MARGARET HURCHALLA, JAMES HURCHALLA, LAKE POINT PHASE I, LLC, a Florida limited liability company, and LAKE POINT PHASE II, LLC, a Florida limited liability company Appellants,
HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY, INC., a Florida corporation, Appellee.
final until disposition of timely filed motion for rehearing.
Consolidated appeals from the Circuit Court for the
Nineteenth Judicial Circuit, Martin County; Barbara W.
Bronis, Judge; L.T. Case No. 14000054CAAXMX.
Virginia P. Sherlock and Howard K. Heims of Littman, Sherlock
& Heims, P.A., Stuart, for appellants Margaret Hurchalla
and James Hurchalla.
J. Loeb, Jon P. Tasso and Michael J. Labbee of Smolker,
Bartlett, Loeb, Hinds & Thompson, P.A., Tampa, for
appellants Lake Point Phase I, LLC, and Lake Point Phase II,
Alden Swift of Cole, Scott & Kissane, P.A., Orlando, for
challenge a final summary judgment in favor of appellee
insurance company which summarily determined that the company
had no duty to defend or indemnify appellants Hurchalla
against a civil action. Because the appellee failed to
conclusively negate appellants' affirmative defenses to
the complaint filed by the insurance company, the court erred
in granting summary judgment. We reverse.
Point Phase I, LLC and Lake Point Phase II, LLC (collectively
"Lake Point") brought a civil action against
Margaret Hurchalla and her husband (collectively
"Hurchalla") alleging she tortiously interfered
with agreements which Lake Point had with South Florida Water
Management District and Martin County ("the tort
litigation"). Initially, appellee Homeowners Choice
Property & Casualty Insurance Company, Hurchalla's
homeowner's insurer, provided Hurchalla with a defense.
Homeowners Choice defended Hurchalla for more than a year in
the tort litigation. After a year of litigation, Homeowners
Choice filed a complaint for declaratory judgment against
Hurchalla, Lake Point, SFWMD and Martin County, seeking a
determination that Hurchalla's policy does not provide
coverage for the claims asserted against her for
"intentional acts," but covered only bodily injury
or property damage. Hurchalla filed an answer and denied the
allegations regarding lack of coverage and also raised
affirmative defenses of laches, estoppel, waiver, failure to
state a cause of action and breach of the duty of good faith
and fair dealing.
Choice subsequently moved for summary judgment on grounds
that the policy provided coverage for only bodily injury or
property damage, not intentional acts. The motion was
initially denied on grounds there were disputed issues of
fact regarding waiver, estoppel and laches. After the tort
litigation resulted in a substantial verdict against
Hurchalla, Homeowners Choice filed a renewed motion for
summary final judgment, arguing that because the jury found
against Hurchalla on an intentional tort, there were no
disputed issues of material fact. Homeowners argued that
under the policy, coverage was excluded for intentional
torts. Hurchalla opposed the motion, arguing both that
Homeowners Choice had not negated her affirmative defenses
and that she had not received a reservation of rights letter
required by section 627.426(2), Florida Statutes (2013),
which fact was supported by both deposition testimony and
affidavit. Despite the conflicting evidence, the court
granted the motion, determining that the claim and verdict
were based on an intentional tort, for which coverage was
excluded under the policy. In rejecting Hurchalla's
estoppel defense the court relied on Doe v. Allstate
Insurance Co., 653 So.2d 371 (Fla. 1995). The court
interpreted Doe as holding that the fact that an
insurance company assumes representation of an insured does
not mean that an event, that was not covered under the
policy, is covered. Coverage under a policy could not be
extended by the doctrine of estoppel. The court then entered
final summary judgment. This appeal follows.
standard of review of an order granting summary judgment is
de novo. Frost v. Regions Bank, 15 So.3d 905, 906
(Fla. 4th DCA 2009). When reviewing a ruling on summary
judgment, an appellate court must examine the record in the
light most favorable to the non-moving party. Summary
judgment cannot be granted unless the pleadings, depositions,
answers to interrogatories, and the admissions on file
together with affidavits, if any, conclusively show that
there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law.
See also State v. Presidential Women's Ctr., 937
So.2d 114, 116 (Fla. 2006) (assuming there is no disputed
issue of fact, the correctness of a summary judgment is a
matter of law which is subject to the de novo standard of
review). Where the defendant has raised affirmative defenses,
the plaintiff must factually refute them or establish that
they are legally insufficient before being entitled to
summary judgment in its favor. See Corya v. Sanders,
76 So.3d 31, 34 (Fla. 4th DCA 2011) (quoting Knight
Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 788
(Fla. 4th DCA 1995)).
Florida Rule of Civil Procedure 1.510(c), a motion for
summary judgment must state with particularity the grounds
upon which it is based. This is intended to prevent trial by
"ambush" by allowing the nonmoving party to be
prepared for the issues that will be argued at the summary
judgment hearing. City of Cooper City v. Sunshine
Wireless Co., Inc., 654 So.2d 283, 284 (Fla.
4th DCA 1995). It is reversible error to enter summary
judgment on a ground not raised with particularity in the
motion for summary judgment. See Ambrogio v.
McGuire, 247 So.3d 73, 75 (Fla. 2d DCA 2018).
raised five affirmative defenses, including estoppel.
Homeowners Choice's renewed motion for summary judgment
failed to address any of them, and the trial court granted
summary judgment without addressing those defenses. This was
error. See Corya.
Choice's contention, that it was not obligated to negate
Hurchalla's affirmative defenses until Hurchalla raised
them in response to its motion for summary judgment, is
clearly wrong. "Where the movant merely denies the
affirmative defenses and the affidavit in support of summary
judgment only supports the allegations of the complaint and
does not address the affirmative defenses, the burden of
disproving the affirmative defenses has not been met."
Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d
784, 786 (Fla. 5th DCA 2003); Elkins v. Barbella,
603 So.2d 726, 727 (Fla. 4th DCA 1992).
trial court may have presumed that the affirmative defense
was legally insufficient by citing to Doe. However,
Doe does not support summary judgment in this case.
In Doe, an insured was sued for an intentional tort.
Allstate initially provided the insured a defense but did not
send a written reservation of rights to the insured regarding
coverage, as required by section 627.426(2), Florida
Statutes. Subsequently, Allstate filed an action for
declaratory relief in federal court asking the court to
determine that the policy did not afford coverage to the
insured. The district court agreed that there was no coverage
and granted summary judgment to Allstate. Upon an appeal to
the Eleventh Circuit, the court certified an issue to the
Florida Supreme Court. The minor's parents argued summary
judgment should not have been granted because Allstate was
estopped to deny coverage because it had not complied with