Homeowners’ Insurance – Neither statute, nor “suit against us” provision of policy make completion of neutral eval a precondition to filing suit

Insurance — Homeowners — Sinkhole claim — Neutral evaluation is not a
presuit requirement — Statute does not preclude filing of lawsuit during
pendency of neutral evaluation process — Trial court erred in finding that
insured was required to participate in and complete neutral evaluation process
before filing suit and in entering summary judgment for insurer on basis that
insured breached “Suits Against Us” provision of policy by prematurely filing
suit against insurer

EZEQUIEL CUEVAS, Appellant, v. TOWER HILL SIGNATURE INSURANCE COMPANY f/k/a
Royal Palm Insurance Company, Appellee. 2nd District. Case No. 2D13-2230.
Opinion filed January 30, 2015. Appeal from the Circuit Court for Hillsborough
County; Michelle Sisco, Judge. Counsel: Robert E. Biasotti and Annette Marie
Lang of Biasotti and Associates, St. Petersburg, for Appellant. Anthony J. Russo
and Curt Allen of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Appellee.

(BLACK, Judge.) Ezequiel Cuevas appeals the final summary judgment entered in
favor of Tower Hill Signature Insurance Company1 in a dispute over a sinkhole insurance claim.
Because the trial court erred in finding that Mr. Cuevas’ lawsuit was barred
once Tower Hill initiated the statutory neutral evaluation process, we reverse
and remand for further proceedings.

The facts relevant to our holding are few. Mr. Cuevas’ home was insured under
a policy issued by Tower Hill and included sinkhole coverage. Mr. Cuevas made a
claim under his policy, and Tower Hill acknowledged the existence of an active
sinkhole and stated Mr. Cuevas’ policy provided coverage for the loss.
Subsequently, both Tower Hill and Mr. Cuevas procured remediation proposals. The
proposals suggested differing remediation approaches and markedly differing
costs for remediation. As a result, Tower Hill initiated the neutral evaluation
process pursuant to section 627.7074, Florida Statutes (2011). Shortly
thereafter, Mr. Cuevas filed his lawsuit. Tower Hill filed motions for summary
judgment; however, the trial court stayed the litigation, as required by section
627.7074(10). Following the conclusion of neutral evaluation, the stay was
lifted and the trial court heard Tower Hill’s Amended First Motion for Summary
Judgment (Violation of Section 627.7074(10), Florida Statutes, and “Suit Against
Us” Provision).

Tower Hill contended that section 627.7074 prohibits the initiation of
judicial proceedings until the neutral evaluation process is complete. Further,
it asserted that because Mr. Cuevas’ policy specifically incorporated section
627.7074(10), making it a term and condition of the contract, Mr. Cuevas
violated the “Suit Against Us” provision of his insurance contract when he
prematurely filed suit. The “Suit Against Us” provision states 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.” Therefore,
according to Tower Hill, Mr. Cuevas materially breached his policy and relieved
Tower Hill of any further contractual responsibility.

Finding that Mr. Cuevas was required to participate in and complete the
neutral evaluation process before filing suit and that his suit was filed
prematurely and in contravention of both section 627.7074 and the insurance
contract, the court granted final summary judgment in favor of Tower Hill. The
summary judgment effectively released Tower Hill from its obligations under the
insurance policy and foreclosed Mr. Cuevas from recovering his benefits.

Section 627.7074(10) provides as follows: “Regardless of when noticed, any
court proceeding related to the subject matter of the neutral evaluation shall
be stayed pending completion of the neutral evaluation and for 5 days after the
filing of the neutral evaluator’s report with the court.”2 This court has previously held that section
627.7074 “provides neutral evaluation as both a potential precursor and as a
parallel, contemporaneous process” to judicial proceedings. Citizens Prop.
Ins. Corp. v. Trapeo, 136 So. 3d 670, 678 (Fla. 2d DCA 2014). Thus, neutral
evaluation is not a presuit requirement. Id. The plain language of the
statute does not preclude the filing of a lawsuit during the pendency of the
neutral evaluation process. Cf. §§ 400.0233(3)(a), (providing that “[n]o
suit may be filed for a period of 75 days after [presuit] notice is mailed to
any prospective defendant”); 429.293(3)(a) (same); 766.106(3)(a), Fla. Stat.
(2014) (providing that “[n]o suit may be filed for a period of 90 days after
[presuit] notice is mailed to any prospective defendant”). And the trial court’s
finding otherwise was error. Because initiation of neutral evaluation does not
preclude the filing of a lawsuit nor violate the stay provision of section
627.7074, it also does not violate the “Suits Against Us” provision of the
insurance policy. Tower Hill was not entitled to judgment as a matter of law on
these bases.

Accordingly, we reverse the final summary judgment in favor of Tower Hill and
remand for further proceedings.

Reversed and remanded. (NORTHCUTT and CRENSHAW, JJ., Concur.)

__________________

1Tower Hill Signature Insurance Company
was formerly known as Royal Palm Insurance Company.

2Although the difference in statutory
language between the 2010 and 2011 versions of the stay provision of section
627.7074 has no effect on this case, we reiterate that the stay provision is
procedural and appropriate for retroactive application. See Citizens
Prop. Ins. Corp. v. Trapeo, 136 So. 3d 670, 676 (Fla. 2d DCA 2014).