United States District Court, S.D. Florida
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE
2005, Plaintiffs filed a property insurance claim and the
Defendant Liberty Mutual Fire Insurance Company paid them $9,
145.05 to cover the damage caused by Hurricane Katrina.
Plaintiffs accepted the payment that was accompanied by a
letter indicating that it was a complete review of the claim.
Plaintiffs accepted that amount in 2005, then waited a decade
until 2015 to request an appraisal, which the insurance
company denied. The Amended Complaint states a claim for
breach of contract and declaratory judgment. Both claims
assert Defendant failed to acknowledge the loss and failed to
remit payment. The undisputed record evidence shows that
Liberty Mutual completed its review of the claim and paid
Plaintiffs in 2005. Even if the Court were to construe the
Amended Complaint as stating a claim for breach stemming from
the 2015 denial of the appraisal, the Court would apply
Florida's Statute of Limitations, § 95.11 to bar the
claim. To rule otherwise on the facts of this case would
thwart the purposes of Florida's statute. Finally, the
Plaintiffs failed to comply with the policy's timely
notice provisions creating a presumption of prejudice under
Florida law - a presumption that Plaintiff did not rebut.
Accordingly, the Court grants summary judgment in favor of
CAUSE came before the Court upon Defendant's Motion for
Summary Judgment (D.E. 22), filed on October 18,
COURT has considered the motion, the response, the pertinent
portions of the record, and being otherwise fully advised in
the premises, it is ADJUDGED that the motion is GRANTED. It
is also ADJUDGED that all other pending motions are DENIED as
the insureds, are suing their homeowner's insurance
company for damages suffered to their property during
Hurricane Katrina on August 25, 2005. The Defendant, Liberty
Mutual Fire Insurance Company, acknowledged coverage and made
a payment to the Plaintiff on October 23, 2005 in the amount
of $9, 145.05. Plaintiffs testified they were dissatisfied
with the amount of the payment they received in 2005. Despite
being dissatisfied, Plaintiffs did not pursue any dispute
with Liberty Mutual at the time. Almost ten years later, on
July 8, 2015, Plaintiffs filed a supplemental claim in
connection with the Hurricane Katrina loss and demanded
appraisal. On September 23, 2015, Liberty Mutual declined the
appraisal demand stating the statute of limitations expired.
Plaintiffs' Amended Complaint is for breach of contract
and a declaratory judgment that coverage exists for the loss.
More specifically, Plaintiffs' claim for breach of
contract states that Liberty Mutual breached the contract
when it failed to "acknowledge coverage for the loss,
and/or acknowledge that payment would be forthcoming; and/or
make any payment of insurance proceeds to the Insured."
The declaratory judgment count requests the Court hold
"coverage does exist for the loss."
Mutual moved for summary judgment arguing the Plaintiffs'
breach of contract is barred because the undisputed facts
show that Liberty Mutual paid and did not deny Plaintiffs
2005 claim. In addition, the Defendant argues Florida's
statute of limitations, section 95.11 bars Plaintiffs'
claims. Liberty Mutual also maintains that Plaintiffs'
failure to give prompt notice negates any liability in this
judgment is authorized where there is no genuine issue of
material fact. Fed.R.Civ.P. 56(c). The party seeking summary
judgment bears the initial burden of demonstrating the
absence of a genuine issue of material fact. Adickes v.
S.H. Kress & Co., 398 U.S. 144, 157 (1970). The
party opposing the motion for summary judgment may not simply
rest upon mere allegations or denials of the pleadings; the
non-moving party must establish the essential elements of its
case on which it will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317 (1986);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574 (1986). The nonmovant must present more than a
scintilla of evidence in support of the nonmovant's
position. A jury must be able reasonably to find for the
nonmovant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 254 (1986).
Breach of Contract
elements of a breach of contract action are: (1) a valid
contract; (2) a material breach; and (3) damages."
Abbott Labs, Inc. v. Gen. Elec. Capital, 765 So.2d
737, 740 (Fla. 5th DCA 2000). At summary judgment, the
parties dispute whether a breach occurred. Liberty Mutual
says it did not breach the insurance policy because in 2005
it paid $9, 145.05 for the claim at issue in this case.
Plaintiffs assert Liberty Mutual breached the contract when
it denied Plaintiffs' appraisal request on September 23,
Plaintiffs' Amended Complaint states the Defendant
breached the contract by "fail[ing] to: (i) acknowledge
coverage for the Loss; and/or (ii) acknowledge that payment
would be forthcoming; and/or (iii) make any payment of
insurance proceeds to the insured." The breach of
contract claim stated in the Amended Complaint is not in line
with Plaintiffs' position at summary judgment - that the
breach of contract is the denial of the request for
appraisal. The undisputed evidence does not support the
breach described in the Amended Complaint. Rather, it shows
Liberty Mutual acknowledged coverage for the loss and made
payment to the Plaintiffs in 2005.