Dorra v. Rockhill Ins. Co., CASE NO.: 19-CV-20169-SMITH/LOUIS

• Decision Date: 09 September 2019
• Docket Number: CASE NO.: 19-CV-20169-SMITH/LOUIS
• Parties: MAXIMO DORRA, Plaintiff, v. ROCKHILL INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Florida

MAXIMO DORRA, Plaintiff,
v.
ROCKHILL INSURANCE COMPANY, Defendant.

CASE NO.: 19-CV-20169-SMITH/LOUIS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

September 9, 2019

ORDER

THIS CAUSE is before the Court on Plaintiff Maximo Dorra's ("Plaintiff") Motion for Partial Summary Judgment, filed on June 10, 2019 (ECF No. 32) ("Motion"). Defendant Rockhill Insurance Company ("Defendant") filed its Response on June 24, 2019 (ECF No. 40) ("Response"). Plaintiff did not file a reply. The Court has carefully reviewed the Motion, the Response, all supporting and opposing submissions, and the record as a whole. For the reasons set forth below, Plaintiff's Motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND¹

On September 10, 2017, Hurricane Irma made landfall on South Florida, causing damage to property then owned by Plaintiff located at 16426 NE 32^nd Avenue, North Miami Beach, Miami-

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Dade County, FL 33160 (the "Property") (ECF No. 31-2 at ¶¶ 4-5). The Property was covered for hurricane-related damages by Plaintiff's insurance policy with Defendant, Policy Number RCPKORC01057301 (the "Policy"), with effective dates of May 11, 2017 to May 11, 2018 (ECF No. 10 at 6-7; ECF No. 31-1 at 13). As set forth in the statement of undisputed material facts, the Policy contains the following relevant provisions:

SECTION I - PERILS INSURED AGAINST

A. Coverage A - Dwelling And Coverage B - Other Structures

1. We insure against direct physical loss to property described in Coverages A and B.

(...)

SECTION I - CONDITIONS

C. Duties After Loss
In case of a loss to covered property, we have no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us. These duties must be performed either by you, an "insured" seeking coverage, or a representative of either:

1. Give prompt notice to us or our agent, except that a claim, supplemental claim or reopened claim for loss or damage caused by hurricane or other windstorm must be given to us in accordance with the terms of this policy within three years after the hurricane first made landfall or a windstorm other than hurricane caused the covered damage. (Supplemental claim or reopened claim means an additional claim for recovery from us for losses from the same hurricane or other windstorm which we have previously adjusted pursuant to the initial claim.) This provision concerning time for submission of a claim, supplemental claim or reopened claim does not affect any limitation for legal action against us as provided in this policy under the Suit Against Us Condition, including any amendment to that condition.

(...)

5. Cooperate with us in the investigation of a claim;

(...)

7. As often as we reasonably require:

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a. Show the damaged property;
b. Provide us with records and documents we request and permit us to make copies; and
c. Submit to examination under oath, while not in the presence of another "insured", and sign the same.

(...)

H. Suit Against Us
No action can be brought against us unless there has been full compliance with all of the terms under Section I of this policy and the action is started within two years after the date of loss.

(ECF No. 31-1).

On November 29, 2017, Plaintiff or his public adjuster reported a claim to Defendant that Hurricane Irma had damaged the Property (ECF No. 31-2 at ¶ 5; ECF No. 31-3 at 16). Defendant assigned the loss to claim number PR-0000000-192587 (the "Claim") and inspected the Property three times on or about December 14, 2017, September 27, 2018, and February 20, 2018 (ECF No. 31-2 at ¶ 6). Defendant did not send to Plaintiff any correspondence requesting documents, any notification that Plaintiff had failed to timely report his claim, or any notification that Plaintiff had failed to cooperate with Defendant in its investigation of the claim (id. at ¶¶ 13-15).

On February 27, 2018, Defendant paid Plaintiff in the amount of $143.43, which was the difference in Defendant's estimate of the Property's damage ($12,948.39) minus the deductible ($12,690.00) (id. at ¶ 7). A portion of this payment was to go towards repairing, but not replacing, the Property's roof (id. at ¶ 8).

On November 8, 2018, Plaintiff through counsel sent Defendant correspondence which conveyed Plaintiff's disagreement with Defendant's assessment of the damages and requested additional payment (id. at ¶ 10). The letter states as follows:

Please be advised that the Insured does not agree with Rockhill Insurance Company's assessment of the damages in this claim as falling under the hurricane deductible. At this time, the Insured is requesting a supplemental payment. This

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supplemental payment request is a request for additional sums under the initial claim, not a supplemental claim. A copy of the Insured's supporting estimate is attached hereto. If Rockhill does not respond to this correspondence within 3 business days, it will be assumed that Rockhill does not agree with the Insured's request. As such, the Insured will pursue any and all available legal remedies.

(ECF No. 31-2 at 10) (emphasis in original). Plaintiff's sworn affidavits additionally explain that Plaintiff was not requesting that Defendant compensate him for any new damages apart from what he requested in his initial claim (id. at ¶ 11). Defendant never responded to Plaintiff's correspondence (ECF No. 31-2 at ¶ 12).

Eleven days later, Plaintiff filed this action against Defendant on November 19, 2018, in state court. The case was removed to federal court on January 11, 2019, based on diversity jurisdiction (ECF No. 1). The operative Amended Complaint brings one count against Defendant for breach of contract, alleging that Defendant had breached the Policy by refusing to pay the amount of the insurance proceeds due to Plaintiff as a result of the damages to the Property (ECF No. 8). Defendant filed its Answer, Affirmative Defenses, and Counterclaim on February 11, 2019, seeking declaratory relief that it does not owe Plaintiff any additional money under the Policy (ECF No. 10). The present Motion was filed on June 10, 2019 (ECF No. 32).

II. LEGAL STANDARD

Summary judgment is appropriate when "the pleadings . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); HCA Health Servs. of Ga., Inc. v. Employers Health Ins. Co., 240 F.3d 982, 991 (11th Cir. 2001). Once the moving party demonstrates the absence of a genuine issue of material fact, the non-moving party must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). The Court

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must view the record and all factual inferences therefrom in the light most favorable to the non-moving party and decide whether "'the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting Anderson, 477 U.S. at 251-52)).

In opposing a motion for summary judgment, the non-moving party may not rely solely on the pleadings, but must show by affidavits, depositions, answers to interrogatories, and admissions that specific facts exist demonstrating a genuine issue for trial. See Fed. R. Civ. P. 56(c), (e); see also...