JANUARY 2017

Here’s your update on Florida insurance-related legal developments from the Colodny Fass Insurance Litigation Practice.

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.

Insured Required to Comply with Option to Repair Before Litigating Dispute over Scope of Repairs

In an “option to repair” case, an insured who disputed the scope of damages estimated by the carrier filed suit for declaratory relief seeking a determination of the scope of repairs to be performed and whether the repair option was properly invoked. The trial court abated the lawsuit and ordered the insured to comply with the repair option. The insured appealed the order, but the Third DCA refused to accept jurisdiction finding that the insured was not “irreparably harmed” and could lift the abatement after repairs are made.

Fernandez-Andrew v. Florida Peninsula Insurance Company (3DCA January 25, 2017)

• The insured appealed a non-final trial order where the appellate court’s jurisdiction is limited to those cases resulting in material injury that cannot be corrected post-judgment. Unfortunately, the appellate court did not address whether or not the trial court’s order was “correct”.
• The appellate court was careful to limit its opinion to the particular facts and circumstances in this case since the insurer’s counsel “agreed” that the insured could lift the abatement to dispute the scope of repairs or allege a failure to return the property to its pre-loss condition.

Insurer not liable for “tear-out/access” coverage to repair broken pipe absent evidence of actual water damage

The Third DCA reversed summary judgment declaring “coverage” for the cost to tear up and replace the slab in order to access repairs to a damaged sanitary drain line. The insurer investigated the loss and confirmed the pipe had a hole; however, there was no evidence of interior water damage as a result of the broken pipe. The trial court declared the insurer liable for the cost to tear up the slab in order to access and repair the broken pipe. The appellate court reversed the trial court’s declaration of coverage since the insureds failed to meet their burden to prove an actual physical loss within the “covered perils” of the policy. However, the reversal in favor of the insurer is without prejudice to the insured later filing a claim if evidence “may surface in the future.”

Homeowners Choice Prop. & Cas. v. Maspons (3DCA Jan. 18, 2017)

 

 

• The holding reinforces the insured’s initial burden to prove a physical loss within the policy’s covered perils provision.
• This opinion appears to conflict with Widdows v. State Farm Florida Ins., 920 So. 2d 149 (Fla. 5th DCA 2006), where the court held an abnormality in a pipe underneath the slab constituted direct physical loss even though there was no evidence of water damage from the pipe. The appellate court held that the abnormality in the pipe itself constituted a “physical loss.” The burden then shifted to the insurer to establish that an exclusion applied. The policy language in Widdows may have required a different result, but it was not expressly referenced in the case.
• Bottom line: The insured may be required to open up the slab to show damage before reporting the claim.

Matt Scarfone to Speak on Flood Insurance at 2017 WIND Conference in Orlando

Colodny Fass Senior Attorney Matt Scarfone is a panelist this week at the Windstorm Insurance Conference in Orlando on Tuesday, January 31, 2017, at 3:45 p.m. and Wednesday, February 1 at 10:30 a.m.

The presentation, “So Your Wind Claim is in a Flood Zone,” will touch on the growth of private flood insurance and the potential impact of FEMA flood elevation guidelines on wind and other non-flood claims.

To register for the event, click here.

For over 40 years, Colodny Fass has represented insurers in complex and high-risk litigation including class actions, bad faith, insurance fraud, multi-jurisdictional cases, coverage matters, and fact-intensive, multi-party lawsuits. The Daily Business Review has recognized Colodny Fass as having the Insurance Litigation Department of the Year in South Florida.

About Amy L. Koltnow

Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on insurance disputes from trial through appeals. She has represented insurance companies in federal and state courts, as well as in mediation and administrative forums. Ms. Koltnow oversees complex litigation matters and has successfully defended numerous class actions and insurance bad faith cases. She is a member of the Claims and Litigation Management Alliance, a national, invitation-only organization committed to furthering high standards of litigation and claims management in pursuit of client defense.

To view Ms. Koltnow’s complete professional biography, click here.

Contact Amy at akoltnow@colodnyfass.com or (954) 492-4010.