Kroener v. Florida Insurance Guaranty Ass'n

63 So. 3d 914, 2011 Fla. App. LEXIS 9613, 2011 WL 2462679
CourtDistrict Court of Appeal of Florida
DecidedJune 22, 2011
DocketNos. 4D09-3604, 4D09-4102
StatusPublished
Cited by17 cases

This text of 63 So. 3d 914 (Kroener v. Florida Insurance Guaranty Ass'n) 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
Kroener v. Florida Insurance Guaranty Ass'n, 63 So. 3d 914, 2011 Fla. App. LEXIS 9613, 2011 WL 2462679 (Fla. Ct. App. 2011).

Opinion

TAYLOR, J.

In this appeal, homeowners, Kent and Marie-Eve Kroener (Kroeners), challenge two rulings by the trial court: (1) final summary judgment entered in favor of the Florida Insurance Guarantee Association (FIGA) on their claim for hurricane damage, and (2) denial of their motion to enforce FIGA’s proposal for settlement, which the Kroeners attempted to accept after entry of the final summary judgment. We affirm both rulings of the trial court.

The Kroeners are the current owners of a house they purchased from Peter and Gizella Winder (the “prior owners”) on April 10, 2007. The prior owners had homeowners’ insurance with Atlantic Preferred Insurance Company from February 22, 2005 through February 22, 2006. During that period the subject residence sustained interior and exterior property damage from Hurricane Wilma on October 24, 2005. When the hurricane struck, however, the prior owners were not residing in the home. They had moved out shortly before the hurricane to rent it out. Although the prior owners were aware of some damage from Hurricane Wilma, they never notified Atlantic of their property damage losses or made a claim on their homeowners’ policy.

Sometime after the prior owners sold their home to the Kroeners, the Kroeners discovered a roof leak, which their contractor attributed to Hurricane Wilma. At the request of the Kroeners, on December 5, 2007, the prior owners executed an Assignment of Benefits form, which directed Atlantic to pay the Kroeners “any and all applicable authorized insurance benefits for any and all applicable coverage periods, available under the policy issued by Atlantic Preferred Insurance Company....” Subsequently, the Kroeners filed a claim against FIGA for the hurricane damages suffered when the previous owners had the property.1

FIGA denied coverage, asserting that when the belated assignment was made, the prior owners, as assignors, no longer had an insurable interest since they had sold the property 7½ months before executing the assignment. The Kroeners then filed a complaint against FIGA for breach of contract and declaratory relief. In response, FIGA asserted that the insurance policy was not validly assigned because: (1) the insurer had not consented to an assignment; (2) the prior owners, as assignors, had no insurable interest at the time of their assignment because their sale of the property prior to the assignment wiped out their interest; (3) the prior owners had made no claims under the policy and thus had nothing to assign; (4) the prior owners had failed to comply with conditions precedent, which required prompt notice of loss, protection of the property, and detailed records of repairs; and (5) the Kroeners lacked standing to sue for a breach of the insurance policy to which they had never been parties.

After the parties engaged in discovery, FIGA amended its affirmative defenses and asserted that: (1) the Kroeners had already been paid for some of the damage by USAA Insurance; (2) they had suffered no loss, having purchased the property “as is” and received a discount from the prior [916]*916owners for necessary repairs; (3) the prior owners were not covered because they were not residing in the house in 2005; and (4) the Kroeners were committing a fraud.

FIGA filed a motion for summary judgment, arguing that the previous owners had no claim to assign, and no insurable interest, by the time they executed an assignment to the Kroeners, and that the policy’s timely notice requirements had been violated. FIGA further contended that, as a matter of law, a two-year delay for a hurricane loss claim is a violation of the policy’s conditions precedents, without the need to prove prejudice.

On June 9, 2009, a day before the summary judgment hearing, FIGA served a proposal for settlement of $32,000.00 on the Kroeners, including all costs and attorney’s fees. However, the Kroeners did not immediately accept FIGA’s proposal. The next day, the trial court heard arguments from counsel and granted FIGA’s motion for summary judgment. The court later entered final judgment on June 18, 2009.

The Kroeners moved for rehearing on June 22, 2009, and on that same date, filed a “Notice of Acceptance of Defendant’s Proposal for Settlement,” attaching the proposal from FIGA dated June 9, 2009.2 The trial court denied the Kroeners’ motion for a rehearing on the summary judgment and their motion to compel enforcement of FIGA’s proposed settlement.

Summary Judgment on Insurance Claim

The applicable standard of review of an order granting summary judgment is de novo. Suncoast Cmty. Church of Boca Raton, Inc. v. Travis Boating Ctr. of Fla., 981 So.2d 654, 655 (Fla. 4th DCA 2008). •However, it is well-settled that a summary judgment should be affirmed if the record reflects that no genuine issues of material fact exist, and the movant is entitled to judgment as a matter of law. Smith v. Shelton, 970 So.2d 450, 451 (Fla. 4th DCA 2007). Here, considering the undisputed facts, the terms of the insurance policy, and applicable case law, we find that the trial court correctly entered final summary judgment for FIGA.

At the outset, we note that the parties agree that the insurance policy itself could not be assigned, but that any authorized benefits that had arisen under the policy during the time of the prior ownership of the property could be assigned. However, to obtain benefits under the policy, the insured was required to “give prompt notice” after a loss occurred.

Although the trial court entered final summary judgment for FIGA under several theories, we agree with the trial court’s ruling that, as a matter of law, notice to the insurer of a claim of loss more than two years and two months after the loss occurred was not prompt notice; the untimely reporting of the loss violated the insurance policy and was sufficient to bar the claim. See Highlands Ins. Co. v. Kravecas, 719 So.2d 320 (Fla. 3d DCA 1998) (holding that third-party buyer of hurricane-damaged home was not entitled to assert a loss-of-use claim pursuant to insured seller’s assignment of insurance claims, where seller did not claim any loss of use during his period of ownership). Like the new buyer in Highlands, the Kroeners did not receive any claims through the previous owners’ assignment because there were no claims timely made by the previous owners to assign.

[917]*917 Proposal for Settlement

We next address the Kroeners’ argument that the trial court erred in denying their motion to compel enforcement of FIGA’s proposal for settlement.

On June 9, 2009, a day before the summary judgment hearing, counsel for FIGA served a proposal for settlement in the amount of $32,000.00. On June 10, 2009, the trial court heard arguments from counsel and granted FIGA’s motion for summary judgment; it later entered final judgment on June 18, 2009. On June 22, four days after final judgment, the Kroen-ers served a “Notice of Acceptance of Defendant’s Proposal for Settlement,” which was actually filed on June 23rd. On June 22nd, after receiving the “acceptance,” FIGA’s counsel withdrew the offer in writing. The trial court rejected the Kroeners’ argument that they had timely accepted the offer prior to its withdrawal. Instead, the court ruled that the final summary judgment terminated the Kroen-ers’ ability to accept a proposal for settlement. It thus denied their motion to compel enforcement of the proposal for settlement. The court explained its reasoning:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

DAVID HIMMEL v. AVATAR PROPERTY & CASUALTY INSURANCE COMPANY
257 So. 3d 488 (District Court of Appeal of Florida, 2018)
LoBello v. State Farm Florida Insurance Co.
152 So. 3d 595 (District Court of Appeal of Florida, 2014)
PDQ Coolidge Formad, LLC v. Landmark American Insurance
566 F. App'x 845 (Eleventh Circuit, 2014)
Solano v. State Farm Florida Insurance Co.
155 So. 3d 367 (District Court of Appeal of Florida, 2014)
Hope v. Citizens Property Insurance Corp.
114 So. 3d 457 (District Court of Appeal of Florida, 2013)
National Trust Insurance v. Graham Bros. Construction Co.
916 F. Supp. 2d 1244 (M.D. Florida, 2013)
Kings Bay Condominium Ass'n v. Citizens Property Insurance Corp.
102 So. 3d 732 (District Court of Appeal of Florida, 2012)
Slominski v. Citizens Property Insurance Corp.
99 So. 3d 973 (District Court of Appeal of Florida, 2012)
R.T.G. Furniture Corp. v. Coates
93 So. 3d 1151 (District Court of Appeal of Florida, 2012)
Soronson v. State Farm Florida Insurance Co.
96 So. 3d 949 (District Court of Appeal of Florida, 2012)
Kramer v. State Farm Florida Insurance Co.
95 So. 3d 303 (District Court of Appeal of Florida, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
63 So. 3d 914, 2011 Fla. App. LEXIS 9613, 2011 WL 2462679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kroener-v-florida-insurance-guaranty-assn-fladistctapp-2011.