CITIZENS PROPERTY INSURANCE CORPORATION v. JD RESTORATION, INC. A/A/O MARTA BURGOS

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

CITIZENS PROPERTY INSURANCE CORPORATION,
Appellant,

v.

JD RESTORATION, INC. a/a/o MARTA BURGOS,
Appellee.

No. 4D21-413

[December 1, 2021]

Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Kathleen McCarthy, Judge; L.T. Case Nos. COCE18-
025598 and CACE20-015752.

Michelle Diverio and Alejandro Sanchez Parraga of Lydecker | Diaz,
LLC, Miami, for appellant.

Mathew Carter of the Law Offices of Mathew Carter, P.A., Miami, for
appellee.

PER CURIAM.

In this appeal concerning a property insurance dispute, Citizens
Property Insurance Corporation (“Citizens”) appeals two orders: (1) the
order granting summary judgment in favor of JD Restoration Inc. as the
homeowner’s assignee (“the Assignee”); and (2) an order awarding the
Assignee damages. We affirm without discussion the order granting
summary judgment. However, we agree with Citizens that the trial court
erred by awarding damages without a proper hearing. Thus, we reverse
and remand for further proceedings.

Citizens issued a property insurance policy to the homeowner. After
the Assignee provided emergency water mitigation services to the
homeowner, the homeowner assigned her rights under the policy to the
Assignee. After Citizens refused to pay the Assignee for its services, the
Assignee filed suit for declaratory relief and breach of contract. The trial
court eventually entered summary judgment in the Assignee’s favor on the
issue of Citizens’ liability for payment to the Assignee.
 After the grant of summary judgment in its favor, the Assignee moved
for damages requesting an order awarding a specific amount for damages.
Attached to the motion was an affidavit by the Assignee’s representative
stating that the Assignee was owed a specific amount for the services
rendered to the homeowner, as indicated in an invoice also attached to the
motion. Two days later, the trial court entered an order awarding the
Assignee damages for the stated amount.

Citizens asserts that the trial court violated due process in awarding
damages. “Notice and an opportunity to be heard are the hallmarks of due
process.” Dep’t of Children & Families v. T.S., 154 So. 3d 1223, 1226 (Fla.
4th DCA 2015). Citizens argues that the trial court erred by awarding
damages without a hearing. The Assignee responds that no hearing was
necessary because damages in this case were liquidated.

We have explained that “[a] judgment rendered without a trial on
unliquidated damages and without notice to the defaulting party is void as
to any unliquidated damages, but remains valid as to any liquidated
damages.” Williams v. Skylink Jets, Inc., 229 So. 3d 1275, 1279 (Fla. 4th
DCA 2017) (quoting Ciprian-Escapa v. City of Orlando, 172 So. 3d 485,
488-89 (Fla. 5th DCA 2015)). However, that is the rule where a default
judgment is entered, not summary judgment, as occurred here. “[A]ny
claim for damages, liquidated or unliquidated, or for attorneys [sic] fees
and costs can be decided by summary judgment.” Sloan v. Freedom Sav.
& Loan Ass’n, 525 So. 2d 1000, 1001 (Fla. 5th DCA 1988). However, a
hearing may be required where there are genuine issues of material fact
as to the amount of damages. See R. Plants, Inc. v. Dome Enters., Inc., 221
So. 3d 752, 754 (Fla. 3d DCA 2017). Therefore, we do not need to
determine whether damages were liquidated or unliquidated, but instead,
whether there are genuine issues of material fact as to damages.

Citizens’ second argument, that the trial court erred by awarding
damages exceeding the policy limits, demonstrates genuine issues of
material fact as to damages. The Assignee provided services as reasonable
emergency measures. The policy’s Reasonable Emergency Measures
provision states:

a. We will pay up to the greater of $3,000 or 1% of your
Coverage A limit of liability for the reasonable costs incurred
by you for necessary measures taken solely to protect covered
property from further damage, when the damage or loss is
caused by a Peril Insured Against.

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The greater of the two figures in this case is $3,000. The trial court’s
damages award exceeded that amount. However, the Reasonable
Emergency Measures provision’s subsection b. states:

b. We will not pay more than the amount in a. above, unless
we provide you approval within 48 hours of your request to us
to exceed the limit in a. above. In such circumstance, we will
pay only up to the additional amount for the measures we
authorize.

If we fail to respond to you within 48 hours of your request to
us and the damage or loss is caused by a Peril Insured
Against, you may exceed the amount in a. above only up to
the cost incurred by you for the reasonable emergency
measures necessary to protect the covered property from
further damage.

Therefore, there are circumstances under which the trial court could
have awarded damages in excess of $3,000. However, first, the trial court
would have had to find that one of the subsection b. scenarios was
satisfied. Because there is a genuine issue of material fact as to this issue,
the trial court erred by awarding damages without giving Citizens notice
and the opportunity to be heard on the issue.

We affirm in part, reverse in part, and remand for further proceedings
consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

CONNER, C.J., MAY and DAMOORGIAN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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