Bankers Sec. Ins. Co. v. Brady, 5D99-1357.

• Decision Date: 18 August 2000
• Docket Number: No. 5D99-1357.,5D99-1357.
• Citation: 765 So.2d 870
• Parties: BANKERS SECURITY INSURANCE COMPANY, Appellant/Cross-Appellee, v. Robert W. BRADY, Jr., Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

765 So.2d 870

BANKERS SECURITY INSURANCE COMPANY, Appellant/Cross-Appellee, v. Robert W. BRADY, Jr., Appellee/Cross-Appellant.

No. 5D99-1357.

District Court of Appeal of Florida, Fifth District.

August 18, 2000.

Janet L. Brown of Boehm, Brown, Seacrest, Fischer & LeFever, P.A., Maitland, for Appellant/Cross-Appellee.

Randy E. Schimmelpfennig of Billings, Cunningham, Morgan & Boatwright, P.A., Orlando, for Appellee/Cross-Appellant.

W. SHARP, J.

Bankers Security Insurance Company appeals from a final summary judgment rendered against it in a lawsuit brought by Brady for breach of an oral settlement agreement. Brady cross-appeals the trial court's summary judgment ruling that Bankers failed to pay the full amount of his living expenses under his homeowners' insurance policy issued by Bankers. We affirm.

Brady's home, which was covered by a homeowners' insurance policy with Bankers, was damaged by a lightning strike and fire on July 6, 1998. Bankers retained independent adjuster James Shea and Brady retained public adjuster Ron Livingstone to determine the amount of damages due under the policy.

According to Brady, Shea and Livingstone reached an agreement that the dwelling loss totaled $65,000.00, give or take a few hundred dollars. Shea was supposed to contact Livingstone on July 27, 1998, with the final figure. Instead, he called at 4:30 p.m. to say he was no longer the adjuster on the case and that Gary Waytowich from Bankers had assumed responsibility for the claim.

A few days later, Brady sued Bankers, alleging breach of the oral settlement agreement. Bankers then notified Livingstone it was demanding an appraisal of Brady's loss, pursuant to the policy. However, it paid Brady $55,000.00. Brady amended his complaint to add a complaint for breach of the insurance contract, based on the fact that Bankers failed to pay his additional living expenses provided by the policy. He sought a determination from the court that the provision in the policy, which provided that Bankers would only pay 80% of his additional living expenses, is "coinsurance" and not enforceable because it lacked the coinsurance disclosure required by law.¹

Bankers filed a motion alleging the lawsuit should be dismissed or abated pending compliance with the appraisal portions of the policy. The trial court denied the motion because only one portion of Brady's complaint dealt with breach of the insurance policy.

On December 10, 1998, Brady retained a contractor to do repairs on his home. Bankers paid Brady $7,963.57, which included overhead and profit of $5,846.21.

Bankers moved for summary judgment on February 19, 1999, alleging the undisputed facts showed the parties never reached a settlement agreement and that Brady was not entitled to overhead or profit beyond the amounts in his contract with the general contractor he had retained. It also claimed its payment of 80% of the additional living expenses did not constitute coinsurance, and thus no disclosure was required. Finally, Bankers alleged Brady breached the insurance contract because he failed to participate in the appraisal process provided for by the policy.

Brady also moved for summary judgment. He argued there is no provision in the policy which authorizes Bankers to withhold overhead and profit until he signs a contract with a general contractor. He had done much of the repair work in his home himself, causing him to miss work and use his personal time.

The trial court ruled there was no genuine issue of material fact as to these matters. It ruled Livingstone and Shea, as agents of the parties, had entered into a verbal agreement determining the amount of damage to the building as being approximately $65,000.00, and that Bankers cannot withhold overhead and profit. It also ruled Bankers improperly (too late) sought to invoke the appraisal provisions of the policy. The court ruled against Brady, holding that the part of the policy covering additional living expenses was not coinsurance, and it was therefore enforceable as to the 80% limitation.

The depositions of Livingstone and Shea established that both understood they had the authority to assess the damage, and reach an agreement as to what the cost of repairs should be. Both felt they had reached an agreement as to the amount of damages, and both were upset when Waytowich removed Shea from the file. A computer entry for Bankers indicated Shea met with Livingstone to "resolve" the building damage issue. In Shea's first report to Bankers, he stated his job was to "reach an agreement with the contractor and public adjuster on the cost of repairs," and "reach agreement on total cost of repairs." And, in Shea's second and final report to Bankers, Shea stated he had "agreed in principle to accept a compromised offer of approximately $65,000.00 for the dwelling portion of the loss."

However, Waytowich contended the word "resolve" meant only that Shea was to give Bankers his final estimate of damages and have something ready to submit to Bankers for its approval. He denied that Shea had authority to bind Bankers.

Although there appears to be some proof that Shea lacked final authority to bind Bankers as to the building damage claim, it is very slim. Due to the fact that Bankers has paid Brady $55,000 (plus an amount close to $8,000.00), and would have paid an additional 10% profit and 10% overhead, for a total of approximately $65,000.00, there appears to be little point in remanding this issue for trial.

The record discloses without dispute that Brady and Bankers both retained adjusters. An adjuster by definition is a "representative of the insurer who seeks to determine the extent of the firm's liability for loss when a claim is submitted. A person who acts for the insurance company or the insureds in the determination and settlement of claims." Black's Law Dictionary. Their behavior and understanding in this case, as documented by Shea's reports to Bankers, clearly indicate he had damage settlement authority for Bankers, and he exercised it prior to being taken off the case by Waytowich.

Having concluded there was a binding settlement reached for $65,000.00, we need not address the additional issue of whether Bankers could withhold overhead and profit. It apparently has paid the settlement reached by Shea, less overhead and profit. But ...