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Filing # 108826525 E-Filed 06/14/2020 11:08:40 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.: 11-2019-CA-002007-0001-XX
SFR SERVICES LLC A/A/O
PAUL AND LOIS CHARLEBOIS,
Plaintiff,
v.
FIRST PROTECTIVE INSURANCE COMPANY
DBA FRONTLINE INSURANCE,
Defendant.
/
PLAINTIFF'S MOTION FOR FINAL SUMMARY JUDGMENT
COMES NOW the Plaintiff, SFR SERVICES LLC A/A/O PAUL AND LOIS
CHARLEBOIS, by and through its undersigned counsel, and files this Motion for Final Summary
Judgment, stating as follows in support:
UNDISPUTED FACTS:
1. This case began as a breach of contract action filed by Plaintiff as a response to
Defendant's decision to not pay for the damage sustained during Hurricane Irma by the Insureds,
Paul and Lois Charlebois.
2. Plaintiff filed its Complaint on May 17, 2019.
3. In response to the service of the Complaint, Defendant filed a Motion to dismiss
and compel appraisal. This was the first time since the inception of the claim that Defendant
requested appraisal.
4. Prior to the suit Defendant made no payment for damages.
FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 06/14/2020 11:08:40 AM5. On June 12, 2020, the appraisal panel found that Defendant was due and owing to
Plaintiff an amount of $106,834.92.
6. The award of $106,834.92 conclusively and unequivocally leaves no disputed fact
in this suit, and entitles Plaintiff to final summary judgment on all counts of this complaint.
MEMORANDUM OF LAW
I. SUMMARY JUDGMENT STANDARD OF REVIEW
Rule 1.510(c) of the Florida Rules of Civil Procedure states in pertinent part:
.. [T]he judgment sought shall be rendered forthwith if the pleadings,
depositions, answer to interrogatories, admissions, affidavits, and other
materials as would be admissible in evidence on file show that there is no
genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.
The purpose of a motion for summary judgment is to determine whether any genuine issues
of material fact remain for resolution by the trier of fact. A. & G. Aircraft Service, Inc. v. Drake
143 So.2d 703 (Fla. 2d DCA 1962). Florida courts have held that the term "genuine issue" as used
in the summary judgment rule means a real issue, as distinguished from a false or colorable issue.
Harrison v. Consumers Mortgage. Co., 154 So.2d 194 (Fla. Ist DCA 1963). The Supreme Court
of the United States has defined the terms "genuine issue" and "material fact" as follows: an issue
is "genuine" if there is sufficient evidence that a reasonable jury could return a verdict for either
party; a fact is "material" if it may affect the outcome of the suit under governing law. Anderson
v. Liberty, Inc., 477 U.S. 242, 248 (1986). Furthermore, summary judgment should be granted
where "the facts are so clear and undisputed that only questions of law remain." Sulkin v. All
Florida Pain Management, Inc., 932 So.2d 485, 486 (Fla. 4th DCA 2006)(quoting Dade County
School Board. v. Radio Station WOBA, 731 So.2d 638, 643 (Fla. 1999)).
Although the party moving for summary judgment has the initial burden of demonstrating
the nonexistence of material issues of fact, once that party has tendered competent evidencesupporting its motion, the burden shifts to the other party to come forward with opposing evidence
to show a question of material fact exists. Carnes v. Fender, 936 So.2d 11 (Fla. 4th DCA 2006).
The opposing party must come forward with counter-evidence sufficient to reveal a genuine issue.
Fisel v. Wynns, 667 So.2d 761 (Fla. 5th DCA 1996)(once burden shifts, opposing party must do
more than merely assert existence of an issue of fact); Landers v. Milton, 370 So.2d 368, 370 (Fla.
1979); (once movant’ s burden is met, "the opposing party must come forward with
counterevidence sufficient to reveal a genuine issue. It is not enough for the opposing party merely
to assert that an issue does exist.")
Il. THE POST SUIT APPRAISAL AWARD IS UNDISPUTED RECORD EVIDENCE
OF DEFENDANT'S BREACH OF THE POLICY WHICH ENTITLES
PLAINTIFF TO SUMMARY JUDGMENT.
After the filing of the suit, Defendant moved for abatement and entered into an Agreed
Order with Plaintiff to submit the dispute to a neutral and impartial appraisal panel, which
ultimately found that Defendant had underpaid the claim by $106,834.92. This unequivocal act
amounts to a confession of judgment as to Plaintiffs breach of contract claim. As a result, Plaintiff
is entitled to final summary judgment as to the pending breach of contract action.
As a matter of law, once Defendant invoked appraisal it waived any further compliance
with conditions precedent to coverage. Safepoint Insurance Co. v. Gomez, 44 Fla. L. Weekly D
239 (Fla. 3d DCA January 16, 2019) citing Chimerakis v. Sentry Insurance Mutual Co., 804 So.2d
476, 480 (Fla. 3d DCA 2001). Because Defendant is now legally obligated to make a payment, as
a matter of law Defendant has waived any potential defenses it could have raised. The invocation
of appraisal serves as a legally binding waiver of Plaintiff's further performance or any claims that
Defendant might raise regarding inadequate or underperformance of the same.Lastly, Florida common law has long recognized that insurance benefits paid post-suit amount
to a Confession of Judgment. "When the insurance company has agreed to settle a disputed case,
it has, in effect, declined its position in the pending suit. Thus, the payment of the claim is, indeed,
the functional equivalent of a confession of judgment or a verdict in favor of the insured." Wollard
vy. Lloyd's & Companies of Lloyd's, 439 So.2d 217, 218 (Fla 1983). Here, Defendant’s actions in
initiating and pursuing appraisal, rather than litigate and dispute the alleged breach of contract,
followed by the umpire’s ultimate award in Plaintiffs favor amounts to a confession of judgment.
I. DEFENDANT'S CONFESSION OF JUDGMENT ENTITLES THE PLAINTIFF
TO REASONABLE STATUTORY ATTORNEY'S FEES AND COSTS.
Because the appraisal award of insurance benefits amounts to a confession of judgment,
Plaintiff is entitled to reasonable attorney's fees. In Goff'v. State Farm Florida Insurance Co., 999
So.2d 684 (Fla. 2d DCA 2008), the court recognized that when the insurance carrier invokes the
appraisal clause in response to a suit against the carrier for breach of contract, the parameters of
Florida Statutes §627.428 are met and Plaintiff is entitled to reasonable attorney's fees and costs.
The Goff court explained: "the statute must be construed to authorize the award of an attorney's
fee to an insured or beneficiary under a policy or contract of insurance who brings suit against the
insurer after loss is payable even though technically no judgment for the loss claimed is thereafter
entered favorable to the insured or beneficiary due to the insurer voluntarily paying the loss before
such judgment can be rendered." Jd. at 668 citing Wollard, 439 So.2d at 218 (Fla. 1983). "[Florida
Statutes §627.428] clearly provides that attorney's fees shall be awarded against the insurer when
judgment is rendered in favor of an insured. In Florida, the payment of a settlement claim is the
functional equivalent of a confession of judgment or a verdict in favor of the insured." Johnson v.
Omega Insurance Co, 200 So.3d. 1207 (Fla. 2016)(citing Ivey v. Allstate Insurance Co., 774 So.2d
679 at 684-685 (Fla. 2000)).CONCLUSION
In light of the above undisputed facts and the resulting effect of the post-suit appraisal
award of $106,834.92, Defendant has confessed judgment and waived any legal defense it could
have raised in this lawsuit. Furthermore, Defendant's confession of judgment entitles Plaintiff to
reasonable attorney's fees.
WHEREFORE, Plaintiff, SFR SERVICES LLC A/A/O PAUL AND LOIS
CHARLEBOIS, by and through undersigned counsel, respectfully requests an order GRANTING
Plaintiffs Motion for Final Summary Judgment, including any and all further relief deemed
necessary and proper by the court.
CERTIFICATE OF SERVICE
THEREBY CERTIFY that the foregoing document has been served on the Defendant by email
using the Florida Courts E-Filing Portal on June 14, 2020.
THE WHISLER LAW FIRM
1909 Tyler St, Suite 501
Hollywood, FL 330020
Telephone: (561) 708-0513
Facsimile: (561) 226-2573
BY: /s/Daniel Cohan
JOSHUA WHISLER
Florida Bar No. 98172
DANIEL COHAN, ESQ
Fla. Bar. No. 126587
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Filing # 108826525 E-Filed 06/14/2020 11:08:40 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO.: 11-2019-CA-002007-0001-XX SFR SERVICES LLC A/A/O PAUL AND LOIS CHARLEBOIS, Plaintiff, v. FIRST PROTECTIVE INSURANCE COMPANY DBA FRONTLINE INSURANCE, Defendant. / PLAINTIFF'S MOTION FOR FINAL SUMMARY JUDGMENT COMES NOW the Plaintiff, SFR SERVICES LLC A/A/O PAUL AND LOIS CHARLEBOIS, by and through its undersigned counsel, and files this Motion for Final Summary Judgment, stating as follows in support: UNDISPUTED FACTS: 1. This case began as a breach of contract action filed by Plaintiff as a response to Defendant's decision to not pay for the damage sustained during Hurricane Irma by the Insureds, Paul and Lois Charlebois. 2. Plaintiff filed its Complaint on May 17, 2019. 3. In response to the service of the Complaint, Defendant filed a Motion to dismiss and compel appraisal. This was the first time since the inception of the claim that Defendant requested appraisal. 4. Prior to the suit Defendant made no payment for damages. FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 06/14/2020 11:08:40 AM5. On June 12, 2020, the appraisal panel found that Defendant was due and owing to Plaintiff an amount of $106,834.92. 6. The award of $106,834.92 conclusively and unequivocally leaves no disputed fact in this suit, and entitles Plaintiff to final summary judgment on all counts of this complaint. MEMORANDUM OF LAW I. SUMMARY JUDGMENT STANDARD OF REVIEW Rule 1.510(c) of the Florida Rules of Civil Procedure states in pertinent part: .. [T]he judgment sought shall be rendered forthwith if the pleadings, depositions, answer to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The purpose of a motion for summary judgment is to determine whether any genuine issues of material fact remain for resolution by the trier of fact. A. & G. Aircraft Service, Inc. v. Drake 143 So.2d 703 (Fla. 2d DCA 1962). Florida courts have held that the term "genuine issue" as used in the summary judgment rule means a real issue, as distinguished from a false or colorable issue. Harrison v. Consumers Mortgage. Co., 154 So.2d 194 (Fla. Ist DCA 1963). The Supreme Court of the United States has defined the terms "genuine issue" and "material fact" as follows: an issue is "genuine" if there is sufficient evidence that a reasonable jury could return a verdict for either party; a fact is "material" if it may affect the outcome of the suit under governing law. Anderson v. Liberty, Inc., 477 U.S. 242, 248 (1986). Furthermore, summary judgment should be granted where "the facts are so clear and undisputed that only questions of law remain." Sulkin v. All Florida Pain Management, Inc., 932 So.2d 485, 486 (Fla. 4th DCA 2006)(quoting Dade County School Board. v. Radio Station WOBA, 731 So.2d 638, 643 (Fla. 1999)). Although the party moving for summary judgment has the initial burden of demonstrating the nonexistence of material issues of fact, once that party has tendered competent evidencesupporting its motion, the burden shifts to the other party to come forward with opposing evidence to show a question of material fact exists. Carnes v. Fender, 936 So.2d 11 (Fla. 4th DCA 2006). The opposing party must come forward with counter-evidence sufficient to reveal a genuine issue. Fisel v. Wynns, 667 So.2d 761 (Fla. 5th DCA 1996)(once burden shifts, opposing party must do more than merely assert existence of an issue of fact); Landers v. Milton, 370 So.2d 368, 370 (Fla. 1979); (once movant’ s burden is met, "the opposing party must come forward with counterevidence sufficient to reveal a genuine issue. It is not enough for the opposing party merely to assert that an issue does exist.") Il. THE POST SUIT APPRAISAL AWARD IS UNDISPUTED RECORD EVIDENCE OF DEFENDANT'S BREACH OF THE POLICY WHICH ENTITLES PLAINTIFF TO SUMMARY JUDGMENT. After the filing of the suit, Defendant moved for abatement and entered into an Agreed Order with Plaintiff to submit the dispute to a neutral and impartial appraisal panel, which ultimately found that Defendant had underpaid the claim by $106,834.92. This unequivocal act amounts to a confession of judgment as to Plaintiffs breach of contract claim. As a result, Plaintiff is entitled to final summary judgment as to the pending breach of contract action. As a matter of law, once Defendant invoked appraisal it waived any further compliance with conditions precedent to coverage. Safepoint Insurance Co. v. Gomez, 44 Fla. L. Weekly D 239 (Fla. 3d DCA January 16, 2019) citing Chimerakis v. Sentry Insurance Mutual Co., 804 So.2d 476, 480 (Fla. 3d DCA 2001). Because Defendant is now legally obligated to make a payment, as a matter of law Defendant has waived any potential defenses it could have raised. The invocation of appraisal serves as a legally binding waiver of Plaintiff's further performance or any claims that Defendant might raise regarding inadequate or underperformance of the same.Lastly, Florida common law has long recognized that insurance benefits paid post-suit amount to a Confession of Judgment. "When the insurance company has agreed to settle a disputed case, it has, in effect, declined its position in the pending suit. Thus, the payment of the claim is, indeed, the functional equivalent of a confession of judgment or a verdict in favor of the insured." Wollard vy. Lloyd's & Companies of Lloyd's, 439 So.2d 217, 218 (Fla 1983). Here, Defendant’s actions in initiating and pursuing appraisal, rather than litigate and dispute the alleged breach of contract, followed by the umpire’s ultimate award in Plaintiffs favor amounts to a confession of judgment. I. DEFENDANT'S CONFESSION OF JUDGMENT ENTITLES THE PLAINTIFF TO REASONABLE STATUTORY ATTORNEY'S FEES AND COSTS. Because the appraisal award of insurance benefits amounts to a confession of judgment, Plaintiff is entitled to reasonable attorney's fees. In Goff'v. State Farm Florida Insurance Co., 999 So.2d 684 (Fla. 2d DCA 2008), the court recognized that when the insurance carrier invokes the appraisal clause in response to a suit against the carrier for breach of contract, the parameters of Florida Statutes §627.428 are met and Plaintiff is entitled to reasonable attorney's fees and costs. The Goff court explained: "the statute must be construed to authorize the award of an attorney's fee to an insured or beneficiary under a policy or contract of insurance who brings suit against the insurer after loss is payable even though technically no judgment for the loss claimed is thereafter entered favorable to the insured or beneficiary due to the insurer voluntarily paying the loss before such judgment can be rendered." Jd. at 668 citing Wollard, 439 So.2d at 218 (Fla. 1983). "[Florida Statutes §627.428] clearly provides that attorney's fees shall be awarded against the insurer when judgment is rendered in favor of an insured. In Florida, the payment of a settlement claim is the functional equivalent of a confession of judgment or a verdict in favor of the insured." Johnson v. Omega Insurance Co, 200 So.3d. 1207 (Fla. 2016)(citing Ivey v. Allstate Insurance Co., 774 So.2d 679 at 684-685 (Fla. 2000)).CONCLUSION In light of the above undisputed facts and the resulting effect of the post-suit appraisal award of $106,834.92, Defendant has confessed judgment and waived any legal defense it could have raised in this lawsuit. Furthermore, Defendant's confession of judgment entitles Plaintiff to reasonable attorney's fees. WHEREFORE, Plaintiff, SFR SERVICES LLC A/A/O PAUL AND LOIS CHARLEBOIS, by and through undersigned counsel, respectfully requests an order GRANTING Plaintiffs Motion for Final Summary Judgment, including any and all further relief deemed necessary and proper by the court. CERTIFICATE OF SERVICE THEREBY CERTIFY that the foregoing document has been served on the Defendant by email using the Florida Courts E-Filing Portal on June 14, 2020. THE WHISLER LAW FIRM 1909 Tyler St, Suite 501 Hollywood, FL 330020 Telephone: (561) 708-0513 Facsimile: (561) 226-2573 BY: /s/Daniel Cohan JOSHUA WHISLER Florida Bar No. 98172 DANIEL COHAN, ESQ Fla. Bar. No. 126587