Curtis v. Tower Hill Prime Insurance Co.
154 So. 3d 1193
| Fla. Dist. Ct. App. | 2015Background
- Robert and Darlene Curtis owned a home insured by Tower Hill Prime with a sinkhole-loss endorsement; an engineer retained by Tower Hill concluded sinkhole activity caused the damage.
- Tower Hill's stabilization estimates were ~$93k–$95k; the Curtises' contractor estimates were ~$193k–$342k; cosmetic-repair estimates differed as well.
- Tower Hill initiated statutorily authorized neutral evaluation; the Curtises filed suit during that process seeking a determination of entitlement and damages.
- Tower Hill moved for summary judgment on three grounds: (1) no payment was yet due under the policy's loss-payment clause; (2) the suit violated the neutral-evaluation stay and the policy's "Suit Against Us" provision; and (3) the Curtises failed to satisfy post-loss duties/cooperate.
- The trial court granted the first two motions and denied the third; final judgment entered for Tower Hill. The Second District reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether suit was premature because no payment was due under the loss-payment clause | Curtis sued to determine entitlement and amount; suit on the contract is permissible and not barred by loss-payment timing | Tower Hill: refusal to pay is not breach until payment time under loss-payment provision has passed | Court: Suit was not barred; loss-payment clause did not make action premature and final judgment may be contemplated by the clause — summary judgment improper |
| Whether filing suit during neutral evaluation violated statutory stay and breached policy's "Suit Against Us" clause | Curtis: neutral-evaluation statute stays proceedings but does not prohibit filing; policy reference to neutral evaluation does not create a condition barring suit | Tower Hill: neutral evaluation is a condition precedent and the statutory stay prohibits litigation, so filing breached the policy | Court: Statute stays proceedings pending evaluation but does not prohibit filing; mere filing did not violate the stay or policy — summary judgment improper |
| Whether Curtises' alleged failure to satisfy post-loss duties (cooperation/inspection/estimates) barred recovery | Curtis: they cooperated with insurer's engineer on the principal damage; partial compliance and explanations create fact issues; no prejudice shown | Tower Hill: Curtises failed to cooperate with its contractor for cosmetic estimates, breaching duties after loss and forfeiting benefits | Court: Trial court correctly denied summary judgment on this ground — insurer must show substantial prejudice and material breach; factual dispute remains |
| Proper remedy when insurer admits coverage but disputes amount | Curtis: action seeks determination of entitlement/amount; suit is appropriate to resolve amount | Tower Hill: payment condition not yet triggered, so no breach | Court: Even if suit might be premature in some contexts, where coverage is admitted and amount disputed, final summary judgment is inappropriate; remand for factfinding |
Key Cases Cited
- Trinidad v. Florida Peninsula Ins. Co., 121 So. 3d 433 (Fla. 2013) (standard of review for summary judgment in insurance cases)
- Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000) (summary judgment standard)
- Geico Gen. Ins. Co. v. Graci, 849 So. 2d 1196 (Fla. 4th DCA 2003) (distinguishing actions to determine entitlement/amount from breach-of-contract accrual)
- Shuck v. Bank of Am., N.A., 862 So. 2d 20 (Fla. 2d DCA 2003) (premature suits may be abated or dismissed without prejudice when appropriate)
- Panjikaran v. State Farm Fla. Ins. Co., 77 So. 3d 1278 (Fla. 2d DCA 2012) (reversing summary judgment where dispute over amount vs. denial of coverage was unclear)
- American Fire & Casualty Co. v. Collura, 163 So. 2d 784 (Fla. 2d DCA 1964) (insurer must show prejudice to enforce cooperation clause)
- Bankers Ins. Co. v. Macias, 475 So. 2d 1216 (Fla. 1985) (prejudice requirement for asserting forfeiture on cooperation breach)
- Jyurovat v. Universal Prop. & Cas. Ins. Co., 84 So. 3d 1238 (Fla. 2d DCA 2012) (partial cooperation can create fact issue on material breach)
- Makryllos v. Citizens Prop. Ins. Corp., 103 So. 3d 1032 (Fla. 2d DCA 2012) (partial cooperation may preclude summary forfeiture)
- Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999) ("tipsy coachman" rule permitting appellate affirmance on right reasons)