July 2020

Florida Insurance Matters is a monthly update on Florida insurance-related legal developments by the Colodny Fass Insurance Litigation Practice, recently recognized as the Insurance Litigation Department of the Year in South Florida by the Daily Business Review.

ABOUT THE AUTHOR

Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on representing insurance companies in complex insurance litigation and counseling insurers on claims resolution. She has represented insurers in connection with property damage and first-party coverage litigation, claims of “bad faith,” high-risk exposures, class actions and multi-district litigation.

For more information about Ms. Koltnow, click here.

Appellate Court Affirms Summary Judgment in Insurer’s Favor Based on Interior Rain Damage Exclusion

 The insured reported a claim for damage due to a roof leak. The insurer investigated the loss but denied coverage for the claim based on the field adjuster’s observations that rainwater did not enter through an opening in the roof caused by a covered peril, and the damage was caused by wear and tear, and deterioration. The insured sued for breach of contract based on the denial of coverage. The insurer filed a motion for summary judgment asserting the policy exclusions, supported by the field adjuster’s affidavit and the insured’s testimony that he did not get on the roof and he did not know the cause of the damage. The insurer also filed an expert engineering report, though it as not accompanied with an affidavit. The insured did not oppose the motion with counter-evidence and instead argued the field adjuster was a “lay witness”, not an “expert”, and could not opine on the cause of the damage. The trial court granted summary judgment and the appellate court affirmed. Cebada v. Citizens Prop. Ins. Corp., 3d DCA (July 8, 2020).

• An affidavit of the field adjuster, based on his personal observations, may be sufficient to meet the insurer’s summary judgment burden.
• The Third District affirmed the summary judgment without any written opinion, so the decision is not binding on any other court.

Before Compelling Appraisal, Insureds Must Comply with Policy’s Post-Loss Obligations

Homeowners reported a Hurricane Irma claim and the insurer afforded coverage but notified the insureds the estimated repair costs were under the policy’s deductible. The insurer informed the insureds to submit any additional information and requested the insureds complete a Sworn Proof of Loss form. The homeowners submitted an incomplete proof of loss form with no repair estimate or supporting documentation, which the insurer rejected. The insureds then filed suit against the insurance company for breach of contract and sought to compel appraisal. The trial court compelled appraisal and the insurer appealed. The appellate court held that a condition precedent to invoking appraisal is the insurer and insured must “fail to agree” about the amount of the loss. The insured, therefore, must timely comply with providing the insurance company information that substantiates the existence of a disagreement. The appellate court reversed the order compelling appraisal and mandated the trial court to conduct an evidentiary hearing to determine whether the insureds complied with their contractual duties so as to trigger the policy’s appraisal provision. People’s Trust Ins. Co. v. Ortega, 3d DCA (June 24, 2020).

• This case is an example of how good claims handling and documentation is critical to supporting the insurer’s position after suit is filed.
• The insurer had ample documentation in the claim file requesting a sworn proof of loss, notifying the insureds of their contractual duties, and reminding the insureds of the required information.