State Farm Florida Insurance Co. v. Colella

95 So. 3d 891, 2012 WL 1448576, 2012 Fla. App. LEXIS 6612
CourtDistrict Court of Appeal of Florida
DecidedApril 27, 2012
DocketNo. 2D11-855
StatusPublished
Cited by5 cases

This text of 95 So. 3d 891 (State Farm Florida Insurance Co. v. Colella) 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
State Farm Florida Insurance Co. v. Colella, 95 So. 3d 891, 2012 WL 1448576, 2012 Fla. App. LEXIS 6612 (Fla. Ct. App. 2012).

Opinion

ALTENBERND, Judge.

State Farm Florida Insurance Company appeals a partial final judgment entered pursuant to an order granting a motion for summary judgment in favor of Karen Co-lella on her claim for breach of contract. This lawsuit arises from a sinkhole claim on which State Farm has paid its policy limits with interest. We conclude that the trial court erred in determining that there was no issue of fact and that State Farm, as a matter of law, had breached its contract with Ms. Colella. Accordingly, we reverse and remand for further proceedings.

I. THE SINKHOLE CLAIM, INVESTIGATION, AND RESULTING LAWSUIT

Given that this case is an appeal from a summary judgment, it is surprisingly difficult to provide an accurate explanation of the facts and the proceedings below. The record is approximately 2000 pages in length, but it contains no depositions and little sworn testimony. The appellant’s brief, which was written by the attorney who represented State Farm in the trial court, provides a statement of the case with no citations to the record and a statement of the facts that is argumentative and more a discussion of law than fact. His frustration over the proceedings below is palpable and perhaps understandable, but that emotion has not promoted a detached analysis of the facts and the law in this case.

Ms. Colella owns a home in Pasco County. On September 14, 2006, State Farm issued a one-year homeowner’s insurance policy providing sinkhole coverage on this home. In January 2007, Ms. Colella, with the assistance of a public adjuster, filed a written claim for unspecified damage to her home that “she feels is consistent with sinkhole activity.” In accordance with section 627.707, Florida Statutes (2006), State Farm retained an engineering firm in early February to inspect the home to determine whether it had been damaged by a sinkhole. That firm inspected the home and performed various tests. In June 2007, the engineers provided a lengthy report that concluded: “It is our professional opinion, based on the information generated by this investigation, and by testing conducted in compliance with generally accepted scientific practices and with Chapter 627.7072, that evidence of sinkhole activity is not present at the site of investigation.”

On June 12, 2007, State Farm sent a copy of the report to Ms. Colella’s public adjuster along with a letter stating that, in light of the report, the policy specifically excluded the cause of loss. The letter quoted the relevant language from the insurance policy. It contained a disclosure of the insured’s right to participate in the neutral evaluation program under section 627.7074 and invited the public adjuster to contact either the claims representative or the Florida Department of Financial Services (“the Department”) to learn more [893]*893about that program. The letter also told the public adjuster to “feel free” to contact the claims representative at a specific telephone number if the adjuster had any questions regarding the claim or the content of the letter. A copy of the letter was provided to Ms. Colella and her State Farm insurance agent.

Apparently, neither the public adjuster nor Ms. Colella responded to this letter. About seventeen months later, on November 5, 2008, an attorney representing Ms. Colella filed a civil remedy notice with the Department and served a copy on State Farm. The notice contained many allegations, but little factual detail. For example, it charged that the engineering firm retained by State Farm “failed to comply with standard geotechnical engineering practices and procedures,” but did not explain or describe any practice or procedure that was not followed in preparation of the lengthy report that appears to be supported by significant testing and inspection.

The civil remedy notice alleged that another engineering firm had prepared a conflicting report on October 16, 2008, for Ms. Colella. That report apparently was not provided to State Farm until it received it as an attachment to the service copy of the complaint filed in this lawsuit.

Ms. Colella filed this lawsuit on November 10, 2008. The complaint alleges breach of contract, claiming “on information and belief’ that State Farm’s engineering firm failed to comply with standard geotechnical engineering practices and that State Farm knew or should have known that Ms. Colella had a claim payable under the policy.

State Farm responded to the lawsuit with a motion to stay pending neutral evaluation. It relied on section 627.7074, which provides that such evaluation is “nonbinding, but mandatory if requested by either party.” See § 627.7074(4). Ms. Colella filed an objection to neutral evaluation and a supplemental objection, claiming that the statute was unconstitutional and otherwise improper.1

A request for neutral evaluation is actually made to the Florida Department of Financial Services. See § 627.7074(4). When State Farm filed its request, Ms. Colella’s attorney filed an objection with the Department. It notified the attorney that the evaluation would continue forward and appointed an engineer as a neutral evaluator. Apparently because of the pending objection in the trial court, Ms. Colella’s attorney does not appear to have provided full cooperation to the neutral evaluator in his efforts to examine the property.

The neutral evaluator visited the home on February 5, 2009. His report is in our record, but it is not entirely clear to this court whether we are to treat this document and the other reports in the record as matters in evidence. The report reflects the evaluator’s difficulty in establish[894]*894ing a meeting time and the failure of Ms. Colella and her attorney to be at the residence at the time of the inspection. It appears to this court that the neutral engineer was unable to gain access to the inside of the home and that he prepared his report from the examination of the exterior and from a review of the two competing engineering reports. Although he concluded that “the pattern of damage is not focused as would be expected for sinkhole activity” and that “the cracking appears to be cosmetic in nature and would be within accepted tolerances for the age of the home,” he was concerned by the “very large discrepancies between the borings performed by [the first engineer] and the [second engineer].” Accordingly, he recommended that “a neutral third party firm be retained to perform additional borings to resolve the discrepancies.” His report is dated March 4, 2009.

When State Farm received this report, it made a unilateral decision to simply pay policy limits on this claim.2 Its reasons for doing so are not established in the record, but given the amount in controversy, it is likely that it simply decided to forego the time and expense of further testing and litigation. Accordingly, on March 20, 2009, State Farm sent Ms. Colella’s attorney a cover letter with a check for $91,876 payable to Ms. Colella and her mortgage company, representing the full amount of applicable coverage for the loss. It also sent a check for $17,915.48 to the same payees to cover prejudgment interest on the claim. Finally, the letter concludes: “State Farm concedes your entitlement to a reasonable amount of fees and costs. This should resolve all pending issues with the exception of the amount of fees and costs owed.”

Shortly after State Farm sent the letter and checks, Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
95 So. 3d 891, 2012 WL 1448576, 2012 Fla. App. LEXIS 6612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-farm-florida-insurance-co-v-colella-fladistctapp-2012.