Judgment On Appraisal Award Reversed Due To Coverage Issues

In Citizens Property Insurance Corporation v. River Manor Condominium Association (4D12-901), the Fourth District reversed a trial court's judgment entered after an appraisal award. In the appeal, Citizens argued "...that the final judgment improperly awarded the appellee damages for: (a) property excluded under its policies, and (b) amounts that should have been deducted from the award by application of defenses the trial court refused to consider."

The Fourth District agreed, at least with regard to the first part of Citizens argument. The Court's twelve page opinion provides the details about the facts, arguments, and reasons for the holding. The ultimate conclusion is copied below:

For the reasons discussed above, we reverse the trial court’s final judgment and remand this cause with directions that the trial court enter a revised final judgment for the amounts set forth in the appraisal award less: 

(i) amounts previously paid; 

(ii) amounts allocated to exterior common elements excluded by the terms of the applicable insurance policies; and 

(iii) amounts awarded in excess of any amount agreed upon by the parties for roof repairs and water extraction for Buildings A and C if, and only if, the trial court concludes – after an evidentiary hearing – that the parties reached a binding pre-appraisal agreement stipulating to the amount owed. 

To the extent the trial court refused to adjudicate Citizens’ claims that amounts awarded were duplicative or represent losses to property the unit owners – as opposed to River Manor – were obligated to insure, the judgment is affirmed. 

The opinion can be viewed HERE. 

Insurer Not Required To Provide Claims File When Coverage At Issue

In State Farm Florida Insurance Company v. Desai (3D12-2586), the Third District granted certiorari and quashed the trial court's order compelling the production of certain documents. The court stated that "prior to a determination as to coverage, the trial court entered a discovery order requiring State Farm to (1) produce claim manuals and/or guidelines relating to certain policy language and (2) provide a representative to testify as to the claims manual, guidelines, and insurance policy." The court noted that "in seeking certiorari review of the discovery order, State Farm contends Florida law 'prohibits insureds from obtaining discovery into an insurer’s claims files and claims handling materials until contract/coverage litigation has been concluded.'” Agreeing with State Farm, the court stated that "as State Farm’s argument is well taken, we grant the petition for writ of certiorari and quash the discovery order under review."

Citizens Appraisal Clause Requires Agreement Of Parties

In Citizens Property Insurance Corp. v. Casar (3D11-2843), the Third District reversed the trial court's order compelling appraisal because the insurance policy at issuer required the agreement of the parties before appraisal could be invoked. Specifically, the court stated we "reverse as there was no agreement between the parties to appraise the loss as required by the appraisal provision of the Citizens policy." The court stated that "appraisals are creatures of contract" and "what is appraised and whether a party can be compelled to appraisal depend on the contract provisions." In this case, "Citizens complied with the appraisal provisions of the Policy. Citizens forwarded an Agreement for Appraisal. The Casars would not agree to the terms. Therefore, appraisal could not take place. Citizens complied with the policy provisions and, as such, the trial court had no basis to compel Citizens to appraisal." Therefore, the order compelling appraisal was reversed.

Judgment In Favor Of Insurer For Late Reported Loss Affirmed

In Slominski v. Citizens Property Insurance Corporation (4D10-4372), the Fourth District affirmed the circuit court's summary judgment in favor of the appellee.​ The appellant's filed a lawsuit claiming their property was damaged by Hurricane Wilma on October 24, 2005. Three and a half years after the hurricane, the appellant's filed their claim with Citizens. 

Citizens then  investigated and made a  final  determination that “the  damages  reported  cannot  be attributed  to  Hurricane  Wilma  due to  the  amount  of  time  that  has transpired since the purported date of loss to the present date.” Citizens also  cited  the  Slominskis’  failure  to  comply  with  post-loss  duties,  a condition precedent to reimbursement of a claim, pursuant to the policy. The  contractual  post-loss  duties  required  the  Slominskis,  in  a case  of loss to their property, to “[g]ive prompt notice to [Citizens].”

Citizens filed a motion for summary judgment alleging the appellants breached their duty by failing to timely report the claim. ​In support of the motion, Citizens filed various affidavits and depositions including a transcript of the contractor that performed work for the insured. In the deposition of the contractor:

the  contractor  concluded  that  the  wind  damage would not have occurred “without hurricane-force[] winds,” but admitted that he could not be “100% sure” that the wind damage was caused by Hurricane  Wilma,  as  opposed to  Hurricane  Frances  in  2004.  On  the other  hand, he  testified  that  the  direction  from  which  the  respective storms hit varied, which formed the basis for his opinion.  He admitted that,  with  regard to  water  damage, there  was “no  way to  differentiate” one storm from another.  However, in his affidavit, the contractor stated: “Based on my expertise and personal knowledge of the Slominski home, I am able to determine that the damages as alleged in the lawsuit against Citizens occurred to the property as a result of Hurricane Wilma." 

Additionally, "in  deposition  testimony,  the  engineer  admitted  that  he was  unable  to  determine  exactly  when  the  interior  staining  or  roof damage occurred, but opined only that it was caused by a hurricane."

The Fourth District stated: "In delayed notice cases, “while prejudice to the insurer is presumed, if the insured  can demonstrate that the  insurer has not been  prejudiced thereby,  then the insurer  will not be relieved of  liability merely  by a showing that notice was not given ‘as soon as practicable.’” (citations omitted). In this case, the only evidence submitted to rebut the prejudice to the insurer was the affidavit submitted by the contractor and the affidavit submitted by the engineer. However, in both cases, the affidavits conflicted with deposition testimony by the same person stating they could not determine when the damage to the property occurred  Therefore, the insurer was prejudiced and the judgment was affirmed.

​

11th Circuit Sends Bad Faith Case Back To District Court After Certified Questions Answered

In Chalfonte Condominium Apartment Association v. QBE Insurance Corporation (No. 08-10009), based upon THIS opinion from the Florida Supreme Court answering certified questions, the Eleventh Circuit released a published opinion holding:

Accordingly, based on the Florida Supreme Court’s answers to our certified questions, attached hereto as an appendix, we affirm in part and reverse in part the district court’s judgment. We affirm the district court’s judgment of dismissal of Chalfonte’s claim under Section 627.701(4)(a) of the Florida Statutes, because an insured cannot bring a claim against an insurer for failure to comply with the language and type-size requirements established under that statutory provision, and we instruct the district court on remand to disallow any evidence of the policy’s failure to comply with these requirements. We reverse the district court’s order denying QBE a new trial and instruct the court on remand to bifurcate the contract claim from the bad faith claim and to apply the deductible to any judgment Chalfonte may obtain on retrial.

The Chalfonte case was previously discussed on this blog HERE and HERE.​

Post Loss Insurance Claim Can Be Assigned, But The Insured Still Must Cooperate With Loss Investigation

​In Citizens Property Insurance Corporation v. Ifergane (3D10-1195 & 3D09-3293), the Third District affirmed the trial court in part and reversed in part. Because post-loss insurance claims are freely assignable in Florida, the trial court correctly dismissed the former spouse who had assigned her interest in the claim. However, that did not relieve the former spouse of her obligations to cooperate pursuant to the contract (insurance policy). The court stated:

Because we find there were genuine issues of material fact as to whether Haim was a resident spouse on the date of loss, and because the Assignment did not relieve Alexandra of her post-loss obligations as a named insured under the policy, we reverse.

11th Circuit Certifies Insurance Indemnification Questions To Florida Supreme Court

In Intervest Construction of Jax, Inc. v. General Fidelity Insurance Company (10-12613), the Eleventh Circuit released a published opinion and certified two questions of Florida law to the Florida Supreme Court. The questions certified are below:

1. DOES THE GENERAL FIDELITY POLICY ALLOW THE INSURED TO APPLY INDEMNIFICATION PAYMENTS RECEIVED FROM A THIRD-PARTY TOWARDS SATISFACTION OF ITS $1 MILLION SELF-INSURED RETENTION?

2. ASSUMING THAT FUNDS RECEIVED THROUGH AN INDEMNIFICATION CLAUSE CAN BE USED TO OFFSET THE SELF-INSURED RETENTION, DOES THE TRANSFER OF RIGHTS PROVISION FOUND IN THE GENERAL FIDELITY POLICY GRANT SUPERIOR RIGHTS TO BE MADE WHOLE TO THE INSURED OR TO THE INSURER?

The dispute in the case "exists between the insureds, Intervest Construction of Jax, Inc. and ICI Homes, Inc. (collectively 'ICI'), and their insurer, General Fidelity Insurance Company, over whether General Fidelity breached its obligations under a commercial general liability insurance policy, number BAG0002112-00 (the 'General Fidelity Policy'), that ICI had with General Fidelity at the time of the accident. The coverage dispute arose out of a personal injury lawsuit filed against ICI by an injured homeowner." The court continued:

In 2000, ICI contracted with Custom Cutting, Inc. for Custom Cutting to provide trim work, including installation of attic stairs in a residence that ICI was in the process of building. The contract between Custom Cutting and ICI contained an indemnification provision requiring Custom Cutting to indemnify ICI for any damages resulting from Custom Cutting’s negligence. In April 2007, Katherine Ferrin, the owner of a residence constructed by ICI, fell while using the attic stairs installed by Custom Cutting. This fall resulted in serious injuries. Ferrin then filed suit against ICI for her injuries; she did not file suit against Custom Cutting. In turn, ICI sought indemnification from Custom Cutting under the terms of the subcontract. At the time of the accident, Custom Cutting maintained a commercial general liability insurance policy with North Pointe Insurance Company. ICI was not an additional insured under Custom Cutting’s policy with North Pointe. ICI, meanwhile, held the General Fidelity Policy at the time of the accident. Contained in the General Fidelity Policy was a Self-Insured Retention endorsement (the “SIR endorsement”) in the amount of $1 million.

ICI, Custom Cutting, North Pointe, General Fidelity, and Ferrin participated in a mediation of Ferrin’s suit. At the mediation, the parties agreed to a $1.6 million settlement of Ferrin’s claim. As part of the settlement, North Pointe agreed to pay ICI $1 million to settle ICI’s indemnification claim against Custom Cutting. ICI, in turn, would pay that $1 million to Ferrin. The instant dispute then arose as to whether ICI or General Fidelity was responsible for paying Ferrin the other $600,000.

[emphasis is mine]. "The parties disagree about which provisions of the General Fidelity Policy are relevant; however, the crux of the dispute focuses on the SIR endorsement and the transfer of rights clause. The SIR endorsement states that General Fidelity will provide coverage only after the insured has exhausted the $1 million SIR. The parties dispute the effect of the language in the SIR endorsement as applied to these facts. The transfer of rights clause, on the other hand, grants the insurer some subrogation rights, the extent of which are also disputed." 

To more narrowly frame this dispute, there can be no disagreement that had ICI borrowed the $1 million from a bank, deposited those funds, and then used those funds toward the settlement, that money would be credited toward the SIR. A more difficult question would be whether a separate insurance policy previously obtained by ICI to cover the retained amount could reduce the SIR. General Fidelity cites several cases to establish that money derived from additional insurance policies cannot be used to satisfy the SIR, and argues to this court that these decisions should be highly persuasive to this issue before us, just as they persuaded the district court. We are not completely convinced, however, that these cases are persuasive to the interpretation of the General Fidelity Policy before us today.

[emphasis is mine]. The second issue was described as follows: "Additionally, there is a related dispute between the parties as to whether the 'made whole doctrine' applies or whether the parties contracted around that doctrine given the language of the transfer of rights provision. Assuming that ICI could apply the funds it received to satisfy its SIR, the issue then becomes whether the transfer of rights provision in the General Fidelity Policy gave ICI or General Fidelity the priority to recover....The language of this provision on its face is clear—the insurer has subrogation rights. Given that both ICI and General Fidelity have some rights, the language is still completely silent as to who has priority to recover when the indemnity amount is insufficient to 'make whole' both parties."

Due to the uncertain state of the law, the Eleventh Circuit certified the two questions above to the Florida Supreme Court for resolution.

Attorney-Client Privilege In Bad Faith Actions

The Florida Supreme Court issued a revised opinion in Genovese v. Provident Life and Accident Insurance Company (SC06-2508). For whatever reason I had not included the original opinion on this blog so am doing so now. In the opinion, the Florida Supreme Court addressed the following question certified to it by the Fourth District:

Does the Florida Supreme Court's Holding in Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005), relating to discovery of work product in first-party bad faith actions brought pursuant to section 624.155, Florida Statutes, also apply to attorney-client communications in the same circumstances?

The court described the facts as follows: "Peter Genovese brought a statutory first-party bad faith action against Provident Life and Accident Insurance Company (“Provident”) after Provident terminated the monthly payments under Genovese’s disability income policy.  Following commencement of the bad faith suit, Genovese requested production of Provident’s entire litigation file, including all correspondence and communications made between the attorneys representing Provident and Provident’s agents regarding Genovese’s claims for benefits.  The trial court issued an order compelling production of the documents." After the trial court entered the order compelling production, Provident filed a petition for certiorari which the Fourth District granted.

The court's analysis began:

The certified question asks whether our holding in Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005), permitting the discovery of work product in first-party bad faith actions brought pursuant to section 624.155, Florida Statutes (2010), also applies to attorney-client privileged communications in the first-party bad faith context. Because of the uniqueness of the attorney-client privilege, we answer the certified question in the negative and hold that attorney-client privileged communications are not discoverable in a first-party action.

The court stated: "In Ruiz, we held that in first-party bad faith actions brought pursuant to section 624.155, work product materials were discoverable.  At the outset, the first sentence of our opinion in Ruiz makes it clear that the only issue involved in that case was the work product doctrine....based on a reading of our language in Ruiz, it is clear that the only issue being decided in Ruiz was the discovery of work product pertaining to the underlying claim in first-party bad faith actions.  However, Genovese suggests that although the facts of Ruiz only concerned the work product doctrine, we held broadly that both attorney-client communications and work product should be discoverable in first-party bad faith claims against insurers.  Contrary to Genovese’s suggestion, our holding in Ruiz does not apply to attorney-client privileged communications in first-party bad faith actions."

The court explained the attorney-client privilege as follows:

The attorney-client privilege and work product doctrine are two distinct concepts. The attorney-client privilege is provided for in section 90.502, Florida Statutes (2010), which states that “[a] client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.” § 90.502(2), Fla. Stat. (2010). “The purpose of the [attorney-client] privilege is to encourage clients to make full disclosure to their attorneys.” Fisher v. United States, 425 U.S. 391, 403 (1976). However, the privilege “protects only those disclosures necessary to obtain informed legal advice.”  Id.  “[I]f a communication with a lawyer is not made with him in his professional capacity as a lawyer, no privilege attaches.” State v. Branham, 952 So. 2d 618, 621 (Fla. 2d DCA 2007) (quoting Skorman v. Hovnanian of Fla., Inc., 382 So. 2d 1376, 1378 (Fla. 4th DCA 1980)).

The work product doctrine was described as follows:

On the other hand, the work product doctrine is outlined in Florida Rule of Civil Procedure 1.280(b)(3), which states that  

a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that party’s representative, including that party’s attorney, consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.  

Part of the purpose of discovery is to “provide each party with all available sources of proof as early as possible to facilitate trial preparation.” Dodson v. Persell, 390 So. 2d 704, 706 (Fla. 1980).  

Unlike the work product doctrine, "the attorney-client privilege, unlike the work-product doctrine, is not concerned with the litigation needs of the opposing party."...."Instead, the purpose of the privilege is to 'encourage full and frank communication' between the attorney and the client." ... "Therefore, although we held in Ruiz that attorney work product in first-party bad faith actions was discoverable, this holding does not extend to attorney-client privileged communications. Consequently, when an insured party brings a bad faith claim against its insurer, the insured may not discover those privileged communications that occurred between the insurer and its counsel during the underlying action." (emphasis supplied).


Chief Justice Canady, Justice Pariente, Justice Quince, Justice Polston, Justice Labarga, and Justice Perry concurred with the court's per curium opinion. Justice Pariente specially concurred with an opinion in which Justice Lewis, Justice Labarga and Justice Perry joined. Justice Lewis concurred in result only.


The Fourth District's now affirmed opinion can be viewed at the following link. Provident Life & Accident Insurance Co. v. Genovese, 943 So. 2d 321 (Fla. 4th DCA 2006). The oral argument and the briefs filed in the Florida Supreme Court can be viewed at the links below:

• Oral Argument;
• Initial Brief;
• Answer Brief;
• Amicus Brief (Florida Defense Lawyers);
• Amicus Brief (State Farm Mutual Automobile Insurance); and
• Reply Brief.

Appraisal Not Appropriate If Post Loss Obligations Not Satisfied

In Citizens Property Insurance Corporation v. de los Cuetos (3D11-1512), on a confession of error, the Third District provided a nice collection of cases holding that a trial court cannot order appraisal without first determining whether the insured complied with post-loss obligations. The court stated:

Based on the Appellee’s proper confession of error and our own independent review of the record, we reverse the trial court’s non-final order compelling appraisal and remand for an evidentiary hearing to determine whether post-loss obligations were sufficiently met under the policy. See Citizens Prop. Ins. Corp. v. Gutierrez, 59 So. 3d 177 (Fla. 3d DCA 2011); Citizens Prop. Ins. Corp. v. Mango Hill Condo. Ass’n 12, 54 So. 3d 578 (Fla. 3d DCA 2011); Citizens Prop. Ins. Corp. v. Maytin, 51 So. 3d 591 (Fla. 3d DCA 2010); Citizens Prop. Ins. Corp. v. Galeria Villas Condo. Ass’n, 48 So. 3d 188 (Fla. 3d DCA 2010).

Subrogation Is Not Available To An Amount Greater Than Paid By Insurer

In McCabe v. Florida Power and Light Company (4D10-1306), the "Plaintiff  received the policy limits  from his  homeowner’s insurer and FIGA for his  losses, as well as an additional $15,000 from FPL,  totaling $296,900. He never signed a full  release  in  favor of his insurance company, FIGA, or FPL for  the loss. In this action, Plaintiff sought over $600,000 in itemized damages, executed an affidavit, and gave a deposition with regard thereto."

The court stated that "the  insurer’s and FIGA’s satisfaction and releases do not bind Plaintiff even if FPL may be entitled to a collateral source set-off at some future point in the proceedings. An insurer and  successor in interest may subrogate to the rights of its insured but subrogation 'is not available to an extent greater than the amount paid by the insurer, and then only after the insured has been fully indemnified'.”

Ultimately, the court held that:

(1)  the circuit  court erred in granting final summary judgment, as  the amount of damages is a fact still in dispute; and (2) the insurer’s and FIGA’s (the Florida Insurance Guaranty Association) satisfaction and releases do not bind Plaintiff even if FPL may be entitled  to a collateral source set-off at some  future point in the proceedings.

Rehearing Denied Where Record Insufficient To Support Argument

In Florida Insurance Guaranty Association v. Messina (4D09-4448), the Fourth District denied rehearing of THIS short opinion. In the opinion the court distinguished Florida Insurance Guaranty Ass’n. v. Smothers, 36 Fla. L. Weekly D1217 (Fla. 4th DCA June 8, 2011) and Florida Insurance Guaranty Ass’n. v. Ehrlich, 36 Fla. L. Weekly D939 (Fla. 4th DCA May 4, 2011) as follows:

In Smothers, FIGA filed a demand for an appraisal, not an answer and affirmative defenses. In Ehrlich, the court compelled an answer and affirmative defenses, when FIGA sought additional extensions.

The court also noted that "While FIGA has argued that it did not really contest coverage, there is no record to reflect that." The court continued:

Without showing the circumstances of the settlement and whether there was a real contest to the claim, FIGA has not provided an appellate record sufficient for this court to consider its contentions that it did not deny coverage by affirmative action other than delay. See Applegate v. Barnett Bank, 377 So. 2d 1150 (Fla. 1979). 

The Applegate opinion was also cited in the original opinion which stated, in its entirety:

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979).

Third District Affirms Summary Judgment For Failure To Comply With Post Loss Obligations

In Gonzalez v. State Farm Florida Insurance Company (3D10-2269), the Third District affirmed the trial court's dismissal of a lawsuit against State Farm. The court held that:

The summary judgment entered below for the insurer on the ground that the insured had failed to comply with the pre-suit requirements of the policy that, among other things, she provide a satisfactory proof of loss and submit to an examination under oath, is affirmed.....In particular, we find no error or abuse of discretion in the trial court’s denial of insured’s request to “abate” the action, which was first made almost five years after the loss and only in the face of an imminent ruling against her at the hearing on the carrier’s motion for summary judgment.

Third District Dismisses Certiorari Petition In Bad Faith Dispute On Procedural Grounds

In State Farm Florida Insurance Company v. Seville Place Condominium Association, Inc. (3D08-2538), the Third District released an en banc opinion on rehearing and withdrew THIS opinion released by a panel of judges on the court on October 14, 2009. The panel opinion was previously discussed HERE. The court held:

State Farm Florida Insurance Company seeks a writ of certiorari quashing circuit court orders that allowed Seville Place Condominium Association, Inc., to amend its complaint to add statutory and common law bad faith claims and a punitive damage claim before the entry of a final judgment on the policy-phase issues. We deny the writ—no irreparable injury has yet occurred—and issue this opinion to clarify the requirements for the exercise of our certiorari jurisdiction in such cases.

The court denied the petition on procedural grounds and not on the merits. Based upon its holding, the court stated:

To the extent that we previously have granted such a petition when irreparable harm seems possible rather than imminent, we recede from such decisions.

The opinions that the court receded from include: North Pointe Insurance Co. v. Tomas, 999 So. 2d 728 (Fla. 3d DCA 2008) [discussed HERE] and XL Specialty Ins. Co. v. Skystream, Inc., 988 So. 2d 96 (Fla. 3d DCA 2008).

Judge Salter wrote the panel opinion and the opinion for the en banc court. Judge Shepherd, who wrote a dissent to the panel opinion, wrote an opinion concurring with the en banc court's holding.

Untimely Claim Reporting & Late Acceptance Of Proposal For Settlement

In Kroener v. Florida Insurance Guaranty Association (4D09-3604 & 4D09-4102), the Fourth District affirmed two orders entered by the circuit court "(1) final summary judgment entered in favor of the Florida Insurance Guarantee Association (FIGA) on their claim for hurricane damage, and (2) denial of their motion to enforce FIGA’s proposal for settlement, which the Kroeners attempted to accept after entry of the final summary judgment."

The appellant's purchased the property in 2007. "When the hurricane struck, however, the prior owners were not residing in the home. They had moved out shortly before the hurricane to rent it out. Although the prior owners were aware of some damage from Hurricane Wilma, they never notified Atlantic of their property damage losses or made a claim on their homeowners’ policy. Sometime after the prior owners sold their home to the Kroeners, the Kroeners discovered a roof leak, which their contractor attributed to Hurricane Wilma. At the request of the Kroeners, on December 5, 2007, the prior owners executed an Assignment of Benefits form..." 

"FIGA filed a motion for summary judgment, arguing that the previous owners had no claim to assign, and no insurable interest, by the time they executed an assignment to the Kroeners, and that the policy’s timely notice requirements had been violated. FIGA further contended that, as a matter of law, a two-year delay for a hurricane loss claim is a violation of the policy’s conditions precedents, without the need to prove prejudice." On the day before the summary judgment hearing, FIGA served a proposal for settlement. The appellants attempted to accept the proposal for settlement after the trial court granted FIGA's summary judgment motion.

With regard to the timely reporting of the claim, the Fourth District held:

Although the trial court entered final summary judgment for FIGA under several theories, we agree with the trial court’s ruling that, as a matter of law, notice to the insurer of a claim of loss more than two years and two months after the loss occurred was not prompt notice; the untimely reporting of the loss violated the insurance policy and was sufficient to bar the claim.

With regard to the proposal for settlement issue, the court held:

As discussed above, the courts which permit acceptance of an offer after a court has entered summary judgment rely on the proposition that the offer is absolutely irrevocable. In Florida, however, the proposal for settlement is revocable at any time before its acceptance by the offeror, Fla. R. Civ. P. 1.442(e). Further, we find more persuasive the reasoning of the courts that preclude a party’s ability to accept a pending offer of judgment after the grant of final summary judgment. This is more in accord with the reasoning of our courts, which do not allow a party to accept an offer of judgment after trial has commenced or a verdict has been announced because it would frustrate the purpose of Rule 1.442 to encourage settlement, obviate the necessity of protracted litigation, and ―totally defeat the ends of justice and allow a mockery of the judicial system." Braham, 514 So. 2d at 73. 

Attorney Fee Judgment Reversed Because FIGA Did Not Deny Claim

In Florida Insurance Guaranty Association v. Smothers (4D09-4597), the Fourth District reversed the trial court's entry of an attorneys' fee judgment against the appellant.

After Mr. Smother's residence was damaged by Hurricane Wilma, his insurer was declared insolvent and "FIGA stepped in to provide a mechanism for the payment of 'covered claims'." "The trial court found that FIGA denied the claim by affirmative action when the independent adjuster found 'NO VISIBLE STORM DAMAGE TO THE INTERIOR'."

FIGA is a statutory creature, “subject to special rules specifically formulated by the Florida legislature.”...While created to cover claims under policies issued by insolvent carriers, “the full gamut of a defunct insurance company's liabilities was not intended to be shifted onto FIGA.”....Chapter 631 was designed to manage, but not bankrupt the statute's funding and payment mechanism....

Here, FIGA never denied coverage. The insured submitted a claim, and FIGA assumed limited responsibility, pursuant to chapter 631. FIGA hired an independent adjuster to inspect the claim and tendered payment. Nothing in FIGA's payment transmittal letter indicated that it denied the claim....Section 631.70 unambiguously creates the boundaries of FIGA's liability for attorney's fees....Here, FIGA did not deny the insured's claim; therefore, section 631.70 bars the application of section 627.428.

To sustain the award of attorney's fees would render the Legislature's creation of section 631.70 meaningless. Therefore, we hold that a dispute about the amount of damages does not constitute a denial of coverage by affirmative action, other than delay, exposing FIGA to attorney's fees under section 631.70. As there was no denial of coverage by affirmative action, we therefore reverse the judgment for the insured and remand the case to the trial court for entry of judgment for FIGA.

Trial Court Properly Held Insured Not Entitled To Defense For Injury In Street & Off Insured's Property

In Elliott v. State Farm Florida Insurance Company (4D09-3887), the Fourth District affirmed the trial court's holding that the insurance company was not obligated to provide representation to the insured because the "the trial court correctly determined that the accident was not covered under the homeowners’ policy, inasmuch as it did not occur on the insured premises." 

"The issue presented is whether a homeowners’ insurance policy covered a golf cart accident that occurred on a private road near, but not on, the insured’s residential property." After suit was filed against the appellant by a person injured on a private street, the appellant sought coverage with State Farm. State Farm denied coverage because "Appellee disputed that the allegations in the underlying negligence action would invoke the coverage of the Elliotts’ homeowners’ policy. Appellee claimed that the accident took place outside of the insured premises and was not covered by the homeowners’ policy."

"The main thrust of appellants’ argument is that the private street, within the development, constituted an “insured location” under the homeowners’ policy, and as such, the “motor vehicle” exception did not apply to the golf cart, and appellee would be liable for the injuries Katie sustained in the accident."

The court conducted an analysis of authority on the issue from across the country and determined that the accident was not covered by the homeowner's insurance policy and affirmed the trial court's judgment.

Attorney Fee Award After Voluntary Dismissal Reversed

In Guarantee Insurance Company v. Worker's Temporary Staffing Inc. (5D10-1905), the Fifth District reversed the trial court's order awarding attorneys' fees after a voluntary dismissal. The court stated:

Appellant challenges the judgment awarding attorney's fees and costs to Appellee, pursuant to section 627.428, Florida Statutes (2006), after Appellant voluntarily dismissed (without prejudice) its action for unpaid premiums. Because the voluntary dismissal was neither a judgment nor the functional equivalent of a confession of judgment - a precondition to an award under section 627.428 - we reverse.

Insurer Not Required To Pay Overhead & Profit Until Incurred By Insured

In Trinidad v. Florida Peninsula Insurance Company (3D10-1087), the Third District held that the insurance company was not liable to the insured for "overhead and profit" costs unless the insured had actually incurred those costs. The court stated that "Trinidad’s lawsuit was based on Florida Peninsula’s failure to pay him for overhead and profit. Because Trinidad’s insurance policy is unambiguous, and he has not contracted to incur or incurred these costs, the trial court properly granted summary judgment in favor of Florida Peninsula, and we affirm."

After a discussion of the facts, the court stated:

In granting summary judgment in favor of Florida Peninsula, the trial court concluded: 1) the policy was unambiguous; 2) it excluded payment for overhead and profit unless such expenses are either incurred by the insured or reflected in a contract that binds the insured; and 3) because neither event occurred in this case, Trinidad was not entitled to such payments. We agree.

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The policy, therefore, unambiguously provides that Florida Peninsula pay replacement costs or the costs Trinidad actually incurs or which he demonstrates he is likely to incur....Trinidad’s policy is not an actual cash value policy, it is a replacement cost policy, which only requires Florida Peninsula to pay costs incurred by Trinidad (money Trinidad actually spent or which he became contractually obligated to spend for repair of the damages) when repairing the property. Not all repairs require the services of a general contractor. Because Trinidad has not hired a general contractor, spent any money for overhead and profit, or become contractually obligated to pay for such costs, payment for a contractor’s overhead and profit is not contractually owed by Florida Peninsula under the policy.

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The policy’s unambiguous terms require Trinidad to either hire a contractor who charges for overhead and profit or to incur expenses for overhead and profit before Florida Peninsula is required to pay for such costs. Because he did neither, Florida Peninsula was not obligated under the policy to pay Trinidad for overhead and profit, and the trial court correctly granted summary judgment in Florida Peninsula’s favor.

Order Allowing Deposition Of Insurance Company CEO Quashed

In General Star Indem. Co. v. Atlantic Hospitality of Florida, LLC, 3D10-3109, 2011 WL 798909 (Fla. 3d DCA March 9, 2011), the Third District granted a petition for certiorari and quashed the trial court's order compelling the deposition of executives of the petitioner. The court stated:

Simply stated, Atlantic Hospitality obtained orders compelling two senior officers1 of General Star to appear for deposition in a windstorm insurance case. General Star filed an affidavit establishing that these senior officers had no role in the investigation or adjustment of Atlantic Hospitality's claims.... General Star has shown that its president is a manager, not an adjuster or other employee with personal knowledge of the factual disputes involved in the lawsuit.

The court noted:

The job of the president of the company is to manage the company, not to fly around the United States participating in depositions about policy-related claim disputes of which the president has no personal knowledge...If all claimants demand and obtain the same right, the chief executive officer manages his or her deposition schedule, not the company.

(emphasis mine).

The court concluded: "Discovery is intended to be part of the just, speedy, and inexpensive determination of disputes—not a device to get greater attention at an adversary's headquarters."

Insurance Appraisal Not Appropriate If Insured Fails To Comply With Post Loss Obligations

In Citizens Property Insurance Corp. v. Mango Hill Condominium Association 12, Inc. (3D10-2014), the Third District again reversed a trial court's order compelling appraisal so that the trial court could first determine whether the insured had complied with its post loss obligations. The court stated:

In October of 2005, Mango Hill made a claim to Citizens to recover for damages sustained to its condominium buildings during Hurricane Wilma. Citizens investigated the claim and issued a number of checks to Mango Hill for repairs after determining that the damages claimed were covered under its policy. Mango Hill subsequently retained a public adjuster and demanded additional funds for repairs. Unsatisfied with Citizens' response, Mango Hill demanded appraisal, supporting that demand with a sworn proof of loss, an “estimate and contents report,” and a report from its engineering firm regarding the damages. The current president of the condominium association (who was not president when the losses were incurred) also submitted to an examination under oath. Thereafter, Citizens made requests for additional documents and information regarding this new claim and refused to proceed to appraisal until such information was provided.

The trial court entered an order compelling appraisal. The Third District reversed concluding that "until the policy's post-loss conditions were met, there was no disagreement as to the amount of loss to be appraised."