A Primer On Appraisal in Florida First-Party Property Damage Claims

In the wake of Hurricane Irma and other recent natural disasters, Florida courts have weighed in on one of the most important tools for resolution of first-party property damage claims: appraisal. In this post, we will address multiple appraisal issues and how courts have ruled recently on those issues. Failure to Timely Invoke Appraisal May Constitute Waiver In Versailles Sur La Mer Condominium Assoc., Inc. v. Lexington Ins. Co., 2018 WL 3827154 (M.D. Fla. Jul. 24, 2018) the insured, a
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No Attorney’s Fees for Insured in Suit Relating to Selection of an Umpire for Appraisal for Florida First-Party Property Claims

In a recent first-party coverage claim, an insurer invoked its homeowner’s policy’s appraisal provision pre-suit when the parties could not agree on the scope of loss. The appraisal provision required both parties to select an appraiser, who were in turn required to agree mutually upon a neutral umpire for appraisal. The policy’s appraisal provision stated further that in the event the appraisers could not agree upon a neutral umpire, either party could initiate a legal action to request that the
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No Smoking! Pollution Exclusion Bars Coverage For Claims Arising Out of “Smoky” Beverage

While Florida courts have typically refused to limit pollution exclusions within insurance policies to traditional environmental claims, a District Court in Florida has extended the application of such exclusions even further by finding that a pollution exclusion applies to claims against a bar for injuries allegedly caused by an “exotic” cocktail served by the bar. In Evanston Insurance Company v. Haven South Beach, LLC, et al., Case No. 15-20573 (S.D. Fla. Dec. 28, 2015), the insured, a bar, served an
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Insurer Required to Pay Policyholder Attorneys’ Fees Despite Policyholder Misrepresentations

The Florida Third District Court of Appeal found that an insurer was required to pay attorney fees that homeowners incurred during a coverage dispute despite a finding that the policyholders committed fraud. The Third District affirmed the lower court’s decision, finding that the insurer was required to pay the policyholders’ attorneys’ fees because the insurer lost its counter-claim against the policyholders. The court found that there was no exception for fraud. In Citizens Property Insurance Corp. v. Bascuas, (Third District
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New Law and a New Trial: Eleventh Circuit Overturns Florida Court Judgment Against GEICO in Bad Faith Lawsuit

On Wednesday, August 19, 2015 the Eleventh Circuit issued a significant ruling that allows evidence to be introduced at trial regarding previous decisions in that litigation, as well as changes in coverage law. In doing so, it vacated a $5 million bad faith judgment against GEICO General Insurance Co. (GEICO) from the U.S. District Court for the Southern District of Florida. The lawsuit arises out of an automobile accident that occurred in 2006. The plaintiff represented the estate of a
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Google ‘Adwords’ Advertisements Trademark Infringement, Not Slogan Infringement

In Auto Mobility Sales, Inc. v. Praetorian Insurance Co., 2015 U.S. Dist. LEXIS 84777 (S.D. Fla. June 30, 2015), the U.S. District Court for the Southern District of Florida held that an insurer had no duty to defend or indemnify its insured against allegations of trademark infringement resulting from the insured’s use of certain language in a Google ‘Adwords’ Advertisement. Auto Mobility Sales, Inc. (AMS) sells and rents handicap-enabled vehicles. AMS was insured by a general liability insurance policy issued
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State-Created Insurance Entity Exempt from Florida’s First-Party Bad Faith Statute

In Citizens Property Insurance Corp. v. Perdido Sun Condominium Ass’n, the Florida Supreme Court was asked to decide “whether the Florida Legislature intended … [for] a state-created entity that provided property insurance to be liable for statutory first-party bad faith claims as an exception to its statutory immunity from suit.” After prevailing in a breach of contract action against Citizens, Perdido Sun sued Citizens for bad faith under Florida’s Section 624.155(1). Citizens sought to dismiss the bad faith complaint based
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Breach of Reinsurance Contract and Bad Faith Claims Survive Dismissal, District Court Rules

In Old Republic National Title Insurance Co. v. First American Title Insurance Co., 2015 U.S. Dist. LEXIS 44693, the U.S. District Court for the Middle District of Florida refused to dismiss portions of a cedent’s breach of contract claim, bad faith claim, and demand for declaratory judgment against a reinsurer. The reinsurance dispute arose when a cedent negotiated a $41 million settlement with the underlying insured, and the reinsurer paid its portion of the claim under a reservation of rights.
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Florida Court of Appeals Permits Post-Loss Assignment of Benefits to Third Party

In Accident Cleaners, Inc. v. Universal Insurance Co., 2015 SL 1609973 (Fla. Ct.App. April 10, 2015) the Florida Court of Appeals, Fifth District held the assignee of benefits under an insurance policy was not required to have an insurable interest in the insured property at the time of loss. The court further held that so long as the assignor had an insurable interest in the insured property at the time of the loss, such insurable interest is imputed to the
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Timing is Key in Determining Primary/Excess Obligations for Claims against Multiple Insureds

A recent Eleventh Circuit decision warns of the dangers in handling claims against multiple insureds. In Nova Casualty Co. v. OneBeacon America Insurance Co., (U.S. Ct. Apps., 11th Cir., Mar. 17, 2015) the district court for the Southern District of Florida granted summary judgment in favor of the primary insurer, finding that although it had breached its duty to defend and indemnify an additional insured in the underlying action, the excess insurer was not entitled to damages because the primary
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