Beverly v. State Farm Florida Insurance Co.

50 So. 3d 628, 2010 Fla. App. LEXIS 16287, 2010 WL 4226548
CourtDistrict Court of Appeal of Florida
DecidedOctober 27, 2010
DocketNo. 2D09-2317
StatusPublished
Cited by8 cases

This text of 50 So. 3d 628 (Beverly v. State Farm Florida Insurance Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beverly v. State Farm Florida Insurance Co., 50 So. 3d 628, 2010 Fla. App. LEXIS 16287, 2010 WL 4226548 (Fla. Ct. App. 2010).

Opinion

LaROSE, Judge.

Lloyd and Edith Beverly appeal a final summary judgment entered in favor of State Farm Florida Insurance Company. The Beverlys sued State Farm for insurance benefits after their home sustained hurricane damage. They also sought at[629]*629torney’s fees under section 627.428, Florida Statutes (2004). Summary judgment was improper because genuine issues of material fact remain unresolved. Accordingly, we reverse.

Summary Judgment Standard

Summary judgment is proper only “if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c); Clifton v. United Cas. Ins. Co. of Am., 31 So.3d 826, 828 (Fla. 2d DCA 2010). “A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985); see also Clifton, 31 So.3d at 828 (“Even the slightest possibility of the existence of a genuine issue of material fact precludes the entry of final summary judgment.”). We review a summary judgment de novo. Suncoast Auto Ctr., Inc. v. Consol. Prop. & Cas. Ins. Co., 880 So.2d 728, 730 (Fla. 2d DCA 2004).

Factual Background

' Hurricane Charley blew through the Beverlys’ home on August 13, 2004. In addition to damage to their residence, the Beverlys suffered damage to a barn, trailers, shed, and personal property. They reported the loss to State Farm within three days. The Beverlys contend that upon initial inspection of their home on August 19, 2004, State Farm’s adjuster told them that the barn, shed, fencing, and trailers were not covered under the policy. According to the Beverlys, the adjuster also refused to advance living expenses. For its part, State Farm claims that it promptly advanced $3000 for emergency expenses and began adjusting the loss.

The Beverlys note that they submitted a personal property inventory form with line-item detail on August 23, 2004. Yet, they say, as of September 1, 2004, State Farm had paid no benefits. The Beverlys then hired a public adjuster, Epic, to assist them. On September 20, 2004, State Farm wrote to Epic, advising that the Beverlys had not yet provided a sworn statement in proof of loss required by the policy.1 Apparently, the Beverlys deliv[630]*630ered a proof of loss on September 29, 2004; according to State Farm, they did not provide supporting details or documents. See swpra note 1. The Beverlys counter that on September 29, 2004, they delivered their sworn statement in proof of loss for $511,500 and $341,000 actual cash value and attached a line-item dwelling damage estimate.

The Beverlys sued State Farm on October 1, 2004, six weeks after the loss. Within a few days, State Farm received an engineering report evaluating structural damage to the Beverlys’ home. On November 5, 2004, State Farm paid the Bev-erlys $46,014.11. In the correspondence accompanying the payment, State Farm advised the Beverlys that the proof of loss was deficient, noted the applicable policy requirements, and requested compliance.

A week later, on November 12, 2004, State Farm wrote the Beverlys to request the specific amounts claimed and documentation for expenses required to be incurred before payment, such as additional living expenses (ALE). The Beverlys responded on November 14, 2004:

Mr. and Mrs. Beverly acknowledge State Farm’s request for what they believe are their total damages. To help Mr. and Mrs. Beverly out, and assist them coming to an informed decision on their total damages, they kindly request that State Farm provide them with all of State Farm’s estimates, opinions, photographs of the damages, or anything else State Farm may have (it uses to calculate damages) that will help Mr. and Mrs. Beverly calculate their total damages.

On November 22, 2004, State Farm met the Beverlys and Epic to inspect some of the damaged personal property and to review ALE receipts. The next day, State Farm paid the Beverlys $65,217.98 for building damage and ALE of $266.16.

In early May 2005, the Beverlys sent State Farm an estimate claiming $594,993.20 in damages. By July 2005, the Beverlys and State Farm still could not agree on the amount of loss.

State Farm then invoked the appraisal process of the policy.2 The Beverlys agreed but insisted that the appraisal address all coverages, including ALE. State Farm contended that ALE coverage was not disputed because State Farm reimbursed expenses as the Beverlys incurred them and submitted receipts. The trial court ordered appraisal for all coverages.

On August 26, 2005, the Beverlys advised State Farm that they were selling the home without repair. Four days later, State Farm wrote the Beverlys to advise that it had paid all ALE for which receipts had been submitted.

On June 8, 2006, the appraisers issued a partial award. The award listed replacement cost for the residence at $400,000 and $380,000 as its cash value, $55,000 replacement value and $45,000 cash value for the barn and shed, $22,500 for demolition and debris removal, and incurred costs for ALE and code upgrades. On August 7, 2006, State Farm paid the policy limits of $309,916 for the building, $30,992 for the dwelling extensions, and $15,495.80 for debris removal, and paid $6796.28 for contents and $266.16 ALE for generator gas, less prior payments.

On September 13, 2006, the appraisers issued a second partial appraisal award of $80,116.52 for the actual cash value of per[631]*631sonal property. On November 10, 2006, State Farm paid this award, less prior payments. With each payment, State Farm asked the Beverlys to contact it if they disagreed with the amounts paid. They did not respond until December 2006, when they advised State Farm that it owed over $20,000, for which they claimed they had already provided documentation. This amount included $8190.40 in ALE for cleanup expenses, drinking water, documentary photographs, water chlorination, pool shock, generator fuel, and replacement of spoiled food and damaged clothing. State Farm claims to have sent seven letters requesting clarification and supporting documentation, to which the Bev-erlys did not respond.

The Beverlys filed an amended complaint on April 11, 2007, claiming $5078.36 in ALE for photographs, groceries, gasoline, drinking water, water chlorination, pool supplies, cleanup supplies, clothing, and medications. On April 23, 2007, State Farm filed a motion to compel a further appraisal. The trial court granted State Farm’s motion.

On June 18, 2008, the Beverlys’ appraiser sent State Farm’s appraiser a spreadsheet claiming State Farm owed another $117,874.14 for ALE, but did not include supporting documents. On July 2, 2008, the Beverlys’ appraiser provided a revised spreadsheet showing $97,159.09 for ALE and included supporting receipts. On August 6, 2008, the Beverlys’ appraiser provided two additional spreadsheets containing their final ALE demand of $141,629.57. On February 2, 2009, the appraisers issued a third award of $674.03. On March 5, 2009, State Farm paid $407.87, the award amount less prior payments.

Motion for Summary Judgment

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Bluebook (online)
50 So. 3d 628, 2010 Fla. App. LEXIS 16287, 2010 WL 4226548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beverly-v-state-farm-florida-insurance-co-fladistctapp-2010.