APEX ROOFING AND RESTORATION, LLC A/A/O JAMES DERRICK vs STATE FARM FLORIDA INSURANCE COMPANY

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED

APEX ROOFING AND RESTORATION,
LLC A/A/O JAMES DERRICK,

Appellant,
Case No. 5D21-1919
v. LT Case No. 2020-CC-001461-O

STATE FARM FLORIDA INSURANCE
COMPANY,

Appellee.
________________________________/

Opinion filed July 1, 2022

Appeal from the County Court
for Orange County,
Tina Caraballo, Judge.

Ramil A. Kaminsky and Nicola Mitry,
of RAK LAW, PLLC, Lakeland, and
Gray R. Proctor, Madison, NJ, for
Appellant.

Paul L. Nettleton and Jeffrey A.
Cohen, of Carlton Fields, Miami, for
Appellee.

LAMBERT, C.J.

Apex Roofing and Restoration, LLC, (“Apex”), timely appeals the final

judgment entered against it and in favor of State Farm Florida Insurance
Company (“State Farm”) on Apex’s first-party bad faith action. The judgment

incorporated an earlier order in which the court granted summary judgment

on two of the grounds that were asserted by State Farm in its summary

judgment motion. Accordingly, our focus here is whether Apex has shown

that the trial court committed reversible error in entering judgment on the two

grounds ruled on by the trial court. See Sierra by Sierra v. Pub. Health Tr.

of Dade Cnty., 661 So. 2d 1296, 1298 (Fla. 3d DCA 1995) (“An appellate

court is reactive . . . . Appellate courts may not decide issues that were not

ruled on by a trial court in the first instance.”). For the following reasons, we

reverse the final judgment.

By way of background, James Derrick was a named insured under the

State Farm homeowner’s insurance policy at issue. While the policy was in

effect, the roof on Derrick’s home was damaged by “wind, hail, and/or storm.”

Derrick reported this loss to State Farm, and State Farm opened a claim

related to the loss. Shortly thereafter, Derrick hired Apex to repair the

damage to his roof. Derrick also executed an assignment of benefits

document in which he assigned to Apex the right to collect all post-loss

insurance proceeds under the policy related to its services.

State Farm inspected the damage to the roof and premises. It then

prepared an estimate and, after first accounting for the deductible on the

2
policy and depreciation to the roof, issued a check for the loss. Prior to any

repair work being done, Derrick supplemented his claim to include additional

damage to the interior of the property. State Farm reinspected the premises

and tendered a second payment.

Apex then emailed State Farm an estimate for a roof replacement, the

net cost of which exceeded the total sums that State Farm had previously

tendered. Shortly thereafter, and, specifically, on April 22, 2019, Apex filed

with the Department of Financial Services (“DFS”) a document commonly

known as a Civil Remedy Notice (“CRN”), alleging, in various ways, how, in

its view, State Farm had failed to act in good faith in its handling of this claim,

in violation of sections 624.155 and 626.9541, Florida Statutes (2018).

Section 624.155 is titled “Civil Remedy.” Pertinent here, it provides

that any person may bring a civil action against an insurer if the person is

damaged by the insurer “[n]ot attempting in good faith to settle claims when,

under all the circumstances, it could and should have done so, had it acted

fairly and honestly toward its insured and with due regard for her or his

interests.” However, as a condition precedent to bringing what is sometimes

referred to as a bad faith action, section 624.155(3)(a) requires that the DFS

and the insurer be given sixty days’ written notice of the violation.

Consequently, once the CRN is filed, then, during this sixty-day “cure” period,

3
if the damages are paid or the circumstances giving rise to the violation are

corrected, “[n]o [bad faith] action shall lie.” § 624.155(3)(d), Fla. Stat. (2018).

The sixty-day cure period in this case thus began on April 22, 2019,

when Apex filed its CRN. State Farm made no additional payment to Apex

or, for that matter, Derrick, during this period. Instead, on May 20, 2019,

State Farm invoked the appraisal provision of the insurance policy at issue.

This contractual provision provides that if the parties have been unable to

agree on the amount of the loss, either may elect to have the amount of the

loss determined by appraisal.

The appraisal process initiated by State Farm was concluded in

September 2019 when the appraisers filed their appraisal award. The award

exceeded the aggregate sums that State Farm had previously paid on the

claim. Within a matter of days, State Farm paid this difference.

Apex then filed a one-count complaint under section 624.155 seeking

damages against State Farm for its alleged bad faith handling of the claim.

State Farm responded to the complaint with a combined motion to dismiss

or for summary judgment. While State Farm raised several grounds in its

motion, as previously indicated, the trial court granted it summary judgment

on two distinct grounds or bases, which we now address. Our standard of

review is de novo. See Landers v. State Farm Fla. Ins., 234 So. 3d 856, 858

4
(Fla. 5th DCA 2018) (citing Volusia Cnty. v. Aberdeen at Ormond Beach, 760

So. 2d 126, 130 (Fla. 2000)).

The trial court first found that the sixty-day cure period under section

624.155(3)(d), which began to run on April 22, 2019, when Apex filed its

CRN, was “necessarily” tolled once State Farm invoked the appraisal

provision so as “to allow the appraisal to conclude.” Then, citing to Talat

Enterprises, Inc. v. Aetna Casualty & Surety Co., 753 So. 2d 1278 (Fla.

2000), the trial court found that State Farm’s timely payment of the net

appraisal award “cure[d] any [claim of] bad faith.” Thus, the precise question

for us to resolve on this first ground is whether the invocation of the appraisal

provision of an insurance policy after a CRN has been filed tolls, as a matter

of law, the sixty-day cure period of section 624.155(3)(d) until the appraisal

process is concluded. If it does, then, under the timeline in this case, State

Farm’s final payment for the balance owed on the claim was paid within the

sixty-day cure period. If not, then State Farm’s payment was outside the

“cure” period.

Our answer to the question is no. Simply put, there is no language

contained in section 624.155 that invoking the appraisal process after a CRN

is filed tolls the running of the sixty-day cure period. Notably, after the filing

of the CRN and State Farm’s initiation of the appraisal process in this case,

5
the Florida Legislature amended section 624.155 to add sub-section (3)(f) to

specifically preclude a CRN from being filed within sixty days after the

appraisal process is invoked by any party in a residential property insurance

claim. Ch. 2019-108, § 6, Laws of Fla. 1 In our view, had the Legislature

intended the invocation of the appraisal process to also toll the running of

the statutory sixty-day cure period when, as here, the CRN had been filed

before the appraisal process was initiated, it could have readily and easily

done so. See Zaleski v. State Farm Fla. Ins., 315 So. 3d 7, 14 (Fla. 4th DCA

2021) (Klingensmith, J., concurring) (recognizing that it is not the role of the

court, by judicial fiat, to rewrite section 624.155(3)(f) to also toll the running

of the CRN’s sixty-day cure period if the appraisal process is instituted after

the CRN is filed because if the statute is defective in this regard, “any

correction of this possible statutory defect should come from the

Legislature”). It is not within our authority to engraft this language into the

statute.

As previously indicated, in entering summary judgment in favor of State

Farm on the first ground, the trial court cited to the Florida Supreme Court’s

1
Furthermore, due to other changes made in the 2019 amendment to
section 624.155, the provision creating the sixty-day cure period that was
located in subsection (3)(d) of the 2018 version of the statute (which applies
in the instant case) was moved to subsection (3)(c), where it is located in the
present version of the statute. See Ch. 2019-108, § 6, Laws of Fla.

6
decision in Talat Enterprises, Inc. The court did not elaborate why it

concluded that Talat supported summary judgment, but we find that its

reliance was misplaced. In doing so, we agree with the observations of our

sister court in Zaleski that Talat is not controlling here because the CRN in

Talat was filed well after the appraisal award had been paid by the insurer in

full; thus, the insured did not have a statutory bad faith claim because its

claim had already been remedied. See Zaleski, 315 So. 3d at 11. Moreover,

Talat did not address, at all, whether the statutory sixty-day cure period is

tolled once the appraisal process is invoked. Id.

Accordingly, we find that the trial court erred in determining, as a matter

of law, that the initiation of the appraisal process tolled the running of the

sixty-day cure period and that payment of the appraisal award thereafter

“cured” the alleged bad faith.

Turning to the trial court’s second basis or ground for summary

judgment in this case, the court wrote that section 624.155 requires that a

CRN state, with specificity, the facts and circumstances giving rise to the

statutory violations. The court essentially concluded that Apex’s CRN did

not comport with this statutory requirement, finding that it contained only

“conclusory statements” without the requisite factual specificity. We apply

the de novo standard of review to the question of whether the CRN was

7
facially deficient. See Julien v. United Prop. & Cas. Ins., 311 So. 3d 875,

877 (Fla. 4th DCA 2021).

To assist our analysis, we turn to section 624.155(3)(b)1.–5., Florida

Statutes (2018), which sets forth the information that must be included in a

CRN. Solely at issue here is subsection (3)(b)2. of the statute, which

requires that a CRN state, with specificity, the “facts and circumstances

giving rise to the violation.” The dispositive question before us on this second

ground is whether, as a matter of law, Apex’s CRN failed to comply with

section 624.155(3)(b)2.’s requirement that the facts and circumstances

giving rise to the violation be stated with specificity.

On this issue, we again find our sister court’s opinion in Zaleski to be

helpful. There, the trial court had granted summary judgment for the insurer,

finding that the CRN filed in that case had not sufficiently specified the facts

and circumstances of the violation. 314 So. 3d at 13.

The Fourth District Court reversed. It analyzed the allegations in the

CRN that, among other things, the insurer (1) performed a cursory

inspection, (2) gave a “lowball” estimate that failed to encompass all

damages, (3) failed to retain the necessary experts to identify the repair work

needed to restore the property to its pre-loss condition, and (4) had been

provided a detailed estimate of the cost to repair; and it held that the CRN

8
had sufficiently placed the insurer on notice of the specific facts and

circumstances giving rise to the violation. Id.

In the present case, while the facts and circumstances alleged by Apex

in its CRN were not identical to those found in Zaleski to be compliant with

section 624.155(3)(b)2., we find them to be sufficiently similar or analogous.

Apex’s CRN related that State Farm had, among other things, suggested

numerous “half-cures” to resolving the damage claim, including pricing for

labor and materials that was inconsistent with marketplace pricing, made

“lowball” offers as a precursor to invoking the appraisal process in order to

cause additional delay, and received an invoice from Apex that detailed the

actual work performed, with a specific amount necessary to resolve the

claim. We hold that these allegations sufficiently complied with the

requirements of section 624.155(3)(b)2.

Accordingly, we reverse the final summary judgment entered in favor

of State Farm and remand for further proceedings.2

REVERSED and REMANDED.

EDWARDS and HARRIS, JJ., concur.

To be clear, while we have now reversed the final summary judgment,
2

we take no position on the ultimate merit, if any, of Apex’s bad faith claim.

9