August, 2017    
   

   
 

Attorney Spotlight - Jonathan Hall!

Jonathan Hall practices from the firm’s Tampa office, concentrating his practice on first party insurance coverage and litigation.  Jonathan joined the firm in 2004 was named a partner in 2010.

Jonathan obtained Bachelor of Science degrees in Political Science and Communications from Kennesaw State University, where he graduated with Honors.  He attended law school at Roger Williams University, where he served on the Mock Trial Team and was an internist for Honorable Steven Clifford of the Rhode Island Superior Court, but still graduated in the top 10% of his class.

Jonathan’s has extensive litigation and first-chair trial experience in all aspects of first party insurance coverage disputes and construction litigation, and has appellate experience. He has presented oral argument at the Second District Court of Appeals, and participated in appeals in the Fourth District and Fifth District Courts of Appeal, and co-authored briefs submitted to the Florida Supreme Court.  His extensive trial experience has prompted an application for Board Certification in Civil Trial this year.

His recent trial successes have culminated in jury verdicts in favor of American Mercury Insurance Company and Old Dominion Insurance Company, for which he is currently seeking to recover substantial attorney fees and costs for firm clients. His litigation credits also include obtaining numerous favorable summary judgment rulings in civil courts across Florida. His reasoned approach to settlement negotiations have resulted in countless favorable settlements for our clients.

Jonathan is an active presenter at educational seminars and training classes in the claims arena, at seminars, internally for insurance companies, for independents and for engineering firms. He manages to stay active in the West Coast Claims Association, the Hillsborough County Bar Association, and is a member and past presenter at the WIND conference; and he is active in The Honorable Order of the Blue Goose International – Tampa Pond.

Originally from Kentucky, Jonathan now calls Tampa, Florida his home, and he is an active member of that community. He has served as Treasurer for the Board of his condominium association for the past five years; and has been a Big Brother in the Big Brothers Big Sisters of America since moving to Tampa in 2001.  Jonathan also is found frequently doing volunteer work for Metropolitan Ministries.  He enjoys all types of sports and is an active father of two daughters. 

Jonathan is always open to general questions on legal matters in his areas of practice, so don’t hesitate to give him a call with issues he can assist you with.

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Jury Finds Claimed Water Damage is Excluded from Coverage by Exclusions for Long Term Repeated Seepage and Leakage

Homeowners Choice Property & Casualty Insurance Company was successful in obtaining a jury defense verdict in Lee County on August 4th, 2017 by presenting photographic and scientific evidence of the long term nature of those damages.  The insured’s claim was presented by the Strems Law Firm with the representation that the claimed damage was the result of a single event, a sudden and accidental water leak that caused significant damage to the kitchen cabinets in the insured residence. The insurer’s claim investigation revealed ample evidence of repeated moisture exposure to the cabinets, and related rot and deterioration. Expert testimony at trial, along with numerous photographs illustrating ongoing water issues at the property, were presented to the jury. After the evidentiary presentation of the photographic and scientific evidence, the jury deliberated for less than an hour (including a lunch break) before reaching the verdict for the defense, finding that the damages were the result of constant and repeated seepage or leakage of water, and thus excluded from coverage.  Daniel McNalis, a partner in Groelle & Salmon’s West Palm Beach office tried the case on behalf of Homeowners Choice Property and Casualty Insurance in Lee County Circuit Court before Judge Keith Kyle.

Of note, immediately prior to the trial, Attorney Patrick Carleton of the Groelle & Salmon’s West Palm Beach office was successful in limiting the testimony of Plaintiff’s late-disclosed expert witness, engineer Al Brizuela, as to his opinion about the requirement for replacement of tile flooring throughout the house. That expert testimony was excluded by Judge Kyle because it was not timely disclosed. 

Also in this claim, Attorney Patrick Carleton represented the insurer at a court-ordered, but non-binding, arbitration which resulted in a finding for the insurer after an evidentiary presentation.  However, Attorney Gregory Saldamando of the Strems Law Firm took exception to that finding and elected to proceed to jury trial on the claim, which resulted in the defense verdict.  Congratulations to Homeowners Choice for its commitment and resolution in seeing the matter through the entire process!

 

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Insurer gets Summary Judgment Where Named Insured Did not Reside at the Insured Property

Southern Fidelity Property & Casualty, Inc. recently obtained a summary judgment in its favor relieving it of an indemnity obligation under a homeowners policy, where the named insured did not reside at the insured property, so the property was not the insured’s  “residence premises.”  The Motion for Summary Judgment was presented to the Court, and argued by partner Christopher Choquette of Groelle & Salmon’s Miami Office. In the case of Octavio & Manuela Lopez Meza v. Southern Fidelity Property & Casualty, Inc., the insureds submitted a claim for water damage to the property insured under an HO-03 policy form issued by Southern Fidelity. Its claim investigation revealed that the named insureds did not actually reside at the insured property, and that the property was not even occupied on the date of loss. That information was later further confirmed by written admissions of the named insureds. Circuit Court Jorge Cueto in Miami-Dade County granted the insurer’s Motion for Summary Judgment as to its coverage obligations, agreeing that the express language of the insurance policy only afforded coverage for the dwelling that was the “residence premises” of the named insured. As the “named insureds” did not reside at the insured property and it was not their “residence premises” there was no indemnity obligation of the insurer under the insurance contract for the claims loss.

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Insureds’ Failure to Appear for EUO Allows Judgment!

In the recent case of Jimmy & Bertie Thomas v. United Property & Casualty Ins. Co., Circuit Court Judge Gates in Broward County granted United’s motion for final summary judgment upon a finding ruling that the Plaintiffs’ failure to appear for Examinations Under Oath constituted a willful and material breach of a binding condition precedent to bringing legal action, and relieved United of any obligation under the policy.

The insureds’ two claims for water damage – reportedly one from a roof leak and one from a plumbing line – were initially reported by the Barnard Law Offices in September, 2015.  After United’s request for a recorded statement of the insureds was declined, United requested that both insureds submit to Examination Under Oath, submit Sworn Proofs of Loss, and produce documents and information related to the two claimed losses in January, 2016.  On the day before the scheduled Examinations Under Oath, insureds’ counsel notified United’s attorneys, Groelle & Salmon, that the insureds would not be appearing for the examinations.  On February 20, 2016, without any attempt by the insureds to comply with the requests for appearance for examinations under oath or for production of information or documents requested, or submission of Sworn Proofs of Loss, the insureds filed a lawsuit against United Property & Casualty alleging breach of contract and seeking to have the Court make a declaration as to coverage for the claimed losses.

United filed a motion for summary judgment as to all counts based upon the insureds’ failures to submit to the Examinations Under Oath and failure to produce the documents and records requested, submit Sworn Proofs of Loss, or otherwise comply with post-loss contractual obligations.  Plaintiffs’ counsel asserted the contention, in response, that United’s failure to make  coverage determinations within 90 days and unilateral setting the Examinations Under Oath created a factual issue as to whether United “properly adjusted the loss.”

Associate Darryl Boutin of Groelle & Salmon’s West Palm Beach office presented the Motion at hearing, and focused on the insureds’ total failure to comply with United’s requests for compliance with post-loss contractual obligations. The ruling indicates the Court took into consideration that the insureds were represented by legal counsel from initiation of the claims, and Florida case precedent that a showing of prejudice is not required when an insured fails to take any steps to comply with the post-loss contractual conditions of requested Examinations Under Oath and submission of Sworn Proofs of Loss, both of which are conditions precedent to filing a lawsuit.  Further, Plaintiffs’ contention that the Florida Statute requires a coverage determination be made within 90 days precluded summary disposition was contrary to the statutory language and relevant case law that precludes the statute as the sole basis for a private cause of action. After the hearing, the Court granted United’s motion for final summary judgment, and then denied Plaintiffs’ Motion for Rehearing.

 

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Mitigation Company’s Post-Loss Agreements Constituted Waiver of Right to Seek Additional Funds from Insurer

In the recent case of  ASAP Restoration and Construction, Inc. a/a/o Susanne Casey v. Tower Hill Signature Insurance Company, Judge Joseph Marx of the 15th Judicial Circuit in and for Palm Beach County granted Tower Hill’s Motion for Summary Judgment, finding that post-loss agreements executed by the plaintiff, a mitigation service vendor, constituted a waiver of its right to seek additional funds from the insurer.

The mitigation and construction services were rendered by the plaintiff to the property of Tower Hill’s insured after a water loss. Tower Hill acknowledged coverage for the loss and issued payment to plaintiff and the insured that was limited by an endorsement to the policy, and less that the invoiced charges for the repairs and mitigation services. After receiving this check, the insured and the plaintiff executed several documents relating to charges by Plaintiff related to the loss and subsequent work at the insured property, including a letter agreement wherein the contractor agreed to perform a detailed scope of work “for the amount allowed by” the insurer, as well as a letter after the work was finished confirming the contractor’s receipt of the payment by the insurer as payment in full. The plaintiff contractor negotiated the check without reservation.

Michael Raudebaugh, an associate in Groelle & Salmon’s West Palm Beach office, presented and argued the motion for summary judgment on the position that the plaintiff, by executing the post-loss agreements, knowingly relinquished its right to seek additional payment from the insurer. Mr. Raudebaugh presented the position in Court that the language of the post-loss agreements clearly showed the plaintiff’s intent to waive the ability to seek further payment in the claim, notwithstanding any language to the contrary included in the initial assignment of benefits. Plaintiff’s counsel argued that the contractor had no intention to waive any right to future payments when signing the post-loss agreements; arguing the agreements were only intended to bind the plaintiff and the insured, and not affect any obligation of the insurer, which was not a signatory on those documents. Judge Marx rejected the plaintiff’s argument and held that the post-loss agreements represented an unambiguous waiver of the plaintiff’s right to seek additional insurance funds, granting the insurer’s motion for summary judgment, entered a final judgment dismissing the lawsuit, and denied the plaintiff’s subsequent motion for rehearing.

 

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Another Successful Trial Verdict for the Defense!

A jury in Miami-Dade Circuit court delivered a defense verdict in a case that was tried in July by Steve Teebagy and Michael Hirschkowitz of Groelle & Salmon; over the issue of whether the damage was caused by water intrusion through an opening created by a covered peril.  The water intrusion damage reportedly resulted from a roof leak.  The homeowner’s insurance policy included a coverage exclusion for damage caused by rain, with an exception extending coverage only where a covered peril damaged the roof or building envelope, creating the opening through which the rain entered. 

In this particular claim, the roof of the insured property had been coated with elastomeric paint, which reportedly degraded the integrity of the roof covering and allowed the rain water to remain on the roof and affect the underlayment, rather than evaporate out.  The plaintiff contended, and vigorously argued, that the elastomeric combined with heavy winds constituted a covered claim under recent Florida Supreme Court case law on the issue of concurrent causation.  However, the Groelle & Salmon defense attorneys were able to effectively present the case that convinced the jury that the cause of the roof leak was solely and exclusively the result of improper maintenance and repairs, rather than any wind or other covered peril.  The jury returned a verdict within a few hours, finding for the insurer.

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Order Granting Motion for Summary Judgment Declaring an Insurer has Duty to Defend Claims against an Insured is a Non-Final, Non-Appealable Order, Where it is not a Final Adjudication

Flora-Tech filed a declaratory action against its insurer, Mid-Continent Casualty Co. (MCC), under a commercial general liability policy seeking a “judicial declaration that MCC must defend and indemnify” Flora-Tech for claims asserted against it in a personal injury litigation. MCC, in turn, filed a counterclaim against Flora-Tech, and a crossclaim against both Plaintiffs, for declaratory relief asserting that it had no duty to defend the underlying liability action.

Flora-Tech and MCC filed cross motions for summary judgment and, upon a hearing on the motions, the trial court entered an order denying MCC 's motion and granting Flora-Tech's motion to the extent it sought a declaration finding that MCC has a “duty to defend” it against the claims asserted by Plaintiffs in that action. The trial court, however, expressly stated that it was not deciding “[t]he question of whether MCC has a duty to indemnify Flora-Tech against any damages ultimately awarded.”

The Flora-Tech Court noted that an Order which only purports to grant a party’s motion for summary judgment, but does not otherwise include the traditional words of finality, is not a final order subject to appellate review.  MCC asserted that an order finding a duty to defend falls into a category of non-final orders that “grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions.” Fla. R. App. P. 9.130(a)(3)(B). MCC argued that the Order should be construed as one that grants an injunction. In support, MCC relied upon Allstate Insurance Co. v. Arvida Corp., 421 So. 2d 741 (Fla. 4th DCA 1982).  In Arvida, the Fourth District Court of Appeal noted that the trial court, in “a curious order . . . proceeded to rule that ‘from the date of this Order hence, the insurer shall assume the defense of this matter.” The Fourth District Court of Appeal held in that case that it had jurisdiction to accept the appeal as the order was appealable as a final judgment granting specific performance, as a non-final order granting an injunction, or as an order determining liability in favor of a party seeking affirmative relief.

The Third District Court of Appeals rejected that ruling and found that the Order at issue in the Flora-Tech ruling was distinguishable from the order in Arvida, as the Order contained no such command or directive to MCC to defend Flora-Tech in the underlying litigation. At most, the Order merely declared that MCC has a “duty to defend” Flora-Tech against the claims asserted by Plaintiffs, but did not constitute an injunction commanding an act to be done.


Daniel M. McNalis, Esq.
West Palm Beach - West Office

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More From the Florida Supreme Court on Proposals for Settlement

The law applying to Proposals for Settlement can be confusing, and Florida’s highest court, in Government Employees Insurance Companies v. Macedo, 42 Fla.L.Weekly S731(Fla. July 13, 2017) just seems to have increased the ambiguity.

In Macedo, the Court has held that any costs or fees incurred as a result of an insurer exercising authority and control is something that it intended to pay, and supports an award of fees. In Macedo, the Plaintiff sued GEICO’s insured and served a proposal for settlement for $50,000, which was rejected. The jury returned a verdict in favor of the Plaintiff for $250,000. The Plaintiff then joined GEICO to the judgement and sought taxable fees and costs pursuant to section §768.79. The Supreme Court found that the language of the policy allowed for an award of fees against GEICO, even though fees generally are not awardable absent a finding of bad faith.

The GEICO policy included a provision for “other reasonable expenses incurred at our request”, which the court presumed included costs associated with electing to litigate a claim rather than settling it. The policy also contained an “Additional Payment” section, which Plaintiff argued gave GEICO the sole right to litigate and settle claims and thus, GEICO had contractually obligated itself to pay for all investigative and legal costs incurred, including all reasonable costs incurred by the insured at GEICO’s request. GEICO argued that section of the policy referred only to costs which generally do not include attorney fees, and it had no obligation for fees. However, the Macedo Court rejected that argument, finding that policy language indicated that GEICO would make additional payments under the liability coverages for legal expenses and court costs, based in part on the rationale the “Additional Payments” provision stated it would also cover investigative and legal costs, as well as reasonable costs referenced in the prior “other reasonable expenses” section.

The Macedo Court found the additional payment section to be ambiguous on whether ‘costs’ included the attorney fees, and therefore held that the fees should be granted pursuant to the Offer of Judgement. In essence, because GEICO controlled the litigation, any costs or fees incurred were presumably something that GEICO intended to pay, thus supporting the award for fees.

The Macedo ruling makes it necessary to analyze the policy and any “Additional Coverages” when served with a proposal for settlement n a factually similar case. As noted herein, an insurer may find itself joined when the Plaintiff seeks attorneys’ fees and costs based on a proposal for settlement.


Andrea Zigelsky, Esq.
Vero Office

 

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Third DCA Reverses Summary Judgment in Favor of Tower Hill, Finding that a Public Adjuster’s Estimate Created a Question of Fact as to the Actual Cash Value of the Claim

In Francis v. Tower Hill Prime Ins. Co., Case No. 3D16-2114 (Fla. 3d DCA July 12, 2017), the insured’s home suffered interior water damage resulting from a roof leak. Tower Hill accepted coverage for the interior damage and issued payment for the actual cash value of the loss pursuant to its field adjuster’s estimate, which accounted for depreciation. After receiving payment, the insured submitted a Sworn Statement in Proof of Loss claiming damages based on a public adjuster’s estimate; however, the insured did not incur costs for any actual repairs to the interior of her property. Instead, she filed suit when Tower Hill refused to make any additional payments, asserting that Tower Hill had failed to pay at least the actual cash value of the interior damage.

Tower Hill moved for summary judgment, arguing that it could not be in breach of the policy, because it had paid the actual cash value of the loss, and the insured was not entitled to any additional payments because she had not incurred any costs for repairs in excess of what was paid. Tower Hill asserted that this was consistent with the policy, Fla. Stat. § 627.7011, and Slayton v. Universal Prop. & Cas. Ins. Co., 103 So. 3d 934 (Fla. 5th DCA 2012). The Eleventh Judicial Circuit Court for Miami-Dade County agreed with Tower Hill and granted the motion for summary judgment. Subsequently, the Third District Court of Appeals reversed, finding that there was a question of fact as to whether Tower Hill had, in fact, paid the actual cash value of the loss.

In reaching this conclusion, the District Court pointed to the public adjuster’s estimate, which totaled approximately $139,000.00 in replacement cost value, as compared to the field adjuster’s estimate totaling approximately $15,000.00 for replacement cost value. The Court specifically noted that in comparing these estimates, it had not considered the depreciation, but recognized that depreciation should be withheld until repairs were completed. Nevertheless, the Court made no mention of whether the public adjuster’s estimate had even included a depreciation calculation. Instead, the Court held simply that the “widely-divergent estimates” created a genuine issue of material fact precluding summary judgment.

In addition, the Third District rejected the application of Slayton v. Universal Prop. & Cas. Ins. Co., 103 So. 3d 934 (Fla. 5th DCA 2012) to this case. Slayton held that an insurer’s payment of its own adjuster’s estimate, while agreeing to consider supplemental claims once repairs were completed or expenses were incurred, was not a breach of the insurance policy. However, in Slayton, the Fifth District did not consider what impact, if any, Fla. Stat. § 627.7011 had on the insurer’s obligations, because the plaintiff had failed to preserve this issue for appeal.

In Francis, on the other hand, the insured raised the issue that Fla. Stat. § 627.7011(3)(a) (2011) requires that the insurer “must initially pay at least the actual cash value of the insured loss,” and the Third District found that there was a question of fact regarding whether Tower Hill complied with this obligation.

Accordingly, the Francis case will make it much more difficult for insurers to pursue motions for summary judgment on paid claims in cases where the insured provided the insurer with a public adjuster’s estimate before the lawsuit was filed. In those situations, it may be beneficial to depose the public adjuster to establish that his or her estimate is for replacement cost value, not actual cash value. This would support an argument that the insurer was never provided with any notice of a dispute regarding the actual cash value of the loss before the lawsuit was filed. On this point, it could be argued that the insurer could not have breached the policy unless it denied a supplemental claim for the actual cash value of the loss. See Rizo v. State Farm Fla. Ins. Co., 133 So. 3d 1114 (Fla. 3d 2014) (recognizing that a breach of the policy did not occur until the insurer denied a supplemental claim for payment).

On the other hand, the Francis case should have no impact on the viability of motions for summary judgment in cases where the insured provided no notice of a payment dispute prior to the filing of a lawsuit. See Rizo, supra; see also U.S. Fidelity & Guaranty Co. v. Romay, 744 So. 2d 467, 470 (Fla. 3d DCA 1999) (finding that the terms of the policy contemplate that the parties would engage in some meaningful exchange of information sufficient for each party to arrive at a conclusion before a disagreement may exist).


Kelly A. Fantetti, Esq.
Tampa Office

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Appraisal is Proper Remedy When Sole Dispute is Over Amount of Loss

The Fourth District Court of Appeal recently granted review on a writ of certiorari of a trial court order that denied Progressive Select Insurance Company’s (“Progressive”) Motion to Dismiss, or in the alternative, Motion to Stay and Motion to Enforce Appraisal; finding the trial court departed from the essential requirements of law in a claim where the insurer invoked the appraisal provision of the policy, and the sole dispute was over the amount of loss.

The claim by Cornerstone Network Inc. (“Cornerstone”) was brought pursuant to an assignment of insurance benefits executed by Progressive’s insured, Dakota Sowell, for charges by Cornerstone for a windshield repair/replacement to the insured’s vehicle. The Progressive policy had an appraisal clause that provided if a disagreement arose as to amount of a loss, either party “may demand appraisal of the loss” and, within thirty (30) days of a party’s demand for appraisal, “each party shall appoint a competent and impartial appraiser and shall notify the other party.” Progressive issued its payment to Cornerstone and sent written notice that, if there was a disagreement with the amount paid, then Progressive was invoking its right to appraisal as set forth in the appraisal clause of the policy. Cornerstone did not respond to Progressive’s notice, but proceeded to file suit against the insurer.

In the trial court case, Progressive filed a Motion to Stay and Motion to Enforce Appraisal, contending that dismissal of Cornerstone’s suit was warranted by its failure to comply with the policy appraisal clause, which was a condition precedent to bringing suit. Cornerstone opposed those motions, contending that Progressive had improperly attempted to invoke appraisal prior to determining whether there was an actual disagreement between the parties over the amount of loss in the claim. The trial court denied Progressive’s Motion, finding the ultimate issue in the claim was not within the scope of the appraisal clause of the policy. Progressive brought the petition for writ of certiorari thereafter.

In the appellate court, Progressive argued that permitting the parties to litigate the issue when there is a legal or contractual obligation to go through an alternative dispute resolution process constitutes a departure from the essential requirements of law. The Fourth DCA agreed, finding that Progressive properly invoked its right to appraisal when it became aware there was a dispute over the amount of loss, and that Cornerstone improperly filed legal action against Progressive. The appellate court also held that, contrary to Cornerstone’s arguments and the trial court order, the dispute between the parties was purely a question as to the amount of loss, which fell within the scope of the appraisal clause and the purview of the appraisers, and not the judiciary. The Court granted Progressive’s Writ of Certiorari and quashed the trial court’s order denying its Motion.


Bethany Ruiz, Esq.
Miami Office

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-Attorney Spotlight!

-Jury Finds Claimed Water Damage is Excluded from Coverage by Exclusions for Long Term Repeated Seepage and Leakage

-Insurer gets Summary Judgment Where Named Insured Did not Reside at the Insured Property

-Insureds’ Failure to Appear for EUO Allows Judgment!

-Mitigation Company’s Post-Loss Agreements Constituted Waiver of Right to Seek Additional Funds from Insurer

-Another Successful Trial Verdict for the Defense!

-Order Granting Motion for Summary Judgment Declaring an Insurer has Duty to Defend Claims against an Insured is a Non-Final, Non-Appealable Order, Where it is not a Final Adjudication

-More From the Florida Supreme Court on Proposals for Settlement

-Third DCA Reverses Summary Judgment in Favor of Tower Hill, Finding that a Public Adjuster’s Estimate Created a Question of Fact as to the Actual Cash Value of the Claim

-Appraisal is Proper Remedy When Sole Dispute is Over Amount of Loss

 

Groelle & Salmon, P.A. 
http://www.gspalaw.com/

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