TOWER HILL SELECT INSURANCE COMPANY, APPELLANT,
v.
ANDREW MCKEE, APPELLEE
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Tower Hill Select Insurance Company appealed a summary judgment awarding sinkhole damage coverage to homeowner Andrew McKee. The appellate court affirmed the judgment on the merits of the coverage dispute but reversed the trial court's order requiring Tower Hill to pay for subsurface repairs before McKee contracted for those repairs, and reversed the award of prejudgment interest on subsurface damages.
The court affirmed that McKee had a valid cause of action for breach of contract when Tower Hill denied coverage, as a genuine dispute existed regarding whether a covered loss occurred. However, the court reversed the trial court's order requiring Tower Hill to pay for subsurface repairs before McKee entered into a contract for those repairs, and reversed the award of prejudgment interest on subsurface damages, as McKee's failure to contract for repairs was a factor outside Tower Hill's control that reasonably prevented payment.
[1] A dispute over whether a covered loss occurred under an insurance policy gives rise to a valid cause of action, even if the insurer denies coverage.
[2] Conditions precedent to suit in an insurance policy are relevant only when the insurer admits liability and the dispute concerns the amount of recovery, not when the insu…
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Join FLexlaw to unlock all legal intelligence“When Tower Hill denied coverage a valid dispute as to the existence of a covered loss under the insurance policy arose.”
Establishes that McKee had a valid cause of action for breach of contract when Tower Hill denied coverage, rejecting Tower Hill's argument that the suit was premature.
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Join FLexlaw to unlock all legal intelligenceIn March 2010, McKee filed a claim for sinkhole damage to his home. Tower Hill's engineer concluded there was no sinkhole and denied coverage in July …
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Tower Hill Select Insurance Company appeals the final summary judgment awarding’$181,317.26, including interest in the amount of $22,429.08, in favor of Andrew McKee for sinkhole damages to his property. We review the trial court’s ruling on a motion for summary judgment and interpretation of an insurance contract and statutes de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); State Farm Fla. Ins. Co. v. Phillips, 134 So.3d 505, 507 (Fla. 5th DCA 2014).
This appeal involves a coverage dispute between McKee and Tower Hill concerning sinkhole damage to McKee’s home. In March 2010, McKee timely filed a claim for property damage to his home related to a sinkhole. In July 2010, Tower Hill’s designated engineer concluded there was no evidence of a sinkhole and Tower Hill denied coverage. In early 2011, McKee hired a private engineer who concluded that the damage was caused by a sinkhole. McKee provided the report to Tower Hill. Tower Hill did not respond, and McKee filed an action for breach of contract.
Many of Tower Hill’s issues on appeal depend on its underlying assertion that McKee preemptively filed suit because no cause of action existed at the time he filed his complaint. This argument is without merit. When Tower Hill denied coverage a valid dispute as to the existence of a covered loss under the insurance policy arose. See, e.g. Warfel v. Universal Ins. Co. of N. Am., 36 So.3d 136 (Fla. 2d DCA 2010) (considering a dispute as to whether a covered loss had occurred under the insured’s policy), approved, 82 So.3d 47 (Fla.2012). Accordingly, McKee’s com*4plaint properly sought a determination as to whether Tower Hill breached the insurance contract by denying coverage of a covered loss. See id. The policy provisions containing conditions precedent to suit that Tower Hill relies on in its appellate briefs were only relevant to a situation where Tower Hill admitted liability and a dispute as to the amount of recovery arose. Accordingly, they could not act to bar McKee from filing suit when Tower Hill denied his insurance claim entirely,
However, we agree that it was error for the trial court to order Tower Hill to pay for subsurface repairs before McKee entered into a contract for those repairs. Because the insurance policy contained a loss settlement provision tracking the language of section 627.707(5)(b), Florida Statutes (2010), Tower Hill had the authority to withhold payment for subsurface repairs until McKee entered into a contract for those repairs. See Phillips, 134 So.3d at 508.
McKee’s failure to enter into a contract for subsurface repairs was a factor outside Tower Hill’s control that reasonably prevented payment. Section 627.70131(5)(a), Florida Statutes (2013), authorizes an award of prejudgment interest on “[a]ny payment of an initial or supplemental claim or portion of such claim made 90 days after the insurer receives notice of the claim, or made more than 15 days after there are no longer factors beyond the control of the insurer which reasonably prevented such payment, whichever is later.” (Emphasis added). Therefore, the trial court’s award of prejudgment interest on the subsurface damage award was premature.
Accordingly, we reverse the portions of the final judgment requiring Tower Hill to pay for subsurface repairs before McKee contracted for those repairs and awarding prejudgment interest as to the subsurface damage award. We affirm the remaining portions of the final judgment without further comment.
Affirmed in part, reversed in part, and remanded.
KELLY and KHOUZAM, JJ„ Concur.
ON REHEARING
BY ORDER OF THE COURT:
We grant the motions for rehearing to the extent that we hereby clarify that our opinion did not reach the issue of attorney fees. See Ulrich v. Eaton Vance Distrib., Inc., 764 So.2d 731, 733 (Fla.2d DCA 2000). The motions are denied in all other respects.
BY ORDER OF THE COURT:
We grant the motions for rehearing to the extent that we hereby clarify that our opinion did not reach the issue of attorney fees. See Ulrich v. Eaton Vance Distrib., Inc., 764 So. 2d 731, 733 (Fla.2d DCA 2000). The motions are denied in all other respects.
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Citizens Prop. Ins. Corp. v. Munoz, 158 So. 3d 671 (Fla. 2d DCA 2014)…novan v. State Farm Fire & Cas. Co., 574 So. 2d 285, 286 (Fla. 2d DCA 1991)). Here, a valid dispute about the existence of a covered loss under the insurance policy arose at the time Citizens denied coverage, See Tower Hill Select Ins. Co. v. McKee, 151 So. 3d 2, 3 (Fla. 2d DCA 2014). And Citizens has failed to point to any legal authority or any portion of the policy requiring the Munozes to have given Citizens a contrary report prior to filing suit.2 II. BURDEN OF PROOF The trial court properly allocate…
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Citizens Prop. Ins. Corp. v. Blaha, 194 So. 3d 411 (Fla. 2d DCA 2016)…his reason, the trial court erred in entering a money judgment that did not authorize Citizens to withhold payment for the subsurface repairs until [*417] the Blahas'enter into a contract for those. repairs.3 See Tower Hill Select Ins. Co. v. McKee, 151 So. 3d 2, 4 (Pla. 2d DCA 2014); State Farm Fla. Ins. Co. v. Phillips, 134 So. 3d 505, 508 (Fla. 5th DCA 2014). C. Prejudgment Interest Third, Citizens argues in the alternative that the trial court erred in awarding the Blahas prejudgment interest from the…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Volusia Cnty. v. Aberdeen AT Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000)
- Universal Ins. Co. OF N. Am. v. Warfel, 82 So. 3d 47 (Fla. 2012)
- Ulrich v. Eaton Vance Distribs., Inc., 764 So. 2d 731 (Fla. 2d DCA 2000)
- State Farm Fla. Ins. Co. v. Phillips, 134 So. 3d 505 (Fla. 5th DCA 2014)
- Warfel v. Universal Ins. Co. of N. Am., 36 So. 3d 136 (Fla. 2d DCA 2010)