FIRST- PARTY PROPERTY APPELLATE EDITION
FIRST-PARTY PROPERTY APPELLATE TEAM
Kimberly J. Fernandes Partner
Tallahassee | Atlanta
T: (850) 577-1301
kfernandes@kklaw.com
Daniel Montgomery Partner
Jacksonville
T: (904) 549-7700
dmontgomery@kklaw.com
ADMISSIONS
For any questions, please contact:
Jeffrey M. Wank
Chair, First-Party Property and Insurance Coverage Division
Fort Lauderdale
T: (954) 370-9970
jwank@kklaw.com
Florida • Georgia • United States Court of Appeal, Eleventh Circuit
SELECTED OPINIONS
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).
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.”).
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”).
Board Certified in Appellate Law
ADMISSIONS
Florida • Massachusetts • New York • New Jersey • Pennsylvania • U.S. District Court, Northern District of Florida • United States District Court for the District of Massachusetts
SELECTED OPINIONS
w Universal Prop. & Cas. Ins. Co. v. True Builders a/a/o Joiner, 6D2023-2498 (Fla. 6th DCA 2024) (Plaintiff originally filed suit in the wrong court then, after years of litigation, voluntarily dismissed and filed in the correct court. In ruling on entitlement to fees in the second lawsuit the trial court awarded fees incurred in the dismissed action. Appellate court reversed holding no entitlement to fees for the dismissed action under 627.428 as no recovery was had).
w Restore & More, LLC v. Homeowners Choice Prop. & Cas. Ins. Co., 4D2023-1560 (Fla. 4th DCA 2024) (affirming summary judgment finding no breach of policy based on AOB company’s claim that including the insureds and mortgage company on claim payments and mailing check directly to the insured violated the AOB).
w Universal Property & Casualty Insurance Company v. Tsirnikas, 386 So. 3d 233 (Fla. 2d DCA 2024) (holding that trial court erred in entering judgment in favor of the insured where jury made a finding of no liability but also entered an amount for damages)
w Juravin v. DCS Real Estate Investments, LLC, 338 So. 3d 1089 (Fla. 5th DCA 2022) (granting petition for writ of prohibition and requiring trial court to stay proceedings under Fla. Stat. section 631.67 where insurer providing defense to insured was declared insolvent)
w Homeowners Choice Prop. & Cas. Ins. Co. v. Swift, 4D20-2750 (Fla. 4th DCA 2021) (granting petition for writ of certiorari and finding trial court departed from essential requirements of law by finding a waiver of work product privilege and ordering deposition of expert who was originally disclosed as a trial expert but subsequently removed and identified as a non-testifying consultant expert)
Boston | Tampa, | Short Hills (By Appointment Only) | New York City T: (866) 643-9734 alabbe@kklaw.com Amy L. Koltnow
T: (407) 648-9450 akoltnow@kklaw.com
ADMISSIONS
Florida • U.S. District Court, Southern District of Florida • U.S. District Court, Middle District of Florida
SELECTED OPINIONS
w Security First Ins. Co. v. Czelusniak, 305 So. 3d 717 (Fla. 3d DCA 2020), rev. den., 2020 WL 6708664 (Nov. 16, 2020) (established legal precedent for the interpretation and enforcement of anti-concurrent exclusionary provisions in Florida).
w De la Rosa v. Florida Peninsula Ins. Co., 246 So. 3d 438 (Fla. 4th DCA 2018) (set new precedent for late-reported claims when an insurer is prejudiced in its ability to investigate the extent of the damage).
w Castellanos v. Next Door Co., 192 So. 3d 431 (Fla. 2016) (amicus curiae brief for insurance association groups in high-profile Florida Supreme Court case contemplating the constitutionality of Florida law governing claimants’ attorney’s fees in workers’ compensation claims).
Jake D. Huxtable Partner/Business Unit Leader
Jake D. Huxtable Partner/Business Unit Leader
Zachary A. Schiffman Attorney
Jake D. Huxtable Partner/Business Unit Leader
Zachary A. Schiffman Attorney
Alison J. Trejo Partner/Business Unit Leader
Alan H. Swindoll Attorney
First-Party Property Appellate Team
Case Wins
Summary Judgment – Competing Evidence CITIZENS PROPERTY INS. CORP. V. RAMON ARIAS, 3D23-0986 (DEC. 4, 2024)
Summary Judgment – Motion to Continue ROSARIO VALER V. CITIZENS PROPERTY INS. CORP., 3D23-1983 (JAN. 8, 2025))
Assignment of Benefits HOLDING INSURANCE COMPANIES ACCOUNTABLE, LLC A/A/O LEONARD CAURSO V. AMERICAN INTEGRITY INS. CO. OF FLORIDA, 5D2023-2810 (JAN. 3.2025) .
Sworn Proof of Loss ALTON
Nonbinding Arbitration – Excusable Neglect HOWARD ROY HOUSEN AND VALERIE HOUSEN V. UNIVERSAL PROPERTY & CASUALTY INS. CO., 4D2023-2720 (JAN. 22, 2025)
Leave to Amend – Affirmative Defenses
UNIVERSAL PROP. & CAS. INS. CO. V. ARTURO ARMANDO ARMAND, ET. AL, 3D23-1734 (JAN. 29, 2025)
Attorney’s Fees – Stacking from Previously Dismissed Case
UNIVERSAL PROP. & CAS. INS. CO. V. TRUE BUILDERS,
Summary Judgment –Competing Evidence
CITIZENS PROPERTY INS. CORP.
V. RAMON ARIAS, 3D23-0986 (DEC. 4, 2024)
KK TAKEAWAY:
A genuine competing factual position precludes summary judgment.
KK TAKEAWAY:
Wear and tear does not have to start after policy inception to be excluded.
KK TAKEAWAY:
Constant repeated and seepage exclusion does not permit coverage for water damage occurring before it becomes constant.
KK TAKEAWAY:
Daubert is focused on the methodology used, not the ultimate expert conclusion.
BACKGROUND:
Arias filed three partial summary judgment motions. In opposition, Citizens argued the policy did not cover the water loss as it resulted from constant repeated seepage, wear and tear, and deterioration of a plumbing line. Citizens also provided an engineering report supporting its position. The trial court
granted the motions under the old summary judgment standard if any record evidence would create an issue of fact. The Third District held, under this standard, that Citizens made an issue of fact.
The trial court’s order focused on the issue of Citizens inspecting Arias’s home before renewing their policy; therefore, Citizens could only rely on evidence of wear and tear occurring after the home inspection. The trial court also ruled that constant and repeated seepage did not exclude leakage before it became constant. The Third District clarified that no Florida authority or policy language existed for such a position.
The Third District also overturned the trial court’s exclusion of Citizens’ expert engineer. In doing so, the Third District explained, the engineer relied on a site inspection, gathered additional information, and applied his engineering experience and training by conducting moisture readings, observing long-term versus short-term water damage, and applying scientific principles to water flow from a plumbing system. The Third District reiterated the Daubert standard focuses on what an expert did rather than on what he concluded.
Summary Judgment –Motion to Continue
ROSARIO VALER V. CITIZENS
PROPERTY INS. CORP., 3D231983 (JAN. 8, 2025)
KK TAKEAWAY:
Failure to allow a continuance on summary judgment when an affidavit shows the existence of relevant evidence, efforts made to acquire it, and the inability to acquire was not due to delay is error.
KK TAKEAWAY:
If a carrier does not establish its exclusion, an insured has no burden under an all-risk policy to disprove it.
KK TAKEAWAY:
A misrepresentation and subsequent admission of the same is not enough.
BACKGROUND:
The insured had a water leak claim that Citizens denied due to continued leakage, an exclusion under the policy. Citizens filed a motion for summary judgment during litigation, arguing that the long-term leak exclusion prevented coverage. After filing the motion, Citizens attempted to set the motion for a hearing but was advised that the primary counsel had a medical issue and would need to withdraw. Citizens waited some time, then continued to set the motion for a hearing, ultimately doing so unilaterally. However, during the scheduling process, Citizens was advised that the insured’s counsel was withdrawing and ultimately filed a motion to withdraw, which was set on August 11, 2023. The trial court permitted Citizens to unilaterally set the summary judgment motion on the same day. When the notice of hearing was filed, Insured’s new counsel filed a notice of appearance. The insured’s counsel requested that the motion hearing be rescheduled so that previously set depositions could be conducted. Specifically, the insured’s counsel wanted to depose Citizens’ expert, specific to his findings supporting the summary judgment.
The Third District Court of Appeal discussed how pending depositions of a material issue to summary judgment is a sufficient basis to continue a summary judgment hearing. Of course, a continuance is unjustified when dilatory conduct leads to the need for continuance. The Third District reversed on this ground and explained that a secondary issue is the lack of evidence from Citizens that a continuance would be prejudicial.
Lastly, the Third District reversed the trial court’s order granting summary judgment based on the excluded loss. During the hearing, the trial court stated that even if it did not consider the citizen’s expert, the insured still failed to show that the loss was covered and not subject to repeated leakage exclusion. The Third District reiterated that the burden of proof on an all-risk policy is to show a loss occurred during the policy period. This is a narrow ruling that the insured does not have a burden to disprove an exclusion until a carrier establishes the exclusion applies.
Assignment of Benefits
HOLDING INSURANCE COMPANIES ACCOUNTABLE,
LLC A/A/O LEONARD CAURSO V. AMERICAN INTEGRITY INS. CO. OF FLORIDA, 5D2023-2810 (JAN. 3.2025)
KK TAKEAWAY:
An assignee cannot subvert the AOB statute via assignment to enforce the insured’s rights when the same assignment seeks recovery for services subject to the same statute.
BACKGROUND:
In 2019, Insureds suffered roof damage. Insureds reported the loss and executed a direction to pay with Noland’s Roofing. After receiving American Integrity’s claim decision, the insureds executed an assignment of benefits to Holding Insurance Companies Accountable, LLC (“HICA”). HICA’s assignment expressly states it does not provide services to protect, repair, restore, or replace the
insured’s property. Still, it states that any payments shall be made in accordance with any direction to pay. Insureds executed a separate acknowledgment with the following: “I want HICA to hold my insurance company accountable for their obligation(s) under the policy of insurance and also to ensure that the direction to pay that I signed with a separate company is honored.”
The Fifth District Court of Appeals upheld the trial court’s summary judgment order, finding HICA subject to section 627.7152.
Florida Statutes, and they were non-compliant. The finding was based on HICA’s passthrough language, which required it to pay the direction to pay for services that are subject to the statute. While HICA does not perform the repairs, it seeks funds to facilitate those repairs.
Sworn Proof of Loss
ALTON
FORBES V. PEOPLE’S TRUST INS. CO., 4D2023-2375 (JAN. 8, 2025)_
KK TAKEAWAY:
In a per curiam written opinion, the Fourth District certifies conflict with the Third District, holding that the failure to submit a sworn proof of loss does not require a showing of prejudice.
BACKGROUND:
The Trial court granted summary judgment, finding the failure to submit a sworn proof of loss precluded recovery. The insureds argued that People’s Trust’s invocation of a preferred vendor contract waived the requirement for a sworn proof of loss. However, the evidence showed that People’s Trust abandoned its decision to rely on a preferred vendor and requested a sworn proof of loss.
Nonbinding Arbitration –Excusable Neglect
HOWARD ROY HOUSEN AND VALERIE HOUSEN V. UNIVERSAL PROPERTY & CASUALTY INS. CO., 4D2023-2720
(JAN. 22, 2025)
KK TAKEAWAY:
The failure of a party to file a rejection of the arbitration decision and request for trial in response to a non-binding arbitration award in a timely manner, resulting in a final judgment, can be vacated based on excusable neglect.
BACKGROUND:
The insured did not file a timely notice of rejection of the arbitration decision and request for trial. Nine days after the deadline, the insured filed a motion for a new trial. The motion did not address its untimely filing. Twenty-seven days after the original deadline, the insureds filed a second motion for trial de
novo, which asserted that due to a clerical calendaring error, the motion was not filed in a timely manner. The motion included an affidavit from the legal secretary attesting that she did not calendar the date correctly.
The Fourth District Court of Appeals clarified that even with the entry of judgment, a trial court can set aside pursuant to Rule 1.540(b) (1) due to excusable neglect. The Fourth held there was excusable neglect, and the insured’s motions, in conjunction with moving to set aside the judgment within one week, demonstrated “swift action.”
Leave to Amend – Affirmative Defenses
UNIVERSAL PROP. & CAS. INS. CO.
V. ARTURO ARMANDO ARMAND, ET. AL, 3D23-1734 (JAN. 29, 2025)
KK TAKEAWAY:
The discretion of a trial court judge on leave to amend will not be disturbed absent a finding of unreasonableness.
BACKGROUND:
Universal appealed a final judgment in favor of the insureds based on the trial court’s
denial of its request for leave to amend its affirmative defenses. The Third District per curiam affirmed the trial court but issued an opinion to clarify that amendments are within the discretion of the trial court, and such discretion should not be disturbed unless there is a finding that a ruling was unreasonable. If two people are likely to disagree on a ruling, then it is certainly within the parameters of reasonableness.
Attorney’s Fees – Stacking from previously dismissed case
KK TAKEAWAY:
Attorney’s fees based on 627.428(1) (since repealed) can only be awarded for litigating the suit in which the judgment was obtained..
BACKGROUND:
The trial court entered an order dismissing True Builders, as assignee of insurance benefits under a homeowner’s policy, filed suit against the insurer in the circuit court for breach of the insurance policy. The parties litigated the issue of subject matter jurisdiction, and the circuit court ultimately dismissed the case without prejudice. Instead of amending the complaint, True Builders filed a separate lawsuit in county court. The insurer later settled the claims raised by True Builders, which included a stipulation to pay True Builder’s attorney’s fees and other costs. The trial court awarded True Builders attorney’s fees in both lawsuits. The insurer appealed, arguing that True Builders was not entitled to fees from the first-filed lawsuit that was dismissed. The appellate court agreed and reversed the fee award. In doing so, the Court construed the meaning of 627.428(1) Fla. Stat., finding that a recovery of fees only pertains to the lawsuit “in which the recovery is had.”
MEET THE
CONTRIBUTORS
Jeffrey M. Wank Chair, First-Party Property and Insurance Coverage Division
Email Jeffrey M. Wank
Jeffrey Wank is Chair of First-Party Property and Insurance Coverage focusing his practice on first-party property insurance Defense, including coverage and bad faith litigation. Jeffrey also handles the defense of a wide array of third-party insurance defense claims.
Jeffrey assists insurers in all aspects of coverage disputes, including responses to civil remedy notices of insurer violations, pre-suit investigations and coverage evaluations, declaratory judgment and bad faith litigation. He defends property insurers throughout Florida in first-party coverage matters, where many of the claims involve sinkhole, windstorm, fire, mold, theft and water losses.
In addition, Jeffrey serves as coverage and bad faith counsel in third-party actions, including monitoring the defense of litigation. As part of this role, he is often asked to draft detailed coverage opinions, reservation of rights letters, declinations, and prosecute declaratory relief actions.
Jeffrey also has experience in handling complex civil and commercial matters, including the defense of personal injury, premises liability, employment discrimination, medical malpractice, nursing home liability, homeowner and condominium association claims, and construction defect cases.
Jeffrey has been named a Florida Super Lawyer Rising Star since 2014. In 2011, he was elected to the Broward Bar Association Young Lawyers Section Board of Directors, where he served as Secretary on the organization’s Executive Board and moved up to President in June 2015. Jeffrey was also named the Chair on the Board of Directors of Legal Aid Service of Broward County & Coast to Coast Legal Aid of South Florida for the 2019 term and previously served as the Vice Chair for the 2018 term.
Jeffrey earned his Bachelor of Science in Political Science from Florida State University and went on to earn his Juris Doctor degree from Nova Southeastern University Shepard Broad Law Center.
Daniel Montgomery Partner/Business Unit Leader
Email Daniel Montgomery
Daniel Montgomery is a Partner at Kelley Kronenberg where he assists in handling matters related to first-party property insurance defense. Daniel handles all aspects of first-party property defense, including coverage disputes, pre-suit investigations, fraud investigations, and CRN responses. Additionally, our clients frequently engage Daniel to assist with the development of claims processes and procedures. Daniel’s practice is also focused on the highly-specialized areas of first-party property appeals and auto glass defense.
Prior to joining Kelley Kronenberg, Daniel worked as an Associate Attorney with an Am Law 200 firm, focusing his practice on first-party auto coverage and litigation, general liability litigation, and appellate law. Daniel also practiced as an Assistant State Attorney for Florida’s Fourth Judicial Circuit, in Jacksonville, where he litigated a variety of criminal proceedings through trial and served as a liaison for UVISA Certifications.
Daniel received his Bachelor of Science degree in Criminal Justice, summa cum laude, with a Certificate of Crime Scene Investigation, from Colorado Technical University. He then went on to earn his Juris Doctor degree from Florida Coastal School of Law, graduating cum laude.
Since Law School, Daniel continued his education by obtaining a Master of Science, summa cum laude, from Florida State University, with a Certificate in U.S. Intelligence. Daniel acquired an additional LL.M. in Executive Litigation Management from Baylor Law School.
During Daniel’s career he has served on several committees and groups continually working to develop awareness, knowledge, and best practices in a variety of areas including mental health, utilizing technology to drive efficiencies, special investigations, and litigation management best practices.
MEET THE
CONTRIBUTORS
Amy L. Koltnow Partner/Business Unit Leader
Email Jeffrey M. Wank
Amy Koltnow is a Partner and Business Unit Leader at Kelley Kronenberg and has over 30 years of legal experience. With a focus on all aspects of business law and litigation, Amy represents a diverse clientele, ranging from individuals to large corporations, in federal and state courts, arbitration, and administrative forums.
Amy has proven herself as a trial attorney, handling complex and high-stakes bench and jury trials. Her wide-ranging expertise in different areas of litigation consistently delivers positive results for her clients, both at trial and on appeal. Additionally, Amy’s legal career includes serving as outside General Counsel
for a Florida property & casualty insurance company, where she oversaw statewide litigation, established claims handling protocols, and provided strategic counsel to company executives. Her leadership in this role extended to guiding panel defense counsel and implementing solution-driven approaches.
Amy holds a Bachelor of Science in Journalism & Communications from the University of Florida and earned her Juris Doctor degree from Stetson University College of Law. Her diverse background, coupled with her wealth of experience, uniquely positions her to provide strategic and effective legal counsel to her clients at Kelley Kronenberg.
ACCOLADES AWARDS AND FIRM AWARDS
Kelley Kronenberg has been the recipient of numerous awards and honors both firm-wide and for a number of our practices, including individual accolades. Below is a select list of recognition and awards:
more than with over the convenience of
Employees Attorneys Locations
Founded in 1980, Kelley Kronenberg is an award winning, multi-practice national law firm with 515 employees, 225 attorneys, and 20 locations throughout Florida and the United States. We are privileged to represent large public and private companies, small businesses, and individuals nationwide. With more than 40 practice areas, and growth on the horizon, we offer a comprehensive catalog of legal services to protect your legal interests in business and at home. Our firm is progressive and technologically advanced, while remaining true to our customer service heritage: integrity, ingenuity, and sincerity. Ever mindful of our history, but intensely committed to our future, we offer our clients a small firm feel with large firm resources.
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