ASTORQUIZA

v.

COVINGTON SPECIALTY INSURANCE COMPANY

Defendant appeared to admit such a loss had occurred. See (Doc. 22 at ¶¶ 8, 17; 23 at ¶¶ 8, 17). Defendant also asserted by way of affirmative defense that no amounts were due because the amount of Plaintiffs’ loss was below the Policy’s deductible, that Plaintiffs had failed to comply with the Policy’s notice provisions, and that Plaintiffs had failed to mitigate their damages. Defendant also reserved the right to invoke the appraisal process provided in the Policy to resolve disputes over the amount of a covered loss.

On August 14, 2019, Defendant invoked the Policy’s appraisal process. Plaintiffs opposed Defendant’s resort to the appraisal process, but the Court ordered the parties to proceed with appraisal and stayed the case. The appraisal award issued in May 2020 determined that the amount of Plaintiffs’ loss was $69,951.57, well above the amount of Plaintiffs’ deductible. Defendant then paid $39,951.67, which was the amount of the award less the deductible. Plaintiffs have moved to lift the stay and for leave to amend their complaint, offering a proposed third amended complaint that adds a count for bad faith under § 624.155, F.S. Defendant opposes the motion to amend and seeks summary judgment on Plaintiffs’ existing claim for breach of contract. Analysis Plaintiffs’ Motion for Leave to Amend Although Plaintiffs’ proposed third amended complaint includes minor changes to their breach of contract count, the primary purpose of the proposed amendment is the addition of a second count for statutory bad faith. See (Doc. 38 at

¶ 14). Defendant argues that the Civil Remedy Notice (“CRN”) filed by Plaintiffs as a precondition to asserting their bad faith claim is deficient. A copy of the CRN is attached as an exhibit to Plaintiffs’ proposed third amended complaint. (Doc. 38-1 at 88 et seq.). Section 624.155(3), F.S. requires that a CRN state with specificity information required by the Department of Financial Services (“DFS”). See Pin-Pon Corp. v. Landmark Am. Ins. Co., 20-CV-14013-MIDDLEBROOKS, 2020 WL 3038576, at *2 (S.D. Fla. June 5, 2020). Plaintiffs’ CRN on its face lacks information required by DFS, including the complainants’ and their attorney’s email addresses, the Plaintiffs’ address, and the insurer’s address. Plaintiffs’ response offers no argument supporting the sufficiency of the CRN itself, but instead appears to address the timing of the notice, a point that Defendant has not raised. The bad faith statute is strictly construed, and Plaintiffs’ notice does not contain information required by the statute. See Pin-Pon Corp., 2020 WL 3038576, at *2 (explaining that the civil remedy notice requirement is strictly construed, and dismissing the complaint where the attached civil remedy notice failed to include required information) (appeal pending). The bad faith count, if allowed, would therefore be subject to dismissal and allowing the proposed amendment would be futile. See, e.g., Burger King Corp. v. Weaver, 169 F. 3d 1310, 1320 (11th Cir. 1999) (denial of leave to amend justified when the proposed amended complaint would be subject to dismissal). Plaintiffs’ motion to amend is denied with respect to the count for bad faith. As to the proposed contract claim, Defendant argues that leave to amend would be futile, largely for the same reasons it argues entitle it to summary judgment on Plaintiffs’ existing contract claim. For the reasons discussed in the next section, however, the Court rejects these arguments as a basis for denying leave to amend. The Court, however, will deny leave to amend for a different reason. The

Court’s case management and scheduling order (Doc. 13) set a deadline for pleading amendments of April 26, 2019. This deadline passed more than a year before Plaintiffs’ motion to amend. Where a party seeks leave to amend after the deadline set by a court order, that party must demonstrate good cause to allow the amendment. McKeever v. Liberty Mut. Group Inc., 487 F. App’x 487, 488 (11th Cir. 2012). To the extent that the proposed contract claim alleges facts relating to the appraisal award, good cause would appear to exist, since the appraisal award had not been issued and Defendant had not paid the award until after the pleading deadline had passed. Plaintiffs, however, may assert the existence of the award and its legal effect by evidence and argument under the existing second amended complaint, and the proposed amendment therefore appears superfluous. The proposed contract count also contains additional minor amendments, including citations to various statutes,¹ but Plaintiffs have not attempted to show good cause as to these amendments. In any event, as Defendant observes, the proposed claim for breach of contract is “nearly identical” to the existing version, and Plaintiffs may under the existing complaint present the same evidence and argument they could present under the proposed amendment. As Plaintiffs have failed to show good cause for allowing the proposed amendment, the motion for leave to amend will be denied. See, e.g., Robertson v. Interactive Coll. of Tech./Interactive Learning Sys., Inc., 743 F. App’x 269, 273 (11th Cir. 2018) (affirming denial of amendment despite movant’s assertion that he was not seeking “to add facts, but to provide clarity and more details to facts already alleged”), cert. denied sub nom. Robertson v. Interactive Coll. of Tech., 139 S. Ct. 819

reverse summary judgments in favor of insurers in similar circumstances. See, e.g., Hill, 35 So. 3d at 960-961 (reversing summary judgment and remanding for a determination whether the plaintiff may be entitled to fees); Beverly v. State Farm Fla. Ins. Co., 50 So. 3d 628 (Fla 2d DCA 2010) (reversing summary judgment for insurer who invoked appraisal process and paid appraisal award after the insured filed suit); Clifton v. United Cas. Ins. Co. of Am., 31 So. 3d 826 (Fla. 2d DCA 2010) (reversing summary judgment for insurer because issues of fact remained as to whether the insurer forced the insured to file suit); Goff v. State Farm Fla. Ins. Co., 999 So. 2d 684 (Fla. 2d DCA 2008) (reversing summary judgment for insurer where insurer’s post-suit payment entitled plaintiff insureds to attorney’s fees) Defendant, on the other hand, cites no case in which an insurer was held entitled to summary judgment on an insured’s breach of contract claim simply by virtue of the insurer’s having paid an appraisal award after suit was filed. Instead,

Defendant’s cited cases involved situations in which the filing of the lawsuit by the insured was unnecessary, because the insurer had already paid the claim or participated in the appraisal process prior to the insured’s filing suit. A summary judgment for Defendant here would additionally be inconsistent with the concept underlying the confession of judgment rule – that the insurer by payment of the claim has effectively abandoned the defense of the insured’s lawsuit and conceded that its prior withholding of payment had been incorrect. See Amador v. Latin Am. Prop. & Cas. Ins. Co., 552 So. 2d 1132, 1133 (Fla. 3d DCA 1989) (“‘When the insurance company has agreed to settle a disputed . . . case, it has, in effect, declined to defend its position in the pending suit’”) (quoting Wollard v. Lloyd’s & Companies of Lloyd’s, 439 So. 2d 217, 218 (Fla. 1983)). Summary judgment for the insurer on the contract claim, leaving open the issue of fees – as Defendant seeks here – would also be inconsistent with the terms of the fee statute. The statute provides for fees on rendition of a judgment for the insured and against the insurer, with the fee award to be included in “the” judgment. As Judge Bucklew explained in Gimenez v. Am. Security Ins. Co., 2009 WL 10670900 (M.D. Fla. July², 2009), in terms equally applicable here: Defendant argues that the parties' agreement as to Plaintiff's entitlement to the additional $63,159.77, which Defendant has now paid, renders the issue moot. However, the Court notes that both parties agree that Plaintiff is entitled to attorneys' fees in an undetermined amount pursuant to Florida Statutes section 627.428 . . . . Under that statute, a court decree or judgment in Plaintiff's favor is necessary to solidify Plaintiff's entitlement to those fees. Therefore, the Court finds it appropriate to enter a judgment in favor of Plaintiff in the amount of the additional liability on the policy.

Id. at * 1 (emphasis added) Accordingly, the Court will deny Defendant’s motion for summary judgment except to the extent that Plaintiffs obviously will not be allowed to recover for the covered property loss itself, since they have already been compensated by the Defendant’s payment of the appraisal award. The Court will also entertain a motion by Plaintiffs seeking to confirm the appraisal award and to award Plaintiffs their fees and costs. While some authority holds that confirmation of an appraisal award is unnecessary to support recovery of fees where the award has already been paid,³ numerous Florida state and federal cases support confirmation of the award on the facts presented here. See, e.g., First Floridian Auto & Home Ins. Co. v. Myrick, 969 So. 2d 1121, 1123-25 (Fla. 2d DCA 2007) (affirming trial court order granting insured’s motion to confirm appraisal award and determine entitlement to fees where insurer invoked appraisal process and paid award only after suit was filed); Gimenez, 2009 WL 10670900, at *1 (confirming award where plaintiff filed suit in order to obtain additional amounts claimed to be owed by insurer, and insurer invoked appraisal process and paid resulting award).4

To further explore any remaining issues and the procedure going forward, the Court will hold a status conference to be scheduled by a separate notice. At the status conference, the Court will ask the parties to address the following topics in the light of the rulings in this Order: 1. The statutes and contract provisions that govern the propriety of a fee award to Plaintiffs here;

3. Whether any facts required to demonstrate Plaintiffs’ entitlement to confirmation of the award or attorney’s fees in this case are disputed by the parties; and 4. Whether Plaintiffs seek a monetary recovery other than an award of fees and, if so, the legal and factual basis for such a recovery. It is therefore

ORDERED, ADJUDGED, and DECREED: (1) “Plaintiffs’ Motion to Lift Stay and Request for Leave to File Third Amended Complaint” (Doc. 38) is GRANTED IN PART and DENIED IN PART. The motion is GRANTED to the extent that the stay of this case is lifted. The motion is otherwise DENIED. (2) Defendant’s “Motion for Entry of Final Summary Judgment” (filed in the same document as “Defendant’s Response in Opposition to Plaintiffs’

Request for Leave to File Third Amended Complaint” (Doc. 41)) is GRANTED IN PART and DENIED IN PART. The motion is GRANTED to the extent that Plaintiffs may not recover for the property loss that was the subject of appraisal, for which Plaintiffs have already been paid by Defendant. The motion is otherwise DENIED. (3) The parties are DIRECTED to appear at a Zoom status conference, to be scheduled by separate notice, to discuss the topics listed in the body of this Order. DONE and ORDERED in Chambers in Tampa, Florida, this 284 day of October, 2020.

/ \ UY [Sf / | / | ) LA: = I fu

TOM BARBER

UNITED STATES DISTRICT JUDGE