26 Fla. L. Weekly Supp. 423a

Online Reference: FLWSUPP 2605CLARInsurance — Homeowners — Water damage — Arbitration — Absence of timely request for trial de novo — Judgment entered in accordance with arbitration award finding in favor of assignee who performed water remediation services following one-time water event caused by broken supply line beneath kitchen sink

SOUTH FLORIDA DRY OUT SERVICES LLC (a/a/o Leola Clark), Plaintiff, v. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 17-2702 COCE (53). October 2, 2017. Robert W. Lee, Judge. Counsel: Michael Fischetti, Davie, for Plaintiff. Dania Battle, Miami Lakes, for Defendant.

FINAL JUDGMENT ON ARBITRATOR’S DECISIONIN FAVOR OF PLAINTIFF

[Editor’s note: Arbitrator’s decision published below]

THIS CAUSE came before the Court for consideration of the notice of filing Arbitration Award filed by Leonore M. Greller, Arbitrator, and the Court’s having reviewed the docket, the entire Court file, and the relevant legal authorities; and having been sufficiently advised in the premises, the Court finds as follows:

This case was submitted to mandatory arbitration. The arbitrator served her decision by email and U.S. mail on September 1, 2017. Under Rule 1.820(h), Fla. R. Civ. P., a motion for trial de novo must be “made” within 20 days of the “service” of the arbitrator’s decision. Under Florida law, “a party has the right to move for a trial within twenty days after service of the arbitrator’s decision. If no motion for trial is timely served, then the trial court must enforce the decision of the arbitrator and has no discretion to do otherwise” (emphasis added). Bacon Family Partners, L.P. v. Apollo Condominium Ass’n, 852 So.2d 882, 888 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D1795a]. See also Johnson v. Levine, 736 So.2d 1235, 1238 n.3 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D1456a]; Klein v. J.L. Howard, Inc., 600 So.2d 511, 512 (Fla. 4th DCA 1992). The Court lacks discretion to deny entry of a judgment in accordance with the arbitrator’s decision when the parties fail to timely request a trial de novo or otherwise fail to dispose of the case of record within the de novo deadline. See Connell v. City of Plantation, 901 So.2d 317, 319 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1154b].

A five-day mailing period is added to this deadline because the arbitrator served his decision by email and U.S. mail. See Rules 1.090(a), 2.514(b). The parties’ request for trial de novo was therefore required to be filed no later than September 26, 2017. The 20-day deadline (with the five-day mailing period added) is a “bright line” deadline. Stowe v. Universal Property & Cas. Ins. Co., 937 So.2d 156, 158 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1859a].

As a result, the Court is required to enter judgment in accordance with the Arbitrator’s decision. See Gossett & Gossett, P.A. v. Fleming, 10 Fla. L. Weekly Supp. 839b (Broward Cty. Ct. 2003). Accordingly, the Court has this day unsealed the Arbitrator’s decision. In the Court’s view, the Arbitration Decision clearly reflects that the arbitrator appropriately considered the parties’ arguments, as well as their submitted stipulations and evidence. Rules 1.820(c), 11.060(d). As a result, it is hereby ADJUDGED THAT:

The Plaintiff shall recover from the Defendant, CITIZENS PROPERTY INSURANCE CORPORATION, the sum of $3,981.89, which sum shall hereafter bear interest at the rate of 5.17% per annum. The Plaintiff is entitled to an award of costs and attorneys’ fees, which the Court retains jurisdiction to award.

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SOUTH FLORIDA DRY OUT INSURANCE LLC., (a/a/o Leola Clark), Plaintiff, vs. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 17-2702 COCE 53. Leonore M. Greller, Arbitrator. Counsel: Michael Fischetti, Mineo Salcedo Law Firm, Davie, for Plaintiff. Dania Battle, Garcia Paez, P.A., Miami Lakes, for Defendant.

ARBITRATION DECISION IN FAVOR OF PLAINTIFF

Pursuant to section 44.103, Florida Statutes, and Florida Rule of Civil Procedure 1.820, an arbitration hearing was conducted on July 30, 2017, with all counsel and party representatives present. After considering the evidence and submissions of the parties and argument of counsel, the undersigned Arbitrator renders this Decision in favor of Plaintiff (or “South Florida” and against Defendant (or “Citizens”).SUMMARY OF THE CASE

This case arises from Citizens’ denial of a claim on November 3, 2016, for water removal and restoration services that Plaintiff performed from August 31, 2016 through September 3, 2016, while the Policy was in full force and effect; the Insureds home having sustained a water flow event on or about August 28, 2016. On August 31, 2016, the Insureds executed the Assignment of Benefits with Direct Payment (“AOB”) and the Joint Pretrial Stipulation dated August 11, 2017 (“Pretrial Stip”) indicates the claim was reported to Citizens by the Insured’s public adjuster on September 6, 2016.

Citizens inspected the property on September 14, 2016 and then retained an engineering firm, Rimkus Consulting Group, Inc., who performed a follow-up inspection on October 12, 2016. The Report of Findings of Rimkus Consulting Group, Inc.’s Heather R. Anesta, Licensed Engineer and Consultant is addressed to Tina Cowell at Citizens and was issued on November 1, 2016 (“Engineer’s Report”). The Engineer’s Report findings include: constant or repeated water seepage; pre-existing damage and pre-existing conditions for both a guest bathroom overflow and a damaged kitchen sink cabinet. Based on the initial inspection and the Engineer’s Report, Citizens issued a letter of denial on November 3, 2016 (“Nov 3 Denial Letter”).

According to the facts stipulated in the Pretrial Stip, on November 21, 2016, South Florida emailed Citizens invoice #1084 for services in the amount of $3,981.89 along with an itemization of the charges, the daily humidity record; a work order agreement and a certificate of completion and satisfaction signed by the insured, Leola Clark (“AAO Leola Clark” or “Ms. Clark”). Defendant did not pay the invoice and in February 2017, Plaintiff initiated this suit for breach of contract of the Policy for failing to pay for the water mitigation services reflected in the invoiced amount.

LIMITATION OF ISSUES

The Arbitrator is limited to determining the issues of the case herein and refers to the Pretrial Stip which identifies the following disputed issues of law and fact pertinent to Plaintiff’s specific claim raised in its Complaint: a) Whether the Policy affords coverage for the loss; b)Whether Defendant breached the Policy by refusing to pay Plaintiff’s invoice, and if so, the amount of damages owed; and c) Defendant’s denials in its Answer and its Affirmative Defenses to Plaintiff’s Complaint (as hereinafter set forth).FINDINGS OF FACT AND CONCLUSIONS OF LAW

It is undisputed that under an all-risk policy, Plaintiff must first show that the Policy was in effect and that a covered peril caused the damage. Citizens Prop. Ins. Corp v. Munoz, No. 2D13-3899, 5 (Fla. 2d DCA Dec. 24, 2014) [40 Fla. L. Weekly D64a]. The burden of proof then shifts to the insurance company to prove that the peril causing the damage is excluded; otherwise, coverage applies. Hudson v. Prudential Prop. & Cas. Ins. Co., 450 So. 2d 565, 566 (Fla. 2d DCA 1984). See also Universal Prop. & Cas. Ins. Co. v. Daniel Secu & Daniela Secu Godiciu, No 4D13-4607 (Fla. 4th DCA March 18, 2015) [40 Fla. L. Weekly D716d] (per curiam) (Affirmed without opinion, citing, inter alia, Citizens Prop. Ins. Corp v. Munoz, No. 2D13-3899 (Fla. 2d DCA Dec. 24, 2014) [40 Fla. L. Weekly D64a] and Hudson v. Prudential Prop. & Cas. Ins. Co., 450 So. 2d 565, (Fla. 2d DCA 1984).

It is Plaintiff’s claim that its water mitigation services were required due to a water loss from a broken supply line emanating from under the kitchen sink. Such a loss would be a covered peril under the Policy. AAO Leola Clark attests in her affidavit (paragraphs 1-6) that when she woke on the morning of August 28, 2016, she found “clear water had flooded into my dining room [and] kitchen.” She mopped up, but later that day, there was more water. She and her granddaughter put down towels and the next day (August 29, 2016) Insured Herman Clark came over and “was able to fix the leak”. According to Insured Clark’s affidavit at paragraphs 5-9:

I went to the property and found wet towels and water seeping out of the walls. I found the leak was occurring from the water supply line under the sink. Once I found the leak I turned off the water main to the house. I went to Home Depot and bought supplies, then went back to the property and replaced the water supply lines. This repair fixed the leak as there was no active leak once we turned the water back on.

According to Ms. Clark’s affidavit, after Mr. Clark fixed the broken supply line, she called South Florida on August 31, 2016, to come and dry out the property. When South Florida arrived, she signed the Work Order and AOB with direct payment authorization, thus becoming AAO Leola Clark. With regard to how many days South Florida had its equipment, Ms. Clark is less certain, but attests, “[t]he machines were present for days, but I don’t recall how many days, but I do remember the loud noises from the machines.” Ms. Clark’s attestation is consistent with Insured Herman Clark’s affidavit which states, “I returned to the property days later and saw machines from the water dry out company that were left to dry out the property.” It is also consistent with the on-site technician from South Florida, Arpad Hajdu, who submitted an affidavit dated August 19, 2017, notarized in the State of Georgia. Mr. Hajdu took photos of the interior cabinet and below the sink and the moisture readings. The work began on August 31, 2016 and the invoice reflects the work performed.

In contrast, Defendant’s Answer does not address the water mitigation claim. Defendant contends that the Policy excludes coverage based on the Engineer’s Report which found that the leak was caused by constant and repeated water seepage from a pre-existing faulty drain line that has drained into the backyard for years and is now a grey water hole covered by a ladder which hole and ladder was also photographed. Further, there was pre-existing damage to the kitchen cabinet photographed in 2014 and a kitchen sink leak noted (as repaired) as part of the 2014 Four Point Inspection.

Based on the Engineer’s Report Defendant raises three affirmative defenses concerning cause and damage, to wit: Cause of Loss Excluded from Coverage for: 1) Excluded Peril — constant or repeated water seepage, fungi, etc.; 2) Pre-existing damage prior to Policy inception; and 3) Pre-existing condition, either workmanship, repairs or lack thereof. The Affirmative Defenses are not on point, however, as they do not address the leak from the supply line or the damage therefrom which required Plaintiff’s water mitigation services.

Prior to reading and reviewing the documents, the Arbitrator carefully examined the Exhibit and photographs. In comparing the photographs attached to the 2014 Four Point Inspection with the claim adjuster’s photographs on page 4 (also attached to the Engineer’s Report), it is clear that there were old supply lines on the 2014 Four Point photos and new supply lines installed under the kitchen sink in the claim adjuster’s photos. Indeed, the UPC bar code tags had not been removed from the shiny supply lines in the claim adjuster’s photos and the Engineer’s Report notes that, “[t]he braided supply lines appeared to be new when compared to the remainder of the hardware within the cabinet (Photograph 3). It is also clear from the 2014 Four Point Inspection that there had been a plumbing leak in the kitchen prior to 2014 and it was repaired; under comments, “Kitchen plumbing — leak has been repaired.”

Apparently, the Engineer’s Report conflates Plaintiff’s claim for water restoration services with the condition of the base cabinet, stating that, “[t]he condition of the base cabinet was not consistent with a one-time leak from a water supply line.” In fact, the Engineer’s Report does not mention water mitigation services, but does note that the engineer “understood that “Ms. Clark reported on August 16, 2016, [that] there was a leak from the water supply link to her kitchen sink which damaged the sink base cabinet.” ¹

It is common sense that a kitchen cabinet in a house built in 1959 would not be in pristine condition. Hence, evidence of a former leak, clearly noted as repaired in 2014, cannot establish a basis on which to deny a one-time water event from a water supply line, especially where there is factual and demonstrative evidence that new supply lines had just been installed.

Accordingly, the Arbitrator finds by the greater weight of the evidence that there was an accidental discharge or overflow of water from a broken supply line attached to the kitchen sink. The broken supply line resulted in an accidental discharge of water, a single one-time water event, which is a covered peril under the Policy. Further, the covered peril caused water flow into the Insureds’ home, necessitating Ms. Clark to contact Plaintiff to provide water mitigation services to the Insureds’ property.

Thus, the Arbitrator finds that the Policy does afford coverage for the loss and Defendant breached its contract of insurance when it denied the Insureds’ claim under the Policy for a covered peril of a one-time water event due to a broken kitchen drain supply line that caused damage requiring water mitigation services which Defendant thereafter failed to pay to Plaintiff after Plaintiff issued its invoice in the amount of $3,981.89.

Further, when Defendant denied the claim and refused to pay Plaintiff’s invoice, Defendant breached its Policy with the Insureds who had assigned their benefits to Plaintiff. As such, Plaintiff is entitled to damages in the amount of $3,981.89 and as prevailing party, attorneys fees and costs.

DONE AND ORDERED in Coconut Creek, Broward County, Florida, this 1st day of September 2017.

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¹While the Engineer’s Report indicates the claim was first reported on August 16, 2016, (prior to South Florida’s water mitigation), the Arbitrator finds that Citizens would not have waited thirty days before “first” inspection on September 14, 2016. Also, the Pretrial Stip establishes as undisputed fact that it was reported on September 6.