final until disposition of timely filed motion for rehearing.
of a nonfinal order from the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; John J. Murphy,
III, Judge; L.T. Case No. CACE18-005826.
D. Tinker and David C. Borucke of Cole, Scott & Kissane,
P.A., Tampa, Kathryn L. Ender of Cole, Scott & Kissane,
P.A., Miami, and Brett R. Frankel and Jonathan M. Sabghir of
People's Trust Insurance Company, Deerfield Beach, for
W. McLuskey, John E. Hughes and Lisa A. Riddle of McLuskey,
McDonald & Hughes, P.A., Miami, for appellees.
Trust Insurance Company ("People's Trust" or
"Insurer") appeals an order dismissing with
prejudice its counterclaim for temporary mandatory injunctive
relief or specific performance in which it sought to enforce
provisions of its policy for appraisal and repair after loss.
We reverse the trial court's order to the extent that it
dismissed with prejudice Insurer's claim to enforce the
provisions of the contract.
Trust insured the appellee homeowners under a policy in which
People's Trust retained the option to repair any covered
damaged to the homeowners' property. If there was a
dispute over the scope of damages, the policy provided that
either party could compel an appraisal.
sustained damage to their home during Hurricane Irma in
September 2017. Insurer's field adjuster prepared an
estimate of repairs of only $781. Insurer sent an
acknowledgment of loss to homeowners and elected its option
to repair. However, since the adjuster's estimate of
repairs was less than homeowners' deductible, the claim
was non-compensable, absent a dispute over the scope of
repairs. People's Trust also advised homeowners of the
appraisal rights under the policy.
receiving the homeowners' sworn proof of loss of $105,
596, People's Trust acknowledged that a dispute existed
over the scope of repairs and demanded an appraisal. It
identified its appraiser and requested that homeowners select
their appraiser. Instead, homeowners filed suit for breach of
Trust filed an answer, affirmative defenses, and a
counterclaim. In the first count of the counterclaim, it
requested a temporary mandatory injunction, or alternatively,
specific performance, to enforce its right to an appraisal
and right of repair. The second count of the counterclaim
claimed a breach of contract by the insureds, and the third
count requested declaratory relief. The homeowners moved to
dismiss the first count of the counterclaim, contending that
it failed to state a cause of action because it did not
allege irreparable harm and there was an adequate remedy at
law. After the hearing, the court dismissed count one and
count two of the counterclaim with prejudice, prompting this
appeal. Because count one sought an injunction and an
appraisal, we have jurisdiction pursuant to Florida Rule of
Appellate Procedure 9.130(a)(3)(B) and 9.130(a)(3)(C)(iv).
review de novo a trial court's order dismissing a claim
for failure to state a cause of action. McKane Family
Ltd. P'ship v. Sacajawea Family Ltd. P'ship, 211
So.3d 117, 119 (Fla. 4th DCA 2017). We agree that to the
extent the counterclaim sought an injunction, the harm
alleged was not the type of irreparable harm sufficient to
support the issuance of an injunction, as there was an
adequate remedy at law through monetary compensation. See
Bautista REO U.S., LLC v. ARR Inv., Inc., 229 So.3d 362,
364 (Fla. 4th DCA 2017). However, the counterclaim also
alleged the essential elements of a claim for specific
performance of the policy obligations, including its right to
compel an appraisal in accordance with the policy terms. In
People's Trust Insurance Co. v. Tracey, 251
So.3d 931 (Fla. 4th DCA 2018), we considered the same repair
and appraisal conditions and held under nearly identical
facts that the insurer was entitled to compel an appraisal.
After a homeowner has filed suit, it may be more traditional
for an insurer to move to compel an appraisal to seek
enforcement of the policy provisions; however, this does not
preclude an insurer from filing a counterclaim alleging that
the insurer is entitled to enforce the provisions of the
insurance contract through specific performance.
homeowners cite People's Trust Insurance Co. v.
Acosta, 259 So.3d 179, 180 (Fla. 3d DCA 2018), as
authority for the trial court's dismissal of the action.
In Acosta, the insurer filed a complaint for
temporary injunction and specific performance to compel the
insureds to comply with the policy provisions for repair. The
trial court denied the motion for temporary injunction, and
the appellate court affirmed, reasoning that the insurer
could move to abate a separate complaint which the insureds
filed until the insureds complied with the policy provisions,
or monetary damages would protect the insurer. However, in
that case, the trial court dismissed the complaint without
prejudice, and the parties did not raise the enforcement of
the appraisal clause in that proceeding, as the insurer did
in this case.
affirm the order dismissing the request for temporary
injunction, as the counterclaim on its face did not allege an
irreparable injury. To the extent that the counterclaim sought
specific performance of the right to an appraisal and repair
provisions of the policy, the court erred in dismissing the
counterclaim with prejudice. We therefore reverse and remand
for reinstatement of count one of the counterclaim for