PEOPLE'S TRUST INSURANCE COMPANY v. PARVIN NOWROOZPOUR and PARVIZ NOWROOPOUR

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
PEOPLE’S TRUST INSURANCE COMPANY,
Appellant,
v.
PARVIN NOWROOZPOUR and PARVIZ NOWROOZPOUR,
Appellees.
No. 4D18-2810
[August 7, 2019]
Appeal of a nonfinal order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; John J. Murphy, III, Judge; L.T. Case
No. CACE18-005826.
Mark D. Tinker and David C. Borucke of Cole, Scott & Kissane, P.A.,
Tampa, Kathryn L. Ender of Cole, Scott & Kissane, P.A., Miami, and Brett
R. Frankel and Jonathan M. Sabghir of People's Trust Insurance
Company, Deerfield Beach, for appellant.
John W. McLuskey, John E. Hughes and Lisa A. Riddle of McLuskey,
McDonald & Hughes, P.A., Miami, for appellees.
PER CURIAM.
People’s Trust Insurance Company (“People’s Trust” or “Insurer”)
appeals an order dismissing with prejudice its counterclaim for temporary
mandatory injunctive relief or specific performance in which it sought to
enforce provisions of its policy for appraisal and repair after loss. We
reverse the trial court’s order to the extent that it dismissed with prejudice
Insurer’s claim to enforce the provisions of the contract.
People’s Trust insured the appellee homeowners under a policy in
which People’s Trust retained the option to repair any covered damaged to
the homeowners’ property. If there was a dispute over the scope of
damages, the policy provided that either party could compel an appraisal.
Homeowners sustained damage to their home during Hurricane Irma
in September 2017. Insurer’s field adjuster prepared an estimate of
repairs of only $781. Insurer sent an acknowledgment of loss to
homeowners and elected its option to repair. However, since the adjuster’s
estimate of repairs was less than homeowners’ deductible, the claim was
non-compensable, absent a dispute over the scope of repairs. People’s
Trust also advised homeowners of the appraisal rights under the policy.
After receiving the homeowners’ sworn proof of loss of $105,596,
People’s Trust acknowledged that a dispute existed over the scope of
repairs and demanded an appraisal. It identified its appraiser and
requested that homeowners select their appraiser. Instead, homeowners
filed suit for breach of contract.
People’s Trust filed an answer, affirmative defenses, and a
counterclaim. In the first count of the counterclaim, it requested a
temporary mandatory injunction, or alternatively, specific performance, to
enforce its right to an appraisal and right of repair. The second count of
the counterclaim claimed a breach of contract by the insureds, and the
third count requested declaratory relief. The homeowners moved to
dismiss the first count of the counterclaim, contending that it failed to
state a cause of action because it did not allege irreparable harm and there
was an adequate remedy at law. After the hearing, the court dismissed
count one and count two of the counterclaim with prejudice, prompting
this appeal. Because count one sought an injunction and an appraisal,
we have jurisdiction pursuant to Florida Rule of Appellate Procedure
9.130(a)(3)(B) and 9.130(a)(3)(C)(iv).
We review de novo a trial court’s order dismissing a claim for failure to
state a cause of action. McKane Family Ltd. P’ship v. Sacajawea Family
Ltd. P’ship, 211 So. 3d 117, 119 (Fla. 4th DCA 2017). We agree that to the
extent the counterclaim sought an injunction, the harm alleged was not
the type of irreparable harm sufficient to support the issuance of an
injunction, as there was an adequate remedy at law through monetary
compensation. See Bautista REO U.S., LLC v. ARR Inv., Inc., 229 So. 3d
362, 364 (Fla. 4th DCA 2017). However, the counterclaim also alleged the
essential elements of a claim for specific performance of the policy
obligations, including its right to compel an appraisal in accordance with
the policy terms. In People’s Trust Insurance Co. v. Tracey, 251 So. 3d 931
(Fla. 4th DCA 2018), we considered the same repair and appraisal
conditions and held under nearly identical facts that the insurer was
entitled to compel an appraisal. After a homeowner has filed suit, it may
be more traditional for an insurer to move to compel an appraisal to seek
enforcement of the policy provisions; however, this does not preclude an
insurer from filing a counterclaim alleging that the insurer is entitled to
enforce the provisions of the insurance contract through specific
performance.
2
The homeowners cite People’s Trust Insurance Co. v. Acosta, 259 So. 3d
179, 180 (Fla. 3d DCA 2018), as authority for the trial court’s dismissal of
the action. In Acosta, the insurer filed a complaint for temporary
injunction and specific performance to compel the insureds to comply with
the policy provisions for repair. The trial court denied the motion for
temporary injunction, and the appellate court affirmed, reasoning that the
insurer could move to abate a separate complaint which the insureds filed
until the insureds complied with the policy provisions, or monetary
damages would protect the insurer. However, in that case, the trial court
dismissed the complaint without prejudice, and the parties did not raise
the enforcement of the appraisal clause in that proceeding, as the insurer
did in this case.
We affirm the order dismissing the request for temporary injunction, as
the counterclaim on its face did not allege an irreparable injury. 1 To the
extent that the counterclaim sought specific performance of the right to an
appraisal and repair provisions of the policy, the court erred in dismissing
the counterclaim with prejudice. We therefore reverse and remand for
reinstatement of count one of the counterclaim for specific performance.
Reversed and remanded.
LEVINE, C.J., WARNER and DAMOORGIAN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
1 People’s Trust did not request to amend its complaint in this respect.
3