Second DCA affirms that dismissal or abatement is a more appropriate remedy for premature suit

by | Aug 31, 2021 | News Publications

In Iwanicki, SafePoint investigated the loss and made two undisputed payments to the Insured.  Afterwards, SafePoint asked Iwanicki to provide a sworn proof of loss and documentation regarding damage and repair work.  More than 60 days after SafePoint’s request, Iwanicki submitted a sworn proof of loss alleging over $165,000.00 in damages and claimed that the total was the result of damage estimates and additional repair work performed since the initial restoration work.  Twenty-one days later, the Insured filed a two-count breach-of-contract suit, alleging the carrier failed to fully indemnify Iwanicki for covered losses under the policy, and that the carrier had exercised its option to repair the damage and then breached its duty to restore the subject property to its pre-loss condition. 

Regarding the first count, SafePoint argued that it was entitled to ninety days to investigate Iwanicki’s claim under the Loss Payment provision of the subject policy, that Iwanicki’s suit was premature since it was filed only twenty-one days after she had submitted her sworn proof of loss, and that no breach could have occurred before the expiration of the ninety-day period.  Regarding the second count, SafePoint argued that it had not exercised its option to repair because it had not done so in writing as required by the Policy.

The matter went to jury trial and, following the presentation of evidence, the trial court granted the carrier’s motion for directed verdict on both counts.

The Court reversed the trial court’s judgment and remanded the matter for a new trial on both counts, initially noting that “a court must evaluate the testimony in the light most favorable to the nonmoving party and every reasonable inference deduced from the evidence must be indulged in favor of the nonmoving party” when considering a motion for directed verdict. See Sims v. Cristinzio, 898 So. 2d 1004, 1005-06 (Fla. 2nd DCA 2005).  The Court found that, “viewing the facts in the light most favorable to Iwanicki,” a reasonable jury could have found that the ninety day period began when SafePoint first received notice of the initial claim, rather than notice of the supplemental claim.  Since more than 90 days had elapsed since notice of the initial claim, the suit was not premature.

However, even if Iwanicki’s suit was premature, the Court stated that either abatement until the cause matures or dismissal without prejudice were more appropriate remedies.  as the typical trajectory of dispositions in Florida courts. See Curtis v. Tower Hill Prime Ins. Co., 154 So. 3d 1193, 1196 (Fla. 2nd DCA 2015).

Regarding the second count, the Court found that a reasonable jury could have found that the carrier had exercised its option to repair because a written contract could be modified by oral agreement, subsequent conduct, or course of dealing under Florida law.

The takeaway: Courts abhor policy forfeitures.  If there is a lesser remedy, a court is more likely to utilize the lesser remedy.  When the carrier’s investigation is ongoing, court will likely grant a dismissal without prejudice or an abatement to allow the carrier to conclude its investigation prior to the threat of a confession of judgment.