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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Hillsborough County Judge James Salvatore Giardina, granted an Order for Final Summary Judgment for the insurance company, in a matter involving a policyholder’s breach of the insurance policy’s post-loss conditions in a first party property claim.  A motion for fees and costs is pending, premised on Plaintiff’s unreasonable refusal to accept a nominal Proposal for Settlement. 

Approximately one month after the claimed date of loss, the policyholder reported property damage resulting from a pipe leak underneath a guest bathroom sink, causing damage to cabinetry and sheetrock.  The carrier requested information and documentation regarding the policyholder’s claim, and received no response.  Requests for information were repeated several more times. 

The insurer’s consultant coordinated an inspection, but the policyholder’s attorney cancelled it.  This happened twice more. 

The carrier requested a recorded statement from the policyholder.  The policyholder failed to comply.

After the carrier’s repeated attempts to get information and documentation concerning the claim met with no response, the carrier sent a statement of position declining coverage due to the policyholder’s failure to comply with the policy’s post-loss conditions. 

The policyholder’s attorney filed suit for breach of contract.  After conducting some initial discovery, the carrier filed a motion for summary judgment.  The carrier set a hearing for the motion, and the judge observed that opposing counsel failed to create any genuine issue of material fact.

The court relied on the current version of Florida Rule of Civil Procedure 1.510, which requires that the motion for summary judgment and any opposition to it be premised on record evidence.  Many attorneys fail to comply with this requirement, instead filing unsworn documents and other matters that would not be admissible in evidence.  At hearings, the same attorneys request a continuance or the ability to provide additional information.  The rule is very simple.  There is a proper way to request continuance of a hearing on a motion for summary judgment, yet very few opposing attorneys comply with the rule.  We are seeing more judges hold both parties to the letter and intent of the rule, as was the case here.

This scenario repeats on a regular basis.  Please let me know if you would like to see any further filings or have a question about any aspect of this or the issues raised.

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

The Rock Law Group recently persuaded a Florida County Court to dismiss with prejudice a lawsuit filed by a mold assessment company as a purported assignee of benefits, by agreeing with the insurer’s argument that the mold assessment company’s attachment of only a non-itemized invoice of its services, rather than an “itemized, per unit estimate of the services to be performed by the assignee,” failed to comply with Fla. Stat. §. 627.7152.

Plaintiff Truviewmold, LLC a/a/o Wesner Saint Juste (“Truviewold”) had filed suit against an insurer, alleging that the insurer had breached a policy that the insurer issued to Truviewmold’s assignor by failing to pay Truviewmold for mold assessment services that Truviewmold claimed it provided to Insured in connection with Insured’s claim for property damage caused by a plumbing leak.  The insurer did not dispute that Truviewmold had provided the insurer its purported assignment agreement (which Truviewmold attached as an exhibit to its Complaint) less than three business days after the Insured signed that agreement, nor did the insurer dispute that the purported assignment agreement appeared to contain most of the terms required under Florida Statutes Section 627.7152.  But instead of attaching an itemized estimate of its mold assessment services to the purported assignment agreement, Truviewmold instead attached only a non-itemized invoice listing a single $1,500.00 lump sum charge for a “mold assessment fee.”

Attorney Rob Rogers of The Rock Law Group filed a motion to dismiss Truviewmold’s Complaint with prejudice based upon Fla. Stat. § 627.7152(2)(a)(4), which requires all agreements for the assignment of policy benefits for mitigation services associated with residential property insurance claims to “contain a written, itemized per unit cost estimate of the services to be performed by the assignee,” on grounds that Truviewmold’s action was facially negated by the purported assignment agreement attached as an exhibit to the Complaint, since the purported assignment was invalid and unenforceable.  Truviewmold opposed the motion to dismiss by arguing that its attachment of the non-itemized invoice to its assignment agreement sufficiently complied with Section 627.7152.

Following a hearing, County Court Judge Amy J. Carter from Orange County Court, Florida agreed with the insurer and dismissed Truviewmold’s Complaint with prejudice by explaining:

Fla. Stat. § 627.7152(2)(a)(4) states, “An assignment agreement must contain a written, itemized, per-unit cost estimate of the services to be performed by the assignee.”  Attached to the complaint as “Exhibit A” is an assignment of benefits executed by the assignor/homeowner and Plaintiff, and a separate invoice for a single mold assessment fee.  Defendant argues that the invoice is not itemized and does not contain a breakdown of the per unit costs for the services to be performed.

After reviewing the assignment, it does not comply with Fla. Stat. § 627.7152(2)(a). The assignment is required to contain a per unit cost estimate.  Plaintiff argues the document titled “Mold Assessment Invoice” satisfied the requirements of the statute.  However, it is not itemized and does not contain a per-unit cost for the services to be provided. Furthermore, it is not contained within the assignment.  The assignment is therefore “invalid and unenforceable” and must be dismissed with prejudice. Fla. Stat. § 627.7152(2)(d); Progressive Exp. Ins. Co. v. McGrath,913 So. 2d 1281, 1285 (Fla. 2d DCA 2005) (holding a lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed).

This order confirms that an assignee of benefits may not comply with Fla. Sta. § 627.7152 by attaching only a non-itemized invoice to its assignment of benefits agreement, but must instead attach an actual itemized estimate invoice listing all “per unit” charges for each service it intends to provide, and that assignees who instead chose to attach only simple, lump invoices with a single charge for all services performed may not seek payments from insurers as assignees of benefits.  The order also suggests that insurers who are provided such assignments may refuse to pay for such services based solely upon this defect, and if the purported assignees later file suit for such non-payment, the insurers may obtain summary judgment (or dismissal with prejudice if, as in this case, the purported assignment agreement is attached to the Complaint as an exhibit).

Please contact us if you would like copies of any filings in this matter.

ORDER DENYING PLAINTIFF’S ENTITLEMENT TO ATTORNEY FEES

In a first party property case pending in the Panhandle, the United States District Court for the Northern District of Florida entered an order denying Plaintiff’s Motion for Entitlement to Attorney Fees and Costs.  The case involved a Hurricane Michael insurance claim which was resolved in appraisal, after suit was filed.

Plaintiffs contended that the appraisal award was a confession of judgment.  Our client, the insurance carrier, responded that there was no entitlement to attorney fees because the claims adjusting process had not broken down, and the policyholders did not need to file suit to get the additional insurance proceeds awarded in the appraisal. 

The court observed that an insured may recover attorney fees in the absence of a judgment or decree, if the insured obtains the functional equivalent of a confession of judgment.  Several courts have premised such awards on appraisal awards.  However, this court concluded that an award of attorney fees is not appropriate if the insurer was taking steps to resolve the dispute without court intervention.  This court carefully considered the record and concluded that it did not establish that there was a breakdown in the claims adjusting process, or inordinate “foot dragging” by the insurer.  The insurer investigated the claim, accepted coverage, and made a payment.  Our client sent the policyholder’s public adjuster a letter pointing out what appeared to be a material error in the public adjuster’s estimate.  Instead of providing clarification, the policyholder opted to file suit.

The court denied Plaintiffs’ Motion for Attorney Fees, because the record reflected that Plaintiffs did not let the claims adjusting process fully play out before they filed suit.  The court observed that because the appraisal award had been paid and further judicial action was not necessary, the case would be dismissed with prejudice.

Judge Kent Wetherell’s order is attached.  The availability of attorney fees drives much of the litigation against insurance companies in Florida.  This prospect is not absolute, and there is a growing body of case law suggesting that fees should not be awarded where litigation was not necessary to achieve resolution of the claim.  Please contact me with any question concerning this result.

July 8, 2020

Judge Robert N. Scola, Jr., United States District Judge for the Southern District of Florida, granted a Motion to Dismiss relative to a complaint for breach of contract arising from a fire claim.  Judge Scola granted the Motion to Dismiss with prejudice and without leave to amend.

This is a significant ruling which many carriers may be able to utilize in their Florida litigation.  In particular, Judge Scola observed as follows:

. . .the Plaintiff alleges that the Defendant’s refusal to pay the full amount of the claim was “contrary to the terms of the Policy and/or Florida law . . . : which (of many) terms of the policy?  Which (of many) Florida laws?  The Defendant cannot be tasked with Defending itself by guess work against such a catchall allegation . . .the mere citation of the claim number does not put the Defendant (much less the Court) on notice as to the nature of the precise dispute between the parties.  It also gives no notice as to the legal theories to which Defendant must respond.

The Court went on to rule that the complaint would be dismissed with prejudice and without leave to amend.

This ruling makes it clear that plaintiffs must be specific in alleging details concerning the loss.  Please let me know if you would like a copy of the order or any additional information.

February 20, 2020

Collier County Circuit Judge Hugh Hayes recently granted a Motion for Summary Final Judgment for the insurance carrier in an appraisal case with the Strems Law Firm.  The Final Judgment is pending.

Plaintiffs filed a water intrusion insurance claim for an event in 2015.  The carrier accepted coverage for the claim and determined that the amount of loss was less than the applicable deductible.  The carrier paid a mitigation company’s invoice in full.

Without submitting a counter-estimate to demonstrate that they disputed the carrier’s position, the policyholders filed suit for breach of contract.  After the parties engaged in discovery, appeared before the court, and mediated to an impasse over a period of approximately one year, the carrier demanded appraisal.

The trial court judge entered an order requiring appraisal, but refused to abate the litigation.  The appraisal concluded when the parties’ appraisers agreed on the amount of loss, without the involvement of an umpire.  Notably, the carrier had denied coverage for the roof but accepted coverage for interior damage, consistent with provisions in the insurance policy.  The policyholder’s appraiser, in the course of the appraisal proceeding, agreed with the carrier’s position that the roof did not sustain damage that would have been covered under the policy.

The carrier paid the appraisal award in full and on time, then filed a Motion for Summary Final Judgment.  The Motion was argued before Judge Hayes, who, at the hearing, announced his ruling in favor of the carrier.  Entry of Final Judgment is pending.

Many insurance claims have been placed into appraisal as a result of Hurricane Irma and other recent events.  Florida courts have developed a growing body of case law supporting appraisal of these claims, including those which involved causation-related issues, like the roof in this instance.

The body of case law concerning ancillary claims, including attorneys’ fees and costs, is also growing.  In matters where the policyholder has initiated suit before engaging in any meaningful exchange consistent with the claim process, attorneys’ fees and costs should not be awardable. 

Please contact us if you would like copies of any filings in this matter.

January 30, 2020

A property carrier received summary final judgment in a Dade County case involving a Plaintiff/AOB’s motion for “confession of judgment.” 

The Plaintiff/AOB initially sued the wrong insurer.  Before the Plaintiff/AOB amended the Complaint to name the proper insurer, the carrier issued payment in full for Plaintiff’s invoice for mitigation services.

The Plaintiff/AOB, which had provided water mitigation services related to a pipe leak, filed suit against the wrong insurer only three weeks after first reporting its mitigation services, and before ever receiving any coverage determination. At the time Plaintiff filed suit, the actual insurer had not yet completed its coverage determination.  However, approximately one month after Plaintiff filed suit against the wrong party, the actual carrier completed its coverage evaluation and decided to pay the full amount of Plaintiff’s invoice.

Before the Plaintiff/AOB amended the complaint, the carrier delivered a check to Plaintiff’s counsel, made payable to Plaintiff for the full amount of its invoice A cover letter from counsel told Plaintiff that it had sued the wrong party, but that the actual insurer had decided to pay the entire claim. The carrier demanded that the lawsuit be dismissed.

Rather than dismiss, Plaintiff “amended” the Complaint six hours after receiving the letter, to name the correct carrier as the “new defendant.” Plaintiff’s counsel claimed mysteriously that the parcel containing the letter had included only a “photocopy of the check,” not the actual check. Plaintiff then served process on the correct carrier eight days later.

The correct carrier/new defendant immediately answered, then filed for summary judgment on grounds that it had never breached the policy, but had instead complied with the policy by timely paying the full amount of the invoice before it was ever sued (albeit after Plaintiff had prematurely sued the wrong party).  In opposing the Motion for Summary Judgment, Plaintiff argued in a separate motion that the carrier confessed judgment by agreeing to pay and “attempting unsuccessfully to pay” the full amount of Plaintiff’s invoice through the letter Plaintiff’s counsel received on September 10, 2019.  At a hotly contested hearing, Plaintiff also argued that the carrier had somehow breached the policy by failing to pay the invoice sooner (even though the carrier determined coverage less than 60 days after receiving initial notice of Plaintiff’s services) and by failing to include the check in the parcel.

In his order granting summary judgment and denying the motion for confession of judgment, the Judge held that Plaintiff’s “lawsuit was premature,” and “Plaintiff’s errors shall not inure to its benefit.”  “To begin the matter, Plaintiff filed suit against the wrong entity and then electronically sprinted to the courthouse a mere six hours after Defendant, the correct entity, indicated its willingness to pay.  Plaintiff’s counsel owed a duty to both parties and the court to make a good faith effort to resolve the September 10, 2019 payment confusion prior to filing an amended complaint.”

The Court added, “Defendant’s conduct in response to Plaintiff’s actions was reasonable.  Despite the bizarre facts of this case, Defendant timely indicated its willingness to pay Plaintiff’s confusing and misaddressed invoice approximately sixty (60) days after its receipt. . . .  Plaintiff’s minimal efforts to contact Defendant’s counsel after September 10, 2019 do not equate to a determination that Defendant unlawfully or incorrectly refused to pay the claim, especially considering Plaintiff’s haste to amend its complaint.”

This case illustrates a common scenario: hastily filed lawsuits with inaccurate allegations (in this instance, the wrong carrier).  The carrier completed its investigation in due course and achieved resolution through the claim process, not litigation.

Attorney Rob Rogers prepared and argued the dispositive motion.  Please contact us for further information and copies of any of the filings.

December 6, 2019

Judge Corey A. Cawthon, of Broward County, entered an Order on October 23, 2019 granting Scottsdale Insurance Company’s Motion for Final Summary Judgment in a suit filed by a water mitigation company pursuant to an Assignment of Benefits. Plaintiff, by way of a single Count for Declaratory Judgment (a second Declaratory Judgment Count was previously voluntarily dismissed by Plaintiff in response to Scottsdale’s Motion to Dismiss), sought rulings from the Court that Plaintiff’s services were reasonable, necessary, and effective and, therefore, covered under the subject policy. In fact, Scottsdale had denied the underlying claim of Plaintiff on the basis of the applicable Policy’s Water Exclusion Endorsement; Scottsdale had never reached the question of whether Plaintiff’s services were reasonable, necessary and/or effective. In other words, there was not, and was never, any actual, bona fide dispute among the Parties as to the declarations sought by Plaintiff.

Scottsdale’s Motion for Final Summary Judgment was premised upon arguments that: (i) Plaintiff failed to state a claim for Declaratory Judgment; (ii) the declarations sought by Plaintiff would not redress the injury alleged by Plaintiff, and, thus, Plaintiff lacked standing to bring the suit; (iii) Plaintiff’s claim for Declaratory Judgment was not ripe for adjudication, and the Court, therefore, lacked subject matter jurisdiction; and, (iv) Plaintiff’s claim for Declaratory Judgment was moot, and the Court, therefore, lacked subject matter jurisdiction over the matter.

In response to Plaintiff’s Motion for Final Summary Judgment, Plaintiff, on the eve of hearing, filed a Motion for Leave to Amend its Petition so as to state a claim for declaratory judgment with regard to the Policy’s Water Exclusion Endorsement. Judge Cawthon denied Plaintiff’s Motion for Leave to Amend based upon the timeline of the case, which supported notice to Plaintiff of the deficiencies of its Petition as of the inception of litigation. Judge Cawthon ruled that amendment would be prejudicial to Scottsdale, and would constitute an abuse of Plaintiff’s right to amend.

Judge Cawthon additionally denied Plaintiff’s Motion for a Continuance of the October 23, 2019 hearing, and denied Scottsdale’s Motion for Sanctions, remarking that she believed Plaintiff’s counsel’s maintenance of the frivolous action was unintentional and the result of excusable neglect.

October 30, 2019

With the new AOB law, policyholders’ attorneys rushed to the courthouse to avoid application of the law.  Some of these hastily filed suits are now being weeded out.

Judge Jeffrey Levenson of Broward County entered an Order on August 27, 2019 granting Scottsdale Insurance Company’s motion to dismiss, with prejudice, of a suit filed by a mitigation company (fire damage) pursuant to an assignment of benefits in a first-party breach of contract case. Scottsdale’s motion sought dismissal, in part, because the assignment upon which Plaintiff relied for standing identified an incorrect policy of insurance.  Judge Levenson ruled that the matter was subject to dismissal and, then, remarking upon recent AOB legislation enacted in Florida, determined that amendment of Plaintiff’s complaint would be futile, as an actionable claim against the carrier would require that Plaintiff obtain a new assignment of benefits. Judge Levenson entered an order dismissing the case, with prejudice.

In another assignment of benefits case, Judge Evellen Jewett of Orange County granted GeoVera Specialty Insurance Company’s Motion to Dismiss on October 11, 2019. Judge Jewett found that Plaintiff’s assignment of benefits was invalid in that it lacked the signature of a named insured under the subject policy of insurance, and that Plaintiff, therefore, lacked standing to sue.

August 28, 2019

In litigation, it is very important to scrutinize the initial complaint to determine whether it is legally and factually sufficient.  Plaintiffs’ attorneys routinely file complaints that do not state a cause of action.

For example, in a recent case involving a Hurricane Irma claim, Plaintiff merely alleged that on or about a certain date, Plaintiff’s structure sustained damage from a covered peril.  Plaintiff failed to allege the nature of the loss, the nature of the damage, the type of insurance, nor the provisions of the policy implicated.

Federal Judge Lawrence King entered Order Granting a Motion to Dismiss we filed, based on Plaintiff’s failure to allege sufficient facts to state a cause of action.  As the Court was required to do, the complaint was dismissed without prejudice, with leave for Plaintiff to file an amended complaint within 30 days of the order.  Plaintiff’s counsel failed to file an amended complaint, and the action was dismissed, with prejudice.

Although it may seem surprising that Plaintiff’s counsel failed to amend the complaint so as to state a cause of action, this is not a rare occurrence.  The initial complaint was very similar to many we see.  Likewise, the fact that Plaintiff’s counsel did not amend is consistent with many Plaintiffs’ firms, which for whatever reason find themselves incapable of complying with fairly simple orders.  If you would like to see anything else in this or similar cases, just let me know.

April 24, 2019

Florida Senate voted in favor of House Bill 7065. The governor is expected to sign this.

This is a very significant piece of legislation that should have far-reaching effects.  However, as we have seen in other realms, including Worker’s Compensation, sinkhole litigation, and PIP/no-fault legislation, implementation will need to be given careful consideration.  Moreover, developments like this sometimes initiate a rush to the courthouse. Be prepared.  We will share developments as they occur.

February 6, 2019

Catastrophe lawsuits may require a strong response.  In a recent first party lawsuit, our client agreed to an aggressive plan of defense.

We filed a motion to dismiss Plaintiff’s complaint for failure to state a cause of action.  Plaintiff’s counsel realized that the court would most likely grant the motion, so Plaintiff filed an amended complaint just before

Concurrently, we recommended a roofing expert who assisted us in a previous jury trial that resulted in a defense verdict.  The expert inspected and provided his opinion, specifically finding that the roof was not damaged by Hurricane Irma.

We collaborated with our client and served a nominal statutory proposal for settlement.  Just days before the proposal was set to expire, Plaintiff filed a notice of voluntary dismissal without prejudice.  We contacted Plaintiff’s counsel, who said that Plaintiff would most likely not refile because of the risk of losing the case and incurring financial responsibility.

This is an example of what can happen when a client draws the line.  If you would like any more specific information or court filings, please let me know.