final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 15-19967, Jorge Cueto, Judge.
Truppman, P.A., and Timothy H. Crutchfield; Insurance
Litigation Group, P.A., and Tracy L. Kramer and John F.
Lakin, for appellants.
Kronenberg and Jorge L. Cruz-Bustillo; Methe &
Rockenbach, P.A., and Kara Berard Rockenbach and David A.
Noel (West Palm Beach), for appellee.
LOGUE, SCALES and LINDSEY, JJ.
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.
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. 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
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.
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.
STANDARD OF REVIEW
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)).
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)).
Tower Hill's Initial Payment
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