United States District Court, S.D. Florida, Miami Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
LAWRENCE KING STATES DISTRICT JUDGE.
CAUSE is before the Court on Defendant American Security
Insurance Company's Motion for Summary Judgment (DE 10)
and Motion to Take Judicial Notice (DE 8), both filed October
7, 2019, Plaintiff failed to respond to the Motions, and the
time to do so has expired.
a breach of contract case arising from Plaintiffs claim for
insurance proceeds for property damage caused by Hurricane
Irma. The following facts are undisputed. Defendant
American Security Insurance Company ("American
Security") issued a certificate of insurance effective
February 2, 2017 through February 2, 2018, providing coverage
for Plaintiff s property r located at 160 N.W. 145th Street,
Miami, Florida 33168. See Def.'s Statement of
Material Facts ¶ 1, DE 9. On September 20, 2017,
Plaintiff submitted a claim under the policy for windstorm
damage caused by Hurricane Irma. Id. ¶ 3.
November 3, 2017, American Security partially accepted
coverage and issued a payment in the amount of $31, 721.42
for Plaintiffs claim. Id. ¶¶ 5-6. American
Security denied coverage, for the purported damage to
Plaintiffs garage because the damage was "unrepaired
damage from a prior claim." Id. ¶ 7.
Specifically, . Plaintiff had submitted a claim -for the same
damage in 2016 following a tornado, but "did not repair
the damage to his garage with the insurance proceeds [from
the prior claim] and was again claiming the same
damages" in his Hurricane Irma claim. Busby Aff.
¶¶ 10-16, DE 9-1. After American Security made its
coverage determination, Plaintiff submitted an invoice
showing that the roofs had been repaired for $14, 000.
See DE 9 ¶¶ 8, 10; Busby Aff. ¶ 17,
a year after American Security made its coverage
determination and issued the $31, 721.42 payment, on October
5, 2018, Plaintiff submitted a "Sworn Statement, in.
Proof of Loss" claiming $ 118, 853.42 in damage.
See DE 9 ¶ 9; Busby Aff. Ex. F, DE 9-7.
Notably, despite having submitted an invoice showing that the
roofs were replaced for $14, 000, Plaintiff, now claimed that
$55, 707.42 was necessary to replace those same roofs and
sought additional money for the damage to the garage. Busby
Aff. ¶¶ 19-21.
parties then submitted the claim to appraisal. See
DE. 9 ¶ 13. On February 28, 2019, American
Security's appraiser inspected the property and
discovered that the roofs had already been replaced.
See Brinegar Aff. ¶¶ 9-11, DE 9-10.
Nonetheless, the claim was submitted to a neutral umpire, who
ultimately issued an appraisal award for $62, 501.85,
including $36, 799.78 for the roofs and $4, 299.07 for the
garage. Id. ¶¶ 16-19.
Security's appraiser attempted to contact the umpire
regarding these amounts because, based on his visual
inspection of the property and the roofing invoice Plaintiff
had submitted, the $36, 799.78 award to replace the roofs had
"no connection whatsoever to the actual amount Plaintiff
paid to replace the roofs." Id:'¶
19. However, the umpire did not respond. Id. ¶
17. In addition to the umpire not considering the actual
replacement cost for the roofs, the award was made
"without consideration of any deductible or prior
payments," which were to "be subtracted from any
payments due and owing" under the award. Id.
¶ 20. The award' was also "made subject to all
terms, conditions and exclusions" under the policy.
December 3, 2018, Plaintiff filed this action alleging that
American Security breached the policy because the amounts
paid were "inadequate to perform the repairs needed to
fix-all damages caused by the Loss and to restore Plaintiffs
Property to its pre-Loss condition." Compl. ¶ 25,
DE 1-5. American Security now moves for summary judgment on
grounds that the . "undisputed material facts establish
that American Security did not breach the applicable
insurance contract and that Plaintiff has no damages."
Mot, Summ. Judgment 13, DE 10. American Security also argues
that summary judgment is warranted because Plaintiff
"made false statements in an attempt to recover
insurance proceeds that greatly exceeded his actual'
damages." Id. In connection with the Motion for
Summary Judgment, American Security also requests that the
Court take judicial notice of the state court records from
the 2016 lawsuit involving the prior garage claim. Mot.
Judicial Notice, DE 8.
judgment is appropriate where "the movant shows that
there is no genuine /' dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a). A "genuine
dispute" means "the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). In opposing summary judgment, the
nonmoving party "must set forth specific facts showing
that there is a genuine issue for trial." Id.
at 250. "If a party fails to properly support or address
another party's assertion of fact in a motion for summary
judgment, the court may 'consider the fact undisputed for
purposes of the motion' or 'grant summary judgment if
the motion and supporting materials-including the facts
considered undisputed-show that the movant is entitled to
it.'" Urdaneta v. Wells Fargo Bank N.A.,
734 Fed.Appx. 701, 704 (11th Cir. 2018) (quoting Fed.R.Civ.P.
Florida law, the elements of a breach of contract claim are:
(1) the existence of a contract; (2) a material breach of
that contract; and (3) damages resulting from the breach.
See Maor v. Dollar Thrifty Automotive Group, Inc.,
303 F.Supp.3d 1320, 1324 (S.D. Fla. 2017). In the insurance
context, it is well established that an appraisal award is
binding on the parties and may give rise to a breach of
contract claim. See generally Travelers Ins. Co. v.
Luckett, 279 So.2d 885, 886 (Fla. 3d DCA 1973). However,
courts have recognized that an appraisal award does not
establish the amounts owed under the policy where (as here)
the award includes language stating that it was made without
consideration of the deductible amount, prior payments, or
policy exclusions. See, e.g., Sands on the Ocean Condo.
Ass'n, Inc. v. QBE Ins. Corp., No. 05-14362-CIV,
2009 WL 790120, at *3 (S.D. Fla. Mar. 24, 2009) (Marra, J.)
(finding that defendant was "entitled to challenge
coverage as to portions of the appraisal award" where
award stated that it was made "without any consideration
of the deductible amount or prior payments issued to the
insured or any terms, conditions, provisions or
exclusions" of the insurance policy); Liberty
American Ins. Co. v. Kennedy, 890 So.2d 539, 541-12
(Fla. Dist. Ct. App. 2005) (concluding that "the
submission of the claim to appraisal does not foreclose [the
defendant] from challenging an element of loss as not being
covered by the policy").
the appraisal award was made "without consideration of
any deductible or prior payments," and was also
"made subject to all terms, conditions and
exclusions" under the policy. See Brinegar Aff.
¶ 20. Thus, American Security argues that, because
Plaintiff paid $14, 000.to replace the damaged roofs, the
award must be reduced under the "Loss Settlement"
provision of the policy, which states that the insurer will
pay no more than "[t]he necessary amount actually spent
to repair or replace the damaged  property."
See Mot. Summ. Judgment 7-9. American Security also
notes that the policy contains an exclusion barring coverage
when the insured has "misrepresented any material fact
or circumstance," "[e]ngaged in fraudulent
conduct," or "[m]ade false statements relating to
the insurance." Id. at 11. And here, American
Security has submitted evidence showing that Plaintiff
misrepresented the damage to the roofs by claiming $55,
707.42 in his Proof of Loss despite having already completed
the roof repairs for $14, 000. Id. at 12. Plaintiff
has submitted no evidence contradicting these facts. Finally,
American Security argues that the amount ...