DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LUCILLE COVINGTON,
Appellant,
v.
STATE FARM FIRE & CASUALTY CO.,
Appellee.
No. 4D21-377
[November 17, 2021]
Appeal from the County Court for the Seventeenth Judicial Circuit, Broward
County; Giuseppina Miranda, Judge; L.T. Case Nos. COCE12-015922 and
CACE19-023070.
Mariano Gonzalez and Leonardo G. Renaud of the Gonzalez Legal, P.A.,
Miramar, for appellant.
Warren B. Kwavnick and Kelly Lenahan of Cooney Trybus Kwavnick Peets,
Fort Lauderdale, for appellee.
KLINGENSMITH, J.
Appellant Lucille Covington appeals the trial court’s final judgment in favor
of appellee State Farm Fire & Casualty Insurance Company based on its finding
that she did not have an insurable interest in the insured vehicle and was unable
to recover incidental and consequential damages. Although we affirm the trial
court’s partial summary judgment on the issue of incidental and consequential
damages, we agree with appellant that questions of fact remain about whether
she had an insurable interest in the vehicle sufficient to preclude summary
judgment on that issue.
Appellant and her husband obtained insurance for their Ford Expedition from
State Farm and were both named insureds under the policy. Although
appellant’s husband was the titleholder of the vehicle, appellant made loan and
insurance payments for the vehicle and drove it daily.
After appellant’s daughter was in an accident while driving the vehicle,
appellant filed a claim with State Farm, who advised appellant to file a claim with
the other driver’s insurer, GEICO, instead. GEICO prepared a repair estimate,
and the vehicle was taken to a repair shop; however, GEICO’s estimate did not
1
include all needed repairs, and some of the completed repairs were
unsatisfactory. Appellant then contacted State Farm to report that the vehicle
was improperly repaired, prompting State Farm to send an adjuster to evaluate
the vehicle. State Farm recommended another repair shop to perform the work,
but before those repairs were completed, the Covingtons sold the vehicle.
Appellant sued State Farm for breach of contract, alleging State Farm failed
to properly repair or replace the vehicle. Appellant’s husband later joined
appellant as co-plaintiff. The Covingtons pled entitlement to damages including
the cost of repairs, the cash value of the vehicle at the time of loss, and other
incidental and consequential damages. State Farm raised the affirmative
defense that appellant did not have an insurable interest in the vehicle and
lacked standing to bring the action.
Appellant moved for partial summary judgment regarding her insurable
interest, and State Farm filed a counter motion on the same issue. Appellant
argued that she was the beneficial owner of the vehicle because she drove the
vehicle and made the insurance and loan payments. State Farm maintained
that appellant did not have an insurable interest because she was not a
titleholder of the vehicle.
The trial court granted partial summary judgment in favor of State Farm and
found that appellant did not have an insurable interest in the vehicle and,
therefore, could not recover for its physical damage. The trial court found that
the title owner was the only individual entitled to compensation for physical
damage to the insured property but did not address appellant’s claim for
incidental and consequential damages.
State Farm then moved for partial summary judgment regarding incidental
and consequential damages. It argued that neither appellant nor her husband
could recover damages for loss of use of the vehicle during the repair process or
recover insurance premiums paid while the vehicle was under repair, because
those types of damages are not recoverable under a breach of contract action.
The trial court granted the motion, finding that appellant’s claims for incidental
and consequential damages were not permitted.
After appellant dropped her remaining claim for unreimbursed rental
expenses, the trial court entered a final judgment in favor of State Farm and
against appellant. 1 This appeal follows.
1Appellant’s husband’s claim went to trial, and the jury found State Farm liable for
negligent repairs, awarding him $7,500.00 in damages.
2
“An order granting summary judgment is reviewed de novo.” 2 Med. Data Sys.,
Inc. v. Coastal Ins. Grp.,
139 So. 3d 394, 396 (Fla. 4th DCA 2014). “In
determining the correctness of summary judgment, an appellate court must
accept the facts as pleaded and view all possible inferences in the light most
favorable to the non-moving party.” Gomez v. Fradin,
41 So. 3d 1068, 1071 (Fla.
4th DCA 2010).
“Prior to receiving benefits under an insurance policy an insured must show
an insurable interest in the property covered.” Overton v. Progressive Ins. Co.,
585 So. 2d 445, 448 (Fla. 4th DCA 1991). Section 627.405 requires the insurable
interest be present at the time of loss. See Bioscience W., Inc. v. Gulfstream Prop.
& Cas. Ins. Co.,
185 So. 3d 638, 642 (Fla. 2d DCA 2016). “‘Insurable interest’ as
used in this section means any actual, lawful, and substantial economic interest
in the safety or preservation of the subject of the insurance free from loss,
destruction, or pecuniary damage or impairment.” § 627.405(2), Fla. Stat.
(2012).
Florida does not require legal title for an insured to have an insurable interest.
See Aetna Ins. Co. v. King,
265 So. 2d 716, 718 (Fla. 1st DCA 1972) (“In Florida
an ‘insurable interest’ is not determined by the concept of title”). However, the
existence of an insurable interest requires more than just the issuance of an
insurance policy. See Corat Intern., Inc. v. Taylor,
462 So. 2d 1186, 1187 n.2
(Fla. 3d DCA 1985) (“The notion that parties can create an insurable interest by
contracting for it has been expressly rejected in Florida.”). Courts have found
that an economic interest or enforceable right is enough to create an insurable
interest. See King,
265 So. 2d at 718 (finding the insured had an insurable
interest in a grocery store, even though she did not own it, because all the
proceeds were used to care for the insured); see also Johnson v. Aetna Life & Cas.
Co.,
472 So. 2d 859, 861 n.2 (Fla. 3d DCA 1985) (“The insurable interest may be
an interest in the property itself or a particular risk insured against, such as, in
the case of motor vehicle liability insurance, the possible liability arising out of
the use or operation of a vehicle.”).
In Overton, the husband was the vehicle titleholder, but the wife insured the
vehicle in her name, with the husband listed as an additional driver.
585 So. 2d
at 446. They both filed a claim with the insurance company after the vehicle
suffered fire damage.
Id. A jury found that the husband intentionally started
the fire, but the wife had no knowledge of and was uninvolved in the arson.
Id.
The wife then sought to recover alone as an innocent co-insured, but the trial
court denied the wife coverage, finding that the insurance policy only covered
2The Florida Supreme Court recently adopted the federal summary judgment standard.
See In re Amends. to Fla. R. Civ. P. 1.510,
309 So. 3d 192, 194–95 (Fla. 2020). However,
the new standard does not apply here, because the final judgment predates the
amendment’s effective date, May 1, 2021. See Lorber v. Passick as Tr. of Sylvia Passick
Revocable Tr., 4D20-393,
2021 WL 3891004, at *3 n.3 (Fla. 4th DCA Sept. 1, 2021).
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accidental risks.
Id. This court reversed, finding that “[a]s a general principle,
a wife who has a pecuniary or beneficial interest in her husband’s property, or
would have some disadvantage from its loss, has an insurable interest therein.”
Id. at 448.
In a federal class action case, Paris v. Progressive Am. Ins. Co., No. 19-21761-
CIV,
2020 WL 7039018, at *3 (S.D. Fla. Nov. 13, 2020), the issue of standing
was before the court. There, the plaintiff was married to an automobile lessee
when the loss occurred, was a named insured under the insurance policy, made
the monthly payments to the leasing company on the vehicle, and made premium
payments that were accepted by the insurer.
Id. Citing Overton, the court found
the facts were sufficient to establish an insurable interest in the leased vehicle
and that the plaintiff suffered an injury-in-fact when the defendants allegedly
breached the insurance policy on the vehicle.
Id.
We recognize that simply because appellant was a named insured in State
Farm’s policy does not, on its own, create an insurable interest. See Corat
Intern., 462 So. 2d at 1187 n.2. However, there were enough disputed facts that
a jury could find appellant’s interest in the vehicle rose to the level of an actual,
lawful, and substantial economic interest. See § 627.405(2), Fla. Stat. (2012).
Thus, the trial court erred when it found that, as a matter of law, she did not
have an insurable interest in the vehicle. Although appellant was not the legal
titleholder of the vehicle at the time of the loss, the fact that appellant was one
of the named insureds in State Farm’s policy on the vehicle, alleged she drove
the car daily, and made the insurance and loan payments on the car created an
issue of fact precluding summary judgment.
However, even if appellant is found to have an insurable interest, those
recoverable damages are limited. See Travelers Indem. Co. v. Duffy’s Little
Tavern, Inc.,
478 So. 2d 1095, 1096 (Fla. 5th DCA 1985). Recovery would not
extend to remuneration for the physical damage to the vehicle because appellant
can only recover to the extent of which she was harmed. See
id. (“Florida
prohibits recovery of insurance proceeds in excess of one’s insurable interest.”).
The Florida Supreme Court recently held that insureds are not entitled to
extra-contractual consequential damages, such as loss of use, in first-party
breach of insurance contract actions. See Citizens Prop. Ins. Corp. v. Manor
House, LLC,
313 So. 3d 579, 582 (Fla. 2021), reh’g denied, SC19-1394,
2021 WL
1027485 (Fla. Mar. 17, 2021). In Manor House, the insurance company insured
an apartment building that was damaged by a hurricane. Id. at 580. The
insured sued the insurer for breach of contract and tried to recover
compensation for lost rental income from the damaged units while under repair.
Id. at 581. The insurance company moved for summary judgment, arguing the
insured was not entitled to lost rental income under the contract, and the trial
court granted the motion. Id. On appeal, the Florida Supreme Court agreed,
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holding that the insured can only recover “the amount owed pursuant to the
express terms and conditions of the insurance policy” in a first-party breach of
insurance contract action. Id. at 584.
Under Manor House, appellant cannot recover extra-contractual
consequential damages in this breach of contract action because it is a first-
party insurance claim and such damages are not contemplated by the insurance
contract. See id. at 582. 3 Furthermore, State Farm cannot be liable for loss of
use of the vehicle because it did not undertake the obligation to make the repairs
by simply advising appellant to make a claim with GEICO. See Travelers Indem.
Co. v. Parkman,
300 So. 2d 284, 285 (Fla. 4th DCA 1974). The Covingtons
decided which repair shop to use and asserted control over the timing of the
repairs. See Maryland Cas. Co. v. Fla. Produce Distribs., Inc.,
498 So. 2d 1383,
1384 (Fla. 5th DCA 1986) (when the insured undertakes the repairs and allows
repairs by third parties, a new repair contract is not formulated because the
insured “controlled the time involved in making the repairs.”).
We affirm the trial court’s partial summary judgment on the issue of
incidental and consequential damages and reverse the partial summary
judgment on the issue of insurable interest in the subject vehicle. We remand
for proceedings consistent with this opinion.
Affirmed in part, reversed in part and remanded.
LEVINE and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3In her brief, appellant concedes that the Florida Supreme Court’s opinion in Manor
House is fatal to her claim for incidental or consequential damages.
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