Historically, Florida common law has allowed parties to assign their contractual rights to third parties. There are some exceptions–such as agreements involving personal service obligations or that otherwise violate public policy–but generally speaking, one party cannot prohibit the other from assigning their rights under a contract. And although Florida statutes state that a contract for insurance “may be assignable, or not assignable, as provided by its terms,” courts have long held that an insurer cannot demand consent before allowing a policyholder to assign insurance benefits to a third party.

Judge: Insurer Cannot Require Consent for Assignment of Post-Loss Claims

A recent decision by a federal judge in Fort Myers, Florida, Sabran v. Rockhill Insurance Company, illustrates the difficulties faced by insurance companies in attempting to enforce restrictions on assigning policy benefits. This case revolved around a Florida property damaged by Hurricane Irma in 2017. The property owner, a limited liability company (LLC), filed a claim with its insurance carrier. The insurer denied the claim in 2019.

Over a year later, in 2020, the LLC sold the property to a couple, who are the plaintiffs in this lawsuit. At the time of the sale, the LLC also assigned its disputed insurance claim related to Hurricane Irma to the plaintiffs. After the sale closed, the plaintiffs then filed a second claim, which the insurer again denied.

The plaintiffs ultimately sued the insurance company for breach of contract. The insurance company moved to dismiss the case. The insurer argued that the plaintiffs lacked standing as they had not suffered any injury–and more to the point, the policy contained an “anti-transfer clause” that barred the LLC from assigning its rights to a third party.

A federal judge rejected the insurance company’s defenses on this issue. The judge acknowledged that the language of the policy stated the LLC’s “rights and duties under this policy may not be transferred” without the insurance company’s “written consent.” But this clause was unenforceable under Florida law. As noted above, Florida common law has long protected the rights of insured parties to assign their benefits after a loss without first seeking the insurer’s consent.

And even if the anti-transfer clause was enforceable, the judge went on to explain that the language used in the policy only forbade “the transfer of the entire insurance policy, not a post-loss benefit under the policy,” or for that matter the transfer of the LLC’s rights without obtaining the insurer’s consent. Here, the LLC did not, in fact, assign the entire policy. It only assigned its post-loss rights, i.e., the right to file a claim related to the Hurricane Irma damage.

Speak with a Florida Insurance Lawyer Today

Insurance companies have every right to hold policyholders to the strict language of a policy. But the same is true for insurers, who must also be aware of any statutory or common law restrictions imposed upon their policies. So if you are involved in a coverage-related dispute and need legal representation from a qualified Tampa insurance litigation attorney, contact HD Law Partners today.

Source

Posted in Insurance Litigation | No Comments »

Even when an insurance company is required to cover some damages arising from a specific event, such as water damage, that does not necessarily mean the policy covers all damages incidental to the event. Of course, an insurer is required to pay a valid claim in good faith. But they are not under any legal obligation to go beyond the scope of the policy’s coverage.

Florida Appeals Court: Insurer Only Liable for Overflowed Toilet, Not the Damaged Pipe That Fed It

Take this recent decision from the Florida Third District Court of Appeal, State Farm Insurance Company v. Shotwell. This case involved a dispute over water damage to a private residence. The homeowner’s toilet overflowed, causing substantial water damage to his master bathroom, master bedroom, and adjoining parts of the house.

The homeowner held an “all-risk” policy with State Farm. The insurer acknowledged coverage for some of the water damage and issued an initial payment of $888.72, which accounted for the homeowner’s deductible and depreciation.

The homeowner then hired a public adjuster to assess the total amount of the property damage. Working with a construction company, the adjuster determined the toilet overflowed “due to a blockage in a sagging and corroded pipe” located underneath the kitchen cabinets. This pipe serviced the master bathroom. To access and fix that pipe, the construction company therefore needed to tear out and replace part of the kitchen cabinets.

An appraiser ultimately determined the total amount of the homeowner’s damages came to around $139,000. State Farm said it would only pay some of that amount. Of note here, the insurance company argued it was not responsible for the costs of tearing out part of the kitchen to access the defective pipe.

Dissatisfied, the homeowner sued State Farm for breach of contract. A trial judge sided with the homeowner and ordered State Farm to pay the full amount of damages. On appeal, however, the Third District partially reversed. It agreed with State Farm that the policy language did in fact exclude the costs of tearing out the kitchen cabinets.

The key provision of the insurance policy stated that when property loss was caused by water “escaping” from a system, State Farm would pay to tear out and replace “only that particular part … necessary to gain access to the specific point of that system … from which the water” escaped. In other words, State Farm was liable for damages to the toilet–since that was the point where water actually escaped into the house–and not the pipe in the kitchen. It might sound pedantic, but the Third District said that was how the policy was worded.

Contact a Florida Insurance Lawyer Today

Insurance disputes often turn on highly specific policy language. Insurers and insured parties alike need to carefully review and understand their policies before heading into court. An experienced Tampa mold and water damage attorney can help. Contact HD Law Partners today if you are involved in a potential insurance dispute and need legal representation.

Source:

https://3dca.flcourts.gov/content/download/793820/opinion/210356_DC08_10062021_103741_i.pdf

Posted in Mold Water Damage | No Comments »

Homeowner’s insurance policies often contain appraisal clauses. Appraisal is a form of alternative dispute resolution similar to arbitration. In its simplest form, an appraisal clause states that if the parties disagree as to the amount of an insured loss, each side will appoint an independent appraiser. If the appraisers cannot agree on a value, they will jointly appoint an umpire to act as a tie-breaker. The final decision is then binding on the insurance company and the policyholder.

Florida Court: Roofing Contractor Must Submit Insurance Claim to Appraisal

When an insurance policy provides for binding appraisal, then either party may initiate the process and the other party must comply. But what happens if the homeowner assigns their claim to a third party, such as a company hired to perform repairs? Does the appraisal process bind the third party as well?

Earlier this year, the Florida Second District Court of Appeal addressed just such a case, Webb Roofing & Construction v. FedNat Insurance Company. Here, the insurance company sought to compel appraisal over the objections of the third-party contractor.

The case itself arose from damage to a home sustained during Hurricane Irma in 2017. The homeowners hired a contractor to repair damage to their roof. The contractor insisted on an assignment of insurance benefits to secure payment.

The contractor subsequently sued the insurance company for damages. The insurance company replied by stating it had the right to compel an appraisal under the policy. The contractor argued it could not be compelled to submit to an appraisal.

A Florida circuit court judge sided with the insurance company. It held that the mandatory appraisal provision in the policy was enforceable against the contractor. The contractor persisted and filed an appeal, but the Second District agreed with the circuit court’s decision.

As the Court of Appeals explained, the general rule in Florida is that absent certain limited exceptions, “[a] All contractual rights are assignable” unless the contract itself prohibits assignment. This includes “post-loss insurance claims.” In this case, the homeowners assigned their post-loss claims to the contractor. That assignment did not, however, eliminate the “duty of compliance with contract conditions.” At the same time, a third party cannot be held liable for performance of any duty under the contract.

But compliance with the appraisal provision is not a matter of “performance,” the Second District held. Rather, it is a condition precedent to receiving benefits under the insurance policy. That condition was “not eliminated by a post-loss assignment of the contract.” The contractor therefore had to submit their dispute over the amount of coverage to binding appraisal.

Speak with a Florida Insurance Lawyer Today

Appraisal and alternative dispute resolution generally play an important role in resolving insurance claims. Insurance companies certainly have every right to enforce their own contracts providing for such methods of dispute resolution. If you are involved in such a dispute and need representation from an experienced Tampa insurance litigation attorney, contact the offices of HD Law Partners today to schedule a consultation with a member of our team.

Source

Posted in Insurance Litigation | No Comments »

Insurance disputes often involve complex questions of law and contract interpretation. Yet many cases boil down to a single question: Does the insurance policy actually cover the claim at issue? Sometimes this question proves relatively easy to answer.

For example, there is this recent decision from a federal judge in Tampa, Ditech Financial LLC v. AIG Specialty Insurance Company. The plaintiff in this case was a mortgage loan servicing company. The plaintiff ran into trouble with regulators in 2014 over purported “deficiencies” in its business practices. As relevant to this case, the plaintiff had failed to conduct annual escrow analysis for borrowers involved in Chapter 13 bankruptcy cases.

Basically, Ditech was supposed to analyze any changes to a borrowers’ property tax and insurance payments while they were in bankruptcy. The failure to conduct this analysis meant that there were shortages in the borrowers’ escrow accounts, which they remained liable for under their mortgages. Ditech made up for these shortfalls and then tried to get its money back from the borrowers after they exited bankruptcy.

The Executive Office of the United States Trustee (EOUST), which oversees bankruptcy estates, raised concerns about this practice with the plaintiff in 2014. In October 2015, an EOUST lawyer sent an email notifying the plaintiff’s attorney that the Trustee Program would “move forward” with settlement discussions over this and other deficiencies with respect to the plaintiff’s business practices.

The final settlement included approximately $24 million related to the escrow accounts. The plaintiff then tried to recover these losses under two of its business liability insurance policies. The insurers refused to provide coverage, prompting the plaintiff to file its federal lawsuit.

The judge overseeing the case decided to grant summary judgment to the defendant insurance companies. The judge’s reasoning was straightforward: Coverage under both insurance policies here were “triggered only if a claim is first made against the insured during the policy period.” In this case, the applicable policy period began on September 1, 2016, and ended on September 1, 2017.

But as noted above, the EOUST initially notified the plaintiff of its claim–i.e., its intent to seek a settlement related to the escrow accounts–in October 2015, nearly a year before the policy period. The judge noted this email “not a simple request for more information or a mere inquiry into some untoward event.” It was, in fact, a “specific demand for [the plaintiff] to rectify the legally cognizable damage created by its escrow analysis deficiencies.” As such, the clear language of the insurance policies barred the plaintiff from seeking coverage of its losses.

Contact a Tampa Insurance Lawyer Today

In any insurance dispute, both sides have certain rights and responsibilities. That is why it is important to work with an experienced Tampa insurance bad faith attorney who can sit down and review the specific language of a policy with you and offer advice regarding the applicability and scope of its coverage. If you need to speak with someone today, contact HD Law Partners to schedule an initial consultation.

Source:

scholar.google.com/scholar_case?case=3128397450302785689

Posted in Insurance Bad Faith, Insurance Defense | No Comments »

Florida law requires all insurance companies to act in good faith when approving, denying, or settling claims. An insurer that fails in this duty may face a bad faith lawsuit from an aggrieved policyholder or third-party victim. In defending against such claims, however, the person alleging bad faith still has to present evidence in support of their case. Put another way, an insurance company is not guilty of bad faith based merely on the say-so of the plaintiff.

Federal Court Rules GEICO Not Responsible for $14.9 Million Stipulated Judgment in Motorcycle Accident

A recent decision from the U.S. 11th Circuit Court of Appeals, Pelaez v. Government Employees Insurance Company, provides a useful example. This case arose from a 2012 motor vehicle accident in Florida. An 18-year-old man was driving his mother’s car to his high school prom when he collided with a motorcycle. The mother insured the car with GEICO. The son reported the accident to GEICO but did not mention any injuries, even though the motorcycle driver had been airlifted to a hospital.

The next business day, GEICO assigned a claims adjuster to investigate the accident. Within two days, the adjuster reached a preliminary conclusion that the motorcycle driver had been speeding just before the collision. About a week after that, the motorcyclist’s personal injury attorney contacted GEICO but did not make any settlement demands. The day after that–by this point, 11 days after the accident–GEICO decided to offer a $50,000 settlement, which was the limit of the mother’s policy.

GEICO sent the motorcyclist’s attorney a $50,000 check and a proposed release form, which is standard practice in insurance settlements. The release essentially absolved the mother and son of any further liability for the accident. GEICO did not present this as a “take it or leave it” offer. Instead, it invited the motorcyclist’s attorney to review and suggest any changes to the release form.

About a week later, the motorcyclist’s attorney rejected the offer, on the grounds the proposed release was too broad. Indeed, the attorney accused GEICO of acting improperly by demanding any release at all. GEICO informed its policyholders of the rejection.

Five months later, the motorcyclist filed a personal injury lawsuit against the mother and son in Florida state court. GEICO initially defended them against the lawsuit. But the mother and son eventually agreed to a “stipulated judgment” of $14.9 million with the motorcyclist. GEICO did not consent to this judgment. Both sides then filed a bad faith lawsuit against GEICO in federal court.

The 11th Circuit eventually affirmed a lower court’s dismissal of the case. Under these facts, the appellate court said no rational jury could find that GEICO acted in bad faith. The mere fact that GEICO’s settlement offer came with a release form that the motorcyclist’s attorney considered “overbroad” was insufficient to support a bad faith claim. Indeed, the 11th Circuit said the actions of the motorcyclist’s attorney demonstrated “he had higher goals to pursue” and that factored in the “totality of the circumstances” supporting dismissal.

Speak with a Central Florida Bad Faith Insurance Lawyer Today

It is not unusual for a plaintiff’s attorney in a personal injury case to jump up and cry “bad faith” when they are unhappy with a settlement offer. But merely claiming bad faith is not proof. And insurance companies have every right to defend against such spurious claims.

If you are involved in this type of dispute and need legal advice from a skilled Tampa bad faith insurance attorney, contact HD Law Partners today to schedule a consultation.

Source:

media.ca11.uscourts.gov/opinions/pub/files/202012053.pdf

Posted in Uncategorized | No Comments »

Insurance companies have a duty to act in good faith when handling an insured party’s claims. This often includes defending the insured against lawsuits that are within the scope of a policy. If an insurer wrongfully refuses to provide such a defense, the insured can settle the case themselves in exchange for the plaintiff promising to only seek collection from the insurance company. This is known as a Coblentz agreement based on a 1969 federal appeals court decision.

The problem with Coblentz agreements is they are susceptible to collusion between the insured party and the person suing them. For this reason, courts will only enforce such agreements if the plaintiff–the party seeking to collect against the insurer–can show that coverage existed, the insurer wrongfully refused to defend the insured defendant, and that the terms of the ultimate settlement were reasonable and made in good faith.

Appeals Court: Insurer Not Liable for Policyholder’s Negligent Management of Citrus Grove

A recent decision from the U.S. 11th Circuit Court of Appeals, Travelers Indemnity Company of Connecticut v. Richard McKenzie & Sons, Inc., illustrates a case where the plaintiff failed to make these required showings. This case involved a Florida citrus grove. The owner of the grove–the plaintiff in the underlying lawsuit–hired the defendant to manage the grove on his behalf. Essentially, the plaintiff was a hands-off absentee landlord who trusted the defendant to plant and maintain the trees on the grove.

The arrangement soured, however, when the plaintiff said he discovered the defendant billed him for trees that were never planted, stealing his supplies, and in general damaging the groves through negligence. The plaintiff fired the defendant and sued him for breach of contract. The plaintiff subsequently added a negligence claim after discovering the defendant had insurance that might cover such damages.

The plaintiff and defendant eventually settled their non-negligence claims for $200,000, which the defendant agreed to pay personally. The parties also included a Coblentz agreement with respect to the negligence claims in the amount of $2,965,750 in damages. The plaintiff then asserted the right to collect this amount from the insurer.

Understandably, the insurer balked. The insurance company filed its own lawsuit in federal court seeking a declaratory judgment that it had no duty to defend or indemnify the defendant against the plaintiff’s original negligence claims. The insurer further maintained this was a case of improper collusion between the plaintiff and the defendant.

A federal judge granted summary judgment to the insurer. The 11th Circuit affirmed that decision on appeal. The main issue, the Court of Appeals noted, was that the insurance policy contained an exclusion for any “property damage” caused by the defendant “performing operations.” Here, the defendant’s negligence occurred while performing operations on the plaintiff’s citrus grove. His actions therefore fell within the exclusion and the insurer had no duty to indemnify or defend.

Speak with a Florida Insurance Bad Faith Attorney Today

Insurance companies are required to pay legitimate claims. But they are certainly under no obligation to honor Coblentz agreements that attempt to circumvent the clear language of a policy exclusion. If you represent an insurance company looking to defend against such bad faith lawsuits, contact the Tampa bad faith insurance lawyers at HD Law Partners today to schedule a consultation.

Source: https://scholar.google.com/scholar_case?case=5557052695403336909

Posted in Insurance Bad Faith | No Comments »

The COVID-19 pandemic has caused a significant disruption to many Florida business owners. It has also led to litigation over the scope of “business interruption” insurance. In other words, if a business loses revenue due to pandemic-related restrictions, does that qualify as an insurable loss?

The United States Court of Appeals for the 11th Circuit recently addressed this question in a Georgia breach of contract lawsuit, Gilreath Family & Cosmetic Dentistry, Inc. v. Cincinnati Insurance Company. The plaintiff in this case is a dental practice based in Marietta, Georgia. Following the Georgia governor’s declaration of a public health emergency in early 2020 due to COVID-19, the plaintiff followed official guidance and canceled its routine and elective procedures. As this was the bulk of the practice, the plaintiff said it lost a “substantial portion” of its income.

The plaintiff therefore filed a claim on its business interruption coverage with the defendant insurance company. The policy provided coverage for income lost “due to the necessary suspension of its operations” as well as compensation for additional expenses “sustained during that suspension.” The defendant denied the claim, however, noting that business interruption coverage only applied if the suspension was due to a “direct loss to property,” i.e., damage to the insured premises itself. In effect, the insurer’s position was that there had to be some physical damage to the dental office itself–the mere interruption of business due to the state’s health restrictions was not sufficient.

The plaintiff then sued the defendant for breach of contract. But a federal trial court, and later the 11th Circuit, ultimately sided with the insurance company. The 11th Circuit explicitly rejected the plaintiff’s argument that the business interruption language of its policy applied “when government restrictions were in effect” on its practice. As the insurer maintained, the appellate court said the policy language required “physical loss” or damage to the plaintiff’s property. The 11th Circuit added that the Georgia Court of Appeals, interpreting similar policy language, had previously reached the same conclusion.

And there was no dispute that nothing contained in the state’s COVID restrictions damaged the plaintiff’s property. Indeed, the plaintiff never alleged any such damage. The appellate court added that the restrictions did not even force the closure of the plaintiff’s practice, as it remained open for emergency procedures. And even the possibility that keeping the practice partly open during the pandemic–where COVID particles might infect surfaces inside the office–was not enough to qualify as property damage.

Speak with a Florida Insurance Lawyer Today

This is not the last time we will see litigation related to insurance coverage and COVID-19. Insurance companies certainly have a legitimate interest in rejected invalid claims. And businesses affected by the pandemic also have the right to seek clarification as to their rights under a particular policy.

If you need legal advice or representation from a qualified Tampa insurance attorney, contact HD Law Partners today to schedule a consultation.

Source:

https:///scholar.google.com/scholar_case?case=3683333503521726912&q=hurricane&hl=en&scisbd=2&as_sdt=4,10,121,325,326,327

Posted in Insurance Litigation | No Comments »

In early August, the U.S. Centers for Disease Control and Prevention (CDC) issued a new 60-day moratorium on residential evictions in certain parts of the country that continue to experience a “high community transmission” rate of the COVID-19 virus. This includes most of Florida. So if you are a Florida resident currently behind on their rent, you may continue to be eligible for certain protections under the new CDC order.

Prior CDC eviction moratorium orders applied nationwide. As noted above, the new order only covers those counties within the United States that are “experiencing substantial or high levels of community transmission.” As of August 24, every county in Florida meets that requirement, according to the Tampa Bay Times. However, if in the future any particular county goes 14 consecutive days below the “substantial” or “high” levels of community transmission, the CDC’s moratorium will not apply to that county until the rates again meet the required threshold.

The new order is also limited to a 60-day period from August 3 until October 3, 2021, although it is possible the moratorium may again be extended either by the CDC or through congressional action.

Are You Covered by the New Eviction Moratorium?

So does the CDC’s order mean that no Florida renter can be evicted until October 3, 2021? Not exactly. The order only applies to certain “covered persons,” which is defined as any residential tenant who files a sworn declaration with their landlord that all of the following conditions are true:

1. The renter has used all of their best efforts to apply for government assistance to pay their rent;
2. The renter earned no more than $99,000 during 2020 or expects to earn no more than $99,000 in 2021 (if the renters are a married couple, these amounts double to $198,000);
3. The renter is unable to pay their rent, in full or in part, due to a “substantial loss of household income” or “extraordinary out-of-pocket medical expenses”;
4. The renter has made their best efforts to pay at least part of their rent; and
5. Eviction would render the renter homeless, or force them to “live in close quarters” with others due to a lack of other housing options.

Again, the moratorium’s protection is not automatic. As the renter, you have the burden of filing a written declaration, as described above, with your landlord. Also keep in mind, the moratorium does not eliminate your obligation to eventually pay any back rent due. You must continue to pay what you can. The CDC’s order only prevents your landlord from taking steps to evict you based on non-payment of your full rent, provided you comply with the conditions spelled out above. Your landlord could still try and evict you for other violations of your lease separate from any nonpayment of rent.

Contact HD Law Partners Today

The COVID-19 pandemic has been stressful for everyone. And the prospect of losing one’s home makes things even scarier. So if you need legal advice regarding a landlord-tenant dispute, contact HD Law Partners today to schedule a free consultation with one of our Tampa insurance attorneys.

Sources:

https://news.yahoo.com/florida-landlords-renters-cdc-eviction-180300359.html

https://cdc.gov/media/releases/2021/s0803-cdc-eviction-order.html

Posted in Insurance Litigation | No Comments »

It is common practice for homeowners to assign their insurance benefits to businesses that perform repair work. But such assignments must strictly comply with the terms of the underlying policy. Insurance companies are under no obligation to pay over benefits to an unauthorized third party.

Appeals Court Grants Insurer’s Request to Reverse Summary Judgment

A recent decision from the Florida Fourth District Court of Appeals provides a useful example. In this case, QBE Specialty Insurance Company v. United Reconstruction Group, Inc., a homeowner sustained water damage to their property. The day the damage was found, the homeowner hired a contractor–the plaintiff in this case–to perform emergency mitigation services.

As a condition of receiving mitigation services, the homeowner and the plaintiff signed a written contract, which purported to include an assignment of the homeowner’s insurance benefits to the plaintiff. Of note, the agreement had spaces for the homeowner to provide his printed name and signature. There was a signature but the printed name space was left blank.

After completing work, the plaintiff sent the homeowner’s insurance company a bill for $10,897.91. The plaintiff and the insurer then negotiated a reduced fee of $8,603.20. But the insurer sent the final payment to the homeowner directly, not the plaintiff.

This prompted the plaintiff to sue, alleging the insurer failed to honor the terms of the assignment and the insurance policy. Specifically, the policy said that the insurer would pay the homeowner “unless some other person … is legally entitled to receive payment.” The plaintiff argued it was such a person.

The insurer’s response was that since the homeowner’s did not provide a complete signature on the contract with the plaintiff, there was no valid assignment. Indeed, the insurer presented evidence from a forensic document examiner, who testified the signature on the purported assignment appeared to be different than the homeowner’s known signature.

Despite this evidence, a trial court granted summary judgment to the plaintiff, finding there was a “valid assignment” and thus the insurer should have paid the plaintiff directly for its services. The insurer appealed. The Fourth District agreed with the insurer that summary judgment was inappropriate, reversed the lower court’s order, and returned the case for trial.

The Fourth District explained the burden was on the plaintiff to prove there was a valid assignment. The insurer had already presented evidence demonstrating the opposite. Since the plaintiff had yet to present its own evidence rebutting the forensic examiner’s testimony, there was a material “issue of fact,” which as a matter of law cannot be resolved at the summary judgment stage.

Speak with a Tampa Mold & Water Damage Lawyer Today

Insurance companies have every right to insist policyholders and potential assignees strictly comply with the terms of a policy. Certainly, no insurer is required to honor a forged or fraudulent assignment. That is why it is crucial to work with an experienced Tampa insurance attorney who can review the facts of a case and provide you with skilled representation. Contact HD Law Partners today if you would like to schedule a consultation with a member of our team.

Source:

https://scholar.google.com/scholar_case?case=8453754403865153681

Posted in Mold Water Damage | No Comments »

Insurance policies are contracts. As such, when an insurer fails to pay a valid claim, it is subject to suit for breach of that contract. But this works both ways. If the policyholder fails to live up to their contractual obligations, that can supply the insurer a valid defense to any alleged breach.

A recent decision from the Florida Third District Court of Appeal, Nunez v. Universal Property Casualty Insurance Company, provides a helpful illustration. In this case, the plaintiff insured her home with the defendant. The plaintiff reported a claim in 2015 over purported water damage from two leaks in her kitchen and bathroom, respectively. She later submitted written proof of loss, asserting $50,000 in total damages.

The defendant investigated the claims. As part of the investigation, the defendant requested the plaintiff attend an Examination Under Oath (EUO), which is a common procedure in resolving insurance claims. The plaintiff refused to appear. Indeed, she declined to respond to multiple EUO requests. Accordingly, the defendant denied the plaintiff’s water damage claims. She, in turn, filed a breach of contract lawsuit.

At trial, the defense argued the plaintiff’s failure to attend the EUO was itself a “material breach of the insurance contract” preventing her from recovering any damages. The trial judge instructed the jury that it had to find that the defendant proved the plaintiff “unreasonably failed to attend her” EUO to sustain this defense. The jury ultimately rejected the defense and returned a verdict for the plaintiff.

Sometime after the trial, the Third District issued an opinion in another case, American Integrity Insurance Company v. Estrada, that held when an insurance company establishes that a policyholder has “failed to materially satisfy any contractually mandated post-loss obligations, then the burden shifts” to the policyholder to establish their breach did not prejudice the insurer’s rights.

Based on the Estrada decision, the defendant in Nunez argued it was entitled to a new trial. The trial court granted that motion. Indeed, the judge issued a directed verdict holding that the plaintiff breached the insurance contract. The judge then ordered a new trial to determine whether the defense was prejudiced by this breach.

The plaintiff appealed, hoping to reinstate the original jury verdict, but the Third District affirmed the trial judge’s decisions. The appellate court pointed out that unlike the earlier Estrada case–where there was a genuine factual dispute over whether the policyholder complied with the insurance contract–here the plaintiff’s noncompliance was not in dispute. Instead, the plaintiff argued during the original jury trial that the defendant’s request for an EUO was itself unreasonable. But the Third Circuit said that was a legally irrelevant argument.

Speak with a Florida Insurance Attorney Today

Insurance litigation often involves a number of technical and fact-specific issues. That is why it is important to work with an experienced Tampa mold and water damage attorney who understands the process and can work with you to secure the most favorable outcome. Contact HD Law Partners today to schedule a consultation.

Source:

scholar.google.com/scholar_case?case=12520752558871577193

Posted in Uncategorized | No Comments »