FIRST-PARTY PROPERTY APPELLATE TEAM
Kimberly J. Fernandes Partner
Tallahassee | Atlanta
T: (850) 577-1301
kfernandes@kklaw.com
Daniel Montgomery Partner
Jacksonville
T: (904) 549-7700
dmontgomery@kklaw.com
ADMISSIONS
For any questions, please contact:
Jeffrey M. Wank
Chair, First-Party Property and Insurance Coverage Division
Fort Lauderdale
T: (954) 370-9970
jwank@kklaw.com
Florida • Georgia • United States Court of Appeal, Eleventh Circuit
SELECTED OPINIONS
w Expert Inspections, LLC d/b/a ITest d/b/a Moldexpert.com a/a/o Pat Beckford v. United Property & Casualty Insurance Company, 333 So.3d 200 (Fla. 4th DCA 2022) (holding that an insurer cannot be required to follow the terms of an AOB contract where the insurer is not a party to that contract).
w The Kidwell Group, LLC d/b/a Air Quality Assessors of Florida a/a/o Maria Amadio v. Olympus Insurance Company, Case No. 5D21-2955 (Fla. 5th DCA July 22, 2022) (interpreting section 627.7152, F.S., as applying to AOB contracts executed after the enactment of the statute, finding the policy inception date irrelevant to the analysis).
w Saunders v. Florida Peninsula Insurance Company, 314 So.3d 592 (Fla. 3d DCA 2020) (interpreting the “faulty workmanship” policy exclusion to include the workmanship process as well as the finished product in affirming the insurer’s denial of a property damage claim).
w The Kidwell Group, LLC d/b/a Air Quality Assessors of Florida a/a/o Benjamin Kivovitz, Case No. 4D21 2843 (Fla. 4th DCA June 15, 2022) (enforcing the new section 627.7152, F.S., requirement of including a line-item estimate with an AOB contract at the time of execution)
ADMISSIONS
Florida • U.S. District Court, Northern District of Florida • U.S. District Court, Middle District of Florida
SELECTED OPINIONS
w Progressive American Insurance Company v. Glassmetics, LLC, No. 2D21-488, 2022 WL 1592154 (Fla. 2d DCA 2022) (“we reverse the trial court’s order and its conclusions (1) that the appraisal provision was against the public policy underlying section 627.428; (2) that the appraisal provision failed to provide sufficient procedures and methodologies; (3) that Progressive waived its appraisal right; (4) that the appraisal provision was unenforceable because Progressive failed to prove that the insured knowingly, voluntarily, and intelligently waived his rights of access to courts, to a jury trial, and to due process; and (5) that the appraisal provision contains an ambiguity.”).
w All Auto Glass v. Progressive American Ins. Co., Case No. 2018-SC-3126, 2019-33-AP (Fla. Seminole Cnty. Appellate Division.) (“reversing trial court, holding ruling of district court of appeal in jurisdiction other than where trial court is located is binding upon trial court absent conflict with another district court of appeal. )
w Progressive Am. Ins. Co. v Broward Ins. Recovery Ctr., LLC, 322 So. 3d 103 (Fla. 4th DCA 2021) (“reversing trial court, holding prohibitive cost doctrine inapplicable to appraisal”).
Bad Faith – Waiver of CRN Deficiency Challenges
AILEEN BAILEY v PEOPLE’S TRUST INS. CO., 4D2023-1136 (JUNE 20,
2024)
KK TAKEAWAY:
Challenges to the sufficiency of a CRN must be raised in response to the CRN.
KK TAKEAWAY:
Similarly, a CRN must be specific, and any deficiencies must be specifically asserted.
BACKGROUND:
In response to the insured’s claim, People’s Trust invoked its option to repair, finding the damage below the policy deductible. The insured filed a CRN alleging multiple violations. People’s Trust responded by generally asserting that the CRN failed to comply with the requirements of a CRN. After that, the matter proceeded to appraisal, resulting in an award of $90,330.61. The insured then filed a bad faith action based on the award.
People’s Trust sought summary judgment, arguing the CRN was facially deficient, and that it sought a monetary award when the right to repair was invoked. In response to summary judgment motion, the insured argued that challenges to the CRN were waived as the carrier did not make specific responses.
The Fourth District reversed the trial court, holding that the CRN response only expressed the requirements of a valid CRN but did not expressly address any specific deficiency, thus waiving such challenges.
Bad
Faith –Conditions Precedent
AILEEN BAILEY v PEOPLE’S TRUST INS. CO., 4D2023-1136 (JUNE 20, 2024)
KK TAKEAWAY:
A judgment is not the only way to establish liability and damages on policies issued before December 16, 2022.
BACKGROUND:
Following the entry of an appraisal award, Snappers sought leave to amend the Complaint to add a bad faith claim. Lloyd’s opposed leave, arguing it would be futile as there was no breach of contract. On the contrary, Lloyd’s argued that Snappers failed to provide the necessary information, but once it did, Lloyd’s invoked appraisal pursuant to the policy.
On appeal, the Third District cited the history of cases demonstrating that a judgment is not the only way a party can establish liability and damages (e.g., arbitration, appraisal, settlement, etc.). Due to this, the Third District reversed the trial court’s decision and remanded with instructions to grant leave.
Preferred Contractor Endorsements
SYNERGY CONTRACTING GROUP, INC. a/a/o Anthony and Dorothy Shuttleworth v. PEOPLE’S TRUST INS. CO., 2D2022-0698 (June 7, 2024)
KK TAKEAWAY:
Preferred contractor agreements are valid and enforceable.
KK TAKEAWAY:
Insureds’ knowledge of the rate contract between the preferred contractor and insurer is immaterial to Insureds’ knowledge of rights within the policy.
KK TAKEAWAY:
Preferred contractor endorsements are not unconscionable where insureds receive a premium reduction, and the endorsement is unambiguous. Knowledge of secondary agreement between vendor and carrier is immaterial.
BACKGROUND:
The insureds’ property suffered water damage, and the insureds executed an assignment of benefits with Synergy. The policy contained a preferred contractor endorsement requiring the insureds to first give notice to People’s Trust before conducting any repairs to allow it to determine whether it would utilize its preferred vendor. The endorsement included a provision limiting payment to the amount People’s Trust would have paid its vendor when an insured violated the provision. Separate from the policy, People’s Trust had an agreement with its vendor that it would only pay $2,000 for all
mitigation and repair services. After Synergy conducted repairs, it submitted an invoice for $5,000, but People’s Trust only paid $2,000. Synergy sought a breach of contract action. The trial court granted summary judgment in favor of People’s Trust, finding that the policy unambiguously requires the insureds to give notice and, in the event of a violation, limits payment to the amount People’s Trust would pay its vendor.
On appeal, Synergy argued neither the insured nor Synergy was privy to the contract terms between People’s Trust and their vendor. The Second District found no merit in this argument as the policy set forth the terms of the endorsement. The terms of the separate contract between People’s Trust and the vendor were deemed immaterial.
Synergy also argued the policy endorsement was unconscionable, claiming that without knowledge of the separate agreement, the insureds could not make a meaningful choice on the endorsement. The Second District rejected this argument as the insureds elected the endorsement in exchange for a premium reduction.
However, Synergy also argued that separate mold and restoration estimates were not paid. People’s Trust argued the burden was on Synergy to show these bills/invoices were submitted and due for payment. The Second District did not foreclose this argument but held that Synergy did not produce evidence to support the other bills that were due. The Second District made clear that with evidence of those bills being due and the right to payment under the policy, Synergy may have a right to payment.
Loss
Settlement
Limitations
- No Replacement Cost Until Repairs Are Made.
UNIVERSAL PROPERTY INS. CO. v IRMA QURESHI AND GEORGE GUERRERO, 4D2023-1338 (July 24, 2024)
KK TAKEAWAY:
Loss settlement provisions requiring actual cash value payment until repairs are performed must be enforced.
KK TAKEAWAY:
Equitable defenses such as prevention of performance cannot be utilized to waive policy limitations, but only to waive policy forfeitures.
BACKGROUND:
Insureds brought a breach of contract action asserting that Universal breached the policy by only paying $10,000 mold limits but failing to pay for damage caused by the water leak that resulted in mold. The insureds never repaired the damaged items listed in their estimate before selling the property. Before the trial, Universal sought to exclude any evidence of replacement cost value for property not repaired before the sale of the property or diminution of value. The policy expressly limits payment to actual cash value until work is performed or expenses are incurred. The trial court granted the motion in limine regarding the diminution in value but allowed for evidence of replacement cost value.
The Fourth District reversed, holding that replacement cost value is not due until repairs or replacements are completed. The Fourth District also certified conflict with the Third District’s holding in Tio, in which the Third District held that a denial of coverage constitutes a breach of the contract, allowing an insured to seek their full damages.
Untimely Notice
SECURITY FIRST INS. CO. v LINDA AND SILVIO VISCA,
4D2023-096 (June 5, 2024)
KK TAKEAWAY:
Damage found shortly after a hurricane generally triggers the duty to notify the carrier even if the damage is less than deductible or of low value.
KK TAKEAWAY:
The Fourth District maintains that carriers must establish prejudice when policy language contains “if prejudicial to us.”
BACKGROUND:
This was a Hurricane Irma claim in which the insured testified he first discovered water stains in the dining room about two months after Irma. The insured did not think it was enough to file a claim. In 2018, the insured found another leak and spoke to his neighbor, a licensed public adjuster. The public adjuster inspected the property and was retained by the insured. However, the insured did not file a claim until 2020, more than one year after retaining the public adjuster.
After closing the case, Security First moved for a directed verdict due to the untimely notice. The trial court denied the motion, finding there were factual issues with the timeliness of the notice and prejudice. The jury returned a verdict, finding that the insureds had reported their loss in a timely manner.
On appeal, the insureds claimed Security First waived its untimely notice defense by failing to rely on it in its coverage denial. The Fourth District Court of Appeals emphasized that when there is a full denial, a carrier does not relinquish its right to timely notice because the full denial is a finding that the loss fell outside the policy’s coverage. In such instances, there is no implied waiver.
Regarding timely notice, the Fourth District clarified that the duty to notify for claims involving hurricanes is triggered when an insured notices damage shortly after the hurricane. The Fourth District cited its
historical position that an insured’s belief that the loss was below the deductible was not a defense to the duty to notify.
While the Fourth District held there was untimely notice, the issue of prejudice was never reached. This policy contained a forfeiture of coverage if an insured’s “failure to comply with the following duties is prejudicial to us.” The Fourth District previously held this language places a burden on the carrier to establish prejudice. Due to this, the Fourth District reversed and remanded for a new trial regarding whether the untimely notice was prejudicial.
Fee Multiplier
SAFEPOINT INS. CO. v ELIGIO CASTELLANOS AND ISABEL SILES, 3D22-1455 (June 26, 2022)
KK TAKEAWAY:
To acquire a multiplier, a claimant must show competent substantial evidence of:
o Need for multiplier to engage competent counsel or lack of availability of competent counsel.
o Inability to mitigate due to necessary limits on single action or novelty of issues.
o Inability to mitigate due to lack of finances to pay hourly or a retainer.
BACKGROUND:
This case was prosecuted for three years under a contingency agreement. Fee entitlement was undisputed. After the fee hearing, the trial court found a reasonable fee rate of $650 per hour and applied a 2.0 multiplier. During the hearing, no evidence was presented to show the insureds could not obtain adequate counsel without a multiplier, nor was there any evidence that trial counsel could not mitigate against the risk of non-recovery.
On appeal, the Third District Court of Appeal reversed the finding of a multiplier. The Third District agreed with SafePoint that the trial counsel did not meet their burden of showing the need for a multiplier. There was no evidence presented by the insureds on their inability to retain counsel or any evidence regarding the novelty or difficulty of the issues involved. Similarly, there was no evidence offered to show that trial counsel could not mitigate the losses by retention on other cases or that employment on this case would preclude other employment.
Danielle A. Wallis
ACCOLADES AWARDS AND FIRM AWARDS
Kelley Kronenberg has been the recipient of numerous awards and honors both firm-wide and for a number of our practices, including individual accolades. Below is a select list of recognition and awards:
MEET THE
CONTRIBUTORS
Jeffrey M. Wank Chair, First-Party Property and Insurance Coverage Division
Email Jeffrey M. Wank
Jeffrey Wank is Chair of First-Party Property and Insurance Coverage focusing his practice on first-party property insurance Defense, including coverage and bad faith litigation. Jeffrey also handles the defense of a wide array of third-party insurance defense claims.
Jeffrey assists insurers in all aspects of coverage disputes, including responses to civil remedy notices of insurer violations, pre-suit investigations and coverage evaluations, declaratory judgment and bad faith litigation. He defends property insurers throughout Florida in first-party coverage matters, where many of the claims involve sinkhole, windstorm, fire, mold, theft and water losses.
In addition, Jeffrey serves as coverage and bad faith counsel in third-party actions, including monitoring the defense of litigation. As part of this role, he is often asked to draft detailed coverage opinions, reservation of rights letters, declinations, and prosecute declaratory relief actions.
Jeffrey also has experience in handling complex civil and commercial matters, including the defense of personal injury, premises liability, employment discrimination, medical malpractice, nursing home liability, homeowner and condominium association claims, and construction defect cases.
Jeffrey has been named a Florida Super Lawyer Rising Star since 2014. In 2011, he was elected to the Broward Bar Association Young Lawyers Section Board of Directors, where he served as Secretary on the organization’s Executive Board and moved up to President in June 2015. Jeffrey was also named the Chair on the Board of Directors of Legal Aid Service of Broward County & Coast to Coast Legal Aid of South Florida for the 2019 term and previously served as the Vice Chair for the 2018 term.
Jeffrey earned his Bachelor of Science in Political Science from Florida State University and went on to earn his Juris Doctor degree from Nova Southeastern University Shepard Broad Law Center.
Daniel Montgomery Partner
Email Daniel Montgomery
Daniel Montgomery is a Partner at Kelley Kronenberg where he assists in handling matters related to first-party property insurance defense. Daniel handles all aspects of first-party property defense, including coverage disputes, pre-suit investigations, fraud investigations, and CRN responses. Additionally, our clients frequently engage Daniel to assist with the development of claims processes and procedures. Daniel’s practice is also focused on the highly-specialized areas of first-party property appeals and auto glass defense.
Prior to joining Kelley Kronenberg, Daniel worked as an Associate Attorney with an Am Law 200 firm, focusing his practice on first-party auto coverage and litigation, general liability litigation, and appellate law. Daniel also practiced as an Assistant State Attorney for Florida’s Fourth Judicial Circuit, in Jacksonville, where he litigated a variety of criminal proceedings through trial and served as a liaison for UVISA Certifications.
Daniel received his Bachelor of Science degree in Criminal Justice, summa cum laude, with a Certificate of Crime Scene Investigation, from Colorado Technical University. He then went on to earn his Juris Doctor degree from Florida Coastal School of Law, graduating cum laude.
Since Law School, Daniel continued his education by obtaining a Master of Science, summa cum laude, from Florida State University, with a Certificate in U.S. Intelligence. Daniel acquired an additional LL.M. in Executive Litigation Management from Baylor Law School.
During Daniel’s career he has served on several committees and groups continually working to develop awareness, knowledge, and best practices in a variety of areas including mental health, utilizing technology to drive efficiencies, special investigations, and litigation management best practices.
more than with over the convenience of
510 17 230
Employees Attorneys Locations
Founded in 1980, Kelley Kronenberg is an award winning, multi-practice national law firm with 510 employees, 230 attorneys, and 17 locations throughout Florida and the United States.
We are privileged to represent large public and private companies, small businesses, and individuals nationwide. With more than 40 practice areas, and growth on the horizon, we offer a comprehensive catalog of legal services to protect your legal interests in business and at home. Our firm is progressive and technologically advanced, while remaining true to our customer service heritage: integrity, ingenuity, and sincerity. Ever mindful of our history, but intensely committed to our future, we offer our clients a small firm feel with large firm resources.
LOCATIONS
FORT LAUDERDALE
10360 W. State Road 84
Fort Lauderdale, FL 33324
Phone: (954) 370-9970
ORLANDO
20 North Orange Avenue, Suite 704
Orlando, FL 32801
Phone: (407) 648-9450
TAMPA
1511 North Westshore Blvd., Suite 400
Tampa, FL 33607
Phone: (813) 223-1697
DAYTONA
128 Orange Avenue, Unit 306 Daytona Beach, FL 32114
Phone: (754) 888-5437
NEW YORK CITY
250 Park Avenue,7th Floor
New York, NY 10177
Phone: (845) 306-7867
CHICAGO
20 N. Clark Street, Suite 1150
Chicago, IL 60602
Phone: (312) 216-8828
JACKSONVILLE
10245 Centurion Parkway N, Suite 100 Jacksonville, FL 32256
Phone: (904) 549-7700
MERRILLVILLE
233 E. 84th Drive, Suite 200 Merrillville, IN 46410
Phone: (317) 731-6243
BY APPOINTMENT ONLY
SHORT HILLS
51 John F. Kennedy Parkway
First Floor West
Short Hills, NJ 07078
Phone: (908) 403-8174
ATLANTA
1100 Peachtree Street NE, Suite 200
Atlanta, GA 30309
Phone: (404) 990-4972
MIAMI
220 Alhambra Circle, Suite 410
Coral Gables, FL 33134
Phone: (305) 503-0850
NEW ORLEANS
400 Poydras Street, Suite 2400
New Orleans, Louisiana 70130
Phone: (504) 208-9055
TALLAHASSEE
6267 Old Water Oak Road, Suite 250
Tallahassee, FL 32312
Phone: (850) 577-1301
DALLAS
5956 Sherry Lane, 20th Floor Dallas, TX 75225
Phone: (983) 999-4640
WEST PALM BEACH
1475 Centrepark Blvd., Suite 275
West Palm Beach, FL 33401
Phone: (561) 684-5956
INDIANAPOLIS
10475 Crosspoint Blvd., Suite 218 Indianapolis, IN 46256
Phone: (317) 731-6243
NAPLES
1570 Shadowlawn Drive
Naples, FL 34104
Phone: (239) 990-6490
