Legal Topics

Insurance — Property — Coverage — Post-loss obligations — Supplemental claim — Motion for summary judgment arguing that there is no dispute as to actual cash value is denied where insured submitted report of supplemental damages

Aug 15th, 2025 in by admin

Insurance — Property — Coverage — Post-loss obligations — Supplemental claim — Motion for summary judgment arguing that there is no dispute as to actual cash value is denied where insured submitted report of supplemental damages — Report of supplemental damages was not insufficient for failing to break out claim for ACV of additional items where there is no evidence that insurer tendered ACV or accepted responsibility for additional items — Motion for summary judgment based on failure of plaintiff’s counsel to provide notice of intent to initiate litigation to claimant is denied where evidence indicates that copy of notice was provided to claimant

BRIAN SULLIVAN, as Personal Representative of SUSAN S. SULLIVAN, Plaintiff, v. CYPRESS PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. Circuit Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2023 CA 008418 NC. Division C Circuit. April 7, 2025. [Motion for Reconsideration and Rehearing Denied. April 21, 2025.] Hunter W. Carroll, Judge. Counsel: Juan C. Arias, Arias & Abbass Your Attorneys, Doral, for Plaintiff. AlaEldean A. Elmunaier, Salmon & Salmon, P.A., Tampa, for Defendant.

ORDER DENYING DEFENDANT’SMOTION FOR SUMMARY JUDGMENT

BEFORE THE COURT is Defendant’s motion for final summary judgment due to no presuit dispute as to cash value [DIN 99]. Plaintiff filed an opposition with summary judgment evidence [DIN 144].

Defendant seeks summary judgment on two bases: (1) there was no dispute as to actual cash value; and (2) failure to provide claimant a copy of the notice of intent under section 627.70152. The Court denies on both bases.

As to the first issue, the Court notes that Plaintiff included a report with damage claims greater than then 4 tile and 7 ridge caps. This was provided to the Defendant before suit was filed. Defendant contends that report was insufficient because it did not break out a claim for actual cash value for those additional items referenced on the report. There is no evidence, though, that Defendant either tendered the actual cash value for those additional items or otherwise advised Plaintiff that Defendant accepted responsibility for those additional items and the amount was within the deductible. Under these circumstances, the Goldberg v. Universal Property and Casualty Ins. Co., 302 So. 3d 919, 925 (Fla. 4th DCA 2020) [45 Fla. L. Weekly D2118b], rule does not apply.

As to the second issue, the Court denies as there is a disputed issued of material fact. Defendant contends that section 627.70152(3)(a)3., Florida Statutes, requires Plaintiff’s counsel to provide a copy of the notice of intent to initiate litigation to the actual claimant. Defendant included deposition testimony that was equivocal as to whether claimant actually received it. Plaintiff then presented evidence that the email address on the notice of intent to initiate litigation was, in fact claimant’s email address. Plaintiff’s affidavit also indicated that after reviewing his email “I was able to recollect the Notice and a copy of Cypress response to the same” with respect to the notice. Regardless of whether claimant initially recalled receipt, the evidence demonstrates that, at a minimum, “a copy of the notice was provided to the claimant”, which is the statutory requirement in section 627.70152(3)(a)3.

The Court denies the motion.

ORDER DENYING DEFENDANT’S MOTIONFOR RECONSIDERATION AND REHEARINGREGARDING COURT’S ORDER DENYINGDEFENDANT’S SUMMARY JUDGMENT MOTION

BEFORE THE COURT is Defendant’s Motion for Reconsideration and Rehearing Regarding Court’s Order on Defendant’s Motion for Summary Judgment that was Filed on April 7, 2025 [DIN 190].

The Defendant’s effort to take issue with the Court’s generic use of the word “report” for the estimate provided by Providential Roofing & Construction is unavailing. Defendant misses the point that there was evidence in the record that Plaintiff tendered to Defendant presuit for damage greater than Defendant accepted. That differential is important here, as Defendant neither tendered actual cash value for that differential in damage nor otherwise told Plaintiff if Defendant accepted responsibility for the differential. That factual distinction is important as those facts distinguish this case from the cases cited by Defendant. If in the current case that differential evidence was not in the record, and if the case involved only the actual cash value of replacing four tiles, seven ridge caps, and fixing some gutters, then the story would be different. But that is not the case here, and the Court is not permitted to evaluate the quality of the summary judgment evidence other than to recognize it exists and the party with this evidence could survive a directed verdict motion along the lines of Defendant’s summary judgment motion.

The motion is denied.