Asseff v. Citizens Prop. Ins.

• Decision Date: 10 March 2015
• Docket Number: No. 1D14–1822.,1D14–1822.
• Parties: Patricia ASSEFF and Abraham Asseff, Appellants, v. CITIZENS PROPERTY INSURANCE, a government entity of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

159 So.3d 327

Patricia ASSEFF and Abraham Asseff, Appellants

v.CITIZENS PROPERTY INSURANCE, a government entity of the State of Florida, Appellee.

No. 1D14–1822.

District Court of Appeal of Florida, First District.

March 10, 2015.

Gary M. Farmer, Jr., Steven R. Jaffe, Mark S. Fistos of Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L., Ft. Lauderdale; Todd J. Stabinski of Stabinski & Funt, P.A., Miami; Elliot B. Kula, W. Aaron Daniel, Daija M. Page of Kula & Associates, P.A., North Miami, for Appellants.

Karen D. Walker, Stephen H. Grimes, Matthew H. Mears of Holland & Knight LLP, Tallahassee, for Appellee.

Opinion

LEWIS, C.J.

Appellants, Patricia and Abraham Asseff, seek review of the trial court's order dismissing their Amended Complaint. Appellants contend that the trial court erred in relying upon Serchay v. State Farm Florida Insurance Co., 25 So.3d 652 (Fla. 4th DCA 2010), in concluding that they failed to exhaust the administrative remedies provided for in section 627.371, Florida Statutes. For the reasons that follow, we reject Appellants' argument and affirm.

Florida insurers are required to provide savings to consumers who “install or implement windstorm damage mitigation techniques, alterations, or solutions to their properties to prevent windstorm losses.” § 627.0629(1), Fla. Stat. (2012). Rate filings for residential property insurance must “include actuarially reasonable discounts, credits, or other rate differentials, or appropriate reductions in deductibles, for properties on which fixtures or construction techniques demonstrated to reduce the amount of loss in a windstorm have been installed or implemented.”Id.

In May 2013, Appellants filed their First Amended Class Action Complaint against Appellee, Citizens Property Insurance Corp., their homeowners insurer, on behalf of themselves and similarly situated entities and/or persons. Appellants alleged that they and the class they sought to represent had submitted uniform mitigation verification inspection forms to Appellee after a professional inspector inspected each insured's property. Appellee allegedly accepted the forms without conducting any separate inspections of the properties and routinely provided insureds premium credits based on the loss mitigation features and inspection results. According to Appellants, the mitigation forms set forth that “[t]his verification form is valid up to five (5) years provided no material changes have been made to the structure.” Prior to the expiration of five years and beginning as early as 2010, Appellee allegedly began re-inspecting its insureds' properties without cause. Appellants alleged that the re-inspection campaign has “led to widespread removal of loss mitigation benefits afforded under the policy in the form of credits to [Appellee's] insureds, including [Appellants] and the class.” They further alleged that the campaign “has caused and will continue to cause [Appellants] and Class Members to lose the benefit of their premium discounts and credits [and][i]t also appears to contravene the fundamental purpose of § 627.711, Fla. Stat., which is to incentivize insureds to fortify their structures against windstorm damage and to lessen their costs of insurance.” Appellants were “not challenging [Appellee's] rates, or [its] individual inspections of each Class Member.” Nor were Appellants “challenging the discount calculation or discount or credit rating category.” Appellants alleged a good-faith belief that the mitigation form was a part of their insurance policy with Appellee and that the policy clearly obligated Appellee to honor their loss mitigation discounts and inspection results for five years absent a material change in their dwelling.

The sole count in the Amended Complaint was for declaratory relief. Appellants sought a declaration that the mitigation form and its terms were incorporated into Appellee's insurance policies, that Appellee must honor the mitigation form and inspection results on an insured's property for five years unless there has been a material change to the property, and that the trial court was the proper forum for issuing declaratory relief. If the trial court entered those declarations, Appellants requested that the court further declare that “the proper forum for Plaintiffs and Class Members to pursue a breach of contract action or other action for benefits based on those declarations is in this Court [the trial court] notwithstanding that damages in such an action would be in the form of overpaid premiums.”

Appellants attached several exhibits pertaining to Appellee to their Amended Complaint, including a blank homeowners application, a blank supplemental application, a blank Contract Information Form, and a sample Homeowners HO–3 Special Form Policy. Each of those forms was stamped “Approved” by the Office of Insurance Regulation (“OIR”). Appellants also attached Appellee's Homeowners Policy Program Manual Ratings Rules and a blank Uniform Mitigation Verification Inspection Form. As alleged by Appellants, the mitigation form contained the statement “[t]his verification form is valid up to five (5) years provided no material changes have been made to the structure.” Appellee's manual provided in part that “[t]he OIR–B1–1802 [mitigation form] is valid for five years provided no material changes have been made to the structure.”

Appellee moved to dismiss the Amended Complaint, arguing that Appellants had not alleged that they had exhausted administrative remedies available in section 627.371, Florida Statutes. Appellee relied upon the Fourth District's decision in Serchay v. State Farm Florida Insurance Co., 25 So.3d 652 (Fla. 4th DCA 2010), in support of dismissal. Following a hearing on the motion, the trial court entered the Order Granting Defendant's Motion to Dismiss, wherein it determined that dismissal was appropriate based upon Serchay. The court found that the injury Appellants complained of was the reduction of wind mitigation credits and the corresponding increase in premiums they and others were required to pay to Appellee for homeowners coverage. Quoting the Amended Complaint, the trial court further found that Appellants sought damages in the form of overpaid premiums. The court subsequently entered a Final Order of Dismissal of Plaintiffs' First Amended Complaint. This appeal followed.

As we have explained, “[C]onsiderable deference is accorded a trial court's order of dismissal of a complaint seeking a declaratory judgment.” Fla. Pub. Emps. Council 79, AFSCME v. Dep't of Children & Families, 745 So.2d 487, 490 (Fla. 1st DCA 1999). As such, the standard of review is abuse of discretion. Id. (citing Abruzzo v. Haller, 603 So.2d 1338, 1339 (Fla. 1st DCA 1992), which held, “Typically the standard of review of the dismissal of a complaint with prejudice is de novo.... However, when dismissing a count in a complaint seeking a declaratory judgment, the trial court's ruling is accorded great deference.”); see also Kelley v. Kelley, 147 So.3d 597, 601 (Fla. 4th DCA 2014) (“Since a trial court's decision to dismiss a complaint seeking declaratory relief is afforded great deference, ... our review is for an abuse of discretion.”); Palumbo v. Moore, 777 So.2d 1177, 1178 (Fla. 5th DCA 2001) (same); Webb v. Town Council of Town of Hilliard, 766 So.2d 1241, 1243 (Fla. 1st DCA 2000) (same).

Section 627.711(1), Florida Statutes (2012), requires insurers, using a form prescribed by OIR, to:

clearly notify the applicant or policyholder of any personal lines residential property insurance policy ... of the availability and the range of each premium discount, credit, other rate differential, or reduction in deductibles, and combinations of discounts, credits, rate differentials, or reductions in deductibles, for properties on which fixtures or construction techniques demonstrated to reduce the amount of loss in a windstorm can be or have been installed or implemented.

Section 627.371(1), Florida Statutes (2012), the statute at issue, provides in part:

Any person aggrieved by any rate charged, rating plan, rating system, or underwriting rule followed or adopted by an insurer, and any person aggrieved by any rating plan, rating system, or underwriting rule followed or adopted by a rating organization, may herself or himself or by her or his authorized representative make written request of the insurer or rating organization to review the manner in which the rate, plan, system, or rule has been applied with respect to insurance afforded her or him.

(Emphasis added). If a request is not granted within thirty days after it is made, the aggrieved party may treat it as rejected and may file a written complaint with OIR. Id.

In Elite II v. American Casualty Co. of Reading, Pennsylvania, No. 8:05–CV–1623–T–17MAP, 2006 WL 1319540, at *1 (M.D.Fla.2006), the district court explained that the complaint in the case sought a declaratory judgment on the right to premium credits under the Florida Contracting Classification Premium Adjustment Program (“FCCPAP”), monetary damages, punitive damages for bad faith, and attorney's fees. The defendant requested the dismissal of the cause for failure to state a claim because the plaintiff did not exhaust its administrative remedies under section 627.371, Florida Statutes. Id. The defendant argued that any claim that an insurance rate was improperly applied must be administratively reviewed in accordance with the regulatory scheme and that Florida law precluded the plaintiff from circumventing the required review process by bringing suit. Id. The plaintiff argued that the case was “not about the calculation of rates and the administrative remedies to challenge those calculations” and that the defendant knowingly refused to refund the premium overpaid by the plaintiff. Id. The district court denied the motion to dismiss, setting forth in part:

Although this case is about the total premium due for the policies issued to Plaintiff, Plaintiff is not

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