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Brito v. Heritage Property & Casualty Insurance Co.

Florida Court of Appeals, Third District

July 24, 2019

Margarita Brito and Susana Brito, Appellants,
v.
Heritage Property & Casualty Insurance Company, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 16-11428, Jorge E. Cueto and Daryl E. Trawick, Judges.

          Barnard Law Offices and Garrett William Haakon Clifford, for appellants.

          Greenberg Traurig and Brigid F. Cech Samole and Katherine M. Clemente, for appellee.

          Before SALTER, LINDSEY and GORDO, JJ.

          PER CURIAM.

         Margarita 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.

         Partial Assignment-Mold Testing

         In 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.

         The 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).

         The 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.

         The 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.

         The 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.

         The 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 ...


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