Secured Realty Inv. Fund v. Highlands Ins.

678 So. 2d 852, 1996 Fla. App. LEXIS 8235, 1996 WL 441578
CourtDistrict Court of Appeal of Florida
DecidedAugust 7, 1996
Docket95-1531
StatusPublished
Cited by1 cases

This text of 678 So. 2d 852 (Secured Realty Inv. Fund v. Highlands Ins.) 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
Secured Realty Inv. Fund v. Highlands Ins., 678 So. 2d 852, 1996 Fla. App. LEXIS 8235, 1996 WL 441578 (Fla. Ct. App. 1996).

Opinion

678 So.2d 852 (1996)

SECURED REALTY INVESTMENT FUND, LTD., III, Appellant,
v.
HIGHLANDS INSURANCE COMPANY, Appellee.

No. 95-1531.

District Court of Appeal of Florida, Third District.

August 7, 1996.
Rehearing Denied September 18, 1996.

*853 Parrillo, Weiss & O'Halloran and Beth M. Gordon, Miami, for appellant.

Parenti, Falk, Waas & Frazier and Gail Leverett Parenti, Coral Gables, for appellee.

Before NESBITT, GREEN and FLETCHER, JJ.

NESBITT, Judge.

Plaintiff-appellant Secured Realty Investment Fund, Ltd., III ("Secured Realty") appeals from an adverse final summary judgment entered in favor of the defendant-appellee Highlands Insurance Company ("Highlands"). We reverse and remand the judgment entered for the following reasons.

On October 17, 1991, the Garcias entered into a mortgage and security agreement with Century Investment Company for a principal amount of $240,000. The mortgage encumbered two properties; one located in Key Largo, and the other in Dade County. On November 20, 1991, Century assigned all of its interest in the note and mortgage to Secured Realty.

The Garcias had an insurance policy, issued by Highlands, that covered the Key Largo Property and had been in effect since December of 1990. Secured Realty obtained an endorsement to the policy in December of 1992 to reflect that it was the sole mortgagee of the insured property.

Secured Realty initiated foreclosure proceedings in early 1992 because the Garcias defaulted. The foreclosure sale took place in March of 1993.[1] Secured Realty bid $100 and took back title to both the Key Largo and Dade County properties in early April. The redemption amount was $361,953. On April 29, 1993 Secured Realty obtained a Writ of Possession for the Key Largo property that the sheriff executed on May 5, 1993. On arriving at the property, the sheriff discovered that it was extensively damaged. Both parties agree that the damage occurred on or about May 5, as the sheriff had been at the property on May 3 and no damage was present.

On May 11, Secured Realty wrote to a Highlands agent to request that the policy be endorsed to reflect that Secured Realty was now the owner of the property and the named insured. Highlands issued such an endorsement effective May 14, 1993.[2] Secured Realty sent a letter, also on the 14th, to Highlands' agent notifying them of the loss, describing the damage, and making a claim under the policy.

In early July of 1993 Secured Realty sold both the Dade County and Key Largo properties. The Dade property sold for $84,000. Secured Realty sold the Key Largo property "as-is" for $265,000. On July 23, 1993, Highlands offered $45,000 to settle Secured Realty's claim. Secured Realty rejected that offer and filed a complaint. Highlands answered and ultimately filed an amended motion for partial summary judgment.

In that motion Highlands essentially argued that Secured Realty did not have an insurable interest in the Key Largo property at the time the loss occurred. When Secured Realty took title to both properties as a result of foreclosure, their fair market value exceeded the redemption amount. Thus, Highlands reasoned, at that moment the debt *854 was satisfied and Secured Realty was no longer a mortgagee. Consequently, the insurer argued, Secured Realty did not have an insurable interest under the policy at the time the loss occurred, almost a month after Secured Realty became owner.

Alternatively, Highlands argued that if Secured Realty had an insurable interest at the time of the loss, its recovery should be limited to the difference between the redemption amount ($361,953) and the amount it realized from the post-loss sale of the properties ($349,000), about $12,953. The trial court entirely agreed with Highlands' position and entered summary judgment in its favor, including the alternative disposition in the event of reversal.

This appeal requires us to construe the mortgage loss payable clause in the insurance policy issued by Highlands to the Garcias and naming Secured Realty as the mortgagee/loss payee.[3] That clause provides:

15. Mortgage Clause.
The word "mortgagee" includes trustee.
If a mortgagee is named in this policy, any loss payable under Coverage A or B shall be paid to the mortgagee and you, as interests appear. If more than one mortgagee is named, the order of payment shall be the same as the order or precedence of the mortgages.
If we deny your claim, that denial shall not apply to a valid claim of the mortgagee, if the mortgagee:
a. notifies us of any change in ownership, occupancy or substantial change in risk of which the mortgagee is aware;
b. pays any premium due under this policy on demand if you have neglected to pay the premium;
c. submits a signed, sworn statement of loss within 60 days after receiving notice from us of your failure to do so. Policy conditions relating to Appraisal, Suit Against Us and Loss Payment apply to the mortgagee.
If the policy is cancelled by us, the mortgagee shall be notified at least 10 days before the date cancellation takes effect.
If we pay the mortgagee for any loss and deny payment to you:
a. we are subrogated to all the rights of the mortgagee granted under the mortgage on the property; or
b. at our option, we may pay to the mortgagee the whole principal on the mortgage plus any accrued interest. In this event, we shall receive a full assignment and transfer of the mortgage and all securities held as collateral to the mortgage debt.
Subrogation shall not impair the right of the mortgagee to recover the full amount of the mortgagee's claim.

"A loss payable clause is one method by which a lienholder or mortgagee protects its property interest. Generally, two types of loss payable clauses exist and are often referred to as (1) an open loss payable clause, and (2) a union, standard or New York clause." Progressive Am. Ins. Co. v. Florida Bank at Daytona Beach, 452 So.2d 42, 44 (Fla. 5th DCA 1984). An "open loss payable clause simply states that `loss, if any, is payable to B. as his interest shall appear', or uses other equivalent words, merely identifying the person who may collect the proceeds." 5A Appleman, Insurance Law and Practice, § 3401 (1970); see DeMay v. Dependable Ins. Co., 638 So.2d 96 (Fla. 2d DCA 1994); Independent Fire Ins. Co., 517 So.2d at 59. A union, standard, or New York clause, on the other hand, provides, in addition to the above quoted provision, language to the effect that "the owner/mortgagor's acts or neglect will not invalidate the insurance provided that if the owner/mortgagor fails to pay premiums due, the lienholder/mortgagee shall on demand pay the premiums." Progressive Am. Ins. Co., 452 So.2d at 44; see, e.g., Independent Fire Ins. Co., 517 So.2d at 61 n. 1; Appleman, supra, § 3401.

*855 In light of the foregoing, we find that the loss payable clause here involved falls into the union, standard, or New York category. The clause at issue is not as detailed as the one involved in Independent Fire Ins. Co., 517 So.2d at 61 n. 1. It does, however, clearly go further than the language involved in a simple open loss payable clause.

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Bluebook (online)
678 So. 2d 852, 1996 Fla. App. LEXIS 8235, 1996 WL 441578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/secured-realty-inv-fund-v-highlands-ins-fladistctapp-1996.