CITIZENS PROPERTY INSURANCE CORPORATION v. MAGDA V. SALAZAR

• Court: District Court of Appeal of Florida
• Decided: October 4, 2023
• Docket: 2020-0367
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 4, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-0367 Lower Tribunal No. 17-2009 ________________

Citizens Property Insurance Corporation, Appellant,

vs.

Magda V. Salazar, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Barbara Areces, Judge.

Butler Weihmuller Katz Craig LLP., and J. Pablo Caceres (Tampa), for appellant.

Giasi Law, P.A., and Melissa A. Giasi and Erin M. Berger (Tampa), for appellee.

Before LOGUE, C.J., and SCALES and LOBREE, JJ.

LOBREE, J.

Citizens Property Insurance Corporation (“Citizens”) appeals a final judgment entered after a jury verdict in favor of Magda V. Salazar

("homeowner”) in her breach of insurance contract action. Because the trial

court erred in denying Citizens’ motion in limine, causing the homeowner’s

failure to present evidence of the correct measure of damages—the actual

cash value of the loss—we reverse and remand for a new trial.

BACKGROUND

Citizens issued a homeowners insurance policy to the homeowner.

During the policy period, the property sustained water damage due to a

leaking water line under the kitchen sink. The homeowner submitted a claim

for benefits under the policy. The loss settlement provision of the policy

obligated Citizens to pay “initially . . . at least the actual cash value of the

insured loss, less any applicable deductible” and then “any remaining

amounts necessary to perform [covered] repairs as work [wa]s performed

and expenses incurred.” This loss settlement provision mirrors the language

of section 627.7011(3)(a), Florida Statutes (2018), providing that “[i]n the

event of a loss for which a dwelling . . . is insured on the basis of replacement

costs . . . the insurer must initially pay at least the actual cash value of the

insured loss, less any applicable deductible,” and “shall pay any remaining

amounts necessary to perform such repairs as work is performed and

expenses are incurred.”

2 Citizens investigated the claim and issued payment in the amount of

$4,439.76, representing its estimate of the actual cash value of the damage

less the applicable deductible. With that money, the homeowner allegedly

performed repairs to the property in the amount of about $3,000 but failed to

produce those receipts. Thereafter, the homeowner hired a public adjuster

who estimated the amount of her damages was $38,268.87. This estimate

was a replacement cost estimate and included matching costs with regard to

various damaged items. Citizens declined to pay any additional amount to

the homeowner because she failed to provide Citizens with any receipts to

show that any actual repairs had been performed or that she had incurred

any additional costs in excess of their initial payment, and because the public

adjuster’s estimate was over-scoped and over-priced. Subsequently, the

homeowner initiated the instant breach of contract action against Citizens for

underpayment of her insurance benefits.

Prior to trial, Citizens filed a motion in limine to limit the evidence on

damages to the actual cash value of the directly damaged property. Citizens

argued that it was initially required to pay the homeowner only the actual

cash value of the directly damaged property and its obligation to pay any

remaining amounts beyond actual cash value of the directly damaged

property, including matching costs, was triggered only once the homeowner

3 performed work and incurred expenses beyond those paid by the insurer.

After the trial court denied the motion, the case proceeded to a jury trial,

during which the homeowner relied on the estimate and testimony of her

public adjuster to establish the amount of her damages. At the close of the

homeowner’s case, Citizens moved for directed verdict on the grounds that

the homeowner failed to establish that she was entitled to receive any

amount beyond the actual cash value of the loss and failed to present any

evidence of the actual cash value of the loss. The trial court denied the

motion. The jury returned verdict in favor of the homeowner in the amount

of $20,000. Thereafter, the trial court denied Citizens’ renewed motion for

directed verdict, and this appeal followed.

STANDARD OF REVIEW

Generally, this court reviews rulings on motions in limine for an abuse

of discretion. Patrick v. State, 104 So. 3d 1046, 1056 (Fla. 2012). However,

where the trial court’s order presents questions of insurance policy

interpretation and statutory construction, our review is de novo. Trinidad v.

Fla. Peninsula Ins. Co., 121 So. 3d 433, 437 (Fla. 2013). Further, this court

reviews a denial of a motion for directed verdict de novo, viewing the

evidence and all available inferences from it in the light most favorable to the

verdict. Citizens Prop. Ins. Corp. v. Kings Creek S. Condo, Inc., 300 So. 3d

4 763, 765 (Fla. 3d DCA 2020). Although a party that fails to meet its burden

of establishing the correct measure of damages at trial is ordinarily not

entitled, on reversal and remand, to a new trial on damages, a new trial may

be appropriate where that party’s failure was the result of judicial error. Levy

v. Ben-Shmuel, 255 So. 3d 493, 495 (Fla. 3d DCA 2018) (en banc).

DISCUSSION

On appeal, Citizens argues that the trial court erred in denying its

motion in limine to exclude the homeowner’s estimate that was based on

replacement cost rather than the correct measure of damages, actual cash

value. We agree and reverse and remand for a new trial.

Generally speaking, “[c]overed losses can be adjusted on the basis of

either replacement cost value or actual cash value.” Siegel v. Tower Hill

Signature Ins. Co., 225 So. 3d 974, 975 n.1 (Fla. 3d DCA 2017). However,

section 627.7011(3)(a), which is incorporated into the subject insurance

policy, provides: “For a dwelling, the insurer must initially pay at least the

actual cash value of the insured loss, less any applicable deductible. The

insurer shall pay any remaining amounts necessary to perform such repairs

as work is performed and expenses are incurred.” Further, projected

matching costs are not included as part of the actual cash value of an insured

loss and an insurer is only obligated to pay such costs as the repairs are

5 performed. Vazquez v. Citizens Prop. Ins. Corp., 304 So. 3d 1280, 1285-86

(Fla. 3d DCA 2020).

Here, the homeowner did not produce any evidence to establish her

damages exceeded Citizens’ initial payment. Thus, Citizens was not yet

obligated to pay any additional amount or matching costs. However, the trial

court allowed the homeowner, over Citizens’ objection, to introduce an

estimate that was not based on the actual cash value of her loss and

improperly included matching costs as evidence of her damages. In reliance

on this erroneous ruling, the homeowner never submitted evidence of the

actual cash value of her loss, and the only estimate the jury had from which

to analyze the loss and award damages was the replacement cost estimate

prepared by the homeowner’s public adjuster. The public adjuster testified

that he would have to “dissect the entire estimate” to arrive at the actual cash

value of the loss, something he could not do as he sat in court.

Consequently, there was no way for the jury to parse the estimate to

determine the actual cash value figure without improper guessing and

speculation. See United Auto. Ins. Co. v. Colon, 990 So. 2d 1246, 1248 (Fla.

4th DCA 2008); Kennedy & Ely Ins., Inc. v. Am. Emp’rs Ins. Co., 179 So. 2d

248, 249 (Fla. 3d DCA 1965).

6 While a party will not be permitted a new trial on remand to remedy its

own failure to present sufficient evidence to support its claim, a new trial is

the appropriate remedy where reversal is necessitated by the trial court’s

error. Levy, 255 So. 3d at 495. Because the trial court erred in denying

Citizens’ motion in limine to exclude the homeowner’s estimate that was not

based on the proper measure of damages, which resulted in the

homeowner’s failure to submit evidence of the correct measure of damages,

we reverse and remand for a new trial.

Reversed and remanded.