27 Fla. L. Weekly Supp. 1039a
Online Reference: FLWSUPP 2712AGUIInsurance — Homeowners — Insurer violated section 627.70131(5)(a) by failing to pay or deny claim for homeowners insurance benefits within 90 days — Where insurer confessed judgment by paying claim after suit was filed, plaintiff water remediation company is entitled to attorney’s fees and costs
FLORIDA DRY SOLUTIONS, LLC, a/a/o Evert Aguilar, Plaintiff, v. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2018-004497-CC-05, Section CC04. February 3, 2020. Diana Gonzalez-Whyte, Judge. Counsel: Dahlene K. Miller-Almodovar, Font & Nelson, PLLC, Ft. Lauderdale, for Plaintiff. James Suarez, Stone, Glass & Connolly, Palmetto Bay, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORSUMMARY JUDGMENT AND GRANTING PLAINTIFF’SCROSS MOTION FOR SUMMARY JUDGMENT
This cause came before this Court on September 24, 2019 on Defendant’s Motion for Summary Judgment and Plaintiff’s Cross Motion for Summary Judgment. The court having reviewed all the filings and case law hereby finds that the Defendant’s Motion for Summary Judgment is DENIED, and Plaintiff’s Cross-Motion is GRANTED.
Wherefore the court finds that there are no genuine issues of material fact, that the Defendant did not comply with the requirements under law. The court finds that the insured and the Defendant were in a legally binding contract for homeowner’s insurance which was in full force and effect on September 10, 2017; that the Defendant violated Fla. Stat. § 627.70131(5)(a) by failing to pay or deny the Plaintiff’s claim within 90 days; that the Defendant confessed judgment by issuing payment of the claim after suit was filed; and that the Plaintiff is entitled to attorney’s fees and costs pursuant to Fla. Stat.§§627.428 and 57.041.
The facts demonstrate that the Defendant did not make a pre-suit demand for appraisal and waited more than four (4) months after suit was filed to ask for an appraisal. The Defendant insured the Plaintiff’s property and that within the insurance period on or about September 16, 2017 the Defendant was placed on notice of the loss and claim number 001-00-124366 was assigned. The Defendant does not contest that they insured Evert Aguilar from October 21, 2016 through October 21, 2017; that Mr. Aguilar partially assigned his rights to Florida Dry Solutions. The Plaintiff filed the present action against Citizen’s Property Insurance on February 27, 2018.
The Defendant’s Motion for Summary Judgment acknowledges in paragraph 5 that the Plaintiff submitted an invoice in the amount of $6,314.95 for services at the insured’s property and references paragraph 7 of their supporting affidavit. The very next occurrence is not until June 27, 2018 when, according to their supporting affidavit, “Citizens extended coverage for the loss under the aforesaid policy and accordingly issued payment of $3,024.78”
The Defendant also acknowledges in its affidavit that it received a claim for damage at the insured property on September 16, 2017 and that it assigned claim number 001-00-124366.
The Plaintiff filed multiple exhibits demonstrating that it sent notices and an invoice to the Defendant multiple times. Plaintiff’s Exhibit B is an email sent to “claims.communications@citizensfla.com” on “Thu, Oct 5, 2017 at 10:10 AM.” Said email informs the Defendant that the work will exceed $3,000.00.” and request, “that the Defendant inform them if the Defendant did not wish for the Plaintiff to continue the remediation work at said risk”. The email advised the Defendant that, “Otherwise — we will continue to complete the remediation works as normal.” The Plaintiff further alleges that the Defendant did not respond.
Exhibit C is the Plaintiff’s Certificate of Completion and Satisfaction. Exhibit D was sent by Plaintiff on “October 24, 2017” at “10:59 PM” to: claims.communications@citizensfla.com.” Plaintiff submitted its invoice to the Defendant in the amount of $6,314.19 on October 24, 2017, the invoice was never paid, and a response was not sent. Once again on December 17, 2017 Plaintiff sent Exhibit E to the Defendants and yet again the Defendant failed to respond or issue payment. The Plaintiff filed suit on February 27, 2018 more than five months after the final bill had been sent to them. It was not until March 10 and 29, 2018 that the adjuster for the Defendant requested copies of the estimate.
On June 27, 2018, the Defendant sent partial payment and the Defendant invoke appraisal. This was now more than nine (9) months after the date of loss and more than four (4) months after the filing of the lawsuit.
Furthermore, Fla. Stat. § 627.70131 states in pertinent part that:
(1)(a) Upon an insurer’s receiving a communication with respect to a claim, the insurer shall, within 14 calendar days, review and acknowledge receipt of such communication unless payment is made within that period of time or unless the failure to acknowledge is caused by factors beyond the control of the insurer which reasonably prevent such acknowledgment. If the acknowledgment is not in writing, a notification.
The Loss in the instant case took place on September 10, 2017. It was not until March 10 and 29, 2018 that the adjusters for the Defendant requested copies of the estimate.
There is no evidence that the Defendant demanded appraisal prior to the filing of the lawsuit or otherwise issued payment despite having knowledge for more than eight months. The only evidence that Defendant has ever requested appraisal is Plaintiff’s Exhibit H a letter dated June 27, 2018 four months after the lawsuit was filed and nine months from the date of loss. In fact, the appraisal was not conducted until March 13, 2019 after the court stayed the case to allow an appraisal.
The Defendant failed to deny or pay Plaintiff’s claim within ninety days after the Defendant received notice of the claim. Due to the Defendant’s failure to comply with Fla. Stat. § 627.70131 (1)(a) the Plaintiff had no choice but to initiate the present lawsuit and seek relief from the court. Pursuant to Fla. Stat. §627.428 the suit was properly initiated. The court has granted the Plaintiff’s cross motion for summary judgment and the court finds that pursuant to Fla. Stat. §627.428 the Plaintiff is entitled to attorney’s fees and costs. The granting of the Plaintiff’s Cross-Motion for Summary Judgment resolves all the issues in the case except for attorney’s fees and costs. It is therefore a final summary judgment.
