Firm News

Fort Lauderdale, FL (March 2023)Bressler, Amery & Ross, P.C. attorneys Hope C. Zelinger and Lilian Rodriguez-Baz  successfully represented United Property & Casualty Insurance Company in an insurance defense appeal. This is one of the first decisions for the newly formed Sixth District Court of Appeals.

In Levy vs. United Property, the homeowners/insured appealed a lower court’s grant of summary judgment based on the Plaintiffs’ failure to submit an ACV (actual cash value) estimate as opposed to the Replacement Cost Value (RCV) they provided. Plaintiffs continued to claim RCV throughout the litigation, notwithstanding the terms of the Loss Settlement provision and the fact that the repairs had not yet been completed. The primary issue was whether the trial court properly granted summary judgment in favor of United Property on the grounds that the insureds failed to establish an entitlement to payment on the basis of either the ACV or RCV of the loss, which are the only two means of recovery under the policy.

In this case, the only ACV estimate on record was United Property’s. The insureds submitted two RCV estimates (devoid of depreciation) and failed to submit a competing estimate establishing the ACV value of the loss. The Plaintiffs argued that they conceded to the depreciation rate calculated by United Property and could simply subtract the same from their calculation of RCV to yield their “disputed” ACV amount. With regards to RCV, the insureds had not completed any repairs, which is a precondition to recovering RCV. Therefore, although they submitted an RCV estimate, they were not entitled to recover RCV. Essentially, they had no pathway to recovery under the terms of the policy.

According to Zelinger, “The court followed well-established precedent out of the 11th Circuit finding that there can be no breach of the policy by a carrier in circumstances where an insured cannot establish his entitlement to either the ACV or RCV of a claimed loss.” She said, “Although not binding, the decision will hopefully have a deterrent effect and curb the number of lawsuits that are prematurely filed by insureds before complying with the policy provisions. The decision also clarifies the burdens that insureds are expected to meet before recovering either ACV or RCV for any given loss.”

Rodriguez-Baz said, “This decision reaffirms an insured’s obligation to strictly comply with policy provisions prior to bringing suit. It also reminds insureds that they should not expect to win by cutting corners. Claimants cannot rely on written communications expressing a general “disagreement” with regards to the scope of a loss to create “a genuine issue of fact” as to the ACV or RCV of the loss.” She said, “The appellate precedent that now exists makes it clear that it is the insured’s burden, not the carrier’s, to complete their own calculations of ACV and RCV, and to submit competing estimates specifically reflecting these values prior to filing suit.” 

Originally commenced in the Second District Court of Appeal, the matter was transferred to the Sixth District (the first appellate district to be created in Florida in the last 43 years) on January 1, 2023. The Sixth District affirmed the trial court’s entry of the final summary judgment in favor of United Property.


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