final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 16-11428, Jorge E. Cueto and Daryl E. Trawick,
Barnard Law Offices and Garrett William Haakon Clifford, for
Greenberg Traurig and Brigid F. Cech Samole and Katherine M.
Clemente, for appellee.
SALTER, LINDSEY and GORDO, JJ.
and Susana Brito ("Insureds") appeal from (1) an
amended final summary judgment entered in favor of Heritage
Property & Casualty Insurance Company
("Insurer") regarding their residential
homeowners' policy claims, and (2) an order granting the
Insurer's motion for attorney's fees and costs (but
as to entitlement only, with amount to be determined
subsequently). For the reasons which follow, we reverse the
amended final summary judgment and remand for further
proceedings. We do not review the order on the Insurer's
entitlement to attorney's fees and costs, both because
(a) no award amount was fixed, see Diaz v. Citizens Prop.
Ins. Corp., 227 So.3d 736, 736 (Fla. 3d DCA 2017)
(provision of a final judgment finding an entitlement to
attorney's fees, but not fixing the amount, not ripe for
review), and (b) the order is rendered moot following our
reversal of the amended final summary judgment.
September 2015, the Insureds' home was damaged when the
roof leaked and allegedly caused losses exceeding $80,
000.00. The Insureds' residential insurance policy
("Policy"), originally issued by Citizens Property
Insurance Corporation, had been assumed by the Insurer prior
to the damage and claim.
Insureds hired a mold testing company to test for any mold
damage resulting from the leakage, and to protect their home
from further damage. To pay the $2, 495.00 invoice for the
mold testing, lab reports, and remediation, the Insureds
signed a "Contract for Services, Assignment of Benefits
& Direct Payment Authorization" with the mold
testing company. The pertinent portion of the assignment of
insurance policy benefits states: "I hereby assign
only the benefits, and proceeds under any
applicable insurance policies to [the mold testing company]
that pertains to the total invoice amount for
services performed by [the mold testing
company]." (Emphasis provided).
Insureds filed a claim for all of the alleged damages with
the Insurer about three months after the reported date of
loss. About a month later, and after conducting an inspection
of the roof and alleged damage, the Insurer denied the claim
in its entirety, claiming a coverage exclusion in the Policy
for ordinary wear and tear to the roof.
Insureds filed a lawsuit against the Insurer in the circuit
court about eight months after the damage and about six
months after the assignment of part of the claim to the mold
testing company. The mold testing company filed a separate
small claims suit (in its own name) against the Insurer in
the county court to collect the $2, 495.00 invoice.
mold testing company's case went to trial in the county
court while the Insureds' case against the Insurer in the
circuit court was still in pretrial proceedings. The Insureds
were not parties to the mold testing company's small
claims suit, but they did testify as witnesses. A jury
rendered a verdict in favor of the Insurer and against the
mold testing company on the assigned invoice claim. The
verdict form asked the jury to answer whether the Insureds
suffered a loss to their property after September 22, 2015
(two days before the date of the leak and resulting damage
claimed by the Insureds). The jury answered that question,
"No," and final judgment was then entered against
the mold testing company on its $2, 495.00 assigned claim.
Insurer then filed a motion for summary judgment against the
Insureds in the circuit court case, contending that the
Insureds' claim was barred by collateral estoppel and res
judicata, based on the jury's verdict in the separate
mold testing company small claims case. The Insureds opposed
the motion, relying on the undisputed fact that they were not
parties to the small claims case (even though they
testified), and citing legal authority for the
inapplicability of the affirmative defenses of collateral