NOVEMBER 2019

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 Reversed Dismissal of Lawsuit Based on Fraud on the Court Where Less Severe Remedy Available

An insured sued her homeowner’s insurer for breach of contract for a denied roof leak. The insurer’s counsel took the deposition of the insured, who was 82 years old, spoke little English, and admitted she took many medications and had memory issues. The insurer then filed a motion for summary judgment based on the no-covered peril opening provision. In opposition to the motion, the insured and her daughter filed “extraordinary affidavits” (prepared by her counsel) which “exude certainty” regarding the facts, date and cause of the loss, refute the opinions of the insurer’s engineer, and rely on the public adjuster and attorneys regarding the cause of the damages. The insurer sought to dismiss the lawsuit for fraud on the court based on inconsistent statements in the deposition and the affidavit in opposition to the motion. Following an evidentiary hearing, the trial court dismissed the case based on fraud on the court. Although acknowledging the over-zealous lawyering, the appellate court reversed the dismissal because a less severe sanction of striking the affidavit was available.  Perez v. SafePoint Ins. Co.  (3d DCA, Nov. 13, 2019).

TIPS & LESSONS

• The testimony of an insured who lacks personal knowledge of the issues, makes conclusions she is not qualified to make, or affirmations based on the hearsay of others, is subject to being stricken. The first objective, therefore, should be to strike the testimony and disallow its consideration to oppose issues regarding causation and damages.
• This case has useful language to add to defense counsel’s arsenal since the court cautions the insured’s attorneys for improperly “gilding, excessively bolstering or embellishing” the testimony in the hope of improving a case.

Summary Judgment Based on Insured’s Failure to Show the Damaged Property Upheld

The Third District upheld summary judgment in the insurer’s favor based on the insureds’ failure to show the damaged property, as required by the policy. The insured reported a kitchen plumbing loss to the insurer  after  the faulty supply line was replaced and water remediation had been performed. When the field adjuster arrived to inspect the property, the lower half of the kitchen cabinets had been removed and a new supply line had been installed. The insureds did not retain the broken faulty kitchen supply line or damaged cabinets prior to their removal, nor were these materials made available for inspection.  Pierre v. Citizens Prop. Ins. Corp.  (3d DCA, November 20, 2019)

TIPS & LESSONS

• Insurers should include language in the denial letter when an insured fails to comply with his or her duties after a loss which not only impacts the insurer’s determination of the cause of the loss, but may also impact the insurer’s evaluation of the damages attributable to the loss.
• The opinion provides little facts but reaffirms the court’s role to interpret unambiguous policy language.