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July 21, 2017 by admin

Insurance — Homeowners — Trial court also erred in entering summary judgment for insurer on insured’s claim for damages to the roof itself on the ground that the roof damage was excluded by the “wear and tear” exclusion

42
Fla. L. Weekly D1565a
Top of Form

Insurance
— Homeowners — Trial court erred in entering summary judgment for insurer on
insured’s breach of contract action claiming that insurer’s payments for
rainwater damage to home’s interior caused by roof leaks were less than the
actual cash value of the damage where widely divergent estimates of covered
repair costs created a genuine issue of material fact — Exclusions — Trial
court also erred in entering summary judgment for insurer on insured’s claim
for damages to the roof itself on the ground that the roof damage was excluded
by the “wear and tear” exclusion in the policy where insured has not yet
presented a proper claim to insurer for processing, so that questions regarding
both coverage and extent of loss have not yet crystallized for assertion as a
cause of action for breach

LATONYA FRANCIS, Appellant, vs.
TOWER HILL PRIME INSURANCE COMPANY, Appellee. 3rd District. Case No. 3D16-2114.
L.T. Case No. 15-23315. Opinion filed July 12, 2017. An Appeal from the Circuit
Court for Miami-Dade County, Thomas J. Rebull, Judge. Counsel: The Mineo
Salcedo Law Firm, P.A., and Nathan Teplitsky (Davie); Fox & Loquasto and
Gray Proctor (Orlando), for appellant. Rumberger, Kirk & Caldwell and
Nicole Sieb Smith and Allan J. Rotlewicz, for appellee.

(Before ROTHENBERG, C.J., and SUAREZ
and SALTER, JJ.)

(SALTER, J.) Latonya Francis appeals
a final summary judgment in favor of her insurer (Tower Hill Prime Insurance
Company, “Tower Hill”), regarding her claims for rainwater damage to her home’s
interior caused by roof leaks. We reverse, finding that genuine issues of
material fact exist regarding (1) Tower Hill’s adjustment and payment of the
“actual cash value” of the damage covered by Ms. Francis’s insurance policy,
and (2) the applicability of the policy’s exclusion for “wear and tear” to a
vague, unliquidated, and inchoate claim for damage to the roof itself.

Tower Hill paid the amount computed
by its own appraiser for the interior repairs, less the applicable policy
deductible and depreciation. The insurer notified her that the allowed amounts
were based on “actual cash value,” and that she could make a claim for
depreciation by providing documentation that the repairs were completed. See
Trinidad v. Florida Peninsula Ins. Co., 121 So. 3d 433, 439 n.3 (Fla.
2013).

Ms. Francis used the amounts paid by
Tower Hill to repair her roof rather than the damaged interior of the home.
Tower Hill advised Ms. Francis that she could submit supplemental claims for
damage revealed as repairs were made.

Ms. Francis sued Tower Hill for
breach of the insurance contract based on an assertion that Tower Hill’s
payments were less than the actual cash value of the damage to the interior.
Tower Hill moved for summary judgment, arguing that the insured was not
entitled to further compensation because she had received payment for the
actual cash value of her loss, and because she did not use the insurance
proceeds to repair the reported damage. Tower Hill maintained that Ms. Francis
had not submitted a claim for the roof itself, and that any such claim would
have been disallowed as a result of the exclusion for “wear and tear.”

The trial court granted Tower Hill’s
motion for final summary judgment and denied a subsequent motion for rehearing.
This appeal followed.

Analysis

The final summary judgment is
subject to de novo review. The trial court is obligated to consider the
“summary judgment evidence”1 in the record, and any reasonable
inferences from that evidence, in the light most favorable to the non-moving
party. Rocamonde v. Marshalls of Ma, Inc., 56 So. 3d 863, 864-65 (Fla.
3d DCA 2011). If the summary judgment evidence presents any genuine issue of
material fact, summary judgment should not be granted. Id.

In the present case, the record
contains Ms. Francis’s deposition testimony and the two sworn statements of
proof of loss prepared by her adjuster, Stellar Public Adjusting Services.
These two claims included line item estimates totaling over $139,000.00 (after
applying the $1,000.00 deductible to each claim), versus Tower Hill’s
appraiser’s (Pacesetter Claims Service) computation of approximately $15,000.00
(after deductible).2 Ms. Francis’s sworn statements of
proof of loss were signed by the adjuster before a notary and constituted
summary judgment evidence under Florida Rule of Civil Procedure 1.510(c). It
follows that the widely-divergent estimates of covered repair costs created a
genuine issue of material fact precluding summary judgment regarding the roof
leak claims. See Javellana v. Tower Hill Signature Ins. Co., 23
Fla. L. Weekly Supp. 1031 (Fla. 11th Cir. Ct. Mar. 31, 2016).

The next question is whether summary
judgment was also appropriate regarding any claim for damages to the roof
itself (in connection with the events that gave rise to the losses claimed for
leakage to the interior of the home for April 22 and 29, 2015). Tower Hill persuaded
the trial court that Ms. Francis could not raise roof damage issues because (a)
she did not include that damage (only water damage inside the house) during her
deposition, (b) neither she nor her adjuster made a claim for those costs in
accordance with the insurance policy, and (c) Tower Hill’s adjuster inspected
the property and demonstrated that any such roof damage was excluded by the
“wear and tear” exclusion in the policy.

On this point, Ms. Francis points to
Tower Hill’s letters enclosing the two payments made by Tower Hill. Although
Tower Hill only adjusted the two water damage claims, it notified Ms. Francis
“that the claim you have presented to Tower Hill Prime Insurance for roof
damage does not qualify for payment,” because “the damages to your roof are due
to wear and tear and not a covered peril.” The letters also state:

We also
want to bring to your attention that the amount of [payment allowed by Tower
Hill and enclosed] does not necessarily constitute a full and final settlement
of your claim for damages associated with your claimed loss. You may submit
supplemental claims for any damage discovered in the covered reconstruction and
repair of the above mentioned property.

In Tower Hill’s adjuster’s notes in
the record, evaluation of any roof damage was “pending until we can determine
any or if any shingles were damaged by covered peril,” because the adjuster
needed a tarp over the roof removed and photos of any damage before the
restoration (the notes state: “Possible supplement for roof only if storm
damage is found when tarp removed and photos can be taken.”). Thereafter, the
tarp was removed and Tower Hill’s adjuster determined that “the damages were
due to deterioration of the sealant around the vents of the roof as opposed to
weather storm(s).”

The complaint and record are
unhelpful regarding the extent of the claim regarding the roof, referring
vaguely to “the damage sustained to the building on the subject property,
damage to contents, and loss of use of the property and possessions taken from
therein.” Nevertheless, Tower Hill sought an adjudication in its motion for
summary judgment that any claim by Ms. Francis for roof damage was excluded by
the policy or otherwise precluded. The trial court’s unelaborated order that
Tower Hill’s motion for summary final judgment is “granted” must also be
reversed insofar as it may have addressed roof damage.

Based on our reading of the policy
language, complaint, and other summary judgment evidence, Ms. Francis has not
yet presented a proper, detailed, written claim for roof damage to Tower Hill
for processing, and questions regarding both coverage and extent of loss, if
any, have not crystallized for assertion as a cause of action for breach.

Finally, we reject Tower Hill’s
argument to the trial court and to us that this record is governed by Slayton
v. Universal Property & Casualty Insurance Co.
, 103 So. 3d 934 (Fla.
5th DCA 2012). Slayton held that an insurer’s payment of its own
adjuster’s estimate less the deductible (and agreeing to consider “supplemental
claims for additional damages discovered during or arising from the repairs”)
was not itself a breach of a policy authorizing such a procedure. Id. at
936. In that case, unlike the case before us, Slayton had failed to preserve
the argument that the insurer violated section 627.7011, Florida Statutes, as
in effect in 2009. In the present case, Ms. Francis raised and preserved the
argument.

For these reasons, we reverse the
final summary judgment and remand the case to the trial court for further
proceedings.

__________________

1Fla. R.
Civ. P. 1.510(c).

2Recoverable
depreciation was not included for this comparison, but would have been included
in payments to the insured upon proof that the repairs were completed.

* * *

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