Francis v. Tower Hill Prime Insurance Co.

Third District Court of Appeal
State of Florida
Opinion filed July 12, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-2114
Lower Tribunal No. 15-23315
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Latonya Francis,
Appellant,
vs.
Tower Hill Prime Insurance Company,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Thomas J.
Rebull, Judge.
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 Tower Hill’s (1) 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
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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
1 Fla. R. Civ. P. 1.510(c).
2 Recoverable depreciation was not included for this comparison, but would have
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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
been included in payments to the insured upon proof that the repairs were
completed.
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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
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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.
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