United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE United States District Judge
THE COURT is Defendant, First National Insurance Company of
America's Motion for Final Summary Judgment (Dkt. 19),
Plaintiffs response (Dkt. 24), and Defendant's reply
(Dkt. 33). This case is an insurance dispute over the amount
of covered property damages caused by a sewage backup.
Because there are disputed issues of material fact regarding
the amount of covered property damage, Defendant's Motion
will be denied.
UNDISPUTED MATERIAL FACTS
insured property was a beauty school owned and operated by
Plaintiff in Sebring, Florida. On January 6, 2014, the
property experienced an incursion of sewage, a covered loss.
(Policy Form 75 40 12 02, p. 2). Plaintiff submitted a claim
for loss related to the structure, including fixtures,
flooring, additions, improvements, and betterments
(collectively "Tenant Improvements and
Betterments"), and Defendant acknowledged coverage (Dkt.
2 ¶¶ 7-8; Dkt. 3 ¶¶ 7-8, 17).
hired an independent adjuster, Robert Gibson, to quantify the
scope of damages. On February 12, 2014, Mr. Gibson prepared a
written estimate of damages and presented it to Plaintiffs
CEO, Patty Galdamez. (Dkt. 20-3, Ex. 5 & 5 A). The
estimate identified the Replacement Cost Value of the Tenant
Improvements and Betterment as $28, 022.84, depreciation as
$3, 199.79, and Actual Cash Value as $24, 823.05.
(Id.) On February 18, 2014, Ms. Galdamez responded
to Mr. Gibson's e-mail, stating "Yes Rob this
estimate is approved and will be double check [sic] on Friday
February 21, 2014 with the contractor, Thanks." (Dkt.
20-3, Ex. 5). On April 11, 2014, Defendant issued a payment
to Plaintiff, which included the $24, 823.05. (Freihoefer
Dep., Dkt. 20-4, Ex. 3). On July 8, 2014, Defendant issued
another payment for Tenant Improvements and Betterment loss
in the amount of $20, 026.95, based on a proposal from
Waldron Construction to build out a different location in
Sebring, bringing the total Tenant Improvements and'
Betterment payments to $44, 850.00. (Id.)
April 3, 2015, Plaintiffs public adjuster, Michael Barral,
submitted a claims demand package to Defendant which included
the cost to build out a new facility in Brandon, Florida,
claiming $422, 900.00 under the Tenant Improvements and
Betterment coverage. (Dkt. 27-1). Mr. Barral testified that
including deductions for arguable "upgrades, " he
believes that the Plaintiff is owed between $298, 400.00 on
the "low end" to a "high end" of $420,
000.00, accounting for the size difference between the
Sebring property and the larger Brandon property. Plaintiff
contends that this is the amount Defendant should have paid
for the Replacement Cost Value under the Tenant Improvements
and Betterment coverage and brings this action breach of
judgment is appropriate where "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a).
"A genuine factual dispute exists only if a reasonable
fact-finder 'could find by a preponderance of the
evidence that the [non-movant] is entitled to a
verdict.'" Kernel Records Oy v. Mosley, 694
F.3d 1294, 1300 (11th Cir. 2012) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact
is material if it may affect the outcome of the suit under
the governing law. Allen v. Tyson Foods, Inc., 121
F.3d 642, 646 (11th Cir. 1997).
moving party bears the initial burden of showing the court,
by reference to materials on file, that there are no genuine
disputes of material fact that should be decided at trial.
Hickson Corp. v. N. Crossarm Co., Inc., 357F.3d
1256, 1260 (11thCir. 2004) (citing Celotex Corp. v.
Catrett, 477 U.S 317, 323 (1986)). If the moving party
fails to demonstrate the absence of a genuine dispute, the
motion should be denied. Kernel Records, 694 F.3d at
1300 (citing Adickes v. S.H. Kress & Co., 398
U.S. 144, 160 (1970); Clark v. Coats & Clark,
Inc., 929 F.2d 604, 606-08 (11th Cir. 1991)).
moves for summary judgment on Plaintiffs claim, contending
that Ms. Galdamez's February 18, 2014 e-mail constituted
an agreement with Mr. Gibson's estimate, establishing the
amount of covered loss, and that Plaintiff otherwise failed
to submit any evidence of Tenant Improvements and Betterment
damages at the Sebring location. Defendant relies on
Slayton v. Universal Prop. & Cas. Ins. Co., 103
So.3d 934 (Fla. 5th DC A 2012) for the proposition that by
failing to supplement its claim with evidence of damages to
the insured location, which have not already been paid,
Plaintiff cannot establish a breach of contract. Neither
Slayton nor the evidence, support Defendant's
Slayton, the court held that the insurer's
"decision to pay the amount of its estimate (less the
deductible) and then consider supplemental claims for
additional damages discovered during or arising from the
repairs was consistent with the terms of its insurance
policy" and was not a breach of contract. 103 So.3d at
935. Here, however Defendant paid the amount of its estimate,
plus an additional amount, based on the assumption that
Plaintiff would build out a smaller replacement location in
Sebring. When that plan fell through for reasons that are
irrelevant, Plaintiff chose a larger alternative replacement
location in Brandon and submitted its claim demand for Tenant
Improvements and Betterment coverage based on the Brandon
build out. Plaintiffs expert, Mr. Barral, opined that
the Brandon location is of like kind and quality to the loss
at the Sebring location, accounting for the size difference
between the two properties. This is sufficient to create an
issue for the jury.
Defendant, First National Insurance Company of America's
Motion for Final ...