FIRST-PARTY PROPERTY APPELLATE TEAM

Florida • Georgia • United States Court of Appeal, Eleventh Circuit

SELECTED OPINIONS

For any questions, please contact:

Jeffrey M. Wank Chair of First-Party Property and Insurance Coverage

Fort Lauderdale

T: (954) 370-9970 jwank@kklaw.com w Expert Inspections, LLC d/b/a ITest d/b/a Moldexpert.com a/a/o Pat Beckford v. United Property & Casualty Insurance Company, 333 So.3d 200 (Fla. 4th DCA 2022) (holding that an insurer cannot be required to follow the terms of an AOB contract where the insurer is not a party to that contract). w The Kidwell Group, LLC d/b/a Air Quality Assessors of Florida a/a/o Maria Amadio v. Olympus Insurance Company, Case No. 5D21-2955 (Fla. 5th DCA July 22, 2022) (interpreting section 627.7152, F.S., as applying to AOB contracts executed after the enactment of the statute, finding the policy inception date irrelevant to the analysis).

Kimberly J. Fernandes Partner Tallahassee | Atlanta

T: (850) 577-1301 kfernandes@kklaw.com w Saunders v. Florida Peninsula Insurance Company, 314 So.3d 592 (Fla. 3d DCA 2020) (interpreting the “faulty workmanship” policy exclusion to include the workmanship process as well as the finished product in affirming the insurer’s denial of a property damage claim). w The Kidwell Group, LLC d/b/a Air Quality Assessors of Florida a/a/o Benjamin Kivovitz, Case No. 4D21-2843 (Fla. 4th DCA June 15, 2022) (enforcing the new section 627.7152, F.S., requirement of including a line-item estimate with an AOB contract at the time of execution)

ADMISSIONS

Florida • U.S. District Court, Northern District of Florida • U.S. District Court, Middle District of Florida

SELECTED OPINIONS w Progressive American Insurance Company v. Glassmetics, LLC, No. 2D21-488, 2022 WL 1592154 (Fla. 2d DCA 2022) (“we reverse the trial court’s order and its conclusions (1) that the appraisal provision was against the public policy underlying section 627.428; (2) that the appraisal provision failed to provide sufficient procedures and methodologies; (3) that Progressive waived its appraisal right; (4) that the appraisal provision was unenforceable because Progressive failed to prove that the insured knowingly, voluntarily, and intelligently waived his rights of access to courts, to a jury trial, and to due process; and (5) that the appraisal provision contains an ambiguity.”).

Daniel Montgomery Partner Jacksonville

T: (904) 549-7700 dmontgomery@kklaw.com w All Auto Glass v. Progressive American Ins. Co., Case No. 2018-SC-3126, 2019-33-AP (Fla. Seminole Cnty. Appellate Division.) (“reversing trial court, holding ruling of district court of appeal in jurisdiction other than where trial court is located is binding upon trial court absent conflict with another district court of appeal. ) w Progressive Am. Ins. Co. v Broward Ins. Recovery Ctr., LLC, 322 So. 3d 103 (Fla. 4th DCA 2021) (“reversing trial court, holding prohibitive cost doctrine inapplicable to appraisal”).

Louis Reinstein Partner Fort Lauderdale

T: (954) 370-9970 lreinstein@kklaw.com

Florida • District of Columbia

• United States District Court, Southern District of Florida

• United States District Court, Middle District of Florida • United States District Court, Northern District of Florida • United States Court of Appeals, Eleventh Circuit Supreme Court of the United States

SELECTED OPINIONS w Taffe v. Wengert, 775 F. App’x 459 (11th Cir. 2019) (reversing the denial of summary judgment in the district court for the sheriff and finding the sheriff was not negligent in the hiring, supervision, or retention of deputy sheriff) w Taffe v. Wengert, 140 S. Ct. 1106, 206 L. Ed. 2d 179 (2020) (Petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit denied). w Williams v. Tony, 319 So. 3d 653 (Fla. 4th DCA 2021) (holding the plaintiff inmate was not an intended third-party beneficiary of the contract between county sheriff and inmate medical services provider, and, thus, could not pursue a negligence claim against provider based on the contract). w People’s Tr. Ins. Co. v. Progressive Express Ins. Co., 336 So. 3d 1207 (Fla. 3d DCA 2021) (holding the commercial automobile liability policy excluded coverage for property damage caused by improper operation of mobile crane mounted on a truck). w Watkins v. Pinnock, 802 F. App’x 450, 454 (11th Cir. 2020) (holding that the plaintiff’s proposed amendments could not cure the deficiencies in the fifth amended complaint as the factual allegations did not support deliberate indifference by the nursing staff).

HERMAN COLE v. UNIVERSAL PROP. & CAS. INS. CO., 4D22-1054

(May 3, 2023)

KK TAKEAWAY:

Plaintiff is required to file NOI on all lawsuits filed after July 1, 2019.

Cole sought a final appeal after the trial court dismissed his lawsuit without prejudice to comply with the presuit notice requirements of section 627.70152, Florida Statutes. There was no dispute that Cole has a policy that was issued before July 1, 2021, the statute’s effective date. However, Cole filed his lawsuit in August 2021 after the statute became effective.

The Fourth District Court of Appeals held that the legislature expressed a clear legislative intent for the statute to apply retroactively to lawsuits filed after July 1, 2021. The Fourth District held that if the legislature wanted the presuit notice requirement to only apply to policies that pre-dated the statute, it would have expressed it. The Fourth District makes clear that the procedural resolution mechanisms (appraisal, mediation, offer, etc.) are procedural as they do not limit the potential recovery or remedy in any want.

Lastly, the Fourth District clarifies that the limitation on recovery of attorney fees is an independent section of the statute. A trial court requiring the presuit notice requirement before commencing litigation does not trigger the implications of section 627.70152(8) ‘s limitation on attorney’s fees.