19 Fla. L. Weekly Supp. 819a
Online Reference: FLWSUPP 1910EVERInsurance — Homeowners — Breach of contract claim alleging that insurer failed to pay under “Ordinance or Law” provision of policy and related claim for declaratory action are dismissed with prejudice where second amended complaint did not plead that homeowner has become liable for, or had actually incurred, any additional costs due to enforcement of ordinance or law
LEAH EVERHART, individually and on behalf of all others similarly situated, Plaintiff, vs. CITIZENS PROPERTY INSURANCE CORPORATION, a government entity, Defendant. Circuit Court, 2nd Judicial Circuit in and for Leon County. Case No. 37 2010 CA 001102. July 25, 2011. Honorable Charles A. Francis, Judge. Counsel: Robert L. Chaiken, Chaiken & Chaiken, P.C., Dallas, TX; David S. Farber, Law Office of David S. Farber, P.A., Coral Gables, for Plaintiff. Farrokh Jhabvala and Ari H. Gerstin, Jorden Burt LLP, Miami, for Defendant.
[Editor’s note: Affirmed on Appeal. 37 Fla. L. Weekly D1550c]
ORDER GRANTING CITIZENS PROPERTY INSURANCECORPORATION’S MOTION TO DISMISS THE SECONDAMENDED COMPLAINT WITH PREJUDICE
THIS CAUSE came before the Court for hearing on June 13, 2011 on Defendant CITIZENS PROPERTY INSURANCE CORPORATION’S Motion to Dismiss the Second Amended Complaint With Prejudice.
Plaintiff alleges that her property, which was insured under a policy issued by Citizens Property Insurance Corporation (“Citizens”), was damaged by Hurricane Wilma on or about October 24, 2005. Plaintiff further alleges that an appraisal was conducted and that on or about February 3, 2008, an Appraisal Award was issued, awarding inter alia $29,000 under “Engineering for Code.” Plaintiff complains that Citizens has failed to pay her any amount under the “Ordinance Or Law” provision of her policy. The original Complaint asserted claims for breach of contract (Count I) and unjust enrichment (Count II).
Citizens moved to dismiss the original Complaint, and after reviewing the parties’ submissions and hearing argument on September 29, 2010, the Court granted Citizens’ motion to dismiss Count II (unjust enrichment) with prejudice because the Complaint alleged an express contract and requested monetary damages as relief which were available under the parties’ contract. With regard to Count I (breach of contract), the Court found that the case of Ceballo v. Citizens Property Insurance Corporation, 967 So. 2d 811 (Fla. 2007) [32 Fla. L. Weekly S566a] was controlling. In Ceballo, the insured sought ordinance and law payments under a policy issued by Citizens which provided that Ordinance or Law payment was available “for the increase [sic] costs you incur due to the enforcement of any ordinance or law which requires or regulates” construction, demolition, renovation or repair of covered building or structures. The Supreme Court concluded that the Ceballos were not entitled to Ordinance or Law benefits because they had failed to meet their obligation “to show that they have incurred an additional loss . . . .” Id. at 815. The Florida Supreme Court agreed with Citizens’ position that “ ‘to incur’ means to become liable for the expense, but not necessarily to have actually expended it.” Id. The policy at issue in this case similarly states that Ordinance or Law damage “will be settled at the increased costs you incur due to the enforcement of any ordinance or law which required or regulates” construction, demolition, renovation or repair of covered building or structures. Accordingly, the Court found Ceballo to be controlling and dismissed Count I (breach of contract) of the original Complaint without prejudice because plaintiff had failed to plead that she had incurred any additional costs due to the enforcement of an ordinance or law. The Court gave plaintiff leave to amend Count I.
Plaintiff filed her Amended Complaint on or about November 5, 2010. Citizens moved to dismiss the Amended Complaint, in part on the ground that the Amended Complaint failed to allege that plaintiff had incurred any additional costs due to the enforcement of an ordinance or law. The Court held a hearing on February 10, 2011, at which time the Court granted Citizens’ motion to dismiss the Amended Complaint without prejudice. The Court found that the Amended Complaint, like the original Complaint, failed to allege that plaintiff had incurred any additional costs due to the enforcement of an ordinance or law. At the February 10 hearing, the Court stated that it was affording plaintiff one more opportunity to “allege sufficient facts as to incurring the expense within the meaning of Ceballo.” Transcript of Feb. 10, 2011 hearing, p. 37.1
On or about March 31, 2011, plaintiff filed the Second Amended Class Action Complaint and For Injunctive Relief. The Second Amended Complaint asserted claims for breach of contract and for declaratory relief. Citizens moved to dismiss the Second Amended Complaint. in part, on the ground that the Second Amended Complaint failed to allege that plaintiff had incurred any additional costs due to the enforcement of an ordinance or law. The Court reviewed the parties’ submissions and heard argument on June 13, 2011. Based on the Court’s reading of Ceballo, it found that Citizens was entitled to a dismissal with prejudice of the breach of contract claim because the Second Amended Complaint did not plead that plaintiff had become liable for, or had actually incurred, any additional costs due to the enforcement of an ordinance or law. For the same reasons, the Court also dismissed with prejudice the claim for declaratory relief.
ACCORDINGLY, it is hereby ORDERED and ADJUDGED that CITIZENS’ Motion to Dismiss the Second Amended Complaint With Prejudice is GRANTED.
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1The Court found unpersuasive plaintiff’s argument that the Appraisal Award was binding on Citizens regardless of the policy’s Ordinance or Law provision because the Appraisal Award itself states: “This award is made without consideration of any deductible amount or other terms, conditions, provisions or exclusions of the above policy, which might affect the amount of the insurer’s liability there under. Any previous monies paid will be deducted from the final payment.” The Appraisal Award was attached to each of the three Complaints and, by its own terms, states that it is subject to the policy’s terms and conditions. Those terms and conditions include the policy’s Ordinance and Law provision. Thus, the Appraisal Award does not aid plaintiff in avoiding the necessity of pleading that she incurred additional costs due to the enforcement of an ordinance or law.
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