27 Fla. L. Weekly Supp. 530a
Online Reference: FLWSUPP 2706NADEInsurance — Property — Bad faith claim — Damages — Partial summary judgment is entered in favor of insurer in action alleging bad faith handling of property insurance claim for damages based on public adjuster fees, interest on belated settlement payment issued in underlying breach of contract action and loss of enjoyment and use of property
HOWARD NADER, Plaintiff, v. SAFE HARBOR INSURANCE COMPANY, Defendant. Circuit Court, 18th Judicial Circuit in and for Brevard County. Case No. 05-2017-CA-046724-XXXX-XX. August 1, 2019. George T. Paulk, Judge. Counsel: Matthew Struble, Struble, P.A., Fort Lauderdale, for Plaintiff. Matthew J. Lavisky, Butler Weihmuller Katz Craig LLP, Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTIONFOR PARTIAL SUMMARY JUDGMENT
This case is before the Court on the Motion for Partial Summary Judgment by Defendant, Safe Harbor Insurance Company (“Safe Harbor”). The Court has reviewed the Motion and Plaintiff’s Response. The Court also held a hearing on the Motion on July 15, 2019. The Court is fully advised in the premises. The Court finds as follows:
I. Facts
Plaintiff alleges that Safe Harbor acted in bad faith in the handling of a property insurance claim. This lawsuit is brought pursuant to Florida Statute § 624.155.
On or about January 6, 2016, the insured property sustained a loss. Two days later, on January 8, 2016, Plaintiff hired the public adjusting company, Five Star Claims Adjusting (“Five Star”). The contract provided that Five Star would receive 20% of the amount recovered from Safe Harbor. That same day, the Public Adjuster first reported the loss and claim to Safe Harbor. Safe Harbor was not aware of Plaintiff’s claim or loss until the Public Adjuster reported it on January 8, 2016.
Prior to this lawsuit, Plaintiff sued Safe Harbor for breach of contract, in Case No. 2016-CA-022061. In this underlying lawsuit, Safe Harbor served a Proposal for Settlement in the amount of $130,000. If accepted, the Proposal for Settlement would resolve:
all damages that would otherwise be awarded in a final judgment in this action. This offer is inclusive of interest, litigation costs and attorneys’ fees, which are part of HOWARD NADER’S legal claim.
Plaintiff accepted the Proposal for Settlement and dismissed the underlying lawsuit with prejudice. Plaintiff then filed this lawsuit. In response to interrogatories, Plaintiff set out categories of damages claimed, which included:
· “Public Adjuster fees in the approximate amount of $18,000.00”;
· “Interest on the belated settlement payment issued by SAFE HARBOR in the approximate amount of $3,000.00 ” ; and
· “Loss of Enjoyment/Ability to Use Property in the approximate amount of $18,700.00.” Safe Harbor moves for partial summary on these damages.
II. Analysis
A. Public Adjuster Fees
“[T]he damages recoverable in a first-party bad faith suit under section 624.155, Florida Statutes, are those damages which are the natural, proximate, probable, or direct consequence of the insurer’s bad faith.” Cont’l Ins. Co. v. Jones, 592 So. 2d 240, 241 (Fla. 1992). The statute specifies that the damages recoverable are those which are a reasonably foreseeable result of a specified violation of this section. § 624.155(8), Fla. Stat.
Safe Harbor did not cause Plaintiff to retain the Public Adjuster because Plaintiff retained the Public Adjuster before he reported the claim to Safe Harbor. In addition, the Public Adjuster was paid based on a set contingency. Consequently, no alleged act or omission by Safe Harbor caused Plaintiff to incur the cost of the Public Adjuster. Accordingly, Partial Summary Judgment is entered in favor of Safe Harbor on the claim for damages based on Public Adjuster fees in the approximate amount of $18,000.00.
B. Interest
The Proposal for Settlement accepted in the underlying action included and resolved interest. A plaintiff cannot recover, in a lawsuit for bad faith, the same damages claimed or recovered in the underlying claim or lawsuit. Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216, 1222-23 (Fla. 2006) [31 Fla. L. Weekly S882a]. “Interest on the belated settlement payment issued by SAFE HARBOR in the approximate amount of $3,000.00” is subsumed within the Proposal for Settlement accepted in the underlying lawsuit. Accordingly, Partial Summary Judgment is entered in favor of Safe Harbor on the claim for damages based on “Interest on the belated settlement payment issued by SAFE HARBOR in the approximate amount of $3,000.00.”
C. Loss of Use
The insurance policy provides coverage for the loss of the use of an insured property. The provision is called “COVERAGE D — LOSS OF USE.” Plaintiff claimed money for Loss of Use in the underlying claim and lawsuit, which was resolved by acceptance of the Proposal for Settlement. Accordingly, Partial Summary Judgment is entered in favor of Safe Harbor on the claim for damages based on Loss of Enjoyment/Ability to Use Property as to money paid or incurred by Plaintiff to live at some place other than the insured property.
III. Ruling
For the reasons stated, it is hereby ORDERED and ADJUDGED:
1. The Motion for Partial Summary Judgment by Safe Harbor is GRANTED as set out above.
2. Partial Summary Judgment is entered in favor of Safe Harbor on the claim for damages based on “Public Adjuster fees in the approximate amount of $18,000.00.”
3. Partial Summary Judgment is entered in favor of Safe Harbor on the claim for damages based on “Interest on the belated settlement payment issued by SAFE HARBOR in the approximate amount of $3,000.00.”
4. Partial Summary Judgment is entered in favor of Safe Harbor on the claim for damages based on Loss of Enjoyment/Ability to Use Property as to money paid or incurred by Plaintiff to live at some place other than the insured property.
5. The Court hereby incorporates into this Order all oral rulings and pronouncements made by the Court at the hearing, and the arguments of counsel at the hearing.
