Pauly v. Hartford Insurance Company of the Midwest

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

ROBERT E. PAULY, SANDRA M. PAULY, ROBERT E. PAULY AND SANDRA M. PAULY REVOCABLE TRUST, ROBERT E. PAULY and SANDRA M. PAULY, individually,

Plaintiffs,

v. Case No.: 2:24-cv-874-SPC-NPM

HARTFORD INSURANCE COMPANY OF THE MIDWEST,

Defendant. /

OPINION AND ORDER Before the Court is Plaintiffs’ Rule 60 Motion for Reconsideration. (Doc. 90). In the Order granting in part Defendant’s Motion for Summary Judgment, the Court ruled that Plaintiffs cannot collect replacement cost value (“RCV”) damages if they have not incurred replacement costs. (Doc. 88). In doing so, the Court declined to follow a decision by Florida’s Third District Court of Appeal in Citizens Property Insurance v. Tio, 304 So. 3d 1278 (Fla. Dist. Ct. App. 2020). Instead, the Court sided with Florida’s Fourth District Court of Appeal in Universal Prop. & Cas. Ins. v. Qureshi, 396 So. 3d 564 (Fla. Dist. Ct. App. 2024) and the many other courts that “have almost uniformly held that an insurance company’s liability for replacement cost does not arise until the repair or replacement has been completed.” Ceballo v. Citizens Prop. Ins., 967 So. 2d 811, 815 (Fla. 2007).

A few days after this Court entered the summary-judgment Order, Florida’s Second District Court of Appeal issued an opinion consistent with Tio—Brito v. Citizens Prop. Ins. Corp., No. 2D2024-0664, 2025 WL 1699788 (Fla. Dist. Ct. App. June 18, 2025). Like Tio, the Brito court held that an

insured could collect RCV damages—even if the insured has not incurred replacement costs—when the insurer outright denies coverage. Id. In light of this new opinion, Plaintiffs ask the Court to reconsider its holding and permit them to submit RCV damages to the jury notwithstanding their failure to

undergo repairs. (Doc. 90). “Courts have generally recognized three grounds for reconsidering a court order: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or manifest injustice.”

Law Offices of Rodrigo S. Da Silva, P.A., v. Auckland Holdings, LLC, No. 1:23- CV-21147, 2025 WL 1191111, at *1 (S.D. Fla. Feb. 14, 2025); see also Kona Spring Water Distrib., Ltd. v. World Triathlon Corp., No. 8:05-CV-119-T-23- TBM, 2006 WL 1382060, at *1 (M.D. Fla. May 16, 2006). Reconsideration of a

prior order is an extraordinary measure that should be applied sparingly. See Adams v. Beoneman, 335 F.R.D. 452, 454 (M.D. Fla. 2020). Court orders are not intended as first drafts subject to revisions at a litigant’s pleasure, so a movant must establish extraordinary circumstances supporting reconsideration. Gold Cross EMS, Inc. v. Children’s Hosp. of Ala., 108 F. Supp.

3d 1376, 1384 (S.D. Ga. 2015). “A motion for reconsideration should raise new issues, not merely readdress issues previously litigated.” PaineWebber Income Props. v. Mobil Oil Corp., 902 F. Supp. 1514, 1521 (M.D. Fla. 1995). Plaintiffs do not specify on which ground they seek reconsideration. But

presumably, they believe the Brito opinion constitutes an intervening change in controlling law. They are incorrect. The Brito opinion is not binding on this Court.1 And new but non-binding authority does not constitute an intervening change in “controlling law” warranting reconsideration. See Doe v. Rollins

Coll., No. 6:18-CV-1069-ORL-37-LRH, 2020 WL 8408453, at *2 (M.D. Fla. July 13, 2020) (“[P]ersuasive authority . . . does not constitute an intervening change in controlling law to support reconsideration of a prior summary judgment order.”); Bravo v. Eden Isles Condo. Ass’n, Inc., No. 09-22532-CIV,

2011 WL 13174648, at *1 (S.D. Fla. July 11, 2011) (“The Balvage opinion from the Ninth Circuit is persuasive authority in this circuit; it is not controlling

1 Generally, this Court adheres to decisions of Florida’s intermediate appellate courts, absent precedent from the Florida Supreme Court. See Carlson v. FedEx Ground Package Sys., Inc., 787 F.3d 1313, 1318 (11th Cir. 2015). Where Florida’s appellate courts are split on an issue, however, the Court follows the law of the appellate district in which the Court is located. See United States v. Montague, 437 F. App’x 833, 836 (11th Cir. 2011). Because this Court sits in Florida’s Sixth District Court of Appeal, Brito is not binding. See id. (explaining that “a sister district’s opinion is merely persuasive”). law that would support reconsideration of the order on summary judgment.”). So the Court denies Plaintiff’s motion for reconsideration.

What’s more, the Court does not find Brito persuasive. The Brito court observed that the language of Fla. Stat. § 627.7011(3)(a) and the policy’s loss- settlement provision (which limit the insurer’s payment to actual cash value until replacement costs are incurred) are limited to covered claims. Brito, 2025

WL 1699788, at *3. But since the insurer maintained that the insured’s losses were not covered, the Brito court reasoned that the payment-splitting method of the statute and the loss-settlement provision does not apply. Id. Thus, the court concluded the insured could collect RCV damages at trial (despite never

incurring such costs). Id. The Court cannot agree with this rationale. The Brito court’s holding that § 627.7011(3)(a) and the policy’s loss- settlement provision only apply when an insurer acknowledges coverage is unconvincing. If these provisions do not govern payment after an insurer

initially denies coverage, then what does? The Brito court never answers this question. And this Court is unable to identify any provision in the statute or the policy governing loss settlement for uncovered losses (for obvious reasons). So the Brito court must believe that when an insurer initially denies coverage,

the insured gets to rewrite the policy and elect how the insurer will settle its loss. In this Court’s view, this is not the correct approach. Rather, the limitation to “insured” losses in § 627.7011(3)(a) and “covered” property in the policy’s loss-settlement provision means exactly what it says: the insurer will only issue payment (RCV or otherwise) if the loss is covered—whether the insurer acknowledges coverage or a court makes this determination. Accordingly, it is now ORDERED: Plaintiffs’ Motion for Reconsideration (Doc. 90) is DENIED. DONE and ORDERED in Fort Myers, Florida on July 2, 2025.

UNITED STATES DISTRICT JUDGE Copies: All Parties of Record