United States District Court, M.D. Florida, Orlando Division
J.P.F.D. INVESTMENT CORPORATION, Plaintiff,
UNITED SPECIALTY INSURANCE COMPANY, Defendant.
G. BYRON, UNITED STATES DISTRICT JUDGE
cause comes before the Court without oral argument on the
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.
briefing complete, the matter is ripe. Upon consideration,
Plaintiff's Motion for Entry of Judgment is due to be
denied and the case dismissed.
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).
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, ¶
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).
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).