27 Fla. L. Weekly Supp. 834b
Online Reference: FLWSUPP 2709MDIAInsurance — Property — Declaratory actions — Neither insurance code, case law, nor policy allows for declaratory action premised on breach of duty to adjust and provide coverage — Claim for breach of duty to adjust against Citizens Property Insurance Corporation is barred by Citizens’ statutory sovereign immunity
STATE 2 STATE RESTORATION, INC. a/a/o Maria De Diaz, Plaintiff, v. CITIZENS PROPERTY INS. CORP., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2019-003643-CC-23, Section ND05. September 27, 2019. Luis Perez-Medina, Judge. Counsel: Irina Tarnovsky, Bernstein Polsky, Boca Raton, for Plaintiff. Jeffrey W. Golovin, Dutton Law Group, Ft. Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TODISMISS THE COMPLAINT WITH LEAVE TO AMEND
THIS CAUSE came to be heard on June 6, 2019, on Defendant’s Motion to Dismiss the Complaint. On June 20, 2019, the Defendant filed a Notice of Supplemental Authority in Support of its Motion. This Court having considered Defendant’s Motion to Dismiss as well as Plaintiff’s Response, the arguments presented at the hearing, Defendant’s supplemental filing, and being otherwise fully advised in the premises herein, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss the Complaint is hereby GRANTED. Plaintiff will have 30 days to file an amended complaint.
This is a cause of action for declaratory relief for the denial of a water damage claim to a dwelling insured by CitizensD Property Insurance Corp. (the “Defendant”). According to the Complaint, Maria De Diaz (the “Insured”), retained the services of State 2 State Restoration, Inc. (the “Plaintiff”), to perform “emergency mitigation services (“EMS”) in furtherance of drying the property to stop further water and mold damage.” Pursuant to an assignment of benefits signed by the Insured, Plaintiff filed a claim with the Defendant. The Defendant denied the claim asserting that the water remediation was not an emergency since it was completed 14 months after the date of loss. According to the Defendant, the 14-month delay prevented Citizens from determining the reasonableness of the services provided by Plaintiff. In their Complaint requesting declaratory relief, Plaintiff asserted that there was a dispute regarding the “Defendant’s duty to adjust and provide coverage for this loss.” (Plaintiff’s Complaint paragraph 21) (emphasis added).
The Court finds that neither the Insured’s policy, Florida’s Insurance Code, nor binding case law, allows for a declaratory cause of action premised on a breach of “a duty to adjust and provide coverage.” The Third District Court of Appeal, in Citizens Prop. Ins. Corp. v. Sampedro, 275 So. 3d 744, 745-46 (Fla. 3d DCA 2019) [44 Fla. L. Weekly D1513b], recently reversed a trial court after the court denied a motion to dismiss a similar declaratory action. In Sampedro, the court found that the insured’s declaratory action was actually a “creatively-drafted private claim for ‘breach of the duty to adjust.’ ” Id. The court reasoned that such a claim was neither authorized by Citizens’ insurance policy nor Florida’s Insurance Code. Id. The court also went on to hold that Citizens could not be sued in a declaratory action for a “breach of the duty to adjust” since it was not one of the authorized exceptions to Citizens’ sovereign immunity grant under Florida Statute §627.351(6)(s). Id.
Accordingly, based upon the holding in Sampedro, the Defendant’s Motion to Dismiss is GRANTED. Plaintiff will have 30 days to file an Amended Complaint consistent with this Order.
