People's Trust Ins. Co. v. Acosta

Third District Court of Appeal
State of Florida

Opinion filed October 10, 2018.
Not final until disposition of timely filed motion for rehearing.

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No. 3D17-2811
Lower Tribunal No. 17-8351
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People’s Trust Insurance Company,
Appellant,

vs.

Guillermo Acosta and Laura E. Pirela,
Appellees.

An Appeal from a non-final order from the Circuit Court for Miami-
Dade County, Rodolfo A. Ruiz, Judge.

White & Case and Raoul G. Cantero, III and Ryan A. Ulloa; Jonathan
Sabghir and Brett R. Frankel (Deerfield Beach), for appellant.

Mintz Truppman, P.A., and Timothy H. Crutchfield and Adrian
Neiman Arkin, for appellees.

Before ROTHENBERG, C.J., and SALTER, and LOGUE, JJ.

SALTER, J.
 People’s Trust Insurance Company (“Insurer”) appeals from a non-

final order denying its motion for a temporary injunction compelling the

defendants below, appellees here (the “Insureds”), to execute a work

authorization and submit to an appraisal of their residential water damage

claim. We affirm.

Claim, Policy Provision, and Lawsuit

In October 2016, the Insureds reported a claim arising out of water

damage in their home. The Insurer inspected the property and notified that

it was exercising its contractual right under the homeowner’s policy

(“Policy”) to repair the damage. The pertinent Policy provision specified:

If a peril causing a loss and related damage are covered
(other than sinkhole loss) and repairs are necessary to protect
covered property from further damage, [the Insureds] must
notify [the Insurer] before authorizing or commencing repairs
so [the Insurer], at [its] option, may select Rapid Response
Team, LLC™ to make the covered Reasonable Repairs.
...
If [the Insureds] and [the Insurer] fail to agree on the
amount of loss, which includes the scope of repairs, either may
demand an appraisal as to the amount of loss and the scope of
repairs.
...
The scope of repairs shall establish the work to be
performed and completed by Rapid Response Team, LLC™.
Such repair is in lieu of issuing any loss payment to [the
Insureds] that otherwise would be due under the policy.

The Policy also required the Insureds to “execute all work

authorizations to allow contractors and related parties entry to the property.”

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After notifying the Insureds that the Insurer was exercising its contractual

right to repair, the Insurer provided the Insureds a written proposal for the

scope of repairs.

Through their designated public adjuster and claims agent, the

Insureds disputed the “scope, pricing and methodology of [the Insurer’s]

proposed repair,” and advised the Insurer that appraisal was “not possible

due to lack of financial resources.” Thereafter, the Insureds decided to

execute a work authorization form, though making certain additional

“minor” requests, to allow the Insurer to proceed with the repairs.

These requests, itemized by the public adjuster, included: (1) a request

for payment of 20% of the amounts payable by the Insurer’s designated

repair contractor, or inclusion as a co-payee on any drafts payable to that

contractor; (2) designation of the Insureds’ mortgage lender as a co-payee on

any such payments; (3) evidence that the repair contractor has a “payment

and performance bond from a Class A surety” with an additional obligee

rider in favor of the mortgage lender; and (4) consent by the contractor to

allow a film crew hired by the public adjuster “to video the entire repair

process.”

The Insurer’s counsel promptly responded to the public adjuster’s

requests with: (1) a refusal to pay the public adjuster, or add the adjuster as a

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co-payee on any check paid to the Insurer’s designated repair contractor,

inasmuch as the Policy contained no such requirement; (2) a refusal to add

the Insureds’ mortgage lender as a co-payee on any payment to the

contractor, for the same reason; (3) an offer to allow the Insureds to inspect

the contractor’s bond at a meeting intended to commence the repair work,

though declining to provide any obligee rider (as the public adjuster had no

authority from the lender to request such a rider); and (4) an assent to allow

filming so long as the process complied with applicable law and would not

interfere with the repair process.

The following day, the Insurer issued a reservation of rights letter to

the Insureds based on their failure to provide a signed work authorization to

the contractor to commence repairs and “because there is a question as to

whether coverage applies to this loss,” based on the Insureds’ non-

compliance with their post-loss obligations under the Policy. The Insureds

provided a marked-up, signed version of the Insurer’s form of work

authorization with material alterations to the Insurer’s form.

Some ten days later, the Insurer filed its complaint for (1) temporary

injunctive relief or, alternatively, specific performance of the Policy terms

for repair by the Insurer’s contractor, (2) declaratory relief regarding the

Policy terms, and (3) an action for “anticipatory breach and repudiation of

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the election-to-repair” terms within the Policy. The Insureds opposed the

motion for a temporary mandatory injunction, and the trial court denied the

motion.1 This appeal from that non-final order followed.

Analysis

The trial court’s denial of the motion for an injunction was based on a

review of the pleadings and the court’s determination that the Insurer had

failed to plead irreparable harm. The court did not conduct an evidentiary

hearing, concluding that the pleadings established the existence of the

Insurer’s adequate remedies at law. Our review is thus de novo. Telemundo

Media, LLC v. Mintz, 194 So. 3d 434, 435 (Fla. 3d DCA 2016).

Irreparable harm and the unavailability of an adequate remedy are

essential elements of action for a temporary injunction; the absence of these

elements (or any of the other required elements) requires that the motion be

denied. Genchi v. Lower Fla. Keys Hosp. Dist., 45 So. 3d 915, 919 (Fla. 3d

DCA 2010).

The Insurer contends that irreparable harm in such a case has been

established in this Court’s decisions in Hernandez v. Florida Peninsula

1 The order of denial was without prejudice, as the parties planned to
consolidate the Insurer’s lawsuit with a second lawsuit brought by the
Insureds. The Policy also provides that a dispute over the scope of work to
be performed under the election-to-repair would be resolved by appraisal.
As the enforcement of this clause was not raised below, we do not address it
here.

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Insurance Co., 211 So. 3d 1126 (Fla. 3d DCA 2017), and Fernandez-

Andrew v. Florida Peninsula Insurance Co., 208 So. 3d 835 (Fla. 3d DCA

2017). We join the trial court in disagreeing with that contention.

In each of those cases, the insureds filed a lawsuit against their insurer

for declaratory relief and breach of contract. The insureds’ homeowners’

policies contained election-to-repair clauses similar to those at issue here.

There, as here, the insureds did not sign the work authorization forms

proffered by the insurer’s designated contractor. In each case, the insurer

moved to abate the lawsuit unless and until the insureds complied with the

election-to-repair requirements. The insurer agreed that the action could

proceed after the insurer’s designated contractor completed the required

repairs.2 The trial court agreed with the insurer in each case and entered an

order of abatement. The insureds sought certiorari in this Court to quash the

orders.

In Hernandez and Fernandez-Andrew, the insureds argued that

abatement was tantamount to the dismissal of their actions for declaratory

relief and breach of contract damages. This Court denied the petitions,

concluding that the insureds had failed to show irreparable harm and the

2 In Hernandez, for example, the insurer “acknowledged that if the
[insureds] believe that ‘the property isn’t put back into to its pre-loss
condition,’ the [insureds] would then have a ‘proper cause of action’ against
[the insurer].” 211 So. 3d at 1128.

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absence of an adequate remedy at law in each case. Those cases did not

approve temporary injunctions against the insureds to enforce the election-

to-repair provisions.

The Insurer in the present case also argued that the trial court was

denying the Insurer a critical form of relief that it had specifically bargained

for in the Policy.3 We disagree, concluding that the availability of

abatement, declaratory relief, and money damages after the completion of

repairs (should the repairs prove insufficient or defective) adequately protect

the Insurer.

Affirmed.

3 The election-to-repair provision is contained in an endorsement, and the
Insureds obtained a premium discount for accepting the endorsement.

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