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J.P.F.D. Investment Corp. v. United Specialty Insurance Co.

United States District Court, M.D. Florida, Orlando Division

August 1, 2018

J.P.F.D. INVESTMENT CORPORATION, Plaintiff,
v.
UNITED SPECIALTY INSURANCE COMPANY, Defendant.

          ORDER

          PAUL G. BYRON, UNITED STATES DISTRICT JUDGE

         This cause comes before the Court without oral argument on the following:

1. Plaintiff J.P.F.D. Investment Corporation's Motion for Entry of Judgment on Appraisal Award and Motion for Entitlement to Attorney's Fees and Costs, or in the alternative, Motion for Evidentiary Hearing (Doc. 30), filed February 2, 2018;
2. Defendant United Specialty Insurance Company's Response in Opposition to Plaintiff's Motion for Entry of Judgment (Doc. 31), filed February 12, 2018;
3. Magistrate Judge Gregory J. Kelly's May 9, 2018, Report and Recommendation (Doc. 32);
4. Plaintiff's Objections to Report and Recommendations (Doc. 33), filed Ma y 23, 2018; and
5. Defendant's Response in Opposition to Plaintiff's Objections to Report and Recommendations (Doc. 34), filed June 6, 2018.

         With briefing complete, the matter is ripe. Upon consideration, Plaintiff's Motion for Entry of Judgment is due to be denied and the case dismissed.

         I. BACKGROUND[1]

         This case involves a disputed insurance claim for water damage to a building. Defendant, United Specialty Insurance Company (“United”), issued an all-risks insurance policy (the “Policy”) to Plaintiff, J.P.F.D. Investment Corporation (“JPFD”), for a piece of real property owned by Plaintiff. (Doc. 2, ¶¶ 2-3; Doc. 11-1). The property sustained water damage on January 20, 2017. (Doc. 2, ¶ 2). Plaintiff immediately reported the loss to Defendant. (Doc. 31-2, ¶ 3).

         The parties then embarked on a months-long endeavor to resolve the water damage claim on the Policy. Defendant conceded throughout the claims process that the water damage is covered under the Policy. The only dispute has been the amount of damages. Indeed, Defendant agreed to pay a water extraction firm $152, 262.52 for preliminary water extraction services on April 6, 2017. (Doc. 11-2). Less than a month later, Defendant agreed to pay Plaintiff $91, 080.97 in undisputed replacement costs pursuant to a “preliminary and partial” proof of loss submitted by Plaintiff. (Docs. 11-4, 11-6). Because of the continuing disagreement over coverage, Defendant selected an appraiser on June 20, 2017, and formally invoked its right to an appraisal in a letter to Plaintiff dated June 26, 2017. (Doc. 31-2, ¶ 15).

         On June 23, 2017, Plaintiff initiated this action by filing the Complaint in Florida state court. (Doc. 2). Defendant was served with the Complaint on July 3, 2017-a week after Defendant invoked its appraisal rights. (Doc. 31-1, p. 2). On August 1, 2017, Defendant removed the Complaint to this Court. (Doc. 1). On October 17, 2017, the Court directed the parties to obtain an appraisal pursuant to Defendant's motion. (Doc. 25). On January 5, 2018, Plaintiff received a $249, 228.96 appraisal award, which Defendant promptly paid. (Doc. 30, ¶ 10; Doc. 30-1).

         On February 2, 2018, Plaintiff filed a motion requesting the Court enter judgment confirming the appraisal award and award Plaintiff attorneys' fees pursuant to § 627.428. (Doc. 30, p. 18 (the “Motion”)). Magistrate Judge Gregory J. Kelly submitted a R&R dated May 9, 2018, recommending the Court deny the Motion and dismiss the case. (Doc. 32). Judge Kelly recommends denial because: (1) there was never a “failure to pay” by Defendant under the Policy; and (2) Defendant never denied coverage under the Policy and was working toward resolving the claim when Plaintiff filed suit, thus the Court should not award attorneys' fees or enter a judgment confirming the arbitration award. (Doc. 32, pp. 6-9). Plaintiff objects to the R&R. (Doc. 33).

         II. ...


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