Kelley Kronenberg - In the Know - First-Party Property Appellate - June 2023

FIRST-PARTY PROPERTY APPELLATE TEAM

ADMISSIONS

Florida • Georgia • United States Court of Appeal, Eleventh Circuit

SELECTED OPINIONS

For any questions, please contact:

Jeffrey M. Wank Chair of First-Party Property and Insurance Coverage

Fort Lauderdale

T: (954) 370-9970

jwank@kklaw.com

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).

Kimberly J. Fernandes Partner Tallahassee | Atlanta

T: (850) 577-1301

kfernandes@kklaw.com

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.”).

Daniel Montgomery Partner Jacksonville

T: (904) 549-7700

dmontgomery@kklaw.com

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

Louis Reinstein Partner Fort Lauderdale

T: (954) 370-9970

lreinstein@kklaw.com

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).

Application of Section 627.70152, Florida Statutes (NOI)

HERMAN COLE v. UNIVERSAL PROP. & CAS. INS. CO., 4D22-1054

(May 3, 2023)

KK TAKEAWAY:

Plaintiff is required to file NOI on all lawsuits filed after July 1, 2019.

BACKGROUND:

Cole sought a final appeal after the trial court dismissed his lawsuit without prejudice to comply with the presuit notice requirements of section 627.70152, Florida Statutes. There was no dispute that Cole has a policy that was issued before July 1, 2021, the statute’s effective date. However, Cole filed his lawsuit in August 2021 after the statute became effective.

The Fourth District Court of Appeals held that the legislature expressed a clear legislative intent for the statute to apply retroactively to lawsuits filed after July 1, 2021. The Fourth District held that if the legislature wanted the presuit notice requirement to only apply to policies that pre-dated the statute, it

would have expressed it. The Fourth District makes clear that the procedural resolution mechanisms (appraisal, mediation, offer, etc.) are procedural as they do not limit the potential recovery or remedy in any want.

Lastly, the Fourth District clarifies that the limitation on recovery of attorney fees is an independent section of the statute. A trial court requiring the presuit notice requirement before commencing litigation does not trigger the implications of section 627.70152(8) ‘s limitation on attorney’s fees.

Prejudgment Interest

KK TAKEAWAY:

When coverage is denied, prejudgment interest accrues from the date of loss.

KK TAKEAWAY:

When coverage is opened, prejudgment interest accrues from the date that payment was due according to the payment provision of the policy.

BACKGROUND:

Hawks Nest filed a Hurricane Irma claim. Dissatisfied with the speed of the claim investigation, Hawks Nest petitioned the trial court to compel appraisal. After the appraisal award and payment were issued, Hawks Nest sought and was granted summary judgment, including entitlement to fees and interest for the late payment on the appraisal award. However, the trial court denied the claim for prejudgment interest from the date of loss.

Hawks Nest appealed, claiming entitlement to prejudgment interest from the date of loss due to delay and failure to respond to the sworn

proof of loss within 30 days. The Third District explained within its opinion that prejudgment interest attaches to the date of loss when coverage is denied. In this instance, the speed at which the claim investigation moved was not a denial but a delay. Appraisal, although compelled by Hawks Nest, is a contractual process for adjusting the value of the loss and is not a denial of coverage. Where a carrier pays within the time permitted under the contract, there is no basis to support that an insured suffered a pecuniary loss. Delay is not a denial, absent statutory or contractual provisions otherwise.

Notice of Property Insurance Claim

KK TAKEAWAY:

An unsigned letter of representation from the public adjuster does not constitute notice of claim.

BACKGROUND:

The Grays filed a breach of contract action concerning a claim for Hurricane Irma damages. Section 627.70132, Florida Statutes requires:

A claim, supplemental claim, or reopened claim under an insurance policy that provides property insurance, as defined in s. 624.604, for loss or damage caused by the peril of windstorm or hurricane is barred unless notice of the claim, supplemental claim, or reopened claim was given to the insurer in accordance with the terms of the policy within 3 years after the hurricane first made landfall or the windstorm caused the covered damage.

(May 19, 2023)

Fla. Stat. 627.70132 (2017).

WILLIAM GRAY and PAM GRAY v. FLORIDA PENNISULA INS. CO., 6D23-328

The only document submitted within 3 years of the hurricane was an unsigned letter of representation between the Grays and their public adjuster. The Sixth District held there is no feasible construction of the statute that the document submission constitutes notice of a claim as required by statute.

Actual Cash Value Payment Analysis

SFRS SERVICES, LLC a/a/o

MICHAEL CARBONARA and MARY CARBONARA v. Tower Hill Prime Ins. Co., 6D23-118 (May 26, 2023))

KK TAKEAWAY:

If a policy requires depreciation to be determined by the carrier, the burden of proof is upon the carrier to demonstrate that it calculated depreciation.

BACKGROUND:

Insureds filed a claim for Hurricane Irma damage. Tower Hill assessed the damage to be $7,726.94, below the deductible. Insureds retained SFRS, who submitted a claim for $162,083.84. SFRS only valued the loss at replacement cost and did not include an actual cash value within their submission. At the close of SFRS’s case, Tower Hill moved for a directed verdict pointing out that SFRS only presented evidence of replacement cost value and Tower Hill’s only duty was to pay actual cash value. The trial court granted the directed verdict.

While the Sixth District stated that under ordinary circumstances, this point would be well-taken, Tower Hill’s policy defined actual cash value as:

[t]he cost to repair or replace covered property, at the time of loss or damage, whether that property has sustained partial or total loss damage, with material of like kind and quality, subject to a deduction for deterioration, depreciation and obsolescence as determined by ‘us.’

The Sixth District reversed the trial court, holding that by using “as determined by us” language, Tower Hill had the initial burden to prove the amount of depreciation.

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