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Siegel v. Tower Hill Signature Insurance Co.

Florida Court of Appeals, Third District

August 30, 2017

David Siegel and Tamara Siegel, Appellants,
v.
Tower Hill Signature Insurance Company, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 15-19967, Jorge Cueto, Judge.

          Mintz Truppman, P.A., and Timothy H. Crutchfield; Insurance Litigation Group, P.A., and Tracy L. Kramer and John F. Lakin, for appellants.

          Kelley Kronenberg and Jorge L. Cruz-Bustillo; Methe & Rockenbach, P.A., and Kara Berard Rockenbach and David A. Noel (West Palm Beach), for appellee.

          Before LOGUE, SCALES and LINDSEY, JJ.

          LINDSEY, J.

         Insured homeowners David and Tamara Siegel appeal two orders granting final summary judgment in favor of their insurer, Tower Hill Signature Insurance Company. The court below concluded that Tower Hill complied with its policy obligations by paying the Siegels' claim based on its independent adjuster's estimate. The court also determined that the Siegels breached a condition precedent by failing to allow a plumbing inspection before filing suit. Because we find that genuine issues of material fact exist as to (1) Tower Hill's initial payment and (2) the Siegels' post-loss obligation to allow inspection, we reverse.

         I. BACKGROUND

         On May 15, 2015, a drain line collapsed under the foundation of the Siegels' home. The property was covered under a Tower Hill homeowners' policy and insured at replacement cost value.[1] The Siegels notified Tower Hill of their claim on June 8, 2015, and on June 19, 2015, the property was inspected by Tower Hill's independent adjuster. On August 12, 2015, the Siegels submitted an estimate to Tower Hill prepared by a public adjuster in the amount of $30, 716.23 ($33, 216.23 minus the $2, 500 deductible). Tower Hill then sent a payment letter dated August 17, 2015, informing the Siegels that, based on Tower Hill's current information, the amount of their claim settlement was $4, 304.75, which represented the $6, 804.75 estimate prepared by Tower Hill's independent adjustor, less the $2, 500 deductible. The payment letter advised the Siegels that this amount does not necessarily constitute a full and final settlement of their claim and stated that the Siegels could submit supplemental claims for any damages discovered in the covered reconstruction and repair of the above mentioned property. On August 28, 2015, the Siegels filed suit against Tower Hill for breach of contract, alleging that the $4, 304.75 payment was inadequate.

         Before Tower Hill was served with the lawsuit, it sent the Siegels two additional letters. In the first letter, dated September 3, 2015, Tower Hill informed the Siegels of their post-loss obligation to show the damaged property as often as reasonably required. Additionally, the letter stated that "Master Plumbing has been requesting inspection of the plumbing system of your home since August 18, 2015. To date, we have not been able to gain access." In another letter, dated September 9, 2015, Tower Hill informed the Siegels that it was rejecting their proof of loss and continuing its investigation. Tower Hill was served on September 10, 2015.

         On February 10, 2016, Tower Hill moved for summary judgment, arguing that it had performed as required under the policy, applicable statute, and case law. The motion was supported by an affidavit of Tower Hill's corporate representative, David Polson, with the insurance policy, the estimate prepared by Tower Hill's independent adjustor, and the August 17, 2015 payment letter attached as exhibits. Tower Hill filed a second motion for summary judgment on February 23, 2016, contending that the Siegels were in breach for failing to allow Master Plumbing to inspect their plumbing system prior to filing suit. In support, Tower Hill submitted another affidavit from Mr. Polson attaching the insurance policy, the September 3, 2015 letter, and the September 9, 2015 letter as exhibits. On June 7, 2016, the trial court held a hearing, and subsequently entered two orders granting Tower Hill's motions for summary judgment. After denying the Siegels' motion for rehearing and reconsideration of both of those orders, the trial court entered a final judgment on June 15, 2016. This appeal follows.

         II. STANDARD OF REVIEW

         The two issues before us are whether genuine issues of material fact exist as to (1) Tower Hill's required initial payment and (2) the Siegels' compliance with the policy's post-loss obligation to allow reasonable inspections. We review the trial court's orders granting final summary judgment de novo. See Save Calusa Trust v. St. Andrews Holdings, Ltd., 193 So.3d 910, 914 (Fla. 3d DCA 2016). Similarly, a trial court's decision construing a contract presents an issue of law subject to de novo review. Flagship Resort Dev. Corp. v. Interval Int'l, Inc., 28 So.3d 915, 920-21 (Fla. 3d DCA 2010) (citing Florida Power Corp. v. City of Casselberry, 793 So.2d 1174, 1178 (Fla. 5th DCA 2001)).

         III. ANALYSIS

         Summary judgment is proper under Florida Rule of Civil Procedure 1.510(c) where "the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact." Arce v. Wackenhut Corp., 40 So.3d 813, 815 (Fla. 3d DCA 2010). The movant bears the initial burden of demonstrating the nonexistence of any genuine issue of material fact. Id. (citing Valderrama v. Portfolio Recovery Assocs., LLC, 972 So.2d 239 (Fla. 3d DCA 2007)). "Once competent evidence to support the motion has been tendered, the opposing party must come forward with admissible counter-evidence sufficient to reveal a genuine issue of material fact." Arce, 40 So.3d at 815 (emphasis in original) (citing Fla. R. Civ. P. 1.510; Michel v. Merrill Stevens Dry Dock Co., 554 So.2d 593, 596 (Fla. 3d DCA 1989)).

         A. Tower Hill's Initial Payment

         Tower Hill's position is that although the Siegels obtained an estimate that was significantly higher than its initial payment, Tower Hill fully complied with the policy because its payment was based on the estimate prepared by its independent adjuster. In support, Tower Hill relies on ...


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