CITIZENS PROPERTY INSURANCE CORPORATION, APPELLANT/CROSS APPELLEE,
v.
JAMES MALLETT AND MARTHA MALLETT, APPELLEES/CROSS APPELLANTS
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Citizens Property Insurance Corporation appeals a summary judgment awarding homeowners the full policy limits for hurricane damage, arguing the Valued Policy Law does not require payment for total losses partially caused by excluded perils. The court reverses the main judgment based on the Florida Supreme Court's decision in Cox, which rejected the broad interpretation of the Valued Policy Law, but affirms the award of prejudgment interest and remands debris removal and law-and-ordinance coverage claims for factual determination.
The court reversed the summary judgment awarding full policy limits because the Florida Supreme Court's decision in Cox established that the Valued Policy Law does not require payment of the total loss when the loss is partially caused by an excluded peril. The court affirmed the prejudgment interest award, finding the policy terms controlled when interest accrued. The court remanded the debris removal and law-and-ordinance coverage claims because questions of fact remain regarding whether those costs were attributable solely to the covered wind peril.
[1] The Valued Policy Law does not mandate an insurer to pay the face amount of a policy for a total loss when the damage is caused in part by a covered peril and in part by…
[2] An insurer's liability under the Valued Policy Law is limited to the amount of the loss attributable to the covered peril when the loss is caused in part by a covered per…
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Join FLexlaw to unlock all legal intelligence“In the event of the total loss of any building ... insured by any insurer as to a covered peril ..., the insurers liability, if any, under the policy for such total loss shall be in the amount of money for which such property was so insured as specified in the policy and for which, a premium has been charged and, paid.”
This quote from the Valued Policy Law, as interpreted by the Florida Supreme Court in Cox, establishes that the statute limits insurer liability to covered perils and does not require payment for total losses partially caused by excluded perils.
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Join FLexlaw to unlock all legal intelligenceHurricane Ivan damaged the Malletts' residence on September 16, 2004. The home suffered both wind damage (covered, $182,279.95) and water damage (excl…
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Citizens Property Insurance Corporation appeals a final summary judgment entered in favor of James Mallett and Martha Mallett, appellees, which orders Citizens to pay the full policy limits of the homeowner’s insurance policy issued to the Malletts. The Malletts cross-appeal, arguing that the trial court erred in awarding prejudgment interest from the date of partial summary judgment, rather than the date the covered property was damaged by a hurricane. For the reasons that follow, we reverse the issues raised on appeal and affirm the issues raised on cross-appeal.
Hurricane Ivan struck Pensacola on September 16, 2004, causing substantial damage to the area. The residence owned by the Malletts suffered extensive damage from wind and water. The policy issued by Citizens did not cover water damage, although the Malletts did possess separate flood insurance and recovered $244,745.95 for water damage under that policy. The policy issued by Citizens listed the value of the Malletts’ residence at $561,000. Citizens determined that the Malletts’ residence sustained wind damage totaling $182,279.95 and paid the Malletts that amount.
The Malletts filed suit seeking payment of the full amount of the insured value of the property, arguing that they sustained a “constructive total loss” since the local government, the Santa Rosa Island Authority, had found the damage to the property to exceed fifty percent of its value. Citizens denied any additional liability and raised several affirmative defenses. The Malletts moved for summary judgment on the claim for the total policy limit as well as them claim for damages for coverage under the debris removal clause and the so-called “law and ordinance” clause of the policy.1 After a hearing, the trial court granted summary judgment in favor of the Malletts on two of their three claims. The trial court explained:
Taking all of the above, this Court finds that [the Malletts’] home was substantially damaged by the peril of wind.... The Valued Policy Law and the Mierz-iva decision hold that when a property is rendered total loss and the insurer is liable under the insurance policy to pay any amount, it is liable for the full policy limit. In this case, [the Malletts] have further shown that substantial damage was reached by damage attributable to wind alone. [Citizens has] not submitted any evidence to the contrary.
In granting summary judgment, the trial court relied heavily on Mierzwa v. Florida Windstorm Underwriting Ass’n, 877 So.2d 774 (Fla. 4th DCA 2004), in which the District Court held that, under the Valued Policy Law (VPL), section 627.702(1), Florida Statutes, an insurer must pay the face amount of a policy if the insurer is liable for any damage caused by a covered peril and if the insureds premises is deemed a total loss. 877 So.2d at *555775-76.2 In Florida Farm Bureau Casualty Insurance Company v. Cox, 943 So.2d 823 (Fla. 1st DCA 2006), this court accepted the reasoning of Mierztva and held that an insurer is liable for the total loss of a home even when the total loss cannot be wholly attributed to a covered peril. We certified the following question of great public importance to the Florida Supreme Court:
Does section 627.702(1), Florida Statutes (2004), referred to as the valued policy law, require an insurance carrier to pay the face amount of the policy to an owner of a building deemed a total loss when the building is damaged in part by a covered peril but is significantly damaged by an excluded peril?
The Supreme Court answered the certified question in the negative, quashed the Cox decision, and disapproved the decision in Mierzwa. Florida Farm Bureau Cas. Ins. Co. v. Cox, 967 So.2d 815 (Fla.2007). The Supreme Court explained:
Contrary to the conclusion of the district court, we do not find that the plain language of the [VPL] statute intends that if a covered peril causes part of a total loss, that the insurer is mandated to pay for the total loss. Of particular importance, the VPL does not mention causation. Section 627.702 does not establish any requirement for an insurer to pay for excluded or noncovered perils. We read the plain language of the statute not to reasonably support such an interpretation. The beginning phrase states: “In the event of the total loss ... as to a covered peril.... ” § 627.702(1), Fla. Stat. (2004) (emphasis added). Throughout section 627.702(1), the Legislature repeatedly relies upon the terms of the parties’ insurance contract and discusses only covered perils. Section 627.702(1) explicitly states that “[i]n the event of the total loss of any building ... insured by any insurer as to a covered peril ..., the insurers liability, if any, under the policy for such total loss shall be in the amount of money for which such property was so insured as specified in the policy and for which, a premium has been charged and, paid.” § 627.702(1), Fla. Stat. (2004).
Id. at 820 (italics in original); see also Citizens Prop. Ins. Corp. v. Ueberschaer, 979 So.2d 929 (Fla.2008). The summary judgment on appeal is expressly contrary to the holding in Cox, and accordingly, we reverse that part of the summary judgment granting the Malletts additional compensation for the damage sustained to their residence not solely attributable to wind. See also Citizens Prop. Ins. Corp. v. Manning, 966 So.2d 486 (Fla. 1st DCA 2007).
The trial court here also ruled that the Malletts were entitled to $23,144.08 under the supplemental provision of the policy which provided coverage for debris removal. On appeal, Citizens argues that the record does not establish that such an amount is attributable to the removal of debris caused by wind. In response, the Malletts argue that if their residence is deemed a constructive total loss as a result of wind alone, then the amount awarded for the debris removal coverage as well as for coverage under the law and ordinance provision must be affirmed.
*556At the summary judgment stage, a trial court is to enter a judgment only when no issues of fact remain. See Cohen v. Vining, 917 So.2d 1013 (Fla. 1st DCA 2006). The standard of review regarding the grant of final summary judgment is de novo. Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082 (Fla.2005). Here, because the record before us does not exclusively establish that the debris removal costs were attributable solely to wind, a question of fact remains as to how much Citizens is obliged to pay under the debris removal coverage. See Ceballo v. Citizens Prop. Ins. Corp., 967 So.2d 811, 815 (Fla. 2007)(“the VPL does not mandate the payment of the policy limits of the additional coverage without proof of loss where the unambiguous language of the policy requires such proof’).
Similarly, the trial court held the Malletts were entitled to $140,250 under the law and ordinance provision of the policy, although the trial court acknowledged in the final summary judgment that Citizens did not agree that the Malletts were entitled to an award under this provision. Again, as the Supreme Court explained in Ceballo, payment of the policy limits is not required without proof of loss where the unambiguous language of the policy requires such proof. 967 So.2d at 815. Because the record before us does not exclusively establish that the costs required to bring the residence into compliance with the applicable building code were attributable solely to wind, Ceballo, a question of fact remains as to the amount Citizens is obliged to pay under this provision; we therefore remand for resolution of this material issue of fact.
On cross-appeal, the Malletts argue that the trial court erred in awarding prejudgment interest as of the date of the partial summary judgment rather than from the date their residence was damaged by the hurricane, September 16, 2004. As to the award of prejudgment of interest under Coverage A, the cross-appeal is moot given our recognition that Cox precludes an award beyond what has already been paid by Citizens. As for the amount awarded by the trial court under the supplemental policy provisions, we find no error. The policy issued to the Mal-letts provides that Citizens was not obliged to pay a claim for debris removal or law and ordinance coverage until twenty days after it reached a written agreement with the Malletts, or sixty days after entry of a final judgment on the claim or after the filing of an appraisal award or mediation settlement with Citizens. It is the terms of a contract for insurance which determine the date from which the coverage payment is due, as well as when interest is due on the amounts payable. See Lumbermens Mut. Cas. Co. v. Percefull, 653 So.2d 389 (Fla.1995).
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.
HAWKES, C.J., concurs, and BENTON, J., concurs in judgment.
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Citizens Prop. Ins. Corp. v. Ashe, 50 So. 3d 645 (Fla. 1st DCA 2010)…age in the event of partial loss, but only a pro rata amount of the total wind damage in the event of a total loss. Under its policy, Citizens is obligated to pay for damage “solely attributable to wind.” See Citizens Property Ins. Corp. v. Mallett, 7 So. 3d 552, 555 (Fla. 1st DCA 2009). Further, the trial court’s ruling erroneously precluded Ashe from introducing evidence seeking to prove that the wind caused the total loss to the insured’s property before the storm surge arrived, thereby triggering the VP…
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Sunshine State Ins. Co. v. Davide, 15 So. 3d 749 (Fla. 3d DCA 2009)…d; we reverse. The record before us confirms that Sunshine has never denied coverage of Davide’s claim, but rather only disputed the amount to be paid under the policy to satisfy this claim. Here, as in Citizens Property Insurance Corp. v. Mallett, 7 So. 3d 552 (Fla. 1st DCA 2009), the policy provides that the insurer is not obligated to pay a covered claim until twenty days after the insurer has reached a written agreement with the insured, or sixty days after entry of a final judgment on a claim or after…
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H.A. Buie, Jr. v. Bluebird Landing Owner's Ass'n, Inc., 172 So. 3d 519 (Fla. 1st DCA 2015)…ily Trust appealed. II. A. We review issues arising from the grant of final summary judgment and involving the interpretation of property agreements de novo, as if considering the question for the first time. Citizens Prop. Ins. Corp. v. Mallett, 7 So. 3d 552, 556 (Fla. 1st DCA 2009); Leesburg Cmty. Cancer Ctr. v. Leesburg Reg’l Med. Ctr., Inc., 972 So. 2d 203, 206 (Fla. 5th DCA 2007). B. The sole issue to be determined in this appeal concerns the breadth of the easement reserved by the developer and B…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Fla. Farm Bureau Cas. Ins. Co. v. COX, 967 So. 2d 815 (Fla. 2007)
- Fayad v. Clarendon Nat'l Ins. Co., 899 So. 2d 1082 (Fla. 2005)
- Weiss v. Liberty Mut. Ins. Co., 899 So. 2d 1082 (Fla. 2005)
- Lumbermens Mut. Cas. Co. v. Percefull, 653 So. 2d 389 (Fla. 1995)
- Zennon Mierzwa v. Fla. Windstorm Underwriting Ass'n, 877 So. 2d 774 (Fla. 4th DCA 2004)
- Fla. Farm Bureau Cas. Ins. Co. v. COX, 943 So. 2d 823 (Fla. 1st DCA 2006)
- Ceballo v. Citizens Prop. Ins. Corp., 967 So. 2d 811 (Fla. 2007)
- Citizens Prop. Ins. Corp. v. Manning, 966 So. 2d 486 (Fla. 1st DCA 2007)
- Citizens Prop. Ins. Corp. v. Ueberschaer, 979 So. 2d 929 (Fla. 2008)
- L.G. v. Dep't of Child. & Families, 917 So. 2d 1013 (Fla. 1st DCA 2006)