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Tower Hill Signature Insurance Co. v. Javellana

Florida Court of Appeals, Third District

December 13, 2017

Tower Hill Signature Insurance Company, Appellant/Cross-Appellee,
v.
Cesar Javellana and Sandra Javellana, Appellees/Cross-Appellants.

         Not final until disposition of timely filed motion for rehearing.

         Appeals from the Circuit Court for Miami-Dade County No. 14-31467, Michael A. Hanzman, Judge.

          Traub Lieberman Straus and Shrewsberry and Ashley R. Kellgren and Scot E. Samis (St. Petersburg), for appellant/cross-appellee.

          Barnard Law Offices and Maxwell S. Barnard and Andrew C. Barnard, for appellees/cross-appellants.

          Before SALTER, EMAS and LOGUE, JJ.

          EMAS, J.

         In these consolidated appeals, each party seeks review of an order denying their respective motions for attorney's fees. Cesar and Sandra Javellana ("the Javellanas"), plaintiffs below, appeal the denial of their motion for attorney's fees and costs pursuant to section 627.428, Florida Statutes (2016). Tower Hill Signature Insurance Company ("Tower Hill"), defendant below, appeals the denial of its motion for attorney's fees under the offer of judgment statute, section 768.79, Florida Statutes (2016).[1]

         We affirm the trial court's denial of the Javellanas' motion for attorney's fees and costs because there was no "rendition of a judgment" in favor of the Javellanas on their claims. However, we reverse the trial court's denial of Tower Hill's motion for attorney's fees, because this was a "civil action for damages" under section 768.79, and the "true relief" sought by the Javellanas was an award of monetary damages.

         PROCEDURAL HISTORY

         The Javellanas sustained damage to their home from water intrusion, and initiated a claim with their homeowner's insurer, Tower Hill. Tower Hill investigated the claim, which included an inspection by its independent claims adjuster, and determined the claim was covered under the policy. Based on the adjuster's evaluation and estimate, Tower Hill made an initial payment to the Javellanas in an amount that Tower Hill characterized as the "actual cash value" of the loss, [2] and invited the Javellanas to submit supplemental claims should they discover additional damage. Although Tower Hill later made some additional payments, which the Javellanas accepted, they nevertheless contended that Tower Hill grossly underpaid the claim, [3] and therefore, breached the terms of the insurance policy.

         The Javellanas sued Tower Hill, and the operative complaint contained three counts: breach of contract (Count I); declaratory judgment related to the wear and tear/marring exclusion in the policy (Count II); and declaratory judgment, seeking to have the court declare that Tower Hill may not unilaterally determine actual cash value but that actual cash value must be determined either as an issue of fact or by agreement of the insured and insurer (Count III).

         While the litigation was pending, Tower Hill served an offer of judgment on each of the plaintiffs, pursuant to section 768.79, Florida Statutes (2016). These offers of judgment were not accepted by the Javellanas, and the case proceeded to a jury trial.[4]

         After the Javellanas rested their case, Tower Hill moved for directed verdict. Tower Hill argued that the Javellanas failed, as a matter of law, to prove a breach by Tower Hill, because the evidence showed that Tower Hill performed its duties under the policy by paying the amount of the independent adjuster's repair estimate at actual cash value and advising the Javellanas to submit supplemental claims for any additional damage. The court denied the motion, concluding that it was for the jury to determine, as an issue of fact related to the breach of contract, whether or not Tower Hill failed to pay the actual cash value of the loss.

         At the conclusion of the trial, the jury received the verdict form which asked the following two questions:

1. Did Plaintiffs prove by the greater weight of the evidence that Tower Hill Signature Insurance Company failed to initially pay at least the actual cash value, less any applicable deductible, to Cesar & Sandra Javellana for damage(s) caused by a ...

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