Matthew Scarborough

Last Month in Florida Appeals – May 2018 Edition

  • By: Scarborough Attorneys at Law
  • Published: June 1, 2018

Note: This article is part of an ongoing series discussing recent appellate decisions of interest.

From Florida’s Supreme Court

Ochoa v. Koppel: A commonly encountered tactic in response to service of a proposal for settlement is to a motion for extension of time prior to expiration of 30 day acceptance window.  The argument presented being that until the motion for extension of time is ruled upon, the time to accept the proposal is tolled.  The 2nd DCA in Ochoa found that the motion for extension did not toll time, the 5th DCA in Goldy v. Corbett Cranes Services, Inc., 692 So. 2d 225 (Fla. 5th DCA 1997) suggested it did.  The Florida Supreme Court accepted review and has decided the issue with a May 17, 2018 ruling that it does not.

A party receiving a proposal for settlement now must accept it within 30 days, unless the motion for extension of time is filed, heard, and ruled upon before the expiration of that 30 day period. Due to the often months long delay in scheduling matters for hearing with courts in this state, successfully obtaining an extension of a proposal for settlement is a questionable prospect unless the courts are willing to hear these as “emergency motions” or at UMC hearings.  The better strategy may be for the recipient of a proposal for settlement uncertain of whether to accept to ask the offeror to produce “information necessary to evaluate the reasonableness” in accordance with F.S. §768.79(7)(b)(4) prior to the expiration of the 30 days.  If the offeror refuses, the rejecting recipient will strengthen a potential argument at the end of a case with an unfavorable result that in consideration of the circumstances it was justified in rejecting the offer.  This may lead a Court to find an attorney’s fee award is unreasonable under the circumstances.

From Florida’s 2nd District Court of Appeals

Nicon v. Homeowners Choice: In a very consequential May 11, 2018 decision, Florida’s 2nd DCA overturned a summary judgment ruling in favor of the insurer where the trial court determined that an asbestos remediation contractor was barred from claiming entitlement to benefits from an insurance policy due to a prior assignment of benefits (AOB) to a different water and debris removal contractor.

The appellate court ruled that the AOB contract needed to be read “as a whole” with consideration to the “conditions and circumstances surrounding the parties and the objects to be obtained in executing the contract.” The appellate court disagreed with the trial court’s expansive reading of the phrase “any and all insurance rights, benefits, and causes of action under my insurance policy” and found instead that only the rights under the policy to payment for services performed by the water and debris removal contractor were assigned, and therefore the insured’s rights under the policy to payment for the entire covered claim were not assigned.  This left the insured free to assign remaining rights under the policy to the asbestos remediation contractor.

In the event this decision stands, insurers will continue to face insurance claim scenarios where there are multiple, seriatim AOBs with numerous service providers, each claiming to be providing services limited to their particular niche (e.g. water extraction, mold remediation, asbestos remediation, rebuild). Each will claim entitlement to (and demand payment of) policy benefits from the carrier.   What would ordinarily be a simple,  single insurance claim, can splinter into an extremely complex dispute with several parties claiming interest, demanding payment, and filing lawsuits if they don’t get their way.   Until the Florida Legislature acts, the explosion of AOB litigation will continue to deepen.

DeNino v. Ababte: Florida Statute Section 57.105 provides a potential remedy for litigants who are faced with frivolous litigation filings.  To obtain sanctions from the court, the party opposing the frivolous filing must comply with a statutory 21-day “safe harbor notice” that gives the other party time to withdraw their filing.  Should they fail to do so, then the party who provided the notice can file a motion with a court and seek sanctions.

Certifying a conflict with the 4th DCA , the 2nd DCA ruled that the procedural e-mail service requirements of Florida Rule of Judicial Administration 2.516 do not apply to the “safe harbor notice” required by section 57.105, Florida Statutes.

From Florida’s 3rd District Court of Appeals

State Farm v. Xrinachs, et al.: In an opinion released on May 16, 2018, the Florida 3rd DCA confirmed that when an insured fails to comply with their post-loss obligations, the insurer is relieved from any duties under the policy with respect to supplemental claims sought by the insured.

In Xrinachs, the insureds received a payment for damages from Hurricane Wilma in 2006 and then in 2010 submitted a supplemental claim.  The Xrinachs insureds were found by the 3rd DCA in a prior 2015 appeal to have failed to comply with the following post loss obligations: produce necessary documentation and protect the property from further damage.  The case was remanded back to the trial court and the trial court denied both summary judgment and directed verdict at trial.  The 3rd DCA in the most recent appeal instructed that their 2015 holding was “the law of the case” and the directed verdict motion should have been granted.

Wolentarski v. Anchor: In a May 30, 2018 opinion, the 3rd DCA confirmed that in accordance with Fla. R. Civ. P. 1.510(c), a trial court does not abuse discretion when it refuses to consider an untimely affidavit submitted in opposition to a motion for summary judgment.  At a Motion for Summary Judgment hearing the trial court decides based upon the record evidence of material issue of disputed fact.  A party who fails to identify and timely serve their record evidence in accordance with the Florida Rules of Civil Procedure clearly does so at their own peril.

From Florida’s 4th District Court of Appeals

De La Rosa v. Florida Peninsula: In a May 16, 2018 opinion, the 4th DCA affirmed summary judgment for the insurer based upon failures to comply with duties after loss.  The insureds in De La Rosa observed long term seeping of water in April 2014 and repaired the drainage system.  They subsequently completely renovated the bathroom in February 2015.  The insurance claim was made in July 2015.  The insured claimed the delay in reporting the claim was based upon his ignorance of his rights under the policy.

The court found that the facts at the summary judgment hearing established that even though the cause of the loss was disputed, the insurer was prejudiced by the passage of time in investigating the extent of the loss and thus the repair costs. In the absence of evidence to rebut the prejudice, entry of summary judgment in favor of the insurer was correct.

From Florida’s 5th District Court of Appeals

Sawgrass v. Mone: In a May 18, 2018 opinion upon remand from the Florida Supreme Court, the 5th DCA reversed their prior determination that a contingency multiplier was inappropriate based upon Joyce v. Federated Nat’l Ins. Co., 228 So. 3d 1122 (Fla. 2017).  In the wake of Joyce many trial and appellate courts can be expected to be more liberal in the granting of contingency multipliers when determining an award of “reasonable” attorney’s fees.

Hicks v. American Integrity: Also on May 18, 2018, in response to a motion for rehearing, the 5th DCA per curiam affirmed that a motion for rehearing that reargues an issue already decided by an appellate court is prohibited.  It also reiterated that while per curiam decisions have no precedential authority, it may be appropriate to call an appellate court’s attention to a prior per curiam decision in order to suggest how a prior proposition was viewed by that same court.  However, the 5th DCA instructed that it is improper to do so if the same party now submitting the per curiam decision argued in the prior proceeding that the issue under appeal was waived and not reviewable.

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