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.
Barnard Law Offices, L.P., Andrew C. Barnard, Erik T. Barnard
and Garrett William Haakon Clifford, for appellant/cross
Weihmuller Katz Craig LLP, Anthony J. Russo, J. Pablo Caceres
and Mihaela Cabulea (Tampa), for appellee/cross appellant.
SALTER, MILLER and GORDO, JJ.
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.
& PROCEDURAL HISTORY
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. 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.
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.
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."
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
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
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