February, 2017    
   

   
 

Groelle & Salmon News


Congratulations to Meghan Wilson!

Please join us in extending our sincere congratulations to our own Meghan Wilson in the West Palm Beach office, who has been named a partner in the firm of Groelle and Salmon P.A.! Meghan Wilson is already well known to the firm clients for her legal acumen and stalwart advocacy of our clients, as well as her proven level of analytical and litigation skills. Meghan has most recently performed well in her role as a litigation unit team lead in our West Palm Beach offices and her significant efforts in advocating our clients’ interests in the years she has been with the firm have resulted in many favorable outcomes for the firm clients. She will continue as a partner heading her litigation team in the West Palm Beach office, ensuring effective litigation defense and quality legal services for our clients. It is our privilege to recognize her as a firm partner!

We also introduce three recent new partners to our Orlando/Maitland office in the continued growth of our central Florida office. Lisa Bernardini recently joined that office, bringing her extensive litigation background and trial experience, including as senior in-house trial counsel, to that firm location. Also joining us in the central Florida location are John E. Eckard II and Soobadra C. Gauthier, both with over 20 years of insurance related litigation and coverage issue experience! We look for to all of our insurance clients having the opportunity to work with this seasoned coverage attorneys and litigators!

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Property Damage Claims

The Florida Supreme Court Limits Application of the Efficient Proximate Cause Doctrine

The recent decision of the Florida Supreme Court in Sebo v. American Home Assurance Co., Inc. in which the Court addressed concurrent causes for claimed damages, or if “coverage exists when multiple perils combine to create a loss and at least one of the perils is excluded under the policy” has raised alarms for many in the claims industry. Florida’s high court addressed the matte ron a perceived conflict between the Second and Third District Courts of Appeal. See American Home Assurance Co. v. Sebo, 141 So.3d 195 (Fla. 2nd DCA 2013) and Wallach v. Rosenberg, 527 So.2d 1386 (Fla. 3rd DCA 1988). 

Wallach was a landmark ruling on the issue of coverage in a concurrent cause situation. In Wallach, a sea wall collapsed at the insured property following a rainstorm, but it was also determined that earth movement was a contributing cause of that loss. The Third District Court of Appeals applied a concurrent cause analysis to find coverage, holding that “[w]hen multiple perils act in concert to cause a loss, and at least one of the perils is insured and is a concurrent cause of the loss, even if not the prime or efficient cause, the loss is covered.” In effect, the Wallach Court found that “where an insured risk and an excluded risk jointly caused the loss, coverage was available.”

In the recent Sebo claim, the insured property had also been damaged by more than one cause or peril, both covered and excluded perils, over time. The Second District Court of Appeals found that “[t]here is no dispute in this case that there was more than one cause of the loss, including defective construction, rain and wind.” However, in Sebo, there was a significant difference from the Wallach case in that there had been ongoing water intrusion problems from design and construction defects that were not reported to the insurer until several months after the house was damaged further by Hurricane Wilma in October 2005. American Home did respond, and denied coverage for most of the claimed damage as being the result of a noncovered loss, but did extend the $50,000 mold coverage under the policy. Because repairs could not effectively be made, the house was eventually demolished by the owner.

Sebo initially sued the architect and builder of the house, and the sellers for failure to disclose defects, but then added American Home as a defendant seeking coverage for the loss of the property.  The district appellate court in Sebo recognized that “[w]here there is a concurrence of different perils, the efficient cause – the one that set the other in motion – is the cause to which the loss is attributable.” In effect, that Court applied the efficient proximate cause doctrine holding that “[i]f the efficient proximate cause of the loss is a covered peril, the losses are covered; if it is an excluded peril, the losses are not covered.” The Second District reasoned that “a covered peril can usually be found somewhere in the chain of causation, and to apply the concurrent causation analysis would effectively nullify all exclusions in an all-risk policy” and it remanded the case for a new trial for the cause of loss to be “examined under the efficient proximate cause theory.”

The Florida Supreme Court in reviewing the perceived conflict between districts framed the issue presented as “whether coverage exists under Sebo’s all-risk policy when multiple perils combined to create a loss and at least one of the perils is excluded by the terms of the policy.” In reconciling the two earlier rulings, it decided to quash the ruling of the Second District in the underlying Sebo case, and approve Wallach, stating:

We conclude that when independent perils converge and no single cause can be considered the sole or proximate cause, it is appropriate to apply the concurring cause doctrine.

The Supreme Court preceded its analysis in Sebo with the statement that “in all risk policies such as the one held by Sebo, construction is governed by the language of the exclusionary provisions.” It further explained the distinction between the efficient proximate cause and the concurring cause doctrines; and concluded that, when no single cause can be considered the sole or proximate cause [of a claimed loss], it is appropriate to apply a concurrent cause analysis. In quashing the decision of the Second District in Sebo, the high court stated that “the rain and construction defects acted in concert to create the destruction of [the] home”…as such, it would not be feasible to apply the efficient proximate cause doctrine because no efficient cause can be determined”. That rationale, of course, ignored the latre notice of claim and the fact that construction and design defect issues and damages had been documented before the hurricane ever impacted the property, or the owner demolished the house. Nevertheless, the Supreme Court held that “because [the insurer] did not explicitly avoid applying the [a concurrent cause analysis], we find that the plain language of the policy does not preclude recovery in this case.”

The Sebo ruling makes it clear in Florida that the efficient proximate cause analysis will not apply where there are multiple perils acting in concert to cue a loss or damage, which would preclude the court or factfinder of fact from distinguishing which claimed loss or damage is directly related to a specific peril or cause. Generally, that rationale should be inapplicable in loss situations where different perils separately occur and cause damage, or act independent of one another. However, given the number of late-reported claims in Florida, this ruling could have a detrimental effect for insurers. This is important in claims where a non-covered peril triggers a subsequent excluded cause that damages property.

This recent ruling may give rise to issues in claims that include tile damage or debonding, that may be due to installation deficiencies not previously discovered, but manifest when a water leak or water intrusion occurs. In such claims where neither of those causes can be ruled out as a contributing factor to the damage or debonding, or a fact finder cannot attribute the cause of loss to an excluded peril, the concurrent cause analysis may be applied to afford coverage if there is no evidence the loss occurred separately from the water intrusion event.

 


Jon Hall, Esq.
Tampa Office

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Third DCA Affirms Insurer’s Summary Judgment Based on Marring Exclusion

The Florida Third District Court of Appeal recently affirmed a trial court’s order granting summary judgment in favor of the insurer. The court held that damage to the tile flooring caused from a falling vase was a loss that constituted “marring,” which was expressly excluded from coverage, even after the insurer acknowledged coverage and issued payment. In Mario Gamero vs. Foremost Insurance Company, the insured filed a claim for damages when his property sustained damage to the tile flooring after a vase fell and cracked two tiles. Foremost ultimately accepted coverage and issued payment to the insured. The insured disagreed with the amount issued by Foremost and invoked the appraisal provision. The appraisal panel determined the replacement cost, which included replacement of the tile flooring throughout the house. Foremost issued an additional payment to the insured however, the payment fell below the appraisal amount and Foremost explained that the replacing tile flooring in the rest of the house was not covered.

Gamero filed a complaint for breach of contract and Foremost filed an answer and asserted the policy’s “marring” exclusion as an affirmative defense and that there was no coverage for this claim. Gamero failed to file a reply to Foremost’s affirmative defense. Both parties moved for summary judgment and the trial court granted Foremost’s summary judgment and entered judgment for the insurance company.

On appeal, Gamero argued that Foremost waived its right to rely on the “marring” exclusion because it previously acknowledged coverage. The court did not agree with Gamero’s argument and further stated even if acknowledgment of coverage amounted to a waiver, Gamero failed to preserve the issue by not replying to the affirmative defense. The Third District held that trial court was correct in not considering this issue, since Gamero raised it for the first time in its opposition to Foremost’s motion for summary judgment.

In making its final decision, the Third DCA relied on a similar case from the Fourth DCA. In Ergas v. Universal Property and Casualty Insurance Company, the Fourth DCA affirmed summary judgment entered by the trial court in favor of the insurer, which held that a chip in the tile caused by a dropped hammer was expressly excluded from coverage as it constituted “marring.”

 


Andres Zornosa, Esq.
West Palm Beach East

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Third DCA Dismisses Insured’s Petition for Writ of Certiorari on Abatement and Option to Repair Provision, Finding No Irreparable Harm

The Third District Court of Appeal recently dismissed an insured’s petition for writ certiorari, which sought to quash the lower court’s order of abatement and enforced the policy’s option to repair provision, finding that the insured failed to show irreparable harm because the insurer agreed that the insured was not precluded from maintaining her suit after repairs were completed.

The Petitioner had a homeowner’s insurance policy with Florida Peninsula Insurance Company (“FPIC”), which contained an option to repair provision.  After the Petitioner’s property suffered a loss, FPIC advised that the covered damages would be repaired.  FPIC subsequently sent two contractors to the property, one of which was Florida Executive Builders (“FEB”), and each prepared a repair estimate.  In response, the Petitioner’s public adjuster sent FPIC correspondence advising the disputed amount of damages was $13,852.23.  Petitioner then contracted with FEB for the repairs, and added the following handwritten language to the contract: “All rights reserved; Executed under protest.”  Petitioner continued to request an updated estimate and scope of work from FPIC and that FEB’s work would comply with the scope of damage detailed in her public adjuster’s estimate. 

Petitioner filed suit for declaratory relief seeking, in part, the scope of repairs to be performed and whether the policy’s option to repair provision was properly invoked under the terms of the policy.  In response, FPIC filed a motion to abate action and/or compel Petitioner to comply with FPIC’s right to repair under the policy.  Petitioner filed a motion for summary judgment and response to FPIC’s motion to abate action and/or compel, arguing that FEB’s estimate was insufficient compared to the public adjuster’s estimate.  The lower court granted FPIC’s motion and Petitioner filed a petition for writ of certiorari.

On appeal, the Petitioner alleged irreparable harm in that the contract with FEB was a full release of liability in favor of FPIC and “inoculates” FPIC by preventing the Petitioner from lifting the abatement and to re-open proceedings against FPIC.   In response, FPIC’s counsel stated during oral argument that the Petitioner could seek to lift the abatement after repairs were completed to dispute the scope of repairs or alleged the failure of FPIC to return the insured property to its pre-loss condition.  As FPIC agreed that the Petitioner was not precluded from continuing her suit after FEB completed its repairs, the lower court’s finding did not result in irreparable harm to the Petitioner.  The Third District Court of Appeal dismissed the Petitioner’s petition for lack of jurisdiction as the Petitioner failed to show that the trial court’s abatement resulted in irreparable harm.


Samantha Poznak, Esq.
West Palm Beach East

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Florida Appellate Court Rules on Whether Coverage is Triggered For Access Repair Costs When Drain Line Fails Under Slab if no Related Water Damage

The Florida Third District Court of Appeal, in its recent reversal of a summary judgment entered by the trial court for an insured, recognized that the lack of attendant damage from a drain line failure did not trigger coverage under the homeowners policy.  In the recent decision of Homeowners Choice Property & Casualty vs Maspons, 2017 Fla.App. LEXIS 451, the Third District reversed the summary judgment against Homeowners Choice for the cost to tear out and replace that part of the building necessary to access the sub-slab drain line for repair, and directed the trial court to enter judgment for Homeowners Choice on its Motion for Summary Judgment that had been denied by the trial court.

In Maspons, the insureds experienced a water backup into the kitchen sink.  The Maspons hired a leak detection company which did an line camera inspection of the drain line, and found a hole or break from corrosion of the drain line under the kitchen.  Homeowners Choice also had the drain pipe inspected by camera and its plumber discovered two holes in the drain pipe, and "scale" and "detritus" in other drain lines of the plumbing system.  There was no evidence, and no dispute, that water damaged the interior of the property, nor that water seepage damaged anything under the slab. The trial court ruling acknowledged there was no coverage for repair or replacement of the drain line itself, but ruled the insurer was obligated to indemnify the insured for the cost to tear out the slab to access the pipe for repairs, and for restoring the slab and access damage.  In support of their Motion for summary judgment, the insureds' counsel asserted speculation that seepage from the faulty pipe would have caused damage under the slab.  

The Maspons Court noted that the insurance policy expressly excluded coverage for wear and tear, so Homeowners Choice had no indemnity obligation for the corroded pipe.  The Court did comment that, if the insureds found other ensuing damage not otherwise excluded by the policy, coverage could exist for the cost to “tear out and replace” for the access for the plumbing system repair. However, as the slab was not opened up, there was no evidence that water escaping the failed pipe caused any other damage to insured property, so the trial court erred in granting the insureds' motion for summary judgment.  Congratulations to Homeowners Choice for pursuing the appeal and obtaining an important appellate decision on this issue! Attorneys Patrick Carleton and Robert Groelle handled this appeal for Homeowners Choice.


Patrick Carleton, Esq.
West Palm Beach West

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Trial Practice

The Fourth DCA Finds Error in Admitting Insured’s Health Issues at Trial

The Fourth District Court of Appeals recently gave State Farm Florida Insurance Company some positive news when it reversed and vacated a jury verdict in favor of the insured. In State Farm Florida Insurance Company v. Dina Figueroa, the Fourth District found that the trial court erred in admitting evidence as to the insured’s health condition.

Six days after Hurricane Wilma hit Florida, the insured reported a loss to State Farm for damage sustained to the roof of the insured property. State Farm’s field adjuster observed hurricane-related damage to some of the roof tiles, but estimated that the cost of repairs did not exceed the policy deductible. State Farm encouraged the insured to obtain her own estimate, and requested that the insured immediately notify State Farm if her estimate exceeded the deductible. In January 2006 the insured fell ill with a serious medical condition. There was no additional activity until 2009, when the insured contacted State Farm to re-open her claim. She produced an estimate in excess of $43,000 for damage she claimed was related to Hurricane Wilma. State Farm re-inspected the insured property, and determined that the original estimate (which fell below the deductible) was correct. State Farm informed the insured of her policy obligations to submit a sworn proof of loss within 60 days of the loss, and to take necessary measures to prevent further damage to the property. On June 8, 2009, the insured submitted a sworn proof of loss with an estimate for damages. The first proof of loss was deficient, so the insured submitted a second sworn proof of loss in 2010. State Farm notified the insured that she was failed to timely submit a sworn proof of loss, which relieved the carrier of its obligations under the policy. The insured filed a lawsuit.

State Farm moved for summary judgment based on the insured’s failure to submit a sworn proof of loss within 60 days of the loss, and her failure to protect property from further damage. The trial court denied State Farm’s motion for summary judgment, and found that the insured’s untimely submission of a sworn proof of loss and any resulting prejudice to the carrier was a question of fact to be determined by the jury as to whether the insured substantially complied with her policy conditions.

State Farm subsequently filed a motion in limine to prevent the insured from introducing evidence regarding her medical issues at trial. The insured’s attorney argued that the evidence was necessary to explain the three year gap between the initial claim reporting in 2005, and the supplemental claim in 2009. The trial court agreed with the insured and allowed such evidence to be admitted at trial. The jury entered a verdict in favor of the insured, and State Farm appealed.

The Fourth District affirmed the trial court’s denial of State Farm’s motion for summary judgment. However, the Fourth District found that the trial court improperly allowed evidence of the insured’s health issues to be entered at trial. State Farm argued that such evidence was both irrelevant and highly prejudicial, and the Fourth District agreed. The insured’s medical issues were not relevant because they did not go to proving or disproving any material fact at issue. The Fourth District found that there was no language in the policy that excused non-compliance with policy conditions due to health issues. State Farm’s primary defense was the insured’s failure to comply with her policy conditions, and the introduction of the insured’s health issues allowed the jury to form an improper basis that she did not need to timely comply because she was having health issues. Due to the introduction of this inadmissible evidence, the Fourth District found that the lower court abused its discretion and ordered a new trial.


S. Shakira Ali, Esq.
West Palm Beach East

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Attorney's Fees

Premature Suits and Attorney’s Fees

Insurers dealing with property insurance claims in Florida well aware of the risk that a court may require the insurer to pay an insured’s attorney’s fees.  Florida’s attorney fee statute provides a strong inducement for insureds and their attorneys to file a lawsuit quickly, rather than attempting alternative forums for resolution, in hopes of establishing entitlement to an award of attorney’s fees.  Section 627.428 Attorneys Fees, Fla. Stat., provides in part:

(1)Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named . . . insured . . . under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured . . . a reasonable sum as fees or compensation for the insured’s . . . attorney prosecuting the suit in which the recovery is had.

Florida courts have held that an insurer’s post suit payment to an insured constitutes a “functional equivalent of a confession of judgment” which satisfies the requirement of a “judgment or decree.” See Wollard v. Lloyd's & Cos. of Lloyd's, 439 So. 2d 217, 219 (Fla. 1983).  However, the inquiry is not that simple, as a second issue the court must consider when asked to award attorney’s fees is whether “. . . the insured was forced to litigate in order to get the insurer to pay the claim.” See State Farm Fla. Ins. Co. v. Lime Bay Condo., Inc., 187 So. 3d 932 (Fla. 4th DCA 2016). 

In State Farm Florida Insurance Company v. Lorenzo, 969 So. 2d 393, 398 (Fla. 5th DCA 2007) Florida’s Fifth District stated that allowing an award of attorney’s fees pursuant to the “confession of judgment” doctrine where an insured was not forced to sue to obtain payment “would encourage unnecessary litigation by rewarding a race to the courthouse for attorney’s fees even where the insurer was complying with its obligations under the policy.” 

Many attorneys representing policy holders still “race to the courthouse” to file suit with the hopes of triggering entitlement to attorney’s fees rather than complying with post loss obligations or demands for appraisal.  Those filing premature suits may undermine their opportunity to obtain an award of attorney’s fees.

Recently, Roland Bernal of Groelle & Salmon’s Vero Beach office obtained a Summary Judgment in favor of State Farm in St. Lucie County Circuit Court.  The insureds had reported a loss with damages caused by water.  Coverage was conceded, payment was issued for the undisputed amount of loss, less deductible, and appraisal was invoked.  The insureds then filed suit instead of complying with the pre-suit demand for appraisal. After suit was filed, Plaintiffs agreed to proceed in appraisal and stay the litigation pending resolution of the appraisal.  The appraisal resulted in an award of additional costs of repair which were paid timely.  Plaintiffs subsequently declined to dismiss the matter and State Farm moved forward with a Motion for Summary Judgment arguing that the suit was premature when filed in light of the pre-suit demand for appraisal, and was moot given the resolution of the appraisal.  State Farm’s Motion for Summary Judgment was granted.  More importantly, Plaintiffs were denied an award of attorney’s fees despite the post suit payment of the appraisal award because Plaintiffs could not establish that they were forced to litigate in order to get the insurer to pay the claim.  In sum, the suit was premature when filed and moot once the appraisal award was paid. 

More recently, Mr. Bernal was asked to defend an insurer involving circumstances similar to the matter discussed above.  The policy holders filed suit despite a pre-suit demand for appraisal.  Plaintiffs agreed to stay the litigation pending resolution of the appraisal.  The insurer timely paid the additional amounts awarded in appraisal.  Plaintiffs subsequently voluntarily dismissed the matter after their attorney was reminded that the suit was unnecessary, so the post suit payment of the appraisal award would not trigger entitlement to attorney’s fees. 

Appraisal can often serve as an expeditious means of resolution of disputes over the amount of a covered loss as well as a providing a degree of protection from exposure to attorney’s fees particularly where a policy holder files suit without complying with a demand for appraisal.  However, insurers should be cautioned about utilizing appraisals where the policy holder has served a Civil Remedy Notice of Insurer Violation.  For example, recent Florida District Court opinions, such as Cammarata v. State Farm, 152 So. 3d 606 (Fla. 4th DCA 2014) significantly undermine the advantages of appraisal.  Please contact Roland Bernal in our Vero office if you would like to discuss these issue further. 


Roland Bernal, Esq.
Vero Office

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G&S News

- Congratulations to Meghan Wilson!


Property Damage Claims

- The Florida Supreme Court Limits Application of the Efficient Proximate Cause Doctrine

-Third DCA Affirms Insurer’s Summary Judgment Based on Marring Exclusion

-Third DCA Dismisses Insured’s Petition for Writ of Certiorari on Abatement and Option to Repair Provision, Finding No Irreparable Harm

-Florida Appellate Court Rules on Whether Coverage is Triggered For Access Repair Costs When Drain Line Fails Under Slab if no Related Water Damage

Trial Practice

-The Fourth DCA Finds Error in Admitting Insured’s Health Issues at Trial

Attorney's Fees

-Premature Suits and Attorney’s Fees

 

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

West Palm Beach West
Ponce Centre
11301 Okeechobee Blvd.
Second Floor
West Palm Beach, FL 33411
561.963.5500


West Palm Beach East
1601 Belvedere Road
Suite 500s
West Palm Beach, FL 33406
561.588.3000


Tampa Office
Waterford Plaza
7650 W. Courtney Campbell Causeway
Suite 800
Tampa, FL 33607
813.849.7200


Vero Office
Vero West Commercial Center
1880 82nd Avenue
Suite 104
Vero Beach, Florida 32966
772.257.0700


Orlando Office
Maitland Promenade One
485 N. Keller Road
Suite 151
Maitland, Florida 32751
321.280.4880


Sarasota Office
Sarasota Commerce
Center II
551 N. Cattlemen Road
Suite 104
Sarasota, Florida 34232
941.225.6900


Miami Office
Citicentre Building
290 N.W. 165th Street
Suite M-500
Miami, Florida 33169
786.629.3260


Boston Office
Derby Corporate Center
99 Derby Street
Suite 200
Hingham, Florida 02043
617.322.8201


New York Office
80 Broad Street
5th Floor
New York, NY 10004
813.849.7200

 
   
 
 

 







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