Legal Document: ELR RESTORATION INC AAO GERMAN GUTIERREZ vs. UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY

On April 06, 2021 a was filed involving a dispute between Elr Restoration Inc Aao German Gutierrez, and Universal Property And Casualty Insurance Company, for SMALL CLAIMS in the District Court of Osceola County.

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Filing # 143728379 E-Filed 02/10/2022 09:48:22 PM

IN THE COUNTY COURT OF THE 9TH
JUDICIAL CIRCUIT IN AND FOR
OSCEOLA COUNTY, FLORIDA
ELR RESTORATION INC. A/A/O
WILLIAM F. ZENO GONZALEZ, CASE NO.: 2021-SC-001643-SP

Plaintiff(s),
vs.

UNIVERSAL PROPERTY AND CASUALTY
INSURANCE COMPANY,

Defendant.
_____________________________________/

DEFENDANT’S NOTICE OF FILING IN
SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY DISPOSITION

NOTICE IS GIVEN that Defendant, UNIVERSAL PROPERTY & CASUALTY

INSURANCE COMPANY (“Universal”), on this date filed the attached pleadings filed in this and

other Florida venues, in support of Universal’s Motion for Summary Disposition:

1. Order on Defendant’s Motion for Judgment on the Pleadings dated November 12,

2020, in ELR Restoration, Inc., a/a/o Nidia Feliberti, v. Tower Hill Signature Ins. Co., Osceola

County Court Case Number 2020-SC-002996-SP.

2. Order on Defendant’s Motion for Judgment on the Pleadings dated November 10,

2020, in ELR Restoration, Inc., a/a/o Marie Rodriguez, v. Tower Hill Preferred Ins. Co., Osceola

County Court Case Number 2020-SC-002702-SP.

3. Order on Defendant’s Motion for Judgment on the Pleadings dated November 5,

2020, in ELR Restoration, Inc., a/a/o Benjamin Sorrentino, v. Tower Hill Prime Ins. Co., Osceola

County Court Case Number 2020-SC-002980.

4. Order on Defendant’s Motion for Judgment on the Pleadings dated November 5,

2020, in ELR Restoration, Inc., a/a/o Oscar Hernandez, v. Tower Hill Prime Ins. Co., Osceola

County Court Case Number 2020-SC-003049.
5. Order Granting Defendant’s Motion for Summary Disposition and Final Judgment

dated October 12, 2020, in The Kidwell Group, LLC, d/b/a Air Quality Assessors of Florida, a/a/o

Paul Earley, v. National Fire & Marine Ins. Co., Franklin County Case Number 20-000001-SC.

6. Order Granting Defendant’s Motion for Summary Judgment dated August 31,

2020, in The Kidwell Group, LLC, d/b/a Air Quality Assessors of Florida, a/a/o Michael Swiontek,

v. United Prop. & Cas. Ins. Co., Flagler County Court Case Number 2020-CC-000069.

7. Order Granting Defendant’s Motion for Summary Disposition and Final Judgment

dated February 8, 2019, in The Kidwell Group, LLC, d/b/a Air Quality Assessors of Florida, a/a/o

Anthony Buccino, v. Liberty Mutual Fire Ins. Co., Orange County Case Number 2018-SC-008688-

8. Order Granting Defendant’s Motion for Summary Disposition dated October 8,

2021, in ELR Restoration, Inc., a/a/o Alexander Alfonso, v. Universal Prop. & Cas. Ins. Co.,

Osceola County Court Case Number 2021-SC-001610.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via E-

Service to: Earl I. Higgs, Jr., Esq., Higgs Law, P.A. (ehiggs@higgslawpa.com, and

gsantos@higgslawpa.com) counsel for Plaintiff, on this 10th day of February, 2022.

Attorney for Defendant
Universal Property & Casualty Company
P.O. Box 9388
Fort Lauderdale, Florida 33309
Telephone: (954) 958-3319
Toll-Free: 1-833-658-8594 (Judges Only)
Facsimile: (954) 958-1262

By: /s/ Ryan Taub
Ryan Taub, Esq.
Florida Bar No. 112213

For Service of Court Documents only:
Primary: upciceservice04@universalproperty.com
Secondary: sc0820@universalproperty.com
Tertiary: RT0604@universalproperty.com

For Scheduling Matters:
sc0820@universalproperty.com

*Please do not send any inquiries or scheduling matters to upciceservice@universalproperty.com
or upciceservice04@universalproperty.com.
-. FILED IN OFFICE
«CLERK OF COURT
IN THE COUNTY COURT OF THE 9TH | OSCEOLA COUNTY, Ft.
JUDICIAL CIRCUIT IN AND FOR OSCEOLA
COUNTY, FLORIDA - MONON 12 Pie yu
. ARMARDO RAMIREZ
Case No.: 2020 SC 002996 SP CLERK
OF COURT
CIRCUIT COUNTY CIVIL
ELR RESTORATION, INC. A/A/O
NIDIA FELIBERTI,

Plaintiff,

TOWER HILL SIGNATURE INSURANCE |
COMPANY,

Defendant.
/

This Matter came before the Court on Defendant's Motion on November 9, 2020 via
Microsoft Teams video conference. The Court having heard arguments from both parties, reviewed
the court file, and being fully advised in the premises finds the following:
1. Tower Hill issued a homeowner's insurance policy, Policy Number RPID06645 14,
to Nidia Feliberti (Insured) for the property located at 73 Harness Lane, Kissimmee, FL 34743
(Property), with effective dates of August 24, 2015 through August 24, 2016 (the Policy), which
provided certain insurance coverage subject to the terms conditions, limitations, and exclusions
contained within the Policy.
2. The instant action arises from a claim for insurance coverage filed by the Plaintiff,
as assignee ofthe Insured, Nidia Feliberti, relating to alleged wind and hail damage to the Insured’s
Property on or about August 26, 2015. The assignment was made in consideration for "any repairs
made by ELR Restoration, Inc."
3. Plaintiff, has filed suit on behalf ofNidia Feliberti alleging it is entitled to receive
$2,000 for preparing an estimate, taking photographs, and travel/attendance.
4. Tower Hill argues Plaintiff did not perform any repairs at the subject property.
Therefore, Plaintiff is not entitled to the relief sought in this action.
5. Plaintiff argues that the complaint is sufficient and that it contracted with the
Insured to provide necessary services to the Insured in order to return the subject property to its
pre-loss condition, that the Insured agreed to assign rights under the Insured's Policy to Plaintiff in
exchange for said services, and that Tower Hill breached its contract by failing to pay full value
for services rendered by Plaintiff.
6. Plaintiff also argues any argument on the part of Tower Hill that these necessary
services were not actually a repair requires either a factual determination, the drawing of inference
which are not in favor of the non-moving party, and/or the introduction of evidence that exists
outside of the pleadings, all of which are not permissible consideration when ruling on a motion
for judgment on the pleadings.
7. When considering a motion for judgment on the pleadings the Court considers
questions of law arising out of the pleadings. Ifthe pleadings "reveal that there are no facts to be
resolved by a trier of fact, the court may apply the law to the uncontroverted facts and enter a
judgment accordingly." Clarke v. Henderson, 74 So. 3d 112, 114 (Fla. 3d DCA 2011) (citing Hart
vy. Hart, 629 So. 1073, 1074 (Fla. 2d DCA 1994).
8. Construction ofan insurance contract and the determination ofwhether Florida law
requires the insurer to provide coverage are questions oflaw. See Siegle v. Progressive Consumers
Ins. Co., 788 So. 24 355, 357 (Fla. 4th DCA 2001); Central Cold Storage, Inc. v. Lexington Ins.
Co., 452 So. 2d 1014 (Fla. 3d DCA 1984). The scope and extent of insurance coverage is defined
by the language and terms ofthe policy. See generally Union Am. Ins. Co. v. Maynard, 752 So.2d
1266, 1268 (Fla. 4th DCA 2000); United States Fire Ins. Co. v. Morejon, 338 So. 2d 223, 225 (Fla.
3d DCA 1976). The Policy, which forms the basis for this cause of action, states in relevant part:
COVERAGE A-Dwelling
We cover:
1. The dwelling on the Described Location shown in the Declarations, including
structures attached to the dwelling; and
2. Materials and supplies located on or next to the Described Location used to construct,
alter or repair the dwelling or other structures on the Described Location.
3. If not otherwise covered in this policy, building equipment and outdoor equipment
used for the service of and located on the Described Location.

SPECIAL PROVISIONS — FLORIDA

OTHER COVERAGES

6. Reasonable Repairs. We will pay the reasonable cost you incur for necessary repairs
made solely to protect covered property from further damage, if the peril causing the loss
and related damages is covered. This does not relieve you of your duties, in case ofa loss
to covered property, as set forth in CONDITION 4.c. This coverage does not increase the
limit of liability applying to the damaged covered property.

The Policy further defines what loss may be recoverable:

PERILS INSURED AGAINST

COVERAGE A-DWELLING and COVERAGE B- OTHER STRUCTURES

We insure against risk of direct loss to property described in Coverages A andB only ifthat
loss is a physical loss to property.

9. After careful consideration, the Court has to agree that Plaintiff s invoice for
"roof assessment" which includes the preparation of a report, taking photographs, and
attending inspections does not fall under "reasonable repairs" provisions of the policy. The
charges being sought are not repairs performed or to be performed. Therefore, the reliefbeing .
sought in the Complaint is contrary to the Policy, and Plaintiff is not entitled to the relief
sought in this action.

WHEREFORE IT IS ORDERED AND ADJUDGED that: Defendant's Motion for

Judgment on the Pleadings is GRANTED.

DONE AND ORDERED at Kissimmee, Osceola-Cot iris i,O day of
November, 2020

Hon. Gabrielle Sanders-Morency
County Court Judge
Copies to:
Matthew Funderburk, Esq., GROSSMAN LAW, P.A. ATTORNEYS FOR PLAINTIFF,
1728 SOUTH BUMBY AVENUE ORLANDO, FL 32806

Jeffrey M. Wank, Esq., KELLEY KRONENBERG, ATTORNEYS FOR DEFENDANT,

10360 WESTSTATEROAD84 FORTLAUDERDALE,FL 3 324 MA
7» \\
| IN THE COUNTY COURT OF THE _ CLERK GFCOURT
NINTH JUDICIAL CIRCUIT IN AND OSCEOLA COUNTY. Fi.
FOR OSCEOLA COUNTY, FLORIDA
2 NOV 12 P i2 uy
Case No.: 2020 SC 002702 SP ,

ELR RESTORATION, INC. A/A/O "CLERK
OF COURT.
MARIE RODRIGUEZ, , CIRCUIT COUNTY CIVIL”.
Plaintiff, ,
v.

TOWER HILL PREFERRED INSURANCE
COMPANY,

Defendant.
/

This Matter came before the Court on Defendant's Motion on November 9, 2020 via
Microsoft Teams video conference. The Court having heard arguments from both parties,
reviewed the court file, and being fully advised in the premises finds the following:
1. Tower Hill issued a homeowner's insurance policy, Policy Number P002110632,
to Marie Rodriguez (Insured) for the property located at 209 Rotunda Dr., Kissimmee, FL 34758
(Property), with effective dates of January 24, 2015 through January 24, 2016 (the Policy), which
provided certain insurance coverage subject to the terms conditions, limitations, and exclusions
contained within the Policy.
2. The instant action arises from a claim for insurance coverage filed by the Plaintiff,
as assignee of the Insured, Marie Rodriguez, relating to alleged hail damage to the Insured’s
Property on or about August 26, 2015. The assignment was made in consideration for "any
repairs made by ELR Restoration, Inc."
3. Plaintiff, has filed suit on behalf of Marie Rodriguez alleging it is entitled to
receive $2,000 for preparing an estimate, taking photographs, and travel/attendance.
4, Tower Hills argues Plaintiff did not perform any repairs at the subject property.
Therefore, Plaintiff is not entitled to the relief sought in this action.
5. Plaintiff argues that the complaint is sufficient and that it contracted with the
Insured to provide necessary services to the Insured in order to return the subject property to its
pre-loss condition, that the Insured agreed to assign rights under the Insured's Policy to Plaintiff
in exchange for said services, and that Tower Hill breached its contract by failing to pay full
value for services rendered by Plaintiff.
6. Plaintiff also argues any argument on the part of Tower Hill that these necessary
services were not actually a repair requires either a factual determination, the drawing of
inference which are not in favor of the non-moving party, and/or the introduction of evidence
that exists outside of the pleadings, all of which are not permissible consideration when ruling on
a motion for judgment on the pleadings.
7. When considering a motion for judgment on the pleadings the Court considers
questions of law arising out of the pleadings. If the pleadings "reveal that there are no facts to be
resolved by a trier of fact, the court may apply the law to the uncontroverted facts and enter a
judgment accordingly." Clarke v. Henderson, 74 So. 3d 112, 114 (Fla. 3d DCA 2011) (citing
Hart v. Hart, 629 So. 1073, 1074 (Fla. 2d DCA 1994).
8. Construction of an insurance contract and the determination of whether Florida

law requires the insurer to provide coverage are questions of law. See Siegle v. Progressive
Consumers Ins. Co., 788 So. 2d 355, 357 (Fla. 4th DCA 2001); Central Cold Storage, Inc. v.
Lexington Ins. Co., 452 So. 2d 1014 (Fla. 3d DCA 1984). The scope and extent of insurance
coverage is defined by the language and terms of the policy. See generally Union Am. Ins. Co. v.
Maynard, 752 So.2d 1266, 1268 (Fla. 4th DCA 2000); United States Fire Ins. Co. v. Morejon,
338 So. 2d 223, 225 (Fla. 3d DCA 1976). The Policy, which forms the basis for this cause of
action, states in relevant part:

COVERAGE A-Dwelling
We cover:

1. The dwelling on the “residence premises” shown in the Declarations, including
structures attached to the dwelling; and ~
2. Materials and supplies located on or next to the “residence premises” used to
construct, alter or repair the dwelling or other structures on the “residence premises.”
This coverage does not apply to land, including land on which the dwelling is
located.

SPECIAL PROVISIONS — FLORIDA

ADDITIONAL COVERAGES

2. Reasonable Repairs. We will pay the reasonable cost you incur for necessary repairs
made solely to protect covered property from further damage, if the peril causing the loss

and related damages is covered. This does not relieve you of your duties, in case of a
loss to covered property, as set forth in SECTION I —- CONDITION 2.d. This coverage
does not increase the limit of liability applying to the damaged covered property.
The Policy further defines what loss may be recoverable:

SECTION I- PERILS INSURED AGAINST

COVERAGE A-DWELLING and COVERAGE B- OTHER STRUCTURES

We insure against risk of direct loss to property described in Coverages A and B only
if that loss is a physical loss to property.

9. After careful consideration, the Court has to agree that Plaintiff's invoice for
"roof assessment" which includes the preparation of a report, taking photographs, and
attending inspections does not fall under "reasonable repairs" provisions of the policy. The
charges being sought are not repairs performed or to be performed. Therefore, the relief
being sought in the Complaint is contrary to the Policy, and Plaintiff is not entitled to the
relief sought in this action.

WHEREFORE IT IS ORDERED AND ADJUDGED that: Defendant's Motion

for Judgment on the Pleadings is GRANTED.

DONE AND ORDERED at Kissimmee, Osceola Cou ida this (0 day of
November, 2020

rielle Sanders-Morency
County Court Judge

Copies to;

JORDAN BENBOW, ESQ., GROSSMAN LAW, P.A. ATTORNEYS FOR PLAINTIFF,
1728 SOUTH BUMBY AVENUE ORLANDO, FL 32806

JEFFREY M. WANK, ESQ., KELLEY KRONENBERG, ATTORNEYS FOR
DEFENDANT, 10360 WEST STATE ROAD 84 FORT LAUDERDALE, FL 33324

Lo
/\ \? \\
IN THE COUNTY COURT OF THE NINTH JUDICIAL CIRCUIT,
IN AND FOR OSCEOLA COUNTY, FLORIDA

CASE NO. 2020 SC 002980

ELR RESTORATION, INC.
a/afo BENJAMIN SORRENTINO
PLAINTIFF,

VS.

TOWER HILL PRIME INSURANCE COMPANY
DEFENDANT

ORDER ON DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS

This Matter came before the Court on Defendant’s Motion on October 19, 2020 via Microsoft Teams video
conference. The Court having heard arguments from both parties, reviewed the court file, and being fully advised
in the premises finds the following:

1. Tower Hill issued a homeowner’s insurance policy, Policy Number D210057208, to Benjamin Ne
Sorrentino (Insured) for the property located at 255 Florida Parkway, Kissimmee, Florida 34743
(Property), with effective dates ofMarch 13, 2015 through March 13, 2016 (the Policy), which provided
certain insurance coverage subject to the terms conditions, limitations, and exclusions contained within
the Policy.
2. The instant action arises from a claim for insurance coverage filed by the Plaintiff, as assignee of the
Insured, Benjamin Sorrentino, relating to alleged roof damage to the Insured’s Property on or about
August 26, 2015. The assignment was made in consideration for “any repairs made by ELR Restoration,
Inc.”

3. Plaintiff, has filed suit on behalf of Benjamin Sorrentino alleging it is entitled to receive $2,000 for
preparing an estimate, taking photographs, and travel/attendance. ,
4. Tower Hills argues Plaintiff did not perform any repairs at the subject property. Therefore, Plaintiff is
not entitled to the relief sought in this action.
; 5. Plaintiff argues that the complaint is sufficient and that it contracted with the Insured to provide
necessary services to the Insured in order to return the subject property to its pre-loss condition, that the

Insured agreed to assign rights under the Insured’s Policy
to Plaintiff in exchange for said services, and
that Tower Hill breached its contract by failing to pay full value for services rendered by Plaintiff.
6. Plaintiff also argues any argument on the part of Tower Hill that these necessary services were not
actually a repair requires either a factual determination, the drawing of inference which are not in favor
of the non-moving party, and/or the introduction of evidence that exists outside of the pleadings, all of
which are not permissible consideration when ruling on a motion for judgment on the pleadings.
7. When considering a motion for judgment on the pleadings the Court considers questions of law arising
out of the pleadings. If the pleadings “reveal that there are no facts to be resolved bya trier of fact, the
court may apply the law to the uncontroverted facts and enter a judgment accordingly.” Clarke v.
Henderson, 74 So. 3d 112, 114 la. 3d DCA 2011) (citing Hart v. Hart, 629 So. 1073, 1074 (Fla. 2d
DCA 1994).

8. Construction of an insurance contract and the determination of whether Florida law requires the insurer
to provide coverage are questions of law. See Siegle v. Progressive Consumers Ins. Co., 788 So. 2d 355,
357 (Fla. 4th DCA 2001); Central Cold Storage, Inc. v. Lexington Ins. Co., 452 So. 2d 1014 (Fla. 3d
DCA 1984). The scope and extent of insurance coverage is defined by the language and terms of the
policy. See generally Union Am. Ins. Co. v. Maynard, 752 So. 2d 1266, 1268 (Fla. 4th DCA 2000);
United States Fire Ins. Co. v. Morejon, 338 So. 2d 223, 225 (Fla. 3d DCA 1976). The Policy, which
forms the basis for this cause of action, states in relevant part:

COVERAGE A-Dwelling
We cover:

1, The dwelling on the Described Location shown in the Declarations, including structures attached
to the dwelling; and

2. Materials and supplies located on or next to the Described Location used to construct, alter or repair
the dwelling or other structures on the Described Location.
3. Ifnot otherwise covered in this policy, building equipment and outdoor equipment used for services
of and located on the Described Location. This coverage does not apply to land, including land on
which the dwelling is located.

ADDITIONAL COVERAGES

2. Reasonable Repairs. In the event that covered property is damaged by an applicable Peril Insured
Against, we will pay the reasonable cost incurred by you for necessary measures taken solely to protect
against further damage. If the measures taken involve repair to the other damaged property, we will pay
for those measures only if that property is covered under this policy and the damage to that property is
caused by an applicable Peril Insured Against.

The Policy further defines what loss may be recoverable:

SECTION I- PERILS INSURED AGAINST |
COVERAGE A-DWELLING and COVERAGE B- OTHER STRUCTURES

We insure against risk of direct loss to property described in Coverage A, B, and C, only ifthat loss is a physical
loss to property.

9. After careful consideration, the Court has to agree that Plaintiff's invoice for “roof assessment” which
includes the preparation of a report, taking photographs, and attending inspections does not fall under
“reasonable repairs” provisions of the policy. The charges being sought are not repairs performed or to
be performed. Therefore, the relief being sought in the Complaint is contrary to the Policy, and Plaintiff
is not entitled to the relief sought in this action.

WHEREFORE IT IS ORDERED AND ADJUDGED that: Defendant’s Motion for Judgment on the
Pleadings is GRANTED.

DONE AND ORDERED at Kissimmee, Osceola Cotinty, Florida this 5 day 0 A\\ Ne Nan2020.
fo
[| —— >
GABRIELLE N. SANDERS-MORENCY
----County Judge

Copies to:

GROSSMAN LAW, P.A. ATTORNEYS FOR PLAINTIEFF, 1728 SOUTH BUMBY AVENUE ORLANDO,
FL 32806

KELLEY KRONENBERG, JEFFREY M. WANK, ESQ, ATTORNEYS FOR DEFENDANT, 10360 WEST
STATE ROAD 84 FORT LAUDERDALE, FL 33324

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IN THE COUNTY COURT OF THE NINTH JUDICIAL CIRCUIT,
IN AND FOR OSCEOLA COUNTY, FLORIDA

CASE NO. 2020 SC 003049

ELR RESTORATION, INC.
a/afo OSCAR HERNANDEZ
PLAINTIFF,

VS.

TOWER HILL PRIME INSURANCE COMPANY
DEFENDANT

ORDER ON DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS

This Matter came before the Court on Defendant’s Motion on October 26, 2020 via Microsoft Teams video

conference. The Court having heard arguments from both parties, reviewed the court file, and being fully advised
in the premises finds the following:

1. Tower Hill issued a homeowner’s insurance policy, Policy Number e002974703, to Oscar Hernandez
and Mariely Luna (“Insureds”) for the property located at 160 Coral Reef Circle, Kissimmee, FL 34743
(Property), with effective dates of January 6, 2015 through January 6, 2016 (the Policy), which provided
certain insurance coverage subject to the terms conditions, limitations, and exclusions contained within
the Policy.
2. The instant action arises from a claim for insurance coverage filed by the Plaintiff, as assignee of the
Insured, Oscar Hernandez, relating to alleged hail damage to the Insureds’ Property on or about August
28, 2015. The assignment was made in consideration for “any repairs made by ELR Restoration, Inc.”
3. Plaintiff, has filed suit on behalf of Oscar Hernandez alleging it is entitled to receive $2,000 for
preparing an estimate, taking photographs, and travel/attendance.
4. Tower Hills argues Plaintiff did not perform any repairs at the subject property. Therefore, Plaintiff is
not entitled to the relief sought in this action.

5. Plaintiff argues that the complaint is sufficient and that it contracted with the Insured to provide
necessary services to the Insured in order to return the subject property to its pre-loss condition, that the
Insured agreed to assign rights under the Insured’s Policy to Plaintiff in exchange for said services, and
that Tower Hill breached its contract by failing to pay full value for services rendered by Plaintiff.
6. Plaintiff also argues any argument on the part of Tower Hill that these necessary services were not
actually a repair requires either a factual determination, the drawing of inference which are not in favor
of the non-moving party, and/or the introduction of evidence that exists outside of the pleadings, all of
which are not permissible consideration when ruling on a motion for judgment on the pleadings.
7, When considering a motion for judgment on the pleadings the Court considers questions of law arising
out of the pleadings. If the pleadings “reveal that there are no facts to be resolved bya trier of fact, the
court may apply the law to the uncontroverted facts and enter a judgment accordingly.” Clarke vy,
Henderson, 74 So. 3d 112, 114 (Fla. 3d DCA 2011) (citing Hart v. Hart, 629 So. 1073, 1074 (Fla. 2d
DCA 1994).
8. Construction of an insurance contract and the determination of whether Florida law requires the insurer
to provide coverage are questions of law. See Siegle v. Progressive Consumers Ins. Co., 788 So. 2d 355,
357 (Fla. 4th DCA 2001); Central Cold Storage, Inc. v. Lexington Ins. Co., 452 So. 2d 1014 (Fla. 3d
DCA 1984), The scope and extent of insurance coverage is defined by the language and terms of the
policy. See generally Union Am. Ins. Co. v. Maynard, 752 So.2d 1266, 1268 (Fla. 4th DCA 2000);
United States Fire Ins. Co. v. Morejon, 338 So. 2d 223, 225 (Fla. 3d DCA 1976), The Policy, which
forms the basis for this cause of action, states in relevant part:

COVERAGE A-Dwelling
We cover:

1. The dwelling on the Described Location shown in the Declarations, including structures attached
to the dwelling; and
2. Materials and supplies located on or next to the Described Location used to construct, alter or repair
the dwelling or other structures on the Described Location.
3. Ifnot otherwise covered in this policy, building equipment and outdoor equipment used for services
of and located on the Described Location. This coverage does not apply to land, including land on
which the dwelling is located.

ADDITIONAL COVERAGES

The Policy further defines what loss may be recoverable:

SECTION I- PERILS INSURED AGAINST
COVERAGE A-DWELLING and COVERAGE B- OTHER STRUCTURES

We insure against risk of direct loss to property described in Coverage A, B, and C, only if that loss is a physical
loss to property.

WHEREFORE IT IS ORDERED AND ADJUDGED that: Defendant’s Motion for Judgment on the
Pleadings is GRANTED.

os
DONE AND ORDERED at Kissimmee, Pe this:
Osceola County, Fletida S an
day of AKAN bp 22-~2020.
[\ ——— eer

~ GABRIELLE N. SANDERS-MORENCY
County Judge

Copies to:

GROSSMAN LAW, P.A. ATTORNEYS FOR PLAINTIFF, 1728 SOUTH BUMBY AVENUE ORLANDO,
FL 32806

KELLEY KRONENBERG, ATTORNEYS FOR DEFENDANT, 10360 WEST STATE ROAD 84 FORT
LAUDERDALE, FL 33324

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Filing # 114789358 E-Filed 10/12/2020 10:44:46 AM

IN THE COUNTY COURT OF THE SECOND JUDICIAL CIRCUIT
IN AND FOR FRANKLIN COUNTY, FLORIDA

THE KIDWELL GROUP LLC d/b/a AIR
QUALITY ASSESSORS OF FLORIDA,
a/alo PAUL EARLEY,

Plaintiff, CASE NO.: 20-000001-SC
Vs.

NATIONAL FIRE & MARINE INSURANCE
COMPANY,

Defendant.
f

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY DISPOSITION
AND FINAL JUDGMENT

THIS CAUSE came on to be heard October 5, 2020, on the Motion for Summary
Disposition filed by Defendant, NATIONAL FIRE & MARINE INSURANCE COMPANY

("NF&M"). The hearing was duly and properly set and noticed. However, Counsel for the

Plaintiff, THE KIDWELL GROUP LLC d/b/a AIR QUALITY ASSESSORS OF FLORIDA,

a/aio PAUL EARLEY (‘Plaintiff’), did not appear for the hearing. The Court, having

reviewed the Motion, reviewed the Court file, heard argument of Counsel, and being
otherwise fully advised in the premises, hereby finds as follows:

1. The subject policy of insurance (“Policy”) issued by NF&M only provides

coverage for sudden and accidental direct physical loss to property, stating:

A. Coverage A — Dwelling And Coverage B — Other Structures

‘We’ insure for sudden and accidental direct loss to property described
in Coverage A and B only if that loss is a physical loss to covered
property.

2. The invoices which form the basis of the Statement of Claim file by Plaintiff in

the above-styled action are for a Water Damage Assessment Report and Forensic
Engineering Report.

1
3. The preparation of these reports and the costs associated therewith do not

constitute direct physical loss to property.

4. The Policy does not provide coverage for the preparation of the reports

and/or the costs associated therewith.

It is therefore ORDERED AND ADJUDGED as follows:

1. NF&M’s Motion for Summary Disposition is GRANTED.

2. Final Judgment is entered for NF&M and against Plaintiff.

3. Plaintiff shall take nothing by this action and NF&M shall go hence without

day.

4. This Court reserves jurisdiction as to attorney’s fees and costs.

DONE AND ORDERED in Chambers, Franklin County, Florida, this 12th day of

October, 2020.

Giemsadats ————
UNTY JUDGE

Copies Furnished To (via e-filing portal):

Robert F. Gonzalez, Esq. (counsel for Plaintiff)
D. Grayson Kelly, Esq. (counsel for Defendant)
IN THE COUNTY COURT, SEVENTH
JUDICIAL CIRCUIT, IN AND FOR
FLAGLER COUNTY, FLORIDA

CASE NO.: 2020 CC 000069
DIVISION: 61

THE KIDWELL GROUP LLC
D/B/A AIR QUALITY ASSESSORS OF
FLORIDA A/A/O MICHAEL SWIONTEK
Plaintiff(s)
v.

UNITED PROPERTY & CASUALTY
INSURANCE COMPANY

Defendant(s)
a

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE came on to be heard upon Defendant, UNITED PROPERTY &

CASUALTY INSURANCE COMPANY’S (“UPC’s”) Motion for Summary Judgment

(doc 20), filed July 17, 2020. A hearing was conducted on August 14, 2020. The Court,

having heard the argument of counsel, having reviewed the court file, and being otherwise

advised in the premises, finds as follows:

FACTS

1. On February 6, 2020, Plaintiff, THE KIDWELL GROUP LLC D/B/A AIR

QUALITY ASSESSORS OF FLORIDA (“AQA”’), filed this suit seeking to recover

$3000.00 for its engineering report provided to UPC’s insured, Michael and Mary

Swiontek (‘the insured’’).
2. The evidence offered by UPC in support of its motion for summary judgment

includes: (1) the affidavit of UPC’s corporate representative, Kendra Johnson; (2)

the homeowner’s insurance policy issued by UPC to the insured; (3) an

acknowledgment of withdrawal of Michael Swiontek’s claim, dated September 17,

2020; (4) an estimate and settlement of damages, dated May 10, 2018; (5) a proposal

for roof replacement prepared by R&K Certified Roofing (R&K) for 20 Buffalo

Plains Lane, Palm Coast, Florida 32137, dated January 24, 2019; (6) an email from

AQA to UPC, dated February 22, 2019; (7) a copy of the assignment of benefits

from the insured to AQA; (8) an invoice addressed to the insured for $3000.00 for

AQA’s engineering report; (9) a copy of AQA’s engineering report; (10) a request

for Taxpayer Identification Number and Certification; (11) an estimate of settlement

and damages addressed from UPC to the insured dated April 2, 2019; (12) emails

exchanged between UPC and R&K, dated April 25, 2019, and May 9, 2019; (13) an

estimate of settlement and damages addressed from UPC to the insured dated May

9, 2019; (14) an email from R&K to UPC, dated October 22, 2019, with certification

of completion and other documents; (15) a second estimate of settlement and

damages addressed from UPC to the insured dated May 9, 2019; (16) a statement of

loss; and (17) various court filings related to the instant case. UPC’s evidence

appears on the court docket as exhibits A through L (doc 21-32).

3. On or about September 11, 2017, the insureds reported to UPC that Hurricane Irma

had caused damage to the insured property. However, On September 15, 2017, the
insured contacted UPC asking to withdraw and close the claim. UPC acknowledged

that request by letter dated September 21, 2017.

4. On April 20, 2018, the insureds contacted UPC, requesting to re-open the claim.

Accordingly, UPC field adjuster Greg Meadows inspected the insured property on

April 28, 2018. Based on his inspection Mr. Meadows prepared an estimate for roof

and interior damages totaling $8812.79.

5. On May 10, 2018, UPC sent a letter to the insureds, accepting coverage for the

subject claim, and issuing a net payment of $2545.43, after a reduction for $2424.36

in recoverable depreciation and the applicable $3840.00 hurricane deductible. The

letter also explained the process for requesting a claim supplement. UPC then closed

its file.

6. On January 29, 2019, the insured contacted UPC to advise that they had hired a

contractor who located additional wind damage. Also, the insured advised that they

had retained an engineer to inspect the property the following week. The agreement

between the insured and AQA is dated January 23, 2019. Based upon the January

29, 2019, communication from the insured, UPC re-opened the subject claim.

7. R&K emailed UPC its contingency agreement, proposal, and estimate on February

11,2019. AQA sent its engineering report, a $3000.00 invoice, and related materials

to UPC on February 22, 2019.
8. UPC field adjuster Jason Newsome re-inspected the insured property on March 18,

2019, located additional damage, and prepared a repair estimate in the amount of

$18,490.42.

9. On April 2, 2019, UPC issued a supplemental payment of claim in the amount of

$6409.19, which was the remaining amount due after application of the $3840.00

hurricane deductible, $5695.80 recoverable depreciation, and UPC’s prior payment

of $2545.43. After reaching an agreement with R&K, UPC issued a second

supplemental payment totaling $12,210.13. Later, UPC also paid $345.00 to R&K

for additional work incurred during the re-roof of the insured property.

10.UPC has not paid the $3000.00 invoice forwarded to it by AQA.

ANALYSIS

Summary judgment is proper when “the pleadings and summary judgment 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.” Fla. R. Civ. P. 1.510(c). Further, the

construction of an insurance policy is a question of law to be determined by the court. DEC

Elec., Inc. v. Raphael Const. Corp., 558 So. 2d 427 (Fla. 1990). “Where the language in

an insurance contract is plain and unambiguous, a court must interpret the policy in

accordance with the plain meaning so as to give effect to the policy as written.”

Washington Nat. Ins. Corp. v. Ruderman, 117 So. 3d 943, 948 (Fla. 2013).

In construing insurance contracts, “courts should read each
policy as a whole, endeavoring to give every provision its full
meaning and operative effect.” U.S. Fire Ins. Co. v. J.S.U.B.,
Inc., 979 So. 2d 871, 877 (Fla. 2007) (quoting Auto-Owners Ins.
Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000)); see also Swire
Pac. Holdings v. Zurich Ins. Co., 845 So .2d 161, 166 (Fla. 2003)
(same). Courts should “avoid simply concentrating on certain
limited provisions to the exclusion of the totality of others.” Id.
at 165. However, “[p]olicy language is considered to be
ambiguous ... if the language ‘is susceptible to more than one
reasonable interpretation, one providing coverage and the other
limiting coverage.’” Menendez, 70 So. 3d at 570 (quoting
Travelers Indem. Co. v. PCR Inc., 889 So. 2d 779, 785 (Fla.
2004) (quoting Swire, 845 So. 2d at 165)).

Id. If a contract is ambiguous, a question of fact arises, precluding summary judgment.

Life Care Ponte Vedra, Inc. v. H.K. Wu, 162 So. 3d 188, 192 (Fla. 5th DCA 2015).

Defendant raises three arguments in favor of summary judgment: (1) that the

engineering report prepared by AQA is not covered by the subject policy; (2) that there is

no privity of contract between AQA and UPC and therefore UPC is not responsible for

paying AQA’s invoice; and (3) that public policy dictates dismissal of AQA’s claim.

I. COVERAGE UNDER THE POLICY

The subject policy is an “all risks” policy and covers direct physical loss to the

dwelling and other structures on the premises. (Def. ex. B). In evaluating coverage under

all risks policies, the Second District Court of Appeal has explained:

[T]he general rule of evidence is that a plaintiff seeking to
recover under an “all risks” policy has the burden of proving that,
while the policy was in force, a loss occurred to the insured’s
property... Once the insured establishes a loss apparently within
the terms of an “all risks” policy, the burden shifts to the insurer
to prove that the loss arose from a cause which is excepted.

Hudson v. Prudential Prop. & Cas. Ins. Co., 450 So. 2d 565, 568 (Fla. 2d DCA 1984)

(internal citations omitted). This explanation was echoed in Jones, where the Fourth
District added that its “allocation of this preliminary burden of proof is consistent with the

general notion that an all risk insurance policy guards against all risks except those

explicitly excluded by the policy.” Jones v. Federated Nation Insurance Company, 235 So.

3d 936, 940 (Fla. 4th DCA 2018). Relying on this language, AQA argues that since the

insured property sustained damage from Hurricane Irma—an event that caused covered

physical losses—its engineering report, which is not specifically excluded, must be

covered.

AQA’s argument misses the mark. An all risks policy covers direct physical loss

that is “apparently within the terms of the policy,’ and which is not excluded from

coverage. Jones, 235 so. 3d at 940 (emphasis added). The question here is not whether

there was a direct physical loss that was covered by the subject policy; UPC concedes as

much both by its words and its actions. But that is not akin to saying that any type of home

service that an intrepid entrepreneur can think to offer in the wake (and in this case, the

rather distant wake) of a covered physical loss is likewise covered. Instead, by its plain

language, the policy obligates UPC to reimburse, subject to certain limitations, for

mitigation, replacement, and repair of direct physical losses resulting from a covered event.

Since AQA’s engineering report does not mitigate, repair, or replace physical loss of any

type, the policy, on its face, does not contemplate AQA’s engineering report. To that

extent, AQA is correct when it argues that this is not a coverage case. The type of physical

damage that was suffered by the insured’s home and the cause thereof was unquestionably
a covered loss. However, AQA’s engineering report is simply not the type of service

encompassed by the subject policy, even if a covered physical loss has occurred.

The Court recognizes that at the hearing on UPC’s motion for summary judgment,

AQA argued that but-for AQA’s engineering report, UPC would not have agreed to pay

for additional roof repair in 2019. This argument is speculative and not supported by the

uncontroverted facts. According to the record evidence, the insured contacted UPC on

January 29, 2019, to advise UPC that the insured had hired a contractor and that the

contractor located additional wind damage. (It appears to be without question that the

contractor referenced by the insured was R&K Roofing, which prepared a proposal for roof

replacement on January 24, 2019.) (Def. ex. E). In March 2019, UPC sent out a field

adjuster who also found previously undetected damage, and UPC thereafter covered the

roof replacement performed by R&K. There is no evidence that AQA’s February 2019,

engineering report played any part in UPC’s agreement to cover additional roof repairs.

(Def. ex. F). Moreover, as framed, AQA’s argument suggests that its engineering report

was completed as a second opinion, since UPC’s original 2018 resolution of the claim

found substantially less roof damage than it agreed to cover after reopening the claim in

2019. If AQA’s engineering report was a second opinion—and indeed, it is difficult to

view it in any other light given the facts at hand—then it was one done without complying

with the terms of the insurance policy, which specifically sets forth the steps to be taken

when there is a disagreement between the insured and the insurer concerning coverage.

(Def. ex. B).!
Based on the foregoing, the Court concludes that while the type of damage suffered

by the insured property and the cause the

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Document Filed Date

November 16, 2032

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