Plus, mind your AOBs!
The court battles continue on whether presuit notification in a property insurance claim retroactively applies, precision counts in Assignment of Benefits contract language, and a court rules in one case that you can have an appraisal without itemization of costs. It’s all in this week’s Legal Briefs.
Presuit Notice Problems: Florida’s Third District Court of Appeal (DCA) in a recent ruling over Fernando Cantens and Ana Marie Cantens v. Certain Underwriters at Lloyd’s London, joined with Florida’s Fourth DCA, stating that a “clear legislative intent exists” that Florida’s 10-day presuit notice provision applies retroactively to policies in effect before the statute’s effective date. Section 627.70152 went into effect on July 1, 2021, as part of Senate Bill 76 requiring that insurance companies receive a 10-day notification and demand before a lawsuit is filed against them. Florida’s Fourth DCA was the first to address this retroactivity in Cole v. Universal Prop. & Cas. Ins. Co – stating that the presuit provision is clearly procedural and meant to overhaul the current system, and is retroactive, as we reported in our May 2023 newsletter. However, these two DCA decisions conflict with one from the Sixth DCA that reached the opposite conclusion in their case Hughes v. Universal Prop. & Cas. Ins. Co. The Sixth DCA has asked the Florida Supreme Court to resolve the conflicting court decisions, briefs have been filed, and we are awaiting a decision on whether the Supreme Court will accept the case.
New Grounds for Dismissal: Florida’s Second DCA has ruled in Gale Force Roofing & Rest., LLC v. Am. Integrity Ins. Co., that an Assignment of Benefits (AOB) contract must contain a single provision allowing an assignor to rescind the agreement without a penalty or fee by written notice. While the specific AOB in question did contain several clauses outlining these terms, the court found that without a single provision setting forth each and every term for dismissal, the AOB was unenforceable. Specifically, the given AOB did not allow for recission via written notice, or mention “fees” when it mentioned there would be no penalty. This decision supports filing a motion to dismiss in property insurance cases filed by an assignee if the AOB doesn’t parrot the exact words required by §627.7152(2)(a)2, Fla. Stat.
Appraisal Without Itemization: In a somewhat troubling new decision, the U.S. District Court for the Middle District of Florida, Orlando Division granted an insurance company’s unopposed motion to compel appraisal and abate litigation but denied its request for an itemized appraisal due to the language of the policy. In Camilus v. Scottsdale Ins. Co. the Court ruled that itemization cannot be compelled if the language in the appraisal portion of a policy does not specifically require it – which may have profound implications on future appraisal awards. In this instance, the Court denied the carrier’s request for itemization because of an objection by the policyholder while also granting the carrier’s request to abate litigation until the appraisal process was finished because the policyholder did not object to the abating action. The court’s decision in refusing itemization all stems from policy language – but prudent appraisal umpire practice should always dictate an itemized and detailed award, for transparency’s sake if nothing else.
LMA Newsletter of 3-4-24
