Trinidad v. Florida Peninsula Insurance Co.

121 So. 3d 433, 38 Fla. L. Weekly Supp. 507, 2013 WL 3333823, 2013 Fla. LEXIS 1379
CourtSupreme Court of Florida
DecidedJuly 3, 2013
DocketNo. SC11-1643
StatusPublished
Cited by47 cases

This text of 121 So. 3d 433 (Trinidad v. Florida Peninsula Insurance Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trinidad v. Florida Peninsula Insurance Co., 121 So. 3d 433, 38 Fla. L. Weekly Supp. 507, 2013 WL 3333823, 2013 Fla. LEXIS 1379 (Fla. 2013).

Opinions

PARIENTE, J.

The issue in this case concerns the scope of replacement cost insurance coverage under the applicable provisions of the 2008 Florida Statutes. In Trinidad v. Florida Peninsula Insurance Co., 99 So.3d 502, 504 (Fla. 3d DCA 2011), the Third District Court of Appeal concluded that Florida Peninsula Insurance Company was not required by either its replacement cost homeowner’s insurance policy or the applicable provisions of section 627.7011, Florida Statutes (2008), to pay Amado Trinidad, its insured, costs for a general contractor’s overhead and profit because Trinidad did not repair or contract to repair the damage to his home.1 We accepted jurisdiction on the basis that the Third District’s decision in Trinidad expressly and directly conflicts with the Second District Court of Appeal’s decision in Goff v. State Farm Florida Insurance Co., 999 So.2d 684 (Fla. 2d DCA 2008). See art. V, § 3(b)(3), Fla. Const.2

For the reasons more fully explained below, we hold that an insurer’s required [436]*436payment under a replacement cost policy includes overhead and profit, where the insured is reasonably likely to need a general contractor for the repairs, because the insured would be required to pay costs for a general contractor’s overhead and profit for the completion of repairs in the same way the insured would have to pay other replacement costs he or she is reasonably likely to incur in repairing the property. Because section 627.7011, Florida Statutes (2008), and the replacement cost policy in this case, did not require the insured to actually repair the property as a condition precedent to the insurer’s obligation to make payment, the insurer was not authorized to withhold, pending actual repair, its payment for replacement costs, which is measured by what it would cost the insured to repair or replace the damaged structure on the same premises if the insured were to do so. Accordingly, we quash the Third District’s decision below, which impermissibly allowed Florida Peninsula to single out overhead and profit from other replacement costs and withhold payment for only those costs, and direct that this case be remanded to the trial court to determine whether Trinidad is reasonably likely to need a general contractor for the repairs that encompass his covered loss.

FACTS AND PROCEDURAL HISTORY

Trinidad filed a claim with his homeowner’s insurance company, Florida Peninsula, for fire damage that occurred to his Miami home on February 11, 2008. Florida Peninsula admitted coverage pursuant to Trinidad’s replacement cost policy and made a payment on the claim for completion of the repairs, even though Trinidad did not make repairs to the home or hire a general contractor to undertake the repairs. Florida Peninsula’s payment, while including other costs that would be necessary to make the repairs, did not, however, include an amount for a general contractor’s overhead and profit. Florida Peninsula asserted that it was entitled to withhold payment of overhead and profit until Trinidad actually incurred those particular expenses in repairing or contracting to repair the home.

Overhead and profit are costs included in repair estimates and paid to contractors pursuant to contracts for repairs. Specifically, overhead includes “fixed costs to run the contractor’s business, such as salaries, rent, utilities, and licenses,” and profit “is the amount the contractor expects to earn for his services.” Trinidad, 99 So.3d at 502-03.

Trinidad’s insurance contract with Florida Peninsula is a replacement cost policy. The relevant policy language provides that Florida Peninsula will pay for covered losses as follows:

[A]t replacement cost without deduction for depreciation, subject to the following:
(1) If, at the time of loss, the amount of insurance in this policy on the damaged building is 80% or more of the full replacement cost of the building immediately before the loss, we will pay the cost to repair or replace, after application of deductible and without deduction for depreciation, but not more than the least of the following amounts:
(a) The limit of liability under this policy that applies to the building;
(b) The replacement cost of that part of the building damaged for like construction and use on the same premises; or
(c) The necessary amount actually spent to repair or replace the damaged building.

[437]*437Trinidad filed a breach of contract lawsuit against Florida Peninsula, alleging that, like the other costs of repair Florida Peninsula paid despite Trinidad not completing any repairs to the home, Florida Peninsula was required to pay Trinidad costs for overhead and profit. In essence, Trinidad argued that Florida Peninsula could not single out overhead and profit from all other costs of the repair and withhold payment of just those portions of the loss until Trinidad actually incurred expenses for overhead and profit. Florida Peninsula responded by contending that it was not required by the policy or by the applicable provisions of the 2008 Florida Statutes to pay overhead and profit until Trinidad actually incurred those particular costs. The trial court granted summary judgment in favor of Florida Peninsula, finding that the policy language was unambiguous and that Florida Peninsula was not required to pay overhead and profit because those costs had not been “actually spent” in accordance with the terms of subsection (l)(c) of the policy.

Trinidad appealed to the Third District, which affirmed the trial court’s summary judgment in favor of Florida Peninsula and held that “[t]he pokey’s unambiguous terms require Trinidad to either hire a contractor who charges for overhead and profit or to incur expenses for overhead and profit before Florida Peninsula is required to pay for such costs.” Trinidad, 99 So.3d at 505. Since Trinidad “did neither,” the Third District stated, “Florida Peninsula was not obligated under the policy to pay Trinidad for overhead and profit.” Id.

The Third District reasoned that the policy “unambiguously provides that Florida Peninsula pay replacement costs or the costs Trinidad actually incurs or which he demonstrates he is likely to incur.” Id. at 503-04. Explaining that “[n]ot all repairs require the services of a general contractor,” the Third District concluded that under the terms of the policy, Florida Peninsula was required to pay only costs actually spent or costs Trinidad became contractually obligated to spend to repair the damage to his home. Id. at 504.

In addition, the Third District rejected Trinidad’s assertion that section 627.7011(3), Florida Statutes (2008), which required the insurer to pay “replacement costs without reservation or holdback of any depreciation in value, whether or not the insured replaces or repairs the dwelling,” altered its analysis. Trinidad, 99 So.3d at 505 (quoting § 627.7011(3), Fla. Stat. (2008)). In determining that the statute did not mention payment for overhead and profit, but “only require[d] that replacement costs be paid without a hold-back for depreciation,” and did not “require payment of profit and overhead which have not been incurred nor are likely to be incurred,” the Third District stated that “the statute’s plain language precludes Trinidad’s interpretation” because the court could not read any additional language or terms into the statute.

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Cite This Page — Counsel Stack

Bluebook (online)
121 So. 3d 433, 38 Fla. L. Weekly Supp. 507, 2013 WL 3333823, 2013 Fla. LEXIS 1379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trinidad-v-florida-peninsula-insurance-co-fla-2013.