ALBERT GANZEMULLER v. OMEGA INSURANCE CO. , 244 So. 3d 1189 ( 2018 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ALBERT C. GANZEMULLER and )
JANICE R. GANZEMULLER, )
)
Appellants, )
)
v. ) Case No. 2D17-1284
)
OMEGA INSURANCE COMPANY, )
)
Appellee. )
___________________________________)
Opinion filed April 27, 2018.
Appeal from the Circuit Court for Polk
County; Keith P. Spoto, Judge.
Sean Estes of James Hoyer, P.A., Tampa;
Donna Stockham of Stockham Law Group,
P.A., Tampa; and John Marc Tamayo of
Valenti, Campbell, Trohn, Tamayo & Aranda,
P.A., Lakeland, for Appellants.
David B. Shelton of Rumberger, Kirk &
Caldwell, P.A., Orlando, for Appellee.
SILBERMAN, Judge.
Albert and Janice Ganzemuller appeal a final order dismissing with
prejudice their class action complaint against Omega Insurance Company in which they
asserted claims for breach of contract and declaratory relief. The Ganzemullers
contended in the trial court, as they do here, that Omega improperly required them to
pay a deductible when Omega invoked its right to repair the property. They argue that
subsection 627.7011(5)(e), Florida Statutes (2015), which references subsection
627.702(7), prohibits an insurer from requiring that the insured pay a deductible when
the insurer invokes its right to repair property damage, regardless of whether the
damage is a partial or total loss. The trial court entered its final order of dismissal,
concluding that the Ganzemullers failed to state a cause of action and, under the
applicable law, would not be able to state a viable cause of action. We affirm.
The facts are not in dispute. The Ganzemullers purchased homeowner's
insurance from Omega that covered a one-year period beginning November 24, 2015.
They selected a $1000 deductible, applicable to all perils except hurricane and sinkhole
claims. Based on that selection, they received a $100 credit against their policy
premium. It is not necessary to detail the contents of the policy other than to note that it
includes provisions addressing loss settlement, the insurer's option to repair, and the
deductible.1
In March 2016, the Ganzemullers' property suffered hail damage, and they
filed a claim with Omega. Omega acknowledged coverage, and there is no dispute that
the loss was a partial loss. Omega invoked its option under the policy to repair the
damage and hired a contractor. The repair costs totaled $16,611.90, and the
Ganzemullers were required to pay their $1000 deductible to the contractor. The
Ganzemullers then filed their class action suit, contending that Florida law precludes the
1The
pertinent insurance forms contained in the record include: HP-0085-
00 (06/08); HO 00 03 04 91; HO-DEC (08/12); OM-002 (04/11); IL-0012 (09/05); and
HP-0109-09 (10/13).
-2-
insurer from requiring payment of the deductible when the insurer elects to repair the
damage.
Omega moved to dismiss the complaint, contending that the
Ganzemullers did not have a viable claim. The trial court agreed and dismissed the
action with prejudice, determining that neither the policy nor Florida law supported the
Ganzemullers' cause of action. The issue on appeal is whether subsections
627.7011(5)(e) and 627.702(7) relieve the Ganzemullers and potential class members
from the obligation to pay deductibles when Omega invokes its option to repair partial
losses.
This court conducts a de novo review of an order granting a motion to
dismiss. Al-Hakim v. Holder, 787 So. 2d 939, 941 (Fla. 2d DCA 2001). This court also
employs the de novo standard when interpreting a statute or an insurance policy.
Daniels v. Fla. Dep't of Health, 898 So. 2d 61, 64 (Fla. 2005); Bioscience West, Inc. v.
Gulfstream Prop. & Cas. Ins. Co., 185 So. 3d 638, 640 (Fla. 2d DCA 2016). The issue
here is one of statutory and contractual interpretation.
Section 627.702 is titled "Valued policy law." Subsection (1)(a) addresses
the total loss of property and provides that "the insurer's liability under the policy for
such total loss, if caused by a covered peril, shall be in the amount of money for which
such property was so insured as specified in the policy and for which a premium has
been charged and paid." § 627.702(1)(a). Subsection (7) provides as follows:
(7) Nothing herein shall be construed as prohibiting an
insurer from repairing or replacing damaged property at its
own expense and without contribution on the part of the
insured except, as provided in subsection (6), when an
insured has elected to purchase stated value coverage.
Such repair or replacement of damaged property shall be in
-3-
lieu of any liability created by subsection (1); and any insurer
so repairing or replacing shall have no liability pursuant to
subsection (1), provided such insurer returns to the named
insured a portion of the premium, for all policy terms during
which the policy limits were the same as those in effect on
the date on which the loss occurred, equal to that portion of
the premium paid for limits of insurance on the structure in
excess of the cost of replacement.
§ 627.702(7).
Section 627.7011 is titled "Homeowners' policies; offer of replacement
cost coverage and law and ordinance coverage." Among other things, the statute
specifies those policies or endorsements that an insurer must offer prior to issuing a
homeowner's insurance policy. Subsection (5)(e) provides that the statute does not
"[p]rohibit an insurer from exercising its right to repair damaged property in compliance
with its policy and s. 627.702(7)." § 627.7011(5)(e).
Even though subsection 627.702(7) is contained within the statute that
addresses total losses, the Ganzemullers argue that the reference to it in subsection
627.7011(5)(e) makes subsection 627.702(7) equally applicable to partial losses. Thus,
they contend, even though the policy may require payment of a deductible, once the
insurer elects to repair damaged property, whether the loss is total or partial, the
statutory provisions preclude the insurer from requiring payment of that deductible.
When interpreting a statute, we first must look at the plain language found
in the statute. Daniels, 898 So. 2d at 64. "Where possible, courts must give full effect
to all statutory provisions and construe related statutory provisions in harmony with one
another." Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455
(Fla. 1992). And if the language of a statute is unambiguous, the court will not look
beyond the statute's plain language. Daniels, 898 So. 2d at 64.
-4-
Subsection 627.702(1) specifically deals with total losses, and subsection
(7) addresses the insurer's right to repair without contribution by the insured "in lieu of
any liability created by subsection (1)." Thus, these subsections preclude the insurer
from requiring the insured to make any contribution when the insurer elects to make
repairs in total loss situations. The parties do not dispute that deductibles are covered
by the "without contribution" language.
As discussed previously, section 627.7011 specifies those things that an
insurer must offer prior to issuing a homeowner's policy. Subsection (5)(e) makes clear
that section 627.7011 does not "[p]rohibit an insurer from exercising its right to repair
damaged property in compliance with its policy and s. 627.702(7)." § 627.7011(5)(e).
Nothing in this language suggests a statutory intent to eliminate policy deductibles for
partial losses as well as total losses where the insurer elects to make repairs. Our
conclusion is buttressed by the fact that subsection 627.702(7) provides that the
insurer's repair or replacement of damaged property is in lieu of liability under
subsection 627.702(1), which deals with the insurer's liability under the policy for a
covered total loss.
In summary, the pertinent statutory sections relied on by the Ganzemullers
do not eliminate an insured's obligation to pay the required deductible under the policy
when the insured suffers a partial loss that the insurer elects to repair. Accordingly, we
affirm the order dismissing the complaint with prejudice.
Affirmed.
KELLY and CRENSHAW, JJ., Concur.
-5-