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Vazquez v. Citizens Property Insurance Corp.

Florida Court of Appeals, Third District

October 23, 2019

Glendys Vazquez, Appellant/Cross Appellee,
v.
Citizens Property Insurance Corporation, Appellee/Cross Appellant.

         Not final until disposition of timely filed motion for rehearing.

          Appeals from the Circuit Court for Miami-Dade County, Antonio Arzola and David C. Miller, Judges, Lower Tribunal No. 16-2262.

          Barnard Law Offices, L.P., Andrew C. Barnard, Erik T. Barnard and Garrett William Haakon Clifford, for appellant/cross appellee.

          Butler Weihmuller Katz Craig LLP, Anthony J. Russo, J. Pablo Caceres and Mihaela Cabulea (Tampa), for appellee/cross appellant.

          Before SALTER, MILLER and GORDO, JJ.

          GORDO, J.

         Glendys Vazquez appeals the trial court's order granting a motion in limine precluding evidence of matching costs and the Amended Final Judgment in favor of Citizens Property Insurance Corporation on her breach of insurance contract claim. Citizens cross-appeals the Amended Final Judgment in favor of Ms. Vazquez as to the court directing verdict on a count of declaratory action. We affirm the order on the motion in limine and the trial court's denial of reconsideration based on the trial court's adherence to the plain language of the policy and applicable statute in limiting the evidence. We reverse the trial court's entry of judgment on the breach of contract claim based on procedural error and entry of directed verdict on the declaratory judgment action as the issue was moot.

         FACTS & PROCEDURAL HISTORY

         In 2014, water intrusion damaged twelve ceramic tiles and one kitchen cabinet in Ms. Vazquez's home. Ms. Vazquez filed a claim under her insurance policy with Citizens. The policy required the insurer to pay the actual cash value of the insured loss.[1] Pursuant to the policy, Citizens paid $33, 759.52 based on its assessment of the damages to Ms. Vazquez's tile floor and kitchen cabinet. Ms. Vazquez cashed the check.

         Before beginning repairs, Ms. Vazquez hired her own loss consultant, Robert Moreno, to estimate the damages. The estimate included costs for matching the continuous tile flooring throughout her house and all of her kitchen cabinets.

         Ms. Vazquez subsequently sued Citizens for breach of contract claiming that Citizens failed to pay the actual cash value of the loss and alleging she was entitled to recover $84, 542.93, including matching costs. Ms. Vazquez also sued for declaratory relief requesting a declaration that "payment by [Citizens] of an amount which it claims to be satisfaction of the value of the loss does not create a legal presumption that the amount paid is the Actual Cash Value of a covered loss."

         Prior to trial, Ms. Vazquez filed an affidavit from Mr. Moreno, who planned on testifying that approximately $70, 000.00 of his $84, 542.93 estimate was for matching costs. Given that Ms. Vazquez's complaint was for actual cash value, Citizens filed a motion in limine asking the court to preclude evidence and testimony related to matching damages from the trial and limit the evidence on damages to direct physical loss.

         At the hearing on the motion in limine, Ms. Vazquez asserted she should be able to argue to a jury that actual cash value includes costs for matching her continuous tile flooring and kitchen cabinets. The trial court granted the motion in limine finding that, pursuant to the policy and applicable statute, Citizens was initially required to pay the actual cash value of the property that sustained the direct physical loss. The court explained that the policy and statutory language required Citizens to pay any remaining amounts only after repairs were made. Because Ms. Vazquez had not performed any repairs, the court found that Ms. Vazquez could only present evidence of the actual cash value of the damaged property. The trial court relied on Ocean View Towers Ass'n, Inc. v. QBE Insurance Corp., to find that matching is not a direct physical loss. No. 11-60447-Civ., 2011 WL 6754063 (S.D. Fla. Dec. 22, 2011). The court noted that Ms. Vazquez had chosen to bring suit based on the actual cash value owed and ruled that, as a matter of law, actual cash value did not include matching. Thus, the court limited the evidence to the actual cash value of the physical damage and excluded evidence of undamaged items. The court clarified that its ruling did not preclude Ms. Vazquez from claiming she was entitled to recover matching costs in a separate lawsuit.

         On the morning of trial, Ms. Vazquez moved for reconsideration of the limine order before the successor judge, which was denied. Thereafter, the trial court entered judgment in favor of Citizens on the breach of insurance contract claim. The trial court concluded, based on the order on the motion in limine and Mr. Moreno's affidavit, that Citizens ...


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