Kelley Kronenberg - In The Know - First Party Property Appellate - September 2022

SEPTEMBER 2022 THEIN NOW FIRST PARTY PROPERTY APPELLATE EDITION IN THIS ISSUE: • Appraisal Opinions • Declaratory Judgement Opinion • Summary Judgment Issue Rather than Motion To Dismiss

ADMISSIONS

Synergy Contracting Group, Inc. a/a/o Terry and Patricia Clark v. FEDNAT National Ins. Co. . . . 5

APPRAISAL OPINIONS

SUMMARY JUDGMENT ISSUE RATHER THAN MOTION TO DISMISS

SELECTED OPINIONS

Comisar v. Heritage Prop. & Cas. Ins. Co. . . . 6 No. 4D21-2468, 2022 WL 3221701 (Fla. 4th DCA Aug. 10, 2022)

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).

Columbia • United

ADMISSIONS District of 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

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. J.

Florida •

Kimberly

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 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).

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. )

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CONTENTS

. . .

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”).

•

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 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).

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

DECLARATORY JUDGMENT OPINION

Comisar v. Heritage Prop. & Cas. Ins. Co. . . . . . 6-7 No. 5D21-86, 2022 WL 3567761 (Fla. 5th DCA Aug. 19, 2022)

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 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)

Fernandes kfernandes@kklaw.comTallahasseePartnerAtlantaT:(850)577-1301 Daniel Montgomery JacksonvillePartner T: (904) dmontgomery@kklaw.com549-7700 Louis Reinstein Partner Fort Lauderdale T: (954) lreinstein@kklaw.com370-9970

National Claims Funding Company, LLC, a/a/o Stella Restoration, LLC a/a/o Minoude Jean Louis v. Security First Insurance Company . . . . . . . . . . . . . . 8

TABLE OF

Florida • U.S. District Court, Northern District of Florida • U.S. District Court, Middle District of Florida

Arlene Carozza v. First Protective Ins. Co. . . . . . . . . . . . 4 No. 2D21-3235 (Fla. 2d DCA Aug. 24, 2022) (per curiam)

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).

SELECTED OPINIONS

ADMISSIONS

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.”).

SELECTED OPINIONS

First Party Property Appellate Team

| 5IN THE NOW4 | IN THE NOW

OpinionsAppraisal

Synergy Contracting Group, Inc. a/a/o Terry and Patricia Clark v. FEDNAT National Ins. Co.

KK TAKEAWAY:

The judgment was reversed and remanded for further proceedings regarding Synergy’s attorney fees claim. Specifically, the Second District Court of Appeals discussed that the payment of an appraisal award does not render a Plaintiff’s claim for breach of contract moot. Instead, further proceedings were necessary to determine entitlement to fees. That is whether Synergy has a valid claim for confession of judgment or whether Fednat has a defense to entitle such as “race to the courthouse defense.”

A trial court must consider entitlement to fees and costs under the confession of judgment doctrine.

The Insured brought a breach of contract action based upon the Insurer’s pre-suit payment without any pre-suit submission of a competing estimate. There were no indications of a dispute until the Insured filed the action. Insurer immediately sought appraisal in response to the complaint. An appraisal determination was made, and Insurer promptly paid the amount remaining after reduction for the deductible and prior

KK TAKEAWAY:

Post-suit invocation is not dispositive of an insured’s right to attorney’s fees.

Arlene Carozza v. First Protective Ins. Co. No. (Fla.2D21-32352dDCAAug. 24, 2022) (per curiam)

BACKGROUND:

An injury that is the direct and natural result of a compensable primary injury can be filed under a new date of accident.

Post-suit payment of an appraisal award does not entitle Insurer to summary judgment in its favor.

Thepayment.Second District Court of Appeals per curiam affirmed the trial court’s grant of summary judgment finding the lawsuit was not necessary to bring the claim to submit the claim to appraisal.

Appraisal remains a remedial mechanism that does not require judicial intervention.

The appraisal panel determined the amount of loss to be $35,000, in which Fednat paid the remaining balance of $7,597.06 (the

Six months later, Fednat filed a Motion for Final Summary seeking a judgment in its favor because there were no more justiciable issues. The trial court granted final summary judgment in Fednat’s favor.

KK TAKEAWAY:

BACKGROUND:

Insureds engaged Synergy Contracting Group to perform water remediation and restoration services in exchange for an assignment of benefits. Fednat issued payment to Synergy, albeit not the total invoice.

Fednat invoked appraisal in response to the Complaint. In doing so, Fednat acknowledged coverage and admitted payment for a portion of the damages, however, Fednat disputed the remaining amount claimed by Synergy.

amount left after reduction for payment and deductible). Synergy sought entitlement to attorney’s fees under the confession of judgment doctrine, claiming the payment was a confession of judgment.

KK TAKEAWAY:

OJCC Case No. (FL.Off.Judge.Comp.Cl.21-025559WWAJune17,2022)

In opposition to the Motion for Fees, Fednat filed a Motion for Final Summary Judgment claiming that Fednat paid what was owed under the policy and that because Fednat complied with the terms of the policy, there was no breach, thus no additional judicial labor was required. The trial court granted summary judgment finding that the appraisal award was timely paid in full but reserved jurisdiction on entitlement to fees and costs.

Neither the Complaint nor the assignment described the services being rendered. Plaintiffs expressly alleged they were not subject to 627.7152, Florida Statutes.

National Claims filed an Amended Complaint alleging that National Claims timely submitted the claims that directly or through Stella submitted invoices for service.

The joint action of declaratory relief and breach of contract alone does not foreclose the right to bring declaratory relief.

1. Rule 1.120(c) only requires the plaintiff to aver to the completion of conditions precedent. This then shifts the burden to the defendant to deny the allegations with specificity. Section 627.7152(2)(d) makes compliance a condition precedent to enforcing an assignment. Thus, once alleged to have been made, it was upon the defendant to specifically deny.

KK TAKEAWAY: Section 627.7152(3), Florida Statutes requires the insured to show no prejudice. Thus, prejudice must be shown on the face of the complaint or addressed via a motion for summary judgment.

(Fla. 4th DCA Aug. 10, 2022)

Declaratory judgment is a proper mechanism to address a party’s “doubt about its rights under a contract…”, including how facts apply to the terms of the contract.

Insureds initially brought a breach of contract in conjunction with a petition for declaratory relief action regarding a water damage claim resulting from a roof leak. The insureds amended their complaint three times to cure pleading defects. The third amended complaint alleged that the all-risk policy covered damage to their roof. This met the standard of a bona fide dispute. The insured then sought to determine whether the roof damage was covered or whether “certain” exceptions were applicable for the denial

No. 4D21-2468, 2022 WL 3221701

2. Nothing within the second amended complaint shows prejudice to the insurer. There must be a showing of prejudice.

Failure to Submit Executed Invoice Within 3 days cannot be addressed at the motion to dismiss stage.

Sigma filed a breach of contract action against the Insurer as an assignee of benefits from the insured. Sigma alleged that it did not

Court cannot consider matters outside of the 4-corners of the complaint when reviewing a motion to dismiss.

Comisar v. Heritage Prop. & Cas. Ins. Co.

Once again insurer moved to dismiss, and the trial court dismissed the action. The Fourth District Court of Appeals held that dismissal was improper at this stage for two reasons:

KK TAKEAWAY:

ThanIssueJudgmentSummaryRatherMotion to Dismiss

OpinionJudgmentDeclaratory

KK TAKEAWAY:

of the claim. The Fourth District Court of Appeals clarified that the existence of a breach of contract claim or possibility does not foreclose the right to declaratory relief.

KK TAKEAWAY:

BACKGROUND:

6 | IN THE NOW

National Claims Funding Company, LLC, a/a/o Stella Restoration, LLC a/a/o Minoude Jean Louis v. Security First Insurance Company

KK TAKEAWAY:

National Claims filed a breach of contract action as an assignee of Stella Restoration as an insured assignee for shrink wrap services. The insurer moved to dismiss for failure to timely provide the assignment of benefits.

BACKGROUND:

provide services subject to section 627.7152, Florida Statutes. The insurer sought dismissal as the assignment of benefits was defective pursuant to section 627.7152, Florida ThereStatutes.was no dispute between the parties regarding non-compliance with section 627.7152, but rather if the section applied to Sigma. The Fifth District Court of Appeals reversed the trial court’s order granting dismissal by holding that the trial court went beyond the confines of the complaint to determine that the services were subject to section 627.7152.

Sigma Funding Grp., LLC v. Sec. First Ins. Co. No. 5D21-86, 2022 WL 3567761 (Fla. 5th DCA Aug. 19, 2022)

KK TAKEAWAY:

BACKGROUND:

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