NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JAMES CASE and RHONDA CASE, )
)
Appellants, )
)
v. ) Case No. 2D15-2225
)
TOWER HILL PRIME INSURANCE )
COMPANY, )
)
Appellee. )
)
Opinion filed May 11, 2016.
Appeal from the Circuit Court for
Hillsborough County; Paul E. Huey, Judge.
George A. Vaka and Nancy A. Lauten of
Vaka Law Group, Tampa; and Jean F.
Niven of Merlin Law Group, Tampa, for
Appellants.
Scot E. Samis of Traub Lieberman Straus
& Shrewsberry, L.L.P., St. Petersburg, for
Appellee.
SALARIO, Judge.
James and Rhonda Case appeal a final summary judgment on their
complaint for declaratory relief against their home insurer, Tower Hill Prime Insurance
Company. Based on Tower Hill's proper concession of error, we reverse and remand
for further proceedings.
After noticing damages to their home in 2008, the Cases filed a claim with
Tower Hill, which then hired an engineering firm, Rimkus Consulting Group, Inc., to
evaluate the property. The engineer reported sinkhole damage and recommended
subsurface compaction grouting to repair it at an estimated cost of $91,000. Tower Hill
acknowledged coverage for the damages under the policy but refused to pay until the
Cases entered into a contract for remediation of the damage, in accord with a policy
term that so provides. The Cases hired their own engineer, Biller Reinhart, to evaluate
the property, and that firm concluded that in addition to subsurface compaction grouting,
underpinning was also necessary and that the total cost of subsurface repair was
$250,000 to $267,000.
In view of the parties' differences over method of repair, Tower Hill
invoked the neutral evaluation process in June 2010.1 The neutral evaluator, SDII
Global, agreed that compaction grouting was adequate to remediate the subsurface
repair at an estimated cost of $113,372. Tower Hill notified the Cases of the neutral
evaluator's assessment and again informed them that they were required to enter into a
contract for the repairs before it would be required to pay.
The Cases filed an action for declaratory judgment against Tower Hill in
January 2011, seeking a determination of the proper method of repair. In June 2011,
1
Section 627.7074, Florida Statutes (2009), sets forth a process by which
parties may resolve a sinkhole dispute without resorting to litigation. The statute
"provides a substantive right of parties to have a neutral evaluator review a claim and
render a nonbinding report before the matter is adjudicated by a court." Morejon v. Am.
Sec. Ins. Co., 829 F. Supp. 2d 1258, 1260 (M.D. Fla. 2011).
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the Cases retained yet another engineering firm, KCI Technologies, to evaluate the
property. That firm concluded that compaction grouting alone was not sufficient and
recommended a hybrid system of grouted injection piers, pressure grouting points, and
interior chemical injection points at a cost of $174,000. The Cases also had Biller
Reinhart conduct a second evaluation of the property in August 2013, and the engineer
concluded that further sinkhole damage had occurred and that the underpinning and
grouting necessary to repair the damage had increased to an estimated cost of
$371,372 to $391,222.
Tower Hill moved for summary judgment in September 2014, arguing that
the terms of the policy established that it was required only to pay for the plan
recommended by its expert. The Cases responded that based on the evaluations they
had obtained, there was a material issue of fact regarding how to stabilize the
subsurface property and that summary judgment was therefore inappropriate. After a
hearing in February 2015, the trial court granted Tower Hill's motion for summary
judgment, concluding that the terms of the policy are "clear and unambiguous and [that]
the only issue remaining is an issue of fact, i.e., damages for the breach." The trial
court entered summary judgment in favor of Tower Hill on March 27, 2015.
On appeal, the Cases contend that a declaratory judgment is appropriate
in this case because they are in doubt regarding the proper method of subsurface repair
under the terms of the policy and that summary judgment was improperly granted
because there is a disputed issue of fact regarding the proper method of subsurface
repair. Tower Hill concedes error on the basis of this court's holdings in Roker v. Tower
Hill Preferred Insurance Co., 164 So. 3d 690 (Fla. 2d DCA 2015), Sanchez v. Royal
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Palm Insurance Co., 166 So. 3d 212 (Fla. 2d DCA 2015), and Estrada v. Tower Hill
Select Insurance Co., 179 So. 3d 348 (Fla. 2d DCA 2015). The trial court did not have
the benefit of these decisions when it granted summary judgment to Tower Hill.
In Roker, the homeowner filed a breach of contract action against her
insurer, alleging facts similar to the facts in this case. 164 So. 3d at 691-92. The trial
court granted summary judgment, agreeing with the insurer that the policy required the
homeowner to enter into a contract for subsurface repair in accordance with the
recommendations of the insurer's expert. This court reversed, concluding that summary
judgment was not appropriate:
Here, the record reflects that a genuine issue of
material fact remains concerning the proper method of
subsurface repair to [the homeowner's] home. Three
qualified engineers conducted testing in compliance with the
Florida sinkhole statutes and arrived at different opinions as
to the proper method of repair. Neither Florida law nor the
insurance contract require the insured to enter into a
contract for subsurface repairs in accordance with the
insurance company's engineer's recommendation before
benefits are payable.
Id. at 692. This court held that the "question of which recommended method of
subsurface repair is sufficient to repair [the homeowner's] home is a question for the
jury." Id. at 694; see also Estrada, 179 So. 3d at 349 (reversing final summary
judgment on facts "nearly identical to those in Roker"); Sanchez, 166 So. 3d at 212
(reversing final summary judgment for the reasons explained in Roker).
The dispute in this case is similar to the disputes in Roker, Estrada, and
Sanchez. Accordingly, as we did in those cases, we reverse the final summary
judgment and remand for further proceedings. We note our appreciation for Tower Hill's
concession of error.
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Reversed and remanded for further proceedings.
KHOUZAM and BLACK, JJ., Concur.
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