Gonzalez v. Homewise Preferred Insurance Company
210 So. 3d 260
| Fla. Dist. Ct. App. | 2017Background
- Gonzalez and Perdomo filed a timely breach-of-insurance-contract suit against their homeowner insurer, Homewise, in 2009.
- Homewise was declared insolvent in 2011; chapter 631 then automatically stayed pending proceedings for six months and notified claimants that FIGA had assumed covered claims.
- FIGA informed the insureds of a one-year filing deadline under section 631.68 and assigned an adjuster; the insureds moved to amend to substitute FIGA as defendant and were ordered to serve FIGA.
- The one-year period elapsed without service on FIGA, and FIGA filed a limited appearance and moved to dismiss for lack of jurisdiction.
- The trial court granted dismissal, reasoning § 631.68 required a new suit against FIGA within the one-year period; the district court reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 631.68 bars a plaintiff who already sued the insolvent insurer before insolvency from proceeding without filing a new suit against FIGA | Gonzalez/Perdomo: § 631.68 applies only to claims where no suit was filed before insolvency; their pending suit remained effective | FIGA: § 631.68 requires a separate suit against FIGA within one year or claim is barred | Reversed: § 631.68 does not apply to pending suits; FIGA became defendant by operation of statute and no new suit or separate service was required |
| Whether substitution or separate service on FIGA is required for the trial court to have jurisdiction over FIGA when insurer becomes insolvent during a pending lawsuit | Plaintiffs: No substitution/new service required because § 631.57 makes FIGA the insurer and § 631.67 stays proceedings, giving FIGA the insurer’s rights and duties | FIGA: Plaintiffs needed to substitute and serve FIGA within the statutory period to preserve the claim | Court: No substitution or separate service necessary; FIGA steps into the insurer’s shoes for pending actions and the court retains jurisdiction |
Key Cases Cited
- Florida Ins. Guar. Ass'n v. Mendoza, 193 So. 3d 940 (Fla. 3d DCA 2016) (holding § 631.68 bars only suits not filed before insolvency and that FIGA becomes defendant in pending first-party suits by operation of statute)