15 June

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Preferred Contractor Endorsement in Property Insurance Policies

Certain property insurance policies have what is known as a preferred contractor endorsement. It can be written in numerous ways, but the objective is to allow the insurer to perform covered repairs through its preferred contractor. In a recent case, the property insurance policy contained this endorsement: That policy includes a preferred contractor endorsement which states that when a covered loss occurs to the insured's property “and repairs are necessary to protect property from further damage,” the insured must notify People's Trust [insurer] “before authorizing or commencing repairs so [People's Trust], at [its] option, may select Rapid Response Team, LLC, to make...

15 May

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Business Interruption due to COVID-19 NOT Covered under Commercial Property Insurance Policy

Posted by David Adelstein

in Trial Perspectives

Florida has come out with an appellate opinion dealing with business interruption and COVID-19 under a commercial property insurance policy. In this matter, a restaurant/bar filed suit against its commercial property insurance carrier seeking declaratory relief that the policy covered its “business income losses it suffered when its suspended its operations during the COVID-19 pandemic.” Commodore d/b/a Greenstreet Café, Inc. v. Certain Underwriters at Lloyd’s London, 47 Fla.L.Weekly D1044a (Fla. 3d DCA 2022). The commercial property insurance policy at-issue did not contain a virus exclusion. During the COVID-19 pandemic, Miami issued emergency measures impacting the occupancy of businesses. Such measures ordered certain...

23 May

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Accurate Jury Instructions are Important

Posted by David Adelstein

in Appeal, Jury Instructions

Accurate jury instructions that are read to a jury are important. This is because accurate jury instructions help a jury properly resolve issues important to the case. “A decision to give or withhold a jury instruction is reviewed for an abuse of discretion.” Vainberg v. Avatar Property & Casualty Ins. Co., 46 Fla. L.Weekly D1141d (Fla. 4th DCA 2021). In Vainberg, the trial judge refused to give a jury instruction requested by the plaintiff. The case involved a property insurance dispute where the insurer, pursuant to the terms of the property insurance policy, elected to perform the repairs. After the insurer’s contractor...

16 May

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Courts are not Here to Rewrite Bargained for Contractual Provisions

Posted by David Adelstein

in Trial Perspectives

“Courts cannot disregard agreed-upon, contractual provisions between parties. To do so would be to strike the…[contractual] obligations from the contract ‘by way of judicial fiat and the bargained-for contractual terms would be rendered surplusage.’” Peoples Trust Ins. Co. v. Amaro, 46 Fla.L.Weekly D1025a (3d DCA 2021). Courts are not here to rewrite negotiated contracts between the parties when, after-the-fact, one of the parties realizes they don’t like the terms of the contract. Doing so would be rendering certain terms or language as surplusage or unilaterally striking terms that had been bargained. Frankly, that would not be fair and defeat the very...

23 January

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Florida Supreme Court says No! – Extra-Contractual Damages cannot be Recovered against Property Insurer Absent Bad Faith Claim

Posted by David Adelstein

in Trial Perspectives

Can an insured recover extra-contractual, consequential damages from its property insurer without pursuing a separate bad faith claim against the insurer? The Florida Supreme Court, quashing an order of a lower appellate court, held NO!: [W]e conclude that extra-contractual, consequential damages are not available in a first-party breach of insurance contract action because the contractual amount due to the insured is the amount owed pursuant to the express terms and conditions of the policy. Extra-contractual damages are available in a separate bad faith action pursuant to section 624.155 but are not recoverable in this action against Citizens because Citizens is statutorily...

22 June

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Declaratory Relief in Insurance Coverage Dispute

Posted by David Adelstein

in Trial Perspectives

Insurance coverage disputes are prime actions for declaratory relief. An insurer or insured may pursue an action for declaratory relief in an insurance coverage dispute. A lawsuit seeking declaratory relief must allege: [1] there is a bona fide dispute between the parties, [2] that the moving party has a justiciable question as to the existence or non-existence of some right, status, immunity, power or privilege, or as to some fact upon which the existence of such right, status, immunity, power or privilege does or may de[p]end, [3] that plaintiff is in doubt as to the right, status, immunity, power or privilege, and...

18 August

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Standard for Petition for Writ of Certiorari

Posted by David Adelstein

in Appeal

To invoke an appellate court's certiorari jurisdiction, [t]he petitioning party must demonstrate that the contested order constitutes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on post-judgment appeal. State Farm Florida Ins. Co. v. Sanders, 44 Fla.L.Weekly D1901a (Fla. 3d DCA 2019) quoting Rousso v. Hannon, 146 So.3d 66, 69 (Fla. 3d DCA 2014) (internal quotations omitted). This is the standard for a petition for writ of certiorari. An example of an appellate court granting a petition for writ of certiorari and quashing a trial court’s...

10 August

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Supplemental Property Insurance Claim

Posted by David Adelstein

in Trial Perspectives

In a recent property insurance dispute, Chavez v. Tower Hill Insurance Company, 44 Fla. L. Weekly D2019b (Fla. 3d DCA 2019), an insured previously sued his property insurer and lost. The insured then filed a new suit against his property insurer for the same damages. The trial court, affirmed by the appellate court, held that res judicata applied to bar the insured’s new lawsuit against the insurer. The insured tried to argue that res judicata should not apply because the new lawsuit was predicated on a supplemental claim, as there is law that res judicata does not apply if the...

07 July

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Quick Note: Interpretation of a Contract (Policy) is for the Court, Not the Jury

Posted by David Adelstein

in Appeal, Trial Perspectives

The construction / interpretation of a contract including an insurance policy is a question of law. This means it is for the court, not the jury, to interpret a contract. While there are times parties may prefer to delegate this responsibility to a jury, this is not allowed. In a recent property insurance coverage dispute, the insured, over the insurer's objection, was able to get jury instructions instructing to the jury regarding the interpretation of the insurance policy. On appeal, the appellate remanded the case back to the trial court for a new trial, as the interpretation of the policy...

24 January

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Quick Note: Appeal of Jury Instructions with Wrong Burden of Proof

Posted by David Adelstein

in Appeal, Burden of Proof

I recently talked about the burden of proof when it comes to an all-risk property insurance policy. This article is important for insureds that have a property insurance claim and are dealing with certain insurance coverage issues with their property insurer. The case at-issue discussed in the article dealt with an appeal of the jury instructions that were read to the jury. Specifically, the issue was whether the trial court applied the right burden of proof in the jury instructions. This issue is reviewed under a de novo standard of appellate review. See Jones v. Federated National Ins. Co., 43...