Opinion
4D2023-1136
06-20-2024
AILEEN BAILEY, Appellant, v. PEOPLE'S TRUST INSURANCE COMPANY, Appellee.
Matthew Struble of Struble, P.A., Indialantic, for appellant. Mark D. Tinker and Brandon J. Tyler of Cole, Scott &Kissane, P.A., Tampa, and Brett Frankel and Jonathan Sabghir of People's Trust Insurance Company, Deerfield Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; James Nutt, Judge; L.T. Case No. 50-2021-CA-011438-XXXX-MB.
Matthew Struble of Struble, P.A., Indialantic, for appellant.
Mark D. Tinker and Brandon J. Tyler of Cole, Scott &Kissane, P.A., Tampa, and Brett Frankel and Jonathan Sabghir of People's Trust Insurance Company, Deerfield Beach, for appellee.
DAMOORGIAN, J.
Aileen Bailey ("Homeowner") appeals the trial court's entry of final summary judgment in favor of People's Trust Insurance Company ("People's Trust") in the underlying first-party bad faith action. For the reasons outlined below, we reverse.
Homeowner's residence was insured by People's Trust. The residence suffered extensive water damage from a hurricane, prompting Homeowner to file a claim for the damage. People's Trust accepted coverage for the claim and exercised the policy's right to repair the damaged property. After adjusting the claim, People's Trust determined the damage to be valued at $4,457.53, below the $6,425.00 deductible.
Homeowner, believing People's Trust significantly undervalued the loss, filed a Civil Remedy Notice of Insurer Violations ("CRN") with the Florida Department of Financial Services ("DFS"), alleging multiple violations of sections 624.155(1)(b)(1) and 626.9541, Florida Statutes (2020). People's Trust responded to the CRN, asserting People's Trust did not agree that the roof replacement was covered as requested by the CRN. The response also cited the general requirements of a valid CRN under section 624.155, and generally concluded "[t]his CRN violates all those principles." Aside from this broad statement, the response did not raise any specific deficiencies with the CRN.
The matter proceeded to appraisal, where Homeowner was awarded $90,330.61 for actual cash value and $77,239.97 for replacement cash value. Shortly thereafter, Homeowner filed a first-party bad faith action against People's Trust.
"[A] statutory bad faith claim under section 624.155 is ripe for litigation when there has been (1) a determination of the insurer's liability for coverage; (2) a determination of the extent of the insured's damages; and (3) the required notice is filed pursuant to section 624.155(3)(a)." Zaleski v. State Farm Fla. Ins. Co., 315 So.3d 7, 10-11 (Fla. 4th DCA 2021) (alteration in original) (quoting Demase v. State Farm Fla. Ins. Co., 239 So.3d 218, 221 (Fla. 5th DCA 2018)). An appraisal award, "which determine[s] the existence of liability and the extent of the insured's damages, establishe[s] the first two conditions precedent of a bad faith action." Cammarata v. State Farm Fla. Ins. Co., 152 So.3d 606, 612 (Fla. 4th DCA 2014). Regarding the third requirement, section 624.155(3)(a), Florida Statutes (2020), provides that "[a]s a condition precedent to bringing an action under this section, the department and the authorized insurer must have been given 60 days' written notice of the violation." "This notice is commonly referred to as the 'civil remedy notice.'" Fridman v. Safeco Ins. Co. of Ill., 185 So.3d 1214, 1220 (Fla. 2016).
People's Trust moved for summary judgment, arguing the CRN was invalid because it contained generic and factually unsupported allegations of statutory violations and therefore failed to meet section 624.155's specificity requirements. People's Trust also argued the CRN was invalid because the CRN demanded monetary payment, to which Homeowner had not been entitled under the policy because People's Trust had elected its right to repair the damaged property.
Homeowner opposed summary judgment, pertinently arguing the CRN was sufficient. Homeowner also argued People's Trust had waived any purported deficiencies in the CRN by failing to raise the specific objections to the CRN that People's Trust now raised in its motion. The trial court granted the motion for summary judgment, finding the CRN was legally insufficient. The trial court thereafter entered final summary judgment in favor of People's Trust.
On appeal, Homeowner argues that by responding to the CRN on the merits and failing to identify any specific defect with the CRN in its response, People's Trust waived the right to contest the validity of the CRN in the bad faith action. We agree.
In Bay v. United Services Automobile Ass'n, we explained that an insurer waives its right to contest a defect in the CRN if it fails to identify the specific defect in its response to the CRN. 305 So.3d 294, 299-300 (Fla. 4th DCA 2020) (also holding that "one can waive any contractual, statutory or constitutional right" (quoting Miami Dolphins, Ltd. v. Genden &Bach, P.A., 545 So.2d 294, 296 (Fla. 3d DCA 1989))); see also Neal v. GEICO Gen. Ins. Co., 358 So.3d 749, 752-53 (Fla. 4th DCA 2023) (citing Bay and holding the insurer waived its claim that the CRN did not comply with the statute where insurer failed to allege the deficiencies in its response to the CRN); Evergreen Lakes HOA, Inc. v. Lloyd's Underwriters at London, 230 So.3d 1, 3 (Fla. 4th DCA 2017) (holding that by responding to a CRN without challenging its timeliness, the insurer waived compliance with the requirement that it be given a copy of a CRN on or before the date on which the DFS accepted the CRN); Pin-Pon Corp. v. Landmark Am. Ins. Co., 500 F.Supp.3d 1336, 1348 (S.D. Fla. 2020) (holding that "the technical defects raised by [insurer] in its Motion to Dismiss may not serve as the grounds for dismissing this lawsuit, given that [insurer] waived the majority of them in failing to raise same in its responses to the CRNs").
Here, aside from parroting section 624.155's language concerning the purpose and requirements for a valid CRN and broadly stating that the "CRN violates all those principles," People's Trust's response to the CRN failed to raise any specific deficiencies with the CRN. People's Trust therefore waived any claim of noncompliance with section 624.155's requirements. Consequently, the trial court erred in granting final summary judgment on the basis that the CRN was legally insufficient for the reasons advanced in People's Trust's motion for summary judgment.
Accordingly, we reverse the order granting summary judgment and the final judgment in favor of People's Trust, and remand for further proceedings in which Homeowner can pursue her bad faith action.
Reversed and remanded.
MAY and CONNER, JJ., concur.