Plus, proving misrepresentation
The Restoration Association of Florida is appealing the dismissal of one of its three lawsuits in state court over the Florida Legislature’s 2022 property insurance reform law. Meanwhile, a Florida appeals court decision raises new questions about how far an insurance company needs to go to show a policyholder intentionally misrepresented a claim. It’s all in this week’s Legal Briefs.
Restoration Association of Florida (RAF): RAF and Air Quality Assessors of Orlando have filed an appeal with the First District Court of Appeal over last month’s dismissal of one of its three lawsuits in state court. The lawsuit is about the Assignment of Benefits (AOB) contract provisions in this year’s Senate Bill 2-D that prohibits awards of attorney fees to contractors or other assignees of AOB contracts, allowing only first parties, such as homeowners, to recover attorney fees. Their suit alleges that the change violates equal-protection and due-process rights and denies contractors access to courts.
Leon County Circuit Judge J. Lee Marsh dismissed the lawsuit last month, writing that the Florida Department of Business and Professional Regulation and the state Construction Industry Licensing Board were not “proper defendants,” in part, because they were not in charge of enforcing the law. The three lawsuits in state court are in addition to a lawsuit RAF filed in federal court last summer in opposition to the legislature’s 2021 Reform under SB 76. The federal case is still pending.
Proving Intentional Misrepresentation: At some point in a property insurance claim dispute where it has withheld payment, an insurance company must prove the policyholder intentionally misrepresented the facts, if that’s its assertion. A recent ruling by Florida’s Fifth District Court of Appeal has made that potentially more complicated and confusing with existing case law.
The court reversed a trial court’s summary judgment and dismissal order, which found that the homeowner had made false statement about existing roof leaks, justifying Security First Insurance to deny the claim. The 5th DCA ruling noted that determining the credibility and evidence “are jury functions, not those of a judge,” when ruling on a motion for summary judgment. While the Florida Supreme Court’s recent rules allow judges to decide such credibility issues when it is clear a jury would agree if the case went to trial, the 5th DCA said the trial judge overstepped his bounds in this case.
“Only when the record evidence blatantly contradicts a litigant’s version of the facts will a court be allowed to weigh conflicting evidence or determine the credibility of a witness,” the DCA wrote. You can read more about this case from William Rabb in the Insurance Journal.
LMA Newsletter of 9-19-22
