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Cooper v. Federated National Insurance Co.

Florida Court of Appeals, Fifth District

December 13, 2019

ADAM COOPER AND KIMBERLY COOPER, Appellants,
v.
FEDERATED NATIONAL INSURANCE COMPANY, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Brevard County, Tonya B. Rainwater, Judge.

          Matthew G. Struble, of Struble, P.A., Ft. Lauderdale, for Appellants.

          Caryn L. Bellus, Barbara E. Fox and Bretton C. Albrecht, of Kubicki Draper, P.A., Miami, and Ilana Green Kellner, of Green, Ackerman & Matzner, P.A., Boca Raton, for Appellee.

          COHEN, J.

         Adam and Kimberly Cooper ("the Coopers") appeal a jury verdict in favor of Federated National Insurance Company ("FedNat"). The Coopers raise a number of issues on appeal, only one of which requires reversal: the trial court's refusal to give the Coopers' requested jury instruction. We affirm in all other respects.

         The Coopers maintained a homeowner's insurance policy with FedNat and filed an insurance claim related to a small leak in a bedroom window of their home. Before the claim was resolved, the Coopers alleged that mold spread throughout their home as a result of the leak.

         During the pendency of their claim with FedNat, the Coopers hired a mold remediation company, who sent FedNat a $13, 000 invoice for work it completed at the Coopers' home. The invoice contained no details of the nature or scope of the remediation. FedNat requested that the company provide additional information regarding the work, but the company did not comply. Around that time, the Coopers also hired a public adjuster, who refused to provide FedNat with his estimate of the property damage. As a result, FedNat paid the Coopers what it determined was owed based on its own investigation. FedNat closed the case with the understanding that the claim would be reopened if and when the Coopers' public adjuster provided his damages estimate.

         The Coopers filed a civil remedy notice ("CRN"), alleging that FedNat violated section 624.155(1)(b), Florida Statutes (2015), by failing to settle their claim in good faith. They also alleged that FedNat violated several provisions of section 626.9541(1)(i)3., Florida Statutes (2015), by failing to adopt and implement standards for the proper investigation of claims and denying claims without conducting reasonable investigations based upon available information. Further, the Coopers invoked the appraisal provision of their insurance policy.

         After the Coopers filed the CRN and invoked the appraisal provision, the public adjuster forwarded his assessment of the damages to FedNat, although he had completed his report weeks earlier. He also provided FedNat with documentation regarding the scope of the mold inundation. While the appraisal procedure was ongoing, a FedNat engineer sent an internal memorandum to one of FedNat's internal adjusters, acknowledging the extent of the mold in the Coopers' home. FedNat offered the Coopers $35, 000 to settle the claim, which the Coopers rejected. At the conclusion of the appraisal process, a neutral referee determined that the Coopers were owed $11, 395.56 for mold damage and $72, 254.11 for repairs. FedNat paid the Coopers pursuant to the policy.

         The Coopers filed the instant suit, alleging that FedNat violated section 624.155(1)(b) by not attempting to settle their claim in good faith when it could and should have done so. Additionally, they asserted that FedNat violated almost every provision of section 626.9541(1)(i)3. through acts such as failing to adopt and implement standards for the proper investigation of claims, misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue, and denying claims without conducting reasonable investigations based upon available information.

         At trial, both sides presented conflicting evidence and experts as to the appropriateness of FedNat's handling of the claim. The Coopers submitted a proposed jury instruction related to the alleged violation of section 626.9541(1)(i)3., which provided, in relevant part:

Bad faith on the part of an insurance company also includes violating Fla. Stat. § 626.9541 by committing any of the following acts:
Failing to adopt and implement standards for the proper investigation of the claim; misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue; failing to acknowledge and act promptly upon communications with respect to the claim; denying the claim without conducting reasonable investigations based upon available information; failing to promptly provide a reasonable explanation in writing to the insured of the basis in the insurance policy, in relation to the facts or applicable law, for denial of a claim or for the offer of a compromise settlement; failing to promptly notify the insured of any additional ...

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