People's Trust Ins. Co. v. Tosar
| Decision Date | 15 December 2021 |
| Docket Number | 3D20-0729 |
| Citation | 332 So.3d 552 |
| Parties | PEOPLE'S TRUST INSURANCE COMPANY, Appellant, v. Miguel TOSAR and Maria Tosar, Appellees. |
| Court | Florida District Court of Appeals |
Beck Law, P.A., and Joshua S. Beck (Boca Raton); Brett R. Frankel, Jonathan Sabghir and Robert B. Gertzman (Deerfield Beach), for appellant.
Mintz Truppman, P.A., and Timothy H. Crutchfield, for appellees.
Before SCALES, HENDON and MILLER, JJ.
In this first party insurance action, People's Trust Insurance Company ("People's Trust"), the defendant below, appeals an April 23, 2020 order granting final summary judgment in favor of the plaintiffs below, Miguel and Maria Tosar ("the insureds"). The trial court's order directs People's Trust to issue a loss payment to the insureds in the amount of an appraisal award achieved through a court-ordered appraisal process. Because, under a policy endorsement, People's Trust timely exercised its right to repair the insureds' damaged property instead of making a loss payment, we reverse the challenged order and remand with directions for entry of an order requiring the insureds to comply with the policy's endorsement.
People's Trust issued a homeowner's insurance policy covering the insureds' Miami home for the policy period between November 4, 2016 and November 4, 2017. The policy insured the dwelling (coverage A) and other structures (coverage B) at replacement cost value and included a $6,180 hurricane deductible.
In return for a premium discount, the subject policy contained a Preferred Contractor Endorsement ("the policy endorsement"). The policy endorsement gave People's Trust a right-to-repair option, i.e., after inspecting a covered loss, People's Trust had the option to select its own contractor, Rapid Response Team, LLC ("RRT"), to repair the damages to the insureds' property in lieu of issuing a loss payment that would otherwise be due under the policy.1 The policy endorsement required People's Trust to notify the insureds of its election of its right to repair within thirty days of its inspection of the reported loss. Should People's Trust exercise its right to repair, the policy required the insureds to pay the policy deductible and to execute the necessary work authorizations and permit applications for RRT to perform the repairs.2
The policy endorsement also contained an appraisal clause that applied only when People's Trust exercised its right to repair and when the parties disagreed as to the amount of the covered loss and the scope of repairs to be performed by RRT. The appraisal clause expressly reiterated that the repairs to be performed by RRT were in lieu of any loss payment under the policy.3
The policy endorsement also modified that portion of the policy providing additional coverage (under coverage E) for reasonable expenses incurred by the insureds immediately following a loss to protect damaged property from further damage (i.e., the "Reasonable Repairs" provision).4 Essentially, this modification required the insureds to notify People's Trust prior to performing these Reasonable Repairs to allow the insurer to select RRT to perform them. This modification also limited People's Trust's liability in the event that People's Trust was prevented from selecting RRT to perform these Reasonable Repairs.
Relatedly, and of significant importance to this case, to protect People's Trust ability to exercise its right-to-repair option, the policy endorsement also significantly modified the insureds' post-lost duty to protect the property from further damage (i.e., "SECTION I – CONDITIONS C. Duties After Loss 5."). As modified by the policy endorsement, the relevant post-lost conditions are as follows:
The policy endorsement's post-loss duty number 5 not only included the original policy's requirement that the insureds protect the property from further damage, but it also required the insureds to notify People's Trust in the event that a contractor was required either to protect the property from further damage (i.e., Reasonable Repairs under Coverage E) or to repair the property (i.e., a covered loss under Coverages A and B). Like the policy endorsement's Reasonable Repairs provision, the policy endorsement's post-loss duty number 5 similarly limited People's Trust's liability where the insureds' failure to notify People's Trust prevented the insurer from exercising its right to repair.
The insureds' home was damaged by Hurricane Irma on September 10, 2017, and they notified People's Trust of the loss. On October 26, 2017, People's Trust's field adjuster timely inspected the home and prepared an Estimate and Scope of Repairs. The field adjuster's report estimated that the cost of repairing the damage to the insureds' dwelling and other structures, at replacement cost value, was $7,083.64. The report further explained that once the $6,180 hurricane deductible and $32.49 for non-recoverable depreciation were subtracted from the total, the insureds' net claim was $871.15.
On November 24, 2017, People's Trust sent the insureds a letter notifying the insureds that their loss was covered under the policy. In this letter, People's Trust elected "to use its preferred contractor, Rapid Response Team, LLC ... to repair [the insureds'] property to its pre-loss condition by making repairs to all covered damages" that "exceeded [the insureds'] policy's deductible amount of $6180." The November 24, 2017 letter further notified the insureds that if they disagreed with the Estimate and Scope of Repairs prepared by People's Trust's field adjuster, the insureds should provide a sworn statement in proof of loss detailing what the insureds believed to be the proper scope of repairs and their own repair estimate. Finally, the November 24, 2017 letter informed the insureds that "[s]hould you disagree with our assessment of the cost of repairs to your damages, your policy provides a mechanism for resolving that disagreement and thereafter ... we will proceed with the repairs at that time, including making arrangements with you for the payment of your deductible." Attached to the November 24, 2017 letter were People's Trust's Estimate and Scope of Repairs, a copy of the policy endorsement and a blank statement in proof of loss form.
On May 29, 2018, the insureds sent People's Trust a letter disputing People's Trust's Estimate and Scope of Repairs and providing their own repair estimate. On July 3, 2018, People's Trust sent the insureds a letter that acknowledged receipt of the insureds' competing repair estimate and, because there was a disagreement as to the scope and cost of repairs, demanded an appraisal pursuant to the policy endorsement's appraisal clause.
Instead of going to appraisal, however, on August 24, 2018, the insureds filed the instant first-party action against People's Trust in the Miami-Dade County Circuit Court. In its two-count complaint,6 the insureds falsely alleged that People's Trust's November 24, 2017 letter had denied coverage for their loss.
In lieu of filing an answer and affirmative defenses, on October 12, 2018, People's Trust filed its omnibus "Motion to Compel Appraisal, Motion to Compel Defendant's Right to Repair, and Motion to Compel Payment of the Policy's Hurricane Deductible and Memorandum of...
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People's Trust Ins. Co. v. First Call 24/7, Inc.
...and obligating People's Trust's preferred contractor to perform the repairs within a reasonable time. People's Tr. Ins. Co. v. Tosar , 332 So. 3d 552, 559–60 (Fla. 3d DCA Dec. 15, 2021). Once People's Trust exercised its option to repair, the homeowner was bound to execute all work authoriz......