DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JENNIFER MEZADIEU,
Appellant,
v.
SAFEPOINT INSURANCE COMPANY,
Appellee.
No. 4D20-2
[March 26, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; David A. Haimes, Judge; L.T. Case No. CACE 16-017852
(08).
Erin M. Berger and Melissa A. Giasi of Giasi Law, P.A., Tampa,
for appellant.
Hope C. Zelinger and Lilian Rodriguez-Baz of Bressler, Amery & Ross,
P.C., Fort Lauderdale, for appellee.
DAMOORGIAN, J.
Jennifer Mezadieu (“the Homeowner”) appeals the trial court’s entry of
final summary judgment in favor of SafePoint Insurance Company
(“SafePoint”) in her breach of contract action. The trial court entered final
summary judgment pursuant to the policy’s “concealment or fraud”
provision after determining that the repair estimate prepared by the
Homeowner’s loss consultant included material false statements.
On appeal, the Homeowner argues that summary judgment was improper
because issues of material fact remained as to whether: (1) the estimate
contained false statements; (2) the false statements were material; and
(3) the Homeowner intended to rely on the false statements. We affirm on
all issues and write only to address the reliance issue.
The Homeowner owns a home insured by SafePoint. On February 25,
2016, the Homeowner submitted a notice of claim with SafePoint alleging
that the residence sustained damage caused by a water leak in the
second-floor bathroom. The notice identified Contender Claims
Consultants (“Contender”) as the Homeowner’s loss consultant.
SafePoint agreed to investigate the claim and, on March 9, 2016, had
the home inspected by an independent adjuster and a building scientist.
According to SafePoint’s building scientist, a loss consultant from
Contender was present during the inspection and directed SafePoint’s
agents to parts of the home claimed to have sustained damage from the
leak, including the kitchen located directly below the second-floor
bathroom. After concluding its investigation, SafePoint determined the
alleged damages were consistent with chronic moisture exposure
occurring over a minimum period of six weeks in duration prior to the
reported date of loss, and inconsistent with the damage being caused by a
one-time leak. SafePoint accordingly denied the claim pursuant to
Section I of the policy, which excludes coverage for damages caused by
“[c]onstant or repeated seepage or leakage of water or steam . . . which
occurs over a period of time.”
In response, Homeowner filed a breach of contract action against
SafePoint. In her complaint, the Homeowner asserted she previously
provided SafePoint “with a damage estimate for a covered loss in the
amount of $43,181.01,” and that she “sustained unpaid damages in the
amount of $43,181.01.” The Homeowner later filed the detailed, itemized
estimate—prepared by Contender—with the court. The estimate sought
damages for nearly every room of the house, including $1,712.83 for the
living room; $1,567.21 for the dining room; and $11,107.72 for the
kitchen. Notably, the estimate included line items for the replacement of
the kitchen cabinets.
After answering the complaint and denying that the loss was covered
under the policy, SafePoint served interrogatories on the Homeowner.
One of the interrogatory questions asked the Homeowner to: “Describe in
as much detail as you will provide at trial the damages you are claiming
as a result of this lawsuit and please provide an itemized breakdown of the
damages as well as your method of calculation.” In her sworn
interrogatory responses, the Homeowner responded to the question as
follows: “$43,181.01, as per the written estimate prepared by [Contender]
submitted with Plaintiff’s Responsive Documents to Defendant’s Request
for Production.”
In June 2018, SafePoint deposed the Homeowner. At the deposition,
the Homeowner referenced the Contender estimate and confirmed that,
consistent with the estimate, she was claiming $43,181.01 in damages.
When questioned about the line items in the estimate, however, the
Homeowner all but conceded that the estimate contained false statements.
For example, when asked if the reported leak caused damage to the
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kitchen cabinets, the Homeowner disclosed that the cabinets had actually
been damaged by a prior leak in the kitchen—a leak which the Homeowner
made a claim for with a different insurer—and that the leak at issue did
not cause any damage to the kitchen cabinets. In fact, the Homeowner
testified that aside from the kitchen ceiling, the leak did not cause any
other damage to the kitchen. Likewise, the Homeowner testified that she
did not see damage in any of the other rooms on the first-floor, and that
the water remediation company that she hired after discovering the leak
did not do any work on the first-floor.
Based on the Homeowner’s sworn interrogatory answers and deposition
testimony, SafePoint amended its answer to include an affirmative defense
based on the policy’s “concealment or fraud” provision. That provision
states that SafePoint will not provide coverage for an otherwise covered
loss if, whether before or after the loss, one or more “insureds” have:
(1) Intentionally concealed or misrepresented any material
fact or circumstance;
(2) Engaged in fraudulent conduct; or
(3) Made material false statements;
relating to this insurance.
SafePoint later moved for summary judgment pursuant to that provision.
The matter ultimately proceeded to a summary judgment hearing.
At no point prior to the hearing did the Homeowner seek to revise the
estimate or otherwise submit a new estimate. At the hearing, the
Homeowner’s attorney made the following concessions: (1) the Homeowner
“has never said that she does not agree with [the] sworn proof of loss;”
(2) the Homeowner adopted the estimate; and (3) the estimate should not
have included $11,000 for damages to the kitchen and that it would
therefore be appropriate for the trial court to grant partial summary
judgment, or alternatively, strike $11,000 from the total damages claimed
by the Homeowner. 1
1 The attorney’s concessions, standing alone, established that the estimate
contained material false statements as a matter of law. See Oscanyan v. Arms
Co., 103 U.S. 261, 263 (1880) (“[A]ny fact, bearing upon the issues involved,
admitted by counsel, may be the ground of the court’s procedure equally as if
established by the clearest proof.”); see also Wong Ken v. State Farm Fire & Cas.
Co., 685 So. 2d 1002, 1003 (Fla. 3d DCA 1997) (affirming summary judgment
which was entered pursuant to a similar concealment or fraud provision in a case
where the uncontested facts established that the insured misrepresented to the
insurer that he incurred $85,000 in additional living expenses after the insurer
voluntarily paid over $1 million under the policy).
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At the conclusion of the hearing, the trial court found that the
uncontroverted summary judgment evidence established the estimate
contained material false statements. The court also concluded that the
false statements were attributable to the Homeowner because she adopted
the estimate as her own in both her sworn interrogatory answers and
deposition testimony, and because Contender was acting as her agent.
On appeal, the Homeowner argues that she should not be punished for
the estimate prepared by Contender because she did not intentionally rely
on the false statements contained therein. SafePoint counters that
intentionality is not required, and that the material false statements made
in the estimate are attributable to the Homeowner because she adopted
the estimate as her own statement. We agree with SafePoint.
It is well established that “[a] party is bound by his or her admissions
under oath, be it by deposition or interrogatories.” Dicus v. Dist. Bd. of
Trs. for Valencia, 734 So. 2d 563, 564 (Fla. 5th DCA 1999) (citing Ondo v.
F. Gary Gieseke, P.A., 697 So. 2d 921 (Fla. 4th DCA 1997)). Here,
by specifically referencing the estimate in her sworn interrogatory answers
and in her deposition testimony for the purpose of representing the
amount of damages, the Homeowner adopted the estimate as her own
statement. As the estimate undisputedly included at least $11,000 in
repairs unrelated to the leak, the Homeowner made material false
statements relating to the claim.
The Homeowner nonetheless maintains that she should not be held
responsible for the material false statements made in the estimate because
she did not intentionally rely on the false statements. We reject this
argument for two reasons. First, as evidenced by her deposition testimony,
the Homeowner clearly knew that the kitchen cabinets (and kitchen in
general for that matter) had not been damaged by the leak. And yet,
despite the estimate clearly listing line items for the kitchen cabinets, the
Homeowner relied on the estimate in initially reporting the claim to
SafePoint and later adopted the estimate as her own statement in the
lawsuit. Moreover, even after the Homeowner acknowledged during her
deposition testimony that the kitchen cabinets were not damaged by the
leak, she still made no attempt to revise the estimate prior to the summary
judgment hearing. Under these circumstances, it cannot be said that the
Homeowner did not intend to rely on the false statements.
Second, even if the Homeowner did not intend to rely on the false
statements contained in the estimate, a showing of intent is not required
under the policy’s concealment or fraud provision. In Universal Property
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& Casualty Insurance Co. v. Johnson, the court analyzed the same
“concealment or fraud” clause, albeit in the context of a false statement
made on an insurance application, and held that the material false
statement need not be intentional. 114 So. 3d 1031, 1036 (Fla. 1st DCA
2013). In so holding, the Johnson court explained that “given the language
of subsection [(1)], subsection [(3)] would be superfluous if a ‘false
statement’ under [(3)] included only intentionally false statements.” Id.
(reiterating that “a contract will not be interpreted in such a way as to
render a provision meaningless when there is a reasonable interpretation
that does not do so”); accord Privilege Underwriters Reciprocal Exch. v.
Clark, 174 So. 3d 1028, 1031 (Fla. 5th DCA 2015) (agreeing with the
Johnson court’s interpretation of the concealment or fraud provision and
holding that “a showing of intent is not required under the provisions of
this policy”). We agree with, and adopt, the Johnson court’s interpretation.
Simply put, an insured cannot blindly rely on and adopt an estimate
prepared by his or her loss consultant without consequence. This is not
to say that an insured will always be bound by the representations made
in an estimate prepared by his or her loss consultant. However, when an
insured relies on or adopts an estimate containing material false
statements to support his or her claim, the insured is bound by the
estimate and cannot avoid application of the concealment or fraud
provision simply because he or she did not prepare the estimate.
Affirmed.
FORST, J., concurs.
WARNER, J., concurs specially.
WARNER, J., specially concurring.
But for the attorney’s concession that SafePoint was entitled to partial
summary judgment on the damage to the kitchen, I would dissent because
I conclude that the insured’s deposition testimony did not concede that
any statements were false, or that she knew that the loss estimate
contained items for repair or replacement which were not caused by the
water leak. In fact, there is no evidence that the loss consultant included
repairs which were not caused either directly or indirectly by the water
leak or the efforts to repair. The insured may not have seen damage in
some of the rooms of her home which were included in the estimate, but
that does not mean that the damage was not behind the walls. It appears
to me that the estimate in this case, even in the kitchen, included repairs
required to remedy damaged walls, which could easily require cabinet
removal or painting walls in rooms which may not appear to be damaged.
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Since there was no evidence that the loss consultant included work that
was not required as a result of the loss, there were material issues of fact
remaining.
The insured’s attorney, however, admitted that the court could grant
partial summary judgment as to the kitchen repairs, which would remove
$11,000 from the $43,181 estimate—about a quarter of it. His statement
amounts to an admission that the estimate included false statements for
repairs to damage that did not occur. “A party is [] bound by factual
concessions made by that party’s attorney before a judge in a legal
proceeding.” Dicus v. Dist. Bd. of Trs. for Valencia, 734 So. 2d 563, 564
(Fla. 5th DCA 1999) (footnote omitted).
As to the last paragraph of the majority opinion, I disagree that the
insured should face forfeiture of policy benefits because she relied on a
loss consultant’s estimate. An insured is no expert as to what repairs are
needed to a structure after a loss, nor their cost. The insured hires a
consultant to make sure that the insurer does not shortchange the insured
through its claims evaluation process. The estimate is simply an opinion
of what property is damaged by the covered incident and the cost to repair
that property.
The insured’s statements in reference to the estimate in this case are
not like the false statement in Universal Property & Casualty Insurance Co.
v. Johnson, 114 So. 3d 1031 (Fla. 1st DCA 2013), where the insured denied
having been convicted of a felony on the insurance application, which was
information that must have come from the insured. There, the court noted
that even if the statement was unintentional, it still affected the insurer’s
risk, and the insurer would not have issued the policy had it known of the
conviction. In cases of loss estimates such as here, however, the insurer
can, and does, make its own determination regarding the amount of the
loss and the requirements for repairs. The insurer does not pay a loss
solely on the basis of the insured’s loss estimate. Therefore, the insured’s
loss estimate does not affect the insurer’s risk nor cause an overpayment
for a loss.
* * *
Not final until disposition of timely filed motion for rehearing.
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