Goldberg v. Universal Prop. & Cas. Ins. Co., No. 4D19-3202
| Decision Date | 09 September 2020 |
| Docket Number | No. 4D19-3202 |
| Citation | 302 So.3d 919 |
| Parties | Brandon GOLDBERG, Appellant, v. UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
Douglas H. Stein of Douglas H. Stein, P.A., Coral Gables, for appellant.
Elizabeth K. Russo and Paulo R. Lima of Russo Appellate Firm, P.A., Miami, and Walton Lantaff Schroeder & Carson LLP, Miami, for appellee.
Brandon Goldberg appeals a final summary judgment entered in favor of Universal Property and Casualty Insurance Company in his action for breach of contract. We affirm in part and reverse in part. Summary judgment was proper as to the coverage on the dwelling, because Goldberg did not comply with the policy requirement that he submit a supplemental claim prior to filing suit; summary judgment was improperly entered on the personal property claim, because Universal's denial of all coverage waived its right to insist on Goldberg's compliance with the supplemental claim requirement of the policy.
Goldberg's condominium unit was damaged by Hurricane Irma on September 11, 2017. On the date of the loss, the condominium was insured under a homeowner's policy issued by Universal. Relevant to this appeal, the policy provided the following coverages: Coverage A (Dwelling) and Coverage C (Personal Property).
(emphasis added).
The policy was amended by an endorsement titled "Unit Owners Coverage A," which modified Coverage A as follows: "We insure against risk of direct loss to property described in Coverage A, only if that loss is a physical loss to property." This endorsement did not impact personal property coverage under Coverage C.
The policy also contains several other provisions, drawn from Florida statutes, relevant to this appeal. First, the policy contains an endorsement requiring an insured to provide Universal with notice of a "supplemental claim" caused by the peril of windstorm or hurricane:
You must give notice of a claim, a supplemental claim , or reopened claim for loss or damage caused by the peril of windstorm or hurricane, with us in accordance with the terms of this policy and within three years after the hurricane first made landfall or the windstorm caused the covered damage. For purposes of this Section, the term "supplemental claim" or "reopened claim" means any additional claim for recovery from us for losses from the same hurricane or windstorm which we have previously adjusted pursuant to the initial claim ....
(emphasis added). This provision tracks section 627.70132, Florida Statutes (2017).
Second, the policy contains this provision governing loss settlement:
(emphasis added).
Finally, the policy contains a "no action" clause stating that "[n]o action can be brought unless the policy provisions have been complied with and the action is started within five (5) years after the date of loss."
On September 28, 2017, Goldberg submitted a Property Loss Notice to Universal, describing the loss as follows:
On October 14, 2017, an adjuster inspected Goldberg's condominium on Universal's behalf. The next day, the adjuster completed an estimate stating that the replacement cost value for the loss to the dwelling was $12,960.80, which, after depreciation, reflected an actual cash value of $9,158.43. After subtracting the $1,000 deductible, the estimate arrived at a net claim value of $8,158.43.
The estimate did not include any payment for damage to personal property. Two photographs the adjuster submitted to Universal contained the notation that "[p]ersonal property damaged by wind driven rain, no coverage under the policy." In a deposition, Universal's corporate representative testified that there was no coverage for Goldberg's personal property because there was "no storm-created opening." The representative elaborated that "[t]he field adjuster did not observe any storm-created opening." The representative conceded that Universal had not relied upon any sort of causation expert to make its coverage decision with respect to coverage for personal property.
On October 16, 2017, Universal issued a payment to Goldberg in the amount of $8,158.43, which was its estimate of the actual cash value of the loss, less the $1,000 deductible.
That same day, Universal sent Goldberg a letter advising him that his policy included "a replacement cost option for the dwelling portion of the loss." The letter explained that "depreciation has been applied and is recoverable as work is performed and expenses are incurred," and that "[t]he total of your recoverable depreciation would be up to $3,802.37." The letter further stated: "Once any additional expenses are verified, we will evaluate your eligibility for disbursement of the recoverable depreciation."
About three weeks later, Goldberg called Universal and "advised that he had a proposal which was higher than" Universal's estimate. Universal asked Goldberg to forward the proposal, but he never did. Universal's corporate representative testified that Universal never received an estimate from Goldberg, that Goldberg never asked Universal to pay a specific amount, that Goldberg never submitted an inventory form for damaged contents, and that for Universal to have paid additional amounts in this case would have required the company to guess the amount that Goldberg claimed in additional damages.
On December 21, 2017, Goldberg's counsel sent Universal a letter of representation, requesting various categories of documents related to the claim. The letter stated that "this office is requesting this information prior to commencing any litigation in the interest of attempting to amicably resolve this matter." The attorney's letter did not provide Universal with a supplemental claim or a damage estimate.
Universal did not provide any documents in response to Goldberg's counsel's letter. On January 30, 2018, an attorney for Goldberg called Universal requesting to know the status of the claim.
The next day, Goldberg filed a one-count complaint against Universal for breach of contract, alleging that Universal "underpaid the claim," "refused to pay the full value of the claim," and "materially breached the Policy by failing to pay all of the benefits due and owing."
Universal filed an answer and affirmative defenses, contending that it had "accepted coverage and fully paid all covered damages under the policy." As an affirmative defense, Universal asserted that Goldberg never filed a supplemental claim and never provided Universal with a separate estimate prior to filing suit.
After discovery, Universal moved for summary judgment on Goldberg's failure to submit a supplemental claim. Universal argued that it was entitled to summary judgment because Goldberg did not submit an estimate or a supplemental claim prior to filing suit.
Goldberg filed a response to the motion for summary judgment, contending that he was not required to submit a supplemental claim because Universal breached the policy by (1) failing to issue payment for at least the actual cash value of the insured loss, less any deductible, as required by both the policy and section 627.7011(3), Florida Statutes, and (2) failing to issue payment for the loss to his personal property.
At the hearing on the motion for summary judgment, the trial judge focused on whether there was any record evidence of a breakdown in the claims process before Goldberg filed suit.
Ultimately, the trial court granted Universal's motion for summary judgment, ruling that "[p]laintiff failed to submit a supplemental claim as required by the terms and conditions of the subject policy and Florida law, with resulting prejudice to Defendant." The trial court denied Goldberg's motion for rehearing, but clarified that nothing in its ruling would preclude Goldberg from "filing a supplemental claim as permitted under the subject policy."
The standard of review of an order granting summary judgment is de novo. Gomez v. Fradin , 41 So. 3d 1068, 1071 (Fla. 4th DCA 2010). A movant is entitled to summary judgment "if the pleadings and summary judgment evidence on file 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." Fla. R. Civ. P. 1.510(c). "[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact." Albelo v. S. Bell , 682 So. 2d 1126, 1129 (Fla. 4th DCA 1996).
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