Category: Legal Updates

“Post-loss duties must be complied with”

In Universal Property & Casualty Insurance Company v. Marie Suffrat, 3D23-2263 (Fla. 3d DCA 2025), the Florida’s Third District Courts of Appeal (“Third DCA”) was faced with an appeal of a final judgment following a jury verdict in favor of Marie Suffrat (“Suffrat” or “Insured”) against Universal Property & Casualty Insurance Company (“Universal”).

The case arose from a Hurricane Irma claim, where Suffrat reported the loss to Universal nearly three years later, on September 2, 2020 (date of loss was September 10, 2017). After a thorough claim investigation, the claim was denied, primarily due to Suffrat’s failure to promptly notify Universal of the loss. Thereafter, the Insured filed suit and Universal moved to dismiss for failure to provide the required pre-suit notice of intent as required by Statute 627.70152, which the trial court denied holding that the Statute did not apply retroactively.

At trial, Suffrat testified that multiple roof repairs related to Irma occurred prior to reporting the claim. During trial, each Party presented their own competing expert engineer. Insured’s engineer testified that the property was damaged by Irma, while the engineer for Universal testified that due to the passage of time and multiple repairs, it was difficult to determine the cause of the damage. Universal’s corporate representative also confirmed prejudice during trial. Ultimately, the jury returned a verdict in favor of the Insured.

Due to the Third DCA’s ruling in Cantens, the Court held that the trial court erred in denying Universal’s motion to dismiss the Insured’s complaint for failure to comply with Statute 627.70152. Cantens v. Certain Underwriters at Lloyd’s London, 388 So. 3d 242 (Fla. 3d DCA 2024). As it relates to the verdict, the Third DCA held that it was improper for the trial court to strike Universal’s late notice defense since Florida law allows parties to plead multiple defenses in the alternative. Second, the Court found there was an abundance of evidence to support Universal’s late notice defense, including Suffrat reporting the claim almost three years after the fact and only after numerous roof repairs. The Third DCA then reversed and remanded for further proceedings consistent with its opinion, including the Third DCA’s holding that the trial court erred in denying Universal’s motion to dismiss and that the verdict in favor of the Insured was legally improper.

We see that the Court affirmed an insurance policy’s post-loss duties that insureds must comply with. The Court’s ruling makes it clear that a party can plead multiple defenses in the alternative, and this Court’s decision can be used to beat an insured’s expert when that expert attempts to
rebut prejudice.

AlaEldean Elmunaier, Esq.

CLAIMS HANDLING EVIDENCE STILL INADMISSIBLE

In Naze v. Universal Property & Casualty Insurance Company, Florida’s Fourth District Courts of Appeal (“Fourth DCA”) reaffirmed the longstanding rule that evidence of claims handling and bad faith is not admissible in a first party breach of contract action. Naze related to a water leak claim where the claim was denied due to the insured’s failure to produce documents as required by the policy.

During various points of the trial, the insured’s counsel made arguments and elicited testimony from witnesses that attempted to put Universal Property & Casualty Insurance Company (“Universal”) in an unfavorable light. For instance, the insured’s attorney during opening statement indicated the insurer was “flailing around” and not waiting for documents. The insured’s public adjuster made an off-hand comment that after reaching out to the insurer and receiving a response back from the insurer that it was working on the claim, the public adjuster stated that “of course, that turned into no response; after that, we never heard from them.”

The public adjuster went on to indicate that he requested an emergency action to assign a claims examiner when he learned that Universal had not assigned the claim to a claims examiner. He also indicated that once the claim was assigned to a claims examiner, he told the assigned claims examiner that it was not the claims examiner’s fault, “but intake really dropped the ball on this one…” Universal’s Corporate Representative testified that Universal had requested certain documents from the insured which it did not receive. In closing argument, the insured’s counsel argued that there could be no prejudice to the insurer since “there was no investigation”.

Throughout the trial, Universal’s moved for several mistrials regarding the admission of claims handling and bad faith argument and evidence. Subsequent to an unfavorable verdict, Universal moved for a new trial which was denied. Universal appealed to the Fourth DCA, which reversed and remanded the case for a new trial. The Fourth DCA re-iterated that a bad faith action does not accrue until the underlying lawsuit is resolved in the insured’s favor. The Fourth DCA found the admitted evidence was irrelevant to the issues pled and concluded the insured was able to paint Universal in a bad light and suggest its bad faith in handling the claim.

Joseph A. Matera, Esq.

At our firm, we are currently paving a way and establishing a clear, winning blueprint based on holding insureds accountable to the contracts they agreed to and leveraging the law to exclude speculative damage claims. Our litigation strategy is precise and is consistently obtaining victories, at all different stages of litigation upto and through trials. Recently, the First District Court of Appeals provided a decision in Homeowner’s Choice Property & Casualty Insurance Co. v. Clark, that offers even more favor to our firm’s winning blueprint. 

Our success lies in strategic enforcement of policy conditions – particularly the Loss Settlement provision – and exclusion of inadmissible damages based on Replacement Cost Value (“RCV”) when work hasn’t been performed. This approach has not only secured directed verdicts, motions for summary judgment, and final judgments in favor of insurers but also positions Salmon & Salmon as a go-to litigation partner for carriers defending themselves against overreaching claims. 

MAKING POLICY TERMS MATTER

Florida law is clear: a policyholder’s recovery is conditioned on compliance with the terms of the policy. One of the most critical provisions is the Loss settlement clause, which delineates an insurer’s obligations in terms of Actual Cash Value (“ACV”) and RCV. As reaffirmed in our recent litigation, insurers owe ACV upfront -less the deductible – but owe RCV only after repairs are performed and expenses are incurred. Despite this, insureds and their attorneys almost always submit RCV based estimates without undertaking repairs or even producing evidence of incurred costs.

In Greenaker v. Universal Property & Casualty Insurance Co., we filed a detailed Motion in Limine seeking to preclude the Plaintiff from presenting RCV and matching related damages at trial. Our argument was rooted in both policy language and statutory law, particularly Florida Statute 627.7011(3)(a), which explicitly bifurcates ACV and RCV obligations. The trial court granted our motion, finding that plaintiffs had not completed any repairs before initiating suit and that their estimates did not qualify as ACV evidence. This case exemplifies our tactical approach: we don’t just challenge the evidence – we exclude it before the jury hears it. This prevents prejudice, keeps the trial focused, and aligns with legal contractual standards. 

LEGAL PRECEDENT ON OUR SIDE: Vazquez, Qureshi, and Weston

Our courtroom strategy also finds strong backing in appellate authority. The Third DCA in, Vazquez v. Citizens Property Inc. Corp., confirmed that matching costs cannot be recovered under ACV claims and that RCV is only payable when repairs are completed. We use Vazquez not only as binding precedent, but as a persuasive counterpoint to cases like Tio, which plaintiffs often misuse to argue entitlement to full RCV – even when no work has been done.

In Universal Property & Casualty v. Quireshi, the fourth DCA rejected the trial court’s decision to admit RCV evidence for work that hadn’t been performed. It held firmly that estimated cost of unperformed repairs are inadmissible under both the policy and Florida law. This decision wiped out the insured’s trial win and directed the trial court to confine damages strictly to those permitted by policy terms. We cite Qureshi frequently and successfully in similar motions, strengthening our arguments for exclusion of speculative damages. 

In Weston v. Universal Property & Casualty Insurance Co., we obtained a directed verdict because the Plaintiffs presented no valid ACV estimate – only a broad RCV-based proposal that included matching, code upgrades, and incidental cost unrelated to physical damage. The court concluded that our client had fulfilled its obligations by issuing payment on the only ACV estimate in evidence: its own. 

HOMEOWNER’S CHOICE V. CLARK

In March 2025, the First DCA decision, Homeowners Choice v. Clark delivered a significant reinforcement for insurers – and a warning to plaintiffs relying on inflated damage estimates. The Clarks claimed over $500,000.00 in RCV based damages following Hurricane Sally but had not provided sufficient proof of incurred Costs or complied with post-loss duties such as documentation, timely notice, or repairs. 

The First DCA reversed a substantial jury verdict, finding that the Clarks failed to meet multiple policy conditions: they didn’t maintain receipts, didn’t promptly notify the insurer of certain losses, didn’t perform repairs beyond roofing, and didn’t justify their claimed fair rental value. Crucially, the court held the insurer was under no obligation to pay RCV without evidence that such expenses had been incurred – a validation of the same argument we make repeatedly in court. 

What’s even more important is that this ruling came from the First DCA – an appellate court that had not yet squarely weighed in on this issue. Now that it has, Clark extends the precedent set by Vazquez and Qureshi and helps close any arguments about conflicting appellate interpretations. Across Florida, insurers can now confidently rely on Clark to challenge inflated damage claims that aren’t supported by documentation or tied to actual repairs. 

CONCLUSION

We are building a track record – supported by cases like, Weston, Greenaker, and bolstered by appellate decision like Clark, Qureshi, and Vazquez – showing we know how to hold policyholders accountable. Whether it’s via motions in limine, directed verdicts, or motions for summary judgment, we protect insurers from being forced to pay beyond their obligations.

Annie S. Antos, Esq.

             The Fourth District Court of Appeals (“Fourth DCA”) ruled that the trial court erred in prohibiting Universal Property & Casualty Insurance Company (“Universal”) from claiming that its insured, Thomas J. Yager and Deborah Jo Yager, violated their policy conditions by failing to promptly notify Universal about a roof leak. The Fourth DCA also found that Universal was improperly denied the opportunity to present its defense to the jury, despite the policy requiring that coverage would be contingent upon prompt notification of the loss.

             The Yagers allegedly experienced a roof leak in May of 2020 but failed to inform Universal until August of 2020. Notably, the policyholders themselves did not report the damage; instead, they reported it through a public adjuster.  Following an investigation, Universal afforded coverage for alleged claimed damages within the interior, but it denied coverage for the roof repairs. The Yagers filed suit in Broward County, arguing that they had met all their policy requirements or that Universal had waived any conditions by making partial payment. The trial court granted the Yagers’ Motion for Summary Judgment, concluding that Universal had forfeited its right to enforce the prompt notice clause by investigating the claim and making a partial payment. The jury later awarded the Yagers a verdict, and the trial court entered judgment for nearly $60,000, including interest.

             The policy provisions at the crux of this case, which Universal asserted as affirmative defenses imposed the following on the Yagers:

1. 2. Your Duties After Loss.  In case of a loss to covered property, we have no duty to provide coverage under this Policy if the failure to comply with the following duties is prejudicial to us. These duties must be performed either by you, an “insured” seeking coverage, or a representative of either:
      a. Give prompt notice to us or your insurance agent;

1. 8. Suit Against Us.  No action can be brought unless the policy provisions have been complied with….

             Universal’s argument hinged on the idea that the Yagers’ delay in reporting the claim, coupled with their retention of a third-party adjuster hindered their ability to assess the damages at the time of loss.  Furthermore, Universal challenged the trial court’s handling of the waiver issue, arguing that the waiver must be explicitly raised in a reply to its affirmative defenses.  The Fourth DCA agreed and cited to Florida Rule of Civil Procedure 1.100(a) and 1.10(d) which provide in part as follows:

If an answer or third-party answer contains an affirmative defense and the opposing party seeks to avoid it, the opposing party must file a reply containing the avoidance.  See Universal Prop. & Cas. Ins. Co v. Yager, No. 4D2023-2310 (Fla. 3rd DCA 2025); see also Fl. R. Civ. P. 1.100 (a).

In pleading to a preceding pleading a party shall set forth affirmatively … waiver, and any other matter constituting an avoidance or affirmative defense.  See Universal Prop. & Cas. Ins. Co v. Yager, No. 4D2023-2310 (Fla. 3rd DCA 2025); see also Fl. R. Civ. P. 1.110 (d).

             Furthermore, the Fourth DCA held that partial payments do not prevent an insurer from asserting noncompliance with post-loss duties.  .  See Universal Prop. & Cas. Ins. Co v. Yager, No. 4D2023-2310 (Fla. 3rd. DCA 2025); See also Rodrigo v. State Farm Insurance Co. 144 So.3d 690 (Fla. 4th. DCA 2014) and Universal Property & Casualty Insurance Co. v. Horne 314 So. 3d 688 (Fla. 3rd. DCA 2021).  

             While the Fourth DCA’s decision doesn’t resolve the coverage and post-loss condition disputes, it reinforces the principle that insurers must be given the chance to present valid condition precedent defenses.  The ruling emphasizes the enduring legal significance of “prompt notice” provisions and underscores how insurers can safeguard those defenses even after partial payments have been made.

In Citizens v. Arias, No. 3D23-0895 (Fla. 3d DCA 2024), the Third District Court of Appeal reversed four decisions from trial court Judge David C. Miller as well as the final judgment entered in favor of the insureds.  The case returns to the trial court for further proceedings.
 
The underlying insurance claim involved a water loss.  Citizens argued the alleged loss was the result of wear and tear and deterioration of the plumbing line, which resulted in constant or repeated seepage or leakage from different sources on the line.
 
One of the reversed four decisions involved the underwriting file’s inspection report.  This document is a plaintiff favorite.  The inspector conducts a cursory inspection with a checklist, which indicates different components of the structure are in “poor”, “fair”, or “good” condition.  The plaintiff lawyer holds up the inspection report, arguing to the jury that the insurance company inspected the roof at the start of the policy and it was in “good” condition.  The plaintiff lawyers asks, “So how can the insurance company argue there is pre-existing damage?” Or they argue that we knew the condition was “poor” but decided to still insure it.
 
If insurance companies did not insure properties with existing damage, there would be widespread economic damage.  Without insurance, mortgage companies would not lend money to buyers.  More and more people would be unable to acquire a house.  Sellers could only sell to cash buyers.  Or homebuyers obtaining a loan could only buy perfect houses.  This is why insurance companies do insure properties with existing damage.  But it is also why insurance companies include an “existing damage” exclusion.  The damage that exists at the inception of the policy is excluded.  The homeowner can insure their house with existing damage but the insurance company does not take on that risk.  
 
In Arias, the trial court ruled, as a matter of law, that because Citizens inspected the dwelling before the insureds renewed the policy, Citizens could only rely on wear and tear occurring only after the home inspection.  The Third District rejected this ruling finding no authority in Florida law or the policy that would place such limitations. 

RECENT CHANGES TO FLORIDA RULES OF CIVIL PROCEDURE WILL HAVE A
SIGNIFICANT IMPACT ON CIVIL LITIGATION

Joseph A. Matera, Esq., Partner

In 2024, the Supreme Court of Florida (“Supreme Court”) entered various Orders amending the Florida Rules of Civil Procedure.  In addition to amending certain rules, the Supreme Court also created a new rule regarding conferral between the parties prior to the filing of most motions.  Florida Rule of Civil Procedure 1.202 now requires parties to confer prior to filing motions with the exception of dispositive motions and certain other motions such as a motion to dismiss for failure to state a claim on which relief can be granted.  Additionally, the movant must certify in the motion, using specific language, that conferral was completed or that the opposing party did not respond to efforts made to confer.  If there is no conferral, the movant must state the with particularity the efforts made to confer.  Although some jurisdictions locally required conferral, the Florida Rules of Civil Procedure did not. 

As the readers of this article likely know, certain jurisdictions require litigants to participate in non-binding arbitration, which is governed by 1.820 of the Florida Rules of Civil Procedure.  Non-binding arbitration is commonly described as a “mini-trial”.  Evidence is presented to the arbitrator and he/she renders an opinion with an accompanied award.  Prior to recent changes to the Florida Rules of Civil Procedure, if a party did not wish to accept the arbitrator’s award, the party would file a “Motion for Trial De Novo”.  Now, if a party does not wish to accept the award, the party must file a “Notice of Rejection of the Arbitration Decision”.  The Notice of Rejection must be filed within twenty (20) days from the service of the arbitrator’s award.  The Notice of Rejection must specifically request a trial within the Notice of Rejection.  Failure to comply with this strict rule will result in the arbitrator’s award becoming final.  

Another substantial change was made to 1.510 of the Florida Rules of Civil Procedure which relates to motions for summary judgment.  Prior to this recent change, litigants could wait until twenty (20) prior to the scheduled hearing on a motion for summary judgment to file a response.  This is no longer the case.  Now, the responding party must respond no later than forty (40) days from the date the motion for summary judgment is served.  The motion for summary judgment cannot be set for a hearing until ten (10) days after the deadline for service of a response to the motion for summary judgment unless the parties stipulate or the court orders otherwise. 

The rules of discovery have also been changed by the Supreme Court.  The Supreme Court has implemented an initial discovery disclosure requirement within 1.280 of the Florida Rules of Civil Procedure.  Parties now are required to disclose certain information and documentation without ever receiving any sort of discovery request from the other party.  This is an effort to ensure cases move along and are not filed without the requisite investigation.  If a party does not comply with their initial discovery disclosure requirement, that party may not seek discovery by other means.  The discovery rules were also amended to provide a duty to supplement discovery responses “in a timely manner” after learning the disclosure or response is “incomplete or inaccurate”.  

All of the aforementioned rules will be impacted by changes made to the expected duration of cases per the rules governing case management and pre-trial procedure encompassed within 1.200 of the Florida Rules of Civil Procedure.  No later than 120 days after the commencement of an action, the trial court now must assign a civil case a certain track and enter a case management order (“CMO”).  The case track will either be (1) complex; (2) general; (3) or streamlined.  A party may move the trial court to change the track designation by promptly filing a motion “after the appearance of good cause to support the motion”.  The CMO must provide that the deadlines will be “strictly enforced unless changed by court order”.   Trial judges must enter a CMO by April 4, 2025 if a current pending case does not contain a CMO.  CMO’s in effect on January 1, 2025 remain the effective CMO.  

Gone are the days of endless extensions and continuances.  It will be difficult to obtain extensions of time relating to deadlines contained within the CMO’s.    An agreed Order may be submitted to extend a deadline within a CMO only if the extension “does not affect the ability to comply with the remaining dates in the CMO”.  If a deadline extension may affect  another deadline, parties must seek an amendment to the CMO.  The CMO’s are required to contain a projected trial date.  If the trial date is still projected,  a party or parties may move to alter the projected trial period by filing a motion with specific information contained therein as outlined in 1.200(e)(3) of the Florida Rules of Civil Procedure.

Once there is an actual trial date, 1.460 of the Florida Rules of Civil Procedure applies.  The rule explicitly provides that continuances are “disfavored” and should only be granted upon “good cause shown”.  Litigants are required to have their cases ready for trial on the actual trial date.  If a continuance is sought, the rule requires the motion to have specific information therein, including the proposed date by which the case will be ready for trial, and whether that date is agreed by all parties.  The rule advises trial courts that it should use all efforts to avoid continuances, such as allowing remote appearances.  Litigants should be aware that if the trial court grants a continuance based on the “dilatory conduct” of an attorney or named party, the court may impose sanctions.  

The Supreme Court appears to have grown tired of clogged dockets due to delays with discovery, a lack of communication by some counsels, and continuances.  Parties and litigants should pay attention to these changes.  They have great impact.  Failing to timely respond to a motion for summary judgment or failing to file a notice of rejection of an arbitration award can have great financial impacts on litigants.  Failing to comply with the rules of discovery can delay efforts to move a client’s case forward or alternatively delay the meritorious defense of a claim.  It is important parties comply to ensure an efficient judicial system.  
 

COURTS DISAGREE  – SIXTH DISTRICT RULES, “NO DECREE? NO FEES”

Annie S. Antos, Esq., Associate and David J. Salmon, Esq., Partner

In Universal v. True Builders, et al., No. 6D2023-2498 (Fla. 6th DCA 2024), the Sixth District Court of Appeal reversed the county court’s judgment granting post-suit attorney’s fees and costs to True Builders’ attorney. The case returns to the county court to enter an amended judgment omitting the attorney’s fees and costs incurred by True Builders in litigation of its first of two cases. 

True Builders’ two lawsuits arise from an assignment of benefits received in a water loss homeowners insurance claim. The Insureds, David and Melaney Joiner (the “Joiners”), hired True Builders to perform emergency dry-out services and restoration work. In exchange for the work performed, the Joiners assigned their right to obtain insurance proceeds from Universal for proceeds related to the work performed by True Builders.  

True Builders sued Universal in Circuit Court (“First Case”) and the Joiners sued for breach of contract in a separate lawsuit. These two cases were consolidated, but Universal challenged the circuit court’s jurisdiction over the claims, alleging that the damages did not meet the jurisdictional threshold. True Builders moved to transfer their lawsuit to county court, which was twice denied by the circuit court and ultimately their second amended complaint was dismissed by the circuit court without prejudice. 

Without filing a third amended complaint or seeking appellate relief, True Builders instead filed an entirely separate lawsuit in county court (“Second Case”). Universal moved to consolidate the Second Case into the First Case and ultimately settled the Second Case, stipulating in the settlement agreement that True Builders was entitled to recover attorney’s fees and costs related to the Second Case. The county court awarded True Builders its attorney’s fees and costs for both cases. 

Universal disputed the award of attorney’s fees and costs on the First Case, which was rejected by the county court. The county court (1) analogized the decision to award fees and costs to cases in which appellate courts awarded relief under Section 627.428(1) for fees incurred before a suit was filed or during an arbitration proceeding; and (2) concluded that Universal acted unreasonably in not only failing to provide coverage for the assigned loss, but also by raising the jurisdictional issues and then objecting to a jurisdictional transfer. 

In reversing the county court’s decision, the Sixth District concluded that the plain language of Section 627.428(1) limits recovery of attorney’s fees and costs to “the suit in which recovery is had.” The Sixth District plainly declined the county court’s expansion of the confession of judgment as expressly ignoring the plain language of 627.428(1), concluding that the First Case was not the case in which recovery was had. 

The Sixth District additionally rejected True Builders’ assertion that the county court entered judgment for fees and costs based on Universal’s “unreasonably [withheld] payment under the policy.” The county court cited Wollard v. Lloyds, et al.in its contention that courts have broadened the statutory language to include a case where it is settled before a judgment entry occurred. Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So.2d 217, 218 (Fla. 1983). In finding that this language only occurred in obiter dictum and was therefore not precedential nor binding, the Sixth District rejected the inclination to elevate Wollard’s dictum to being applicable to the work performed by True Builders in the First Case. 

While Section 627.428(1) allows an assignee to recover attorney’s fees for litigating a matter to judgment against an insurer, its plain language limits this recovery to a suit in which recovery is had and does not apply to fees and costs incurred in a case that is dismissed or otherwise disposed of without entry of judgment. The Sixth District expressly rejected the application of 627.428(1) to fees incurred during the course of litigation of a case in which no recovery was obtained and remanded the case to the county court to amend their judgment entry. While the two courts may disagree, the Sixth District holds that you must have a judgment decree to obtain your fee. 

This result reduced the fee award by about $100,000.00.