27 Fla. L. Weekly Supp. 375a
Online Reference: FLWSUPP 2704ASCEInsurance — Homeowners — Where homeowners policy provides that insurer has 90 days to pay or deny insureds’ reopened claim, and insureds filed suit for breach of contract only 18 days after providing insurer with notice of supplemental claim, lawsuit was premature — Final summary judgment is entered in favor of insurer, which has paid amount of appraisal of supplemental claim plus interest
ANABEL ASCENCIO, et al, Plaintiff(s) / Petitioner(s) v. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant(s) / Respondent(s). Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. Cace18012238, Division 12. June 17, 2019. Keathan Frink, Judge. Counsel: Gabriela Perez-Dumois and William Karoly, Duboff Law Firm, North Miami, for Plaintiffs. Michael J. Kranzler, Goldstein Law Group, P.A., Fort Lauderdale, for Defendant.
ORDER ON DEFENDANT’SAMENDED MOTION FOR RECONSIDERATION
THIS CAUSE having come to be heard on June 4, 2019 before the Court on Defendant’s Motion for Reconsideration, and the Court having considered the record, having heard counsel and being otherwise advised in the Premises finds as follows:
STATEMENT OF UNDISPUTED FACTS
1. This lawsuit is premised upon a claim for homeowner’s insurance benefits allegedly due and owing to the Plaintiffs after their property incurred damages from Hurricane Irma.
2. On or about September 14, 2017, the Plaintiffs provided the Defendant with notice of their claim. The Defendant acknowledged receipt of the claim and assigned a claim number to the loss.
3. On November 21, 2017, the Defendant extended coverage for the Plaintiffs’ loss.
4. On May 3, 2018, the Plaintiff submitted to the Defendant an estimate for claimed necessary repairs to the subject property over the amount of coverage previously afforded by the Defendant for this loss, due to their disagreement with the Defendant’s determination regarding the scope and amount of the loss. Plaintiffs did not inform Defendant of their disagreement with the scope of the Defendant’s coverage decision prior to May 3, 2018.
5. On May 18, 2018, the Defendant called the offices of Plaintiffs’ counsel to advise that the claim was reassigned to a new adjuster and under review. Additionally, the Defendant documented the conversation in its claim file based on the Affidavit of Floyd Osborn.
6. On May 21, 2018, the Plaintiffs filed the instant lawsuit.
7. Also on or about May 21, 2018, the Defendant sent a letter to the Plaintiffs demanding appraisal of the remaining coverage in dispute, which the Plaintiffs received on May 31, 2018.
8. At no time prior to the Plaintiffs filing suit did the Defendant deny the Plaintiffs’ claim or refuse to reconsider its coverage decision.
9. The Plaintiffs have stated that they had not received the Defendant’s letter demanding appraisal at the time that they filed suit; the Defendant has stated that it had not yet been served with the Plaintiff’s lawsuit or advised of same at the time that the Plaintiffs filed suit.
10. On July 24, 2018, the litigation in this matter was stayed, and the matter was sent to appraisal.
11. The appraisal was issued on August 29, 2018 and paid in full by the Defendant on or about September 18, 2018, including applicable pre-judgment interest.
12. On March 6, 2019, the Parties appeared before this Court on Defendant’s Motion for Final Summary Judgment. This Court denied the Defendant’s Motion for Final Summary Judgment based on representations by counsel for the Plaintiffs that the Defendant had not met its obligation under Florida Statute § 627.70131, which led the Plaintiffs to conclude that a dispute still existed and filing the instant lawsuit would serve a legitimate purpose. For the reasons set forth below, the Court grants the Defendant’s Motion for Reconsideration and enters final summary judgment in favor of the Defendant.
ANALYSIS
The Court holds that the Plaintiffs’ request for additional payment constitutes a “reopened claim” under the plain language of the subject Policy, which defines a reopened claim as “any additional claim for recovery from us for losses from the same hurricane or windstorm which we have previously adjusted pursuant to the initial claim.” Therefore, in accordance with the Policy the Defendant had 90 days to resolve the supplemental claim upon receipt of notice of same from the Plaintiffs. The Policy states, in pertinent part, as follows:
Loss will be payable: … Within 90 days after we receive notice of an initial, reopened, or supplemental property insurance claim from you, where for each initial, reopened, or supplemental property insurance claim, we shall pay or deny such claim or portion of such claim, unless there are circumstances beyond our control which reasonably prevent such payment.
This Court must afford plain meaning to the terms of the Policy which constitutes the contract between the Parties, and the terms of the Policy clearly indicate that the Defendant has 90 days to pay or deny the Plaintiffs’ reopened claim before the Defendant can be found to be in breach of the contract. The Court finds that, in filing the instant lawsuit on May 21, 2018, only 18 days after the Defendant was first provided with notice of the supplemental claim, the Plaintiffs did not comply with the terms of the Policy, as they filed suit before the expiration of the 90-day period provided for under the Policy for the resolution of a reopened claim. As such, the Plaintiffs’ lawsuit was premature.
Based upon the record evidence, arguments of counsel, and the Court’s analysis as outlined in greater detail above, this Court grants the Defendant’s Motion for Reconsideration, setting aside its prior denial of Defendant’s Motion for Final Summary Judgment and subsequently entering final judgment in favor of the Defendant and against the Plaintiffs.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1. Defendant’s Motion for Reconsideration is hereby GRANTED.
2. The Court sets aside its March 6, 2019 Order Denying Defendant’s Motion for Final Summary Judgment.
3. The Defendant’s Motion for Final Summary Judgment is hereby GRANTED.
4. Final judgment hereby entered in favor of the Defendant, Citizens Property Insurance Corporation, and against the Plaintiffs, Anabel Ascencio and Jose Lorenzo Cruz. The Plaintiffs shall take nothing by this action and the Defendant shall go hence without day.
