Langhorne v. Fireman's Fund Ins. Co.

• Decision Date: 26 May 2006
• Docket Number: No. 3:05cv336/MCR/EMT.,3:05cv336/MCR/EMT.
• Citation: 432 F.Supp.2d 1274
• Parties: William Henry LANGHORNE, Plaintiff, v. FIREMAN'S FUND INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Florida

432 F.Supp.2d 1274

William Henry LANGHORNE, Plaintiff, v. FIREMAN'S FUND INSURANCE COMPANY, Defendant.

No. 3:05cv336/MCR/EMT.

United States District Court, N.D. Florida, Pensacola Division.

May 26, 2006.

WHF Wiltshire, Harrell Wiltshire, P.A., Pensacola, FL, for Plaintiff.

Juan Pablo Caceres, Butler Pappas Weihmuller Etc., Tampa, FL, for Defendant.

ORDER

RODGERS, District Judge.

Plaintiff William Henry Langhorne ("plaintiff') sues defendant Fireman's Fund Insurance Company ("defendant") alleging breach of contract for insurance coverage.¹ Presently before the court are the parties' cross motions for summary judgment (does. 21, 23),² on which the court heard oral argument April 19, 2006. As explained below, the motions are granted in part and denied in part.

BACKGROUND

Except as noted, the parties do not dispute the following facts. Defendant insured plaintiffs residence located at 42 Star Lake Drive, Pensacola, Florida, under a homeowner's policy entitled "Prestige Home Premier Policy" ("the policy") for a one-year term which commenced March 19, 2004.³ Inter alia, the policy provides coverage limits of $674,000.00 for the dwelling; $134,000.00 for "other structures"; $337,000.00 for personal property; and $202,000.00 for loss of use. The policy also contains an "Extended Replacement Cost Coverage" ("ERCC") endorsement, which provides coverage up to an additional 100% of that available under the underlying policy. Wind is a covered peril under the policy but flood is not.

On September 16, 2004, Hurricane Ivan made landfall along the Alabama/Florida coast, substantially damaging plaintiff's dwelling and destroying an outbuilding located on the premises. The parties disagree as to whether the destruction of the outbuilding was caused by wind (and thus covered under the policy) or by flood (and thus not covered). The parties also disagree as to whether the dwelling was a total loss. Additionally, there is a dispute over the cost to rebuild or repair the dwelling; plaintiff obtained a cost estimate of $1,871,275.00 for rebuilding but defendant asserts that repair costs amount only to $699,711.00. In November 2005 plaintiff had the dwelling demolished and the debris removed at a cost of $25,600.00. He has not constructed a new residence or outbuilding. Although reserving the right to dispute that the dwelling was a total loss, defendant paid plaintiff the underlying dwelling policy limit of $674,000.00, less a 2% deductible of $13,480.00, for a net payment of $660,520.00. It has paid plaintiff nothing for the loss of the outbuilding or for demolition.

In his complaint plaintiff asserts that he is due, and defendant has failed to pay by the deadline set by state authorities for settling Hurricane Ivan claims, the policy limits for the dwelling under the ERCC endorsement and for the outbuilding under the policy's underlying coverage⁴ Plaintiff seeks as relief for defendant's alleged breach of the insurance contract⁵ the amount of $792,624.00 plus prejudgment interest, a declaratory judgment; attorneys' fees, and costs.

SUMMARY JUDGMENT STANDARD

A motion for summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A factual dispute is "`genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing [substantive] law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir.1992). The court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in the nonmoving party's favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir.1992) (citation omitted). Nevertheless, a general denial unaccompanied by any evidentiary support will not suffice. See, e.g., Courson v. McMillian, 939 F.2d 1479 (11th Cir.1991); Hutton v. Strickland, 919 F.2d 1531 (11th Cir.1990). Furthermore, the court is not obliged to deny summary judgment for the moving party when the evidence favoring the nonmoving party is merely colorable or is not significantly probative. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Indeed, the existence of a scintilla of evidence in support of the nonmovant's position is insufficient; the test is "whether there is [evidence] upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. The moving party has the initial burden of showing the absence of a genuine issue as to any material act. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). Once the movant satisfies its burden of demonstrating the absence of a genuine issue of material fact, the burden shifts to the nonmovant to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348 (emphasis omitted).

DISCUSSION

Primarily at issue in this breach of insurance contract case⁶ is whether defendant is required to pay plaintiff the policy limits under the ERCC endorsement for the loss of or damage to plaintiff's dwelling and whether it is required to pay him the policy limits under both the underlying policy and the ERCC endorsement for the loss of the outbuilding.⁷ Additionally at issue is plaintiffs assertion that he is entitled to payment for the cost to demolish the dwelling.

As an initial matter, the court considers defendant's contention that dismissal of this action without prejudice is warranted for plaintiff's failure to satisfy certain conditions precedent to filing suit which are set forth in the policy. More specifically, defendant maintains that plaintiff failed to submit a contents inventory for his personal property claim, as required under General Policy Conditions, Section B. In addition, defendant points to Property Conditions, Section E, which states that "[n]o action can be brought unless the policy provisions have been fully complied with .. .." (Doc. 25, Exh. A, Policy Conditions Quick Reference Guide at 1-2, 6 of 8). According to defendant, under these provisions plaintiff was obliged to comply with the contents inventory requirement before commencing the instant action. Because he did not, defendant argues, the action should be dismissed as prematurely filed.

Under Florida law a "no action" clause in an insurance contract may operate as a condition precedent barring suit against the insurer until the insured complies with the relevant policy provisions. See Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300, 304-5 (Fla. 4th DCA 1995). Where the plaintiff has failed to comply with policy requirements before filing suit, the proper remedy generally is an abatement or stay of the claim. See Bierman v. Miller, 639 So.2d 627, 628 (Fla. 3d DCA 1994).

Here, there is no dispute that subsequent to the filing of this case plaintiff provided defendant with the required contents inventory and that the parties have since settled plaintiff's personal property claim. The court shall assume that in paying this claim defendant did not waive the identified condition precedent. Regardless, the court concludes that dismissal of this action would not be a proper remedy for failure to comply with the "no action" clause and that, in any event, there is no present need to abate or stay plaintiff's claims. The court therefore proceeds to consideration of the issues before it.

Dwelling

Plaintiff acknowledges that Section B(2) of the ERCC endorsement⁸ requires an insured to repair, rebuild, or replace his dwelling before the extended replacement cost coverage applies. Plaintiff also acknowledges that he has taken none of these required steps. He contends, however, that Section B(2) of the policy is void because it conflicts with Florida's Valued Policy Law ("VPL"), Fla. Stat. § 627.702.⁹ Defendant concedes arguendo, for the purpose of this claim only, that the dwelling is a total loss¹⁰ and that repair costs exceed the underlying coverage limits. Defendant argues that even in light of these concessions it has established `that plaintiff is not entitled to more than the dwelling policy limits. This is true, defendant submits, because the ERCC endorsement is consistent with the requirements of the VPL and the dwelling has not been repaired, as the endorsement requires in order to trigger coverage.

Defendant's position is correct. Section (8) of the VPL specifically contemplates that a property insurer, by endorsement, may provide insurance which indemnifies the insured for the difference between the insured value of his property and the amount he "actually expends" to repair, rebuild, or replace the property following loss or damage. The ERCC provision in plaintiff's policy does not offend the VPL. Rather, it fully satisfies the requirements of Section (8): it is an endorsement which agrees to provide insurance to indemnify plaintiff in the event of loss or damage to his dwelling for the difference between the underlying policy limits and the amount he actually expends to repair, rebuild, or replace the dwelling. In the court's view, there is no...