Summary Judgment

FULL PRO RESTORATION,

Total

CARE RESTORATION, LLC, a/a/o YOEL BERNAL v. CITIZENS PROPERTY INS. CORP., No. 3d22711 (Mar. 15, 2023)

KK TAKEAWAY: A generic price list is not a per-unit cost estimate.

BACKGROUND:

Total Care’s complaint was dismissed for failure to comply with section 627.7152, Florida Statutes. Specifically, the AOB did not contain an estimate. Specifically, it contained a document titled “Itemized per-Unit Cost Estimate.” However, the document only generally listed a unit price for each item. Citizens filed a motion to dismiss, arguing that the price list was not a per-unit cost estimate, and the trial court agreed, dismissing the case with prejudice.

The Third District Court of Appeal agreed with the trial court holding “[s]uch a generic menu of services available to any customer manifestly fails to comply with the itemized, per unit cost estimate…” required by section 627.7152(2)(a)(4).

a/a/o PLACIDO FERNANDEZ v. CITIZENS PROPERTY INS. CORP., 3D21-2312 (Mar. 15, 2023)

KK TAKEAWAY: The trial court is not required to continue summary judgment hearing where the non-moving party fails to respond to factual assertions.

BACKGROUND:

This is a Hurricane Irma claim in which coverage was denied due to wear, tear, and deterioration. Citizens hired an engineer who opined that the damage to the property was not the result of Hurricane Irma. The insured subsequently filed an amended complaint in June 2020 asserting the failure to pay the Full Pros roof invoice in full.

Citizens moved for summary judgment on two grounds:

1) The roof did not suffer a covered perilcreated opening which water entered, and Full Pro did not present evidence to the contrary; and

2) Full Pro failed to meet its burden of proof to establish an exception to the policy exclusion.

The summay judgment hearing was postponed by Full Pro several times due to the insured’s lack of cooperation in permitting a re-inspection for Full Pro’s expert. Full Pro decided to rely upon the deposition transcripts of Citizens’ engineer. During deposition, Citizens’ engineer opined that two shingles did appear to be blown off due to lack of adhesion. Still, it was unclear whether it was in conjunction with the hurricane.

During the hearing, an argument was raised that Full Pro could not rely on late disclosed evidence pursuant to the new summary judgment rule. Full Pro argued that Rule 1.510(c)(5)(e) permits the court to allow additional time to provide competing evidence. Citizens argued that the evidence Full Pro relied upon was clearly in the record, and they had ample time to rely on such if they chose. The trial court granted Citizens’s summary judgment and denied Full Pro’s request for a continuance.

The Third District Court of Appeals held that the trial court was within its discretion to deny continuance as Rule (5)(e) is discreatonary. While Rule 1.510(5)(c)(d) provides a further basis for continuance, the key issue is prejudice. The Third District relied upon the Second District’s opinion in Rice v. NITV, LLC for the factor test to evaluate prejudice on the denial of the continuance of a summary judgment hearing:

1) Whether the movant suffers injustice from denial of the motion;

2) Whether the underlying cause for the motion was unforeseen by the movant and whether the motion is based on dilatory tactics;

3) Whether prejudice and injustice will befall the opposing party if the motion is granted.

19 So. 3d 1095, 1099 (Fla. 2d DCA 2009).

In this case, there was no evidence that a continuance would result in additional evidence creating a genuine issue of material fact. Where outstanding discovery is immaterial to the case’s dispositive issues, there is no abuse of discretion.