd DCA:
- Avatar Property and Casualty Ins. Co. v. Flores: Following a motion to compel and anin camera review of documents, the trial court compelled insurance company to produce certain claim file documents over its objection that the documents were privileged under the work product doctrine. The 2d DCA quashed the trial court’s order and held that the trial court departed from the essential requirements of law in ordering production of the documents.
- Arizone v. Homeowner’s Choice Property and Casualty Ins. Co. Inc.: The trial court rejected an insured’s argument that insurance company was not entitled to Attorney’s fees on settlement offers that were made prior to the insured’s participation in the lawsuit. The 2ndDCA reversed, relying on case law from the 3d and 4th DCAs, and held that critical date for determining when the insurance company can recover attorney’s fees is when the insured becomes a part of the litigation.
3d DCA:
- People’s Trust Insurance Company v. Marzouka: The trial court denied insurance company’s motion to dismiss and compel appraisal after insured declined to participate in appraisal – filing a lawsuit for declaratory judgment and alleging the contractual provisions for binding appraisal were unconscionable. The 3dDCA affirmed in part, holding that compelling appraisal is immature when the insured’s lawsuit challenges that enforceability of the contractual provisions that bind the parties to mandatory appraisal.
- Nunez v. Universal Property and Casualty Insurance Co.: The 3dDCA affirmed a trial court’s order granting a new trial to insurance company but rejected the trial judge’s issuance of a directed verdict for the insurance company. On remand, the 3d DCA instructed that the new trial must determine whether the insured’s failure to attend EUO was a material breach of contract that warranted the insurance company’s denial of coverage, and whether the material breach did/did not prejudice the insurance company.
4th DCA:
- Vainberg v. Avatar Property and Casualty Ins. Co.: The 4thDCA remanded case for new trial following the trial court’s error in refusing to give “Drew contract instructions,” and its error allowing the insurance company to raise an affirmative defense at trial that had not been raised in the pleadings. When an insured alleges that the insurance company’s repairs were defective and caused damage to the property, the trial court must instruct the jury to decide whether the repairs were properly made under 4th DCA precedent, Drew v. Mobile USA Ins. Co.
- People’s Trust Ins. Co. v. Farinato:Insured filed of a lawsuit after the insurance company demanded the parties proceed with appraisal. After dismissing the case and resolving the dispute in the insured’s favor through court compelled appraisal, insured moved for attorney’s fees for having to bring the lawsuit. The trial court awarded the requested fees on the basis that the lawsuit “had gotten the wheels turned” in resolving the dispute. The 4th DCA reversed, holding that the insured was not entitled to insurance fees because the lawsuit was not a catalyst to the resolution of the dispute.
5th DCA:
- Lopez v. Avatar Property and Casualty Ins. Co.: The trial court granted summary judgment in favor of insurance company even after it became aware that insurance company had made (unintentional?) misrepresentations of key facts. The 5th DCA reversed the summary judgment and remanded the matter for further proceedings and held that trial court erred as a matter of law when it denied insured’s motion for rehearing upon learning of the insurance company’s counsel’s misrepresentation of factual circumstances of the case.
Prior to March 2021
Fla. Supreme Court January 2021:
- Citizens Property Ins. Co. v. Manor House LLC: The 5thDCA below held that insured was entitled to consequential damages pursuant to lost rental revenue due to insurance company’s breach of contract. The SC quashed the 5th DCA’s decision and concluded that “extra-contractual, consequential damages are not available in a first-party breach of insurance contract action because the contractual amount due to the insured is the amount owed pursuant to the express terms and conditions of the policy.” The SC recognized that extra-contractual damages are available in a separate bad faith action pursuant to section 624.155 but held they were not recoverable in the present action.
3d DCA March 2020:
- Vazquez v. Citizens Property Ins. Co.: The 3dDCA affirmed a trial court’s finding that “insured” loss is the property that was actually damaged in the claim and, therefore, the insured was not allowed to introduce evidence at trial intended to prove that the “actual cash value” owed to insured included matching repair costs because matching is not a direct physical loss.
CTL remains vigilant. We continuously monitor the appellate courts in Florida to keep our finger on the pulse of even the most nuanced changes in the law within the property insurance world – so that we can provide our clients with the very best representation possible. Stay up-to-date with our blog on the CTL website for more information on all things property insurance law, and all things CTL.