IN
• Application of Section 627.7152, Florida Statutes
• Recovery of Expert Fees
• Recovery of Pre-litigation Attorney’s Fee
• Reasonableness of Fees
• Appraisal
• Post-Loss Duties – SPOL (Waiver and Prejudice Analysis)
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.
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).
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
SELECTED OPINIONS
Daniel Montgomery
Partner
Jacksonville
T: (904) 549-7700
dmontgomery@kklaw.com
Louis Reinstein
Partner
Fort Lauderdale
T: (954) 370-9970
lreinstein@kklaw.com
• U.S. District Court, Middle District of Florida
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”).
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).
Kimberly J. Fernandesof Section 627.7152, Florida
THE RESTORATION TEAM a/a/o RICK SANTOS AND IDALIA
SANTOS v. SOUTHERN OAK INS. CO., 3D21-1932 (Feb. 15, 2023)
KK TAKEAWAY: AOB date is the controlling date for whether the AOB reform statute applies.
of Appeals explained as it did in Adjei v. First Cmty. Ins. Co., 2022 WL 10733838 (Fla. 3d DCA Oct. 19, 2022), the statute’s application is prospective when applied to an AOB executed after the statute’s effective date.
KK TAKEAWAY: An AOB executed after the effective date of a statute for benefits under a policy that pre-dated statute is subject to the AOB statute in place at the time of AOB execution.
TRT’s complaint was dismissed for failure to comply with section 627.7152, Florida Statutes. Specifically, the AOB did not contain an estimate and violated the emergency services cap of $3,000. It was undisputed that the policy pre-dated the 2019 AOB reform statute and that the AOB was executed post the AOB reform statute.
The Third District Court of Appeals adopted the reasoning of the Fourth District Court of Appeals in Total Care Restoration, LLC v. Citizens Prop. Ins. Corp., 337 So. 3d 74, 75-76 (Fla. 4th DCA) in holding that the AOB date is the controlling date. The Third District Court
UNITED AUTOMOBILE INS. CO. v. MANUEL V. FEIJOO, M.D. AND MANUEL V. FEIJOO, M.D., P.A. a/a/o ERNESTO MORERA
KK TAKEAWAY: Award of fees to fee expert is discretionary with the trial court.
KK TAKEAWAY: It is proper to award expert fees where the case was litigated to summary judgment, a confession of judgment was filed, and the reasonableness of fees was challenged.
BACKGROUND:
After nine months of litigation regarding whether coverage was in place, United filed a confession of judgment and agreed to entitlement to attorney fees. The only dispute was the amount of fees in which the prevailing party sought 16.42 and United requested 9.2.
United argued that Plaintiff should not be entitled to fees for their expert because this was a basic case that did not require expert opinion. The Third District rejected this position relying on precedent that an opposing party cannot dictate the type of evidence that a party relies upon to prove the reasonableness of their fees. The Third District went further in explaining that an expert witness is necessary to support the establishment of the fees.
UNITED AUTOMOBILE INS. CO. v. XUNDA A. GIBSON, M.D., P.A. d/b/a PREMIER URGENT CARE CENTER
a/a/o JEAN BAPTISTE OCHELIN, No. 4D22-1186 (Feb. 15, 2023)
KK TAKEAWAY: There is no entitlement to pre-litigation fees absent the insurer’s unreasonable conduct.
United sought an appeal for a trial court order granting $10,328.80 in fees for 34.8 hours. The only issue addressed by the Fourth District was the 2.10 hours of prelitigation fees. The Fourth District clarified that unreasonable conduct must be shown to
allow for pre-litigation fees. While evidence was presented regarding the reasonableness of the pre-litigation workup, there was nothing to support unreasonable conduct on behalf of United. The Fourth District reversed the fee order on this sole issue.
UNITED AUTOMOBILE INS. CO. v. ALLIANCE SPINE AND JOINT I, INC., a/a/o SHARON McCARTNEY, No. 4D21-3223 (Feb. 15, 2023).
KK TAKEAWAY: Fees for litigating reasonableness are not recoverable.
KK TAKEAWAY: Fees for litigating reasonableness are not recoverable.
BACKGROUND:
United filed a confession of judgment and stipulated to entitlement to fees. The dispute was limited to the reasonableness of the fees sought. Once a party stipulates to entitlement, the dispute is limited to reasonableness. The Fourth District reversed the trial court order regarding fees incurred in litigating whether pre-litigation fees should be included.
STATE FARM FLORIDA INS. CO. v. COARL HOCHREITER AND MELISSA HOCHREITER, No. 5D2272 (Feb. 3, 2023)
KK TAKEAWAY: Due process violation occurs when the trial court confirms the appraisal award without considering defenses to the complaint.
In response to a complaint filed for breach of contract against State Farm, State Farm demanded appraisal. An appraisal award came back in favor of the Insureds, and they subsequently sought to confirm the award. State Farm did not respond to the complaint within 20 days of the award as required by the trial court’s order compelling appraisal. At the hearing on the motion to confirm the appraisal award, State Farm argued that the Insureds did not demonstrate they were entitled to a roof replacement as they did not provide
building code requirements showing that the roof had to be replaced. State Farm argued that payment was not due as policy conditions were unmet. The trial court confirmed the appraisal award and entered judgment in favor of the Insureds.
State Farm appealed, arguing that the trial court failed to provide due process by entering judgment without consideration for State Farm’s defenses. The Fifth District agreed with State Farm and remanded the case back to the trial court. The Fifth District held that the trial court did not allow State Farm to present all of its defenses on the substantive merits of the complaint.
EDDRIN MARTINEZ AND CARMENT MARTINEZ v. UNIVERSAL PROPERTY & CASUALTY INS. CO., No. 5D213016 (Feb. 9, 2023)
KK TAKEAWAY: A complete denial of coverage is a waiver of an insured’s post-loss duties
KK TAKEAWAY: Insured can overcome forfeiture by showing no prejudice to the insurer.
Insureds sought coverage for two water losses resulting from plumbing leaks. Universal requested a sworn proof of loss after inspection. The policy allowed the Insureds to submit the sworn proof of loss within 60 days of request. However, before the expiration of that time period, Universal denied coverage for the claim.
During litigation, Universal filed a motion for summary judgment for the Insureds’ failure to comply with the condition precedent to suit, the sworn proof of loss. The trial court granted summary judgment in favor of Universal.
On appeal, the Fifth District Court of appeals reversed the trial court. First, the Fifth District noted that once Universal denied coverage, the Insureds were no longer required to comply with the post-loss conditions. Second, the Fifth District noted that the Insured can still demonstrate that the failure did not prejudice Universal. In this instance, the ability to come to the claim decision of no coverage is evidence that Universal was not prejudiced.
KK TAKEAWAY: Failure to submit a sworn proof of loss is not automatic forfeiture of coverage.
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