Kelley Kronenberg - In The Know - First Party Property Appellate - January 2023

First-Party Property Appellate Team

As the first-party property insurance industry has remained significantly litigious, Kelley Kronenberg has maximized its efforts to bring positive changes to the law for the benefit of all of its clients by establishing an expertise in appellate law. Our appellate team has a combined portfolio of more than 100 written court opinions impacting case law precedence across the state. At every stage of the process – deciding whether to appeal, determining the chance of success on appeal, preparing legal briefs, presenting oral arguments, and advising on the impact of appellate decisions – Kelley Kronenberg’s First-Party Property Appellate Team provides clients with expert guidance and representation in all appellate jurisdictions.

ADMISSIONS

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”).

ADMISSIONS

Florida • District of Columbia • United States District Court, Southern District of Florida • United States District Court, Middle District of Florida • United States District Court, Northern District of Florida • United States Court of Appeals, Eleventh Circuit Supreme Court of the United States

SELECTED OPINIONS

w Taffe v. Wengert, 775 F. App’x 459 (11th Cir. 2019) (reversing the denial of summary judgment in the district court for the sheriff and finding the sheriff was not negligent in the hiring, supervision, or retention of deputy sheriff)

w Taffe v. Wengert, 140 S. Ct. 1106, 206 L. Ed. 2d 179 (2020) (Petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit denied).

w Williams v. Tony, 319 So. 3d 653 (Fla. 4th DCA 2021) (holding the plaintiff inmate was not an intended third-party beneficiary of the contract between county sheriff and inmate medical services provider, and, thus, could not pursue a negligence claim against provider based on the contract).

w People’s Tr. Ins. Co. v. Progressive Express Ins. Co., 336 So. 3d 1207 (Fla. 3d DCA 2021) (holding the commercial automobile liability policy excluded coverage for property damage caused by improper operation of mobile crane mounted on a truck).

w Watkins v. Pinnock, 802 F. App’x 450, 454 (11th Cir. 2020) (holding that the plaintiff’s proposed amendments could not cure the deficiencies in the fifth amended complaint as the factual allegations did not support deliberate indifference by the nursing staff).

TABLE OF

CONTENTS

ARBITRATION

Arbitration

Raymond Erb v. Chubb National Ins. Co., No. 3D20-1694 (Dec. 14, 2022)

KK TAKEAWAY:

Untimely Invocation of Arbitration is a waiver of the right to arbitrate

BACKGROUND:

The insured filed suit for breach of contract, and the carrier responded with Motion to Compel Arbitration. The sole issue in dispute was whether the carrier’s invocation of the right to arbitrate after the policy’s one-year time limitation was a waiver. The Florida Third District Court of Appeals held that it was a waiver as the right to arbitrate is a contractual right. When evaluating that right, the parties are held to their intent at the time of the contract. When parties agree to a time limitation, the intent to have a limitation is clear, thus, you must comply.

Election to Repair

The trial court agreed with the insureds that the preferred contractor had to be licensed and could not subcontract the work based on the policy’s plain language. The trial court granted judgment in favor of the insureds for the appraisal award.

People’s Trust Ins. Co. v. Lillian Lamolli, 4D21-2638 (Dec. 21, 2022)

KK TAKEAWAY:

Option to repair contractor can subcontract for services that contractor is not licensed to perform.

KK TAKEAWAY:

Policy silence as to specifics on who must complete each aspect of work does not create ambiguity when a “reasonable, practical, and sensible interpretation” can be gathered from the express language.

BACKGROUND:

Carrier invoked its option to repair under the policy should coverage exceed the policy deductible. Insureds filed a breach of contract action alleging failure to pay for full damages owed under the policy. The carrier filed a motion to abate and compel appraisal, the insured to execute work authorization, and the insured to pay the deductible and permit work pursuant to the appraisal award. The parties stipulated to appraisal, and an award came back for $59,170.03. Once the carrier sought to complete the repairs, the insured objected because the preferred vendor was not a licensed roofer but was subcontracting that portion of the services.

The Florida Fourth District Court of Appeals reversed the trial court holding:

1) The preferred contractor endorsement expressly required the insureds to “execute all work authorizations to allow contractors and related parties entry to the property”; and

2) Even with express language that allowed for related parties, Florida law requires general contractors to subcontract roof work to roofing contractors. Even though the policy was silent about that specific issue, Florida law clearly states that a general contractor has to utilize a licensed roofing contractor.

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