ESTHER SPERLING ET AL., PETITIONERS,
v.
LIBERTY MUTUAL INSURANCE COMPANY, A MASSACHUSETTS CORPORATION, RESPONDENT
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The Florida Supreme Court reversed the District Court of Appeal's affirmance of a trial court judgment in an insurance dispute over fire damage, holding that under the Valued Policy Law, the measure of recovery for partial loss to a building is the cost of repair without depreciation, not the actual cash value with depreciation applied.
Under the Valued Policy Law, the measure of recovery for partial loss to a building by fire is the cost of placing the building "in as nearly as possible the same condition that it was before the loss, without allowing depreciation for the materials used." The trial court erred in applying depreciation, and the case must be remanded for recalculation without depreciation.
[1] The Valued Policy Law governs the liability of an insurer under a contract to insure a building against loss by fire, determining the actual amount of any partial loss no…
[2] The measure of value for a partial destruction of a building by fire is the cost of placing the building in as nearly as possible the same condition that it was before th…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the measure of value of partial destruction of a building by fire should be the cost of placing the building "in as nearly as possible the same condition that it was before the loss, without allowing depreciation for the materials used."”
Establishes the holding that recovery for partial fire loss is based on restoration cost without depreciation, not actual cash value.
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Join FLexlaw to unlock all legal intelligencePetitioners owned a building insured by Liberty Mutual that was damaged by fire. The trial court determined the actual cash value of the damage to be …
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On petition for writ of certiorari, we now review a decision of the District Court of Appeal, Third District, reported at 258 So.2d 475, which conflicts with our decision in Glens Falls Ins. Co., et al. v. Gulf Breeze Cottages, Inc., 38 So.2d 828 (1949). We have jurisdiction by virtue of Article V, Section 3(b)(3), Florida Constitution, F.S.A.
Petitioners are owners of a building which is insured by respondent and which was damaged by fire. This action was initiated to recover from the insurer the cost of repairing the building. The trial court found the actual cash value of the damage to the building to be $32,350.00, “determined in accordance with the principles enunciated in New York Cent. Mut. Fire Ins. Co. v. Diaks, 69 So.2d 786, Fla.1954, [and] Worcester Mutual Fire Insurance Co. v. Eisenberg, 147 So.2d 575, Fla. [App.] 1962. . . .” The trial court also applied a coinsurance penalty and disallowed certain minor claims made by petitioners.
On appeal, the District Court reversed as to the coinsurance penalty and the disallowed claims, but otherwise affirmed the final judgment. The District Court also held that the trial court committed no error in applying depreciation against the cost of repair and that this action was “in accordance with the decisions cited as a means of determining the amount of the loss.” Herein lies the conflict with Glens Falls, supra.
*298The amount recoverable in this case is governed by Fla.Stat. § 627.702, F.S.A. (formerly 627.0801), the Valued Policy Law, which provides in subsection (2) that the liability of an insurer under a contract to insure any building- or structure against loss by fire shall be the “actual amount” of any partial loss, not to exceed the stated total value for which the property was insured. What is “actual value” of a partial loss is, in turn, governed by our decision in Glens Falls.
In Glens Falls we held that, since the purpose of an insurance contract is to indemnify the owner of property against loss, the measure of value of partial destruction of a building by fire should be the cost of placing the building “in as nearly as possible the same condition that it was before the loss, without allowing depreciation for the materials used.” We see no reason for receding from this decision.
The cases cited by the trial court to support its determination of the actual amount of petitioners’ loss are inapplicable here. Those cases dealt with the actual cash value of insured personal property, which is not covered by the Valued Policy Law. Also, they were concerned with the valuation of property totally destroyed by fire, not with a partial loss which was reparable for an amount less than the actual cash value of the property.
For the reasons stated herein, the decision of the District Court is reversed insofar as it affirms any application of depreciation in the finding by the trial court of the actual amount of petitioners’ loss. The District Court’s opinion stated that the trial court found the amount of loss to be $48,500 and reduced this by one-third for depreciation to arrive at the figure $32,-500 in the final judgment. The record, however, although indicating that depreciation was considered, does not convince us that these figures were necessarily the ones considered by the trial court in reaching its result. The District Court of Appeal, Third District, is therefore ordered to remand this cause to the trial court with directions to make a specific finding of the amount of petitioners’ loss in accordance with this opinion.
It is so ordered.
ROBERTS, ERVIN, ADKINS and DEKLE, JJ., concur.
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Sperling v. Liberty Mut. Ins. Co., 283 So. 2d 392 (Fla. 3d DCA 1973)…PER CURIAM. In accordance with the opinion and judgment of the Supreme Court of Florida in the above styled cause filed July 31, 1973 (281 So. 2d 297), the prior opinion and judgment of this court (258 So. 2d 475) is hereby modified as directed by the said opinion and judgment of the Supreme Court of Florida and, except as modified, is adhered to. The final judgment of the trial court is affirmed…
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Smigiel v. AETNA Cas. & Sur. Co., 785 F.2d 922 (11th Cir. 1986)…heir insurable interest. The measure of damages was fully established under Florida law as “... the cost of placing the building in, as nearly as possible, the same condition that it was before the loss____” Sperling v. Liberty Mutual Insurance Co., 281 So. 2d 297, 298 (Fla.1973). Aetna received premiums to cover said losses. The Smigiels cannot be held to have been “unjustly enriched”, by Aetna merely because they pursued their contractual rights to recovery which were independent of Smith’s payments and rep…
Authorities Cited
- Worcester Mut. Fire Ins. Co. & Sec. Mut. Liab. Ins. Co. v. Eisenberg, 147 So. 2d 575 (Fla. 3d DCA 1962)
- N.Y. Cent. Mut. Fire Ins. Co. v. Diaks, 69 So. 2d 786 (Fla. 1954)
- Glens Falls Ins. Co. v. Gulf Breeze Cottages, 38 So.2d 828 (Fla. 1949)
- Sperling v. Liberty Mut. Ins. Co., 258 So. 2d 475 (Fla. 3d DCA 1972)