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.

 

Summary Judgment Upheld in Insurer’s Favor Based on Insured’s Submission of Inflated Damage Estimate

The appellate court affirmed final summary judgment in the insurer’s favor based on the policy’s “concealment or fraud” provision because the insured presented a damage estimate that included repairs unrelated to the leak. The insured testified she adopted the loss consultant’s estimate as her own. The appellate court held the insured was responsible for material false statements made in the estimate. The court also reiterated that under the policy provision for “concealment or fraud”, a “false statement” need not be intentional. “Simply put, an insured cannot blindly rely on and adopt an estimate prepared by his or her loss consultant without consequence. . . .when an insured relies on or adopts an estimate containing material false statements to support his or her claim, the insured is bound by the estimate and cannot avoid application of the concealment or fraud provision simply because he or she did not prepare the estimate.” Mezadieu v. SafePoint Ins. Co., 4th DCA (March 26, 2021).

TIPS & LESSONS

• This case reaffirms prior case law and holds that an insured is responsible for the estimate prepared by his/her public adjuster, and if that estimate is over inflated, it may constitute a material “false statement” and void coverage under the policy. 
• Take note of the concurring and dissenting opinions: The outcome may have been different had it been handled differently by the insured’s attorney.

Appellate Court Reverses Attorney Fee Lodestar Calculation, But Affirms 2.5 Multiplier 

The case involved a dispute over the insurer’s alleged “underpayment” of a water loss that was settled after one year of active litigation. Following an evidentiary hearing, the trial judge granted the insured’s motion for attorney’s fees and awarded $120,570, based on the time the firm expended on the case of 222.8 hours. The court also applied a 2.5 multiplier for a fee award of $301,425, plus costs and interest, for a total final judgment of $337,611.98. The experts on both sides agreed to a reduction of 13.2 hours spent litigating the fee claim. The trial court ignored the expert’s recommendation without explanation. The appellate court reduced the number of billable hours the attorneys spent fighting the fee dispute, which is not recoverable, and remanded the case for the trial court to reduce the loadstar calculation by 13.2 hours. The appellate court affirmed the award “in all other respects”. Universal Prop. & Cas. Ins. Co. v. Celestrin (3d DCA, March 24. 2021).

TIPS & LESSONS

• The insured’s settlement amount was nominal. This case is a bleak reminder of the high risk insurers face of an excessive fee award even in legitimately fought court battles with valid policy defenses. Click here for the trial court’s fee order, which was affirmed “in all other respects”.
• Absent legislative change, insurers can mitigate against these risks by serving settlement proposals and Danis settlement offers early in the litigation. 

Summary Judgment Affirmed in Insurer’s Favor Since Homeowner’s Counter-Evidence was Conclusory 

The insured reported two separate claims to her insurer: a plumbing leak and roof damage from Hurricane Irma. The insurer denied the claims based on the policy’s water damage exclusion endorsement. The insured filed suit and the insurer filed a motion for summary judgment based on the water damage exclusion and the field adjuster’s affidavit that he observed no openings in the roof and no obvious signs of wind damage. The insured presented counter-affidavits from her public adjuster and two other witnesses attesting they saw “wind damage to the roof”. The trial court found the affidavits were conclusory and insufficient to show a genuine issue of material fact, and the appellate court agreed. The appellate court also agreed the water damage exclusion endorsements were not ambiguous. Archer v. Tower Hill Signature Ins. Co., 4th DCA (March 24, 2021).

TIPS & LESSONS

• This is a strong case for insurers and should be cited to challenge the insured’s affidavits and testimony concerning “wind damage” when the evidence is totally conclusory and not supported by any factually-based reasoning.

Appellate Court Stands by Prior Opinion – Civil Remedy Notice That Lacks Specificity is Deficient and Precludes Action for Statutory Bad Faith 

The appellate court previously held the insured’s civil remedy notice was facially invalid and, therefore, he could not state a cause of action for statutory bad faith. The court refused to grant the insured’s post opinion motions for rehearing and also refused to certify the question as one of great public importance. Prior to filing suit, the insured filed a civil remedy notice citing to 35 statutory violations and listing nearly every provision in the policy. The trial court dismissed the bad faith complaint with prejudice finding the civil remedy notice failed to satisfy the statutory requirement that an insured “state with specificity” the policy language and the statutory provisions at issue. The appellate court agreed and held the notice, was facially invalid and, therefore, the insured could not state a cause of action for statutory bad faith. Julien v. United Property & Cas. Ins. Co., 4th DCA (March 3, 2021).

TIPS & LESSONS

• Boilerplate references to statutes and administrative code provisions that have no bearing on the claim at issue undermine the purpose of the civil remedy notice requirement.
• Carefully analyze civil remedy notices and raise the lack of specificity and other deficiencies in the notice when responding.