Insurer’s Motion in Limine Granted in Part, Denied in Part

    The insurer's Motion in Limine seeking to preclude the insured from referencing or seeking certain categories of damages was largely denied. Las Brisas Condo. Homes Ass'n., Inc. v. Empire Indem. Ins. Co., 2024 U.S. Dist. LEXIS 178360 (M.D. Fla. Oct. 1, 2024). 

    Following Hurricane Irma, Las Brisas Condominium Homes Association submitted a claim to Empire for storm-related damage. Empire's field adjuster reported "severe wind damage to tile roofs on all locations." He estimated the damage at $1 to $1.5 million.

    Empire then retained a structural engineer who found no storm-related damage. Instead, he attributed the roof problems to "foot traffic, wear and tear, [and] thermal expand and contraction." 

    Empire sent Las Brisas a check for $207,313.21. Several days later, Empire denied coverage, explaining that the check was sent in error based on a misinterpretation of its engineer's report. Unable to resolve the remaining claim, the parties went to appraisal, where Las Brisas obtained a $788,230.07 award. Las Brisas then file a lawsuit for Empire's alleged bad faith.

       Las Brisas sought several categories of damages, including delay damages, costs of appraisal, interest and prejudgment interest, and attorney's fees. Empire filed its Motion in Limine asking the court to bar Las Brisas from referencing or seeking such damages.  

    For delay damages, Las Brisas sought $711,769.93, representing the difference between the high-end of Empire's filed adjuster's estimate to replace Las Brisas' roofs and the appraisal award. Empire argued that evidence of its field adjuster's estimate was irrelevant because the policy language confirmed the binding nature of the appraisal award. Las Brisas sought a $1.5 million roof replacement award at appraisal, but the appraisal panel awarded a lesser amount, binding the parties. The court agreed that Las Brisas may not relitigate its entitlement to the $711,769.93 by labeling it "delay damages."

    Las Brisas could, however, still pursue delay damages. Invoking appraisal and timely paying an award could not prevent a bad faith claim where the insured exercised its contractual rights to an appraisal in an effort to delay inevitable payment. Therefore, Las Brisas could introduce evidence that the appraisal process was done in bad faith, causing damages by delay or expense. 

    Empire failed to meet its burden of showing that Las Brisas was barred from recovering appraisal costs. Therefore, the court would not preclude Las Brisas from referencing any damages associated with the appraisal process. 

    Next, the court addressed Empire's argument that interest and pre-judgment interest were unavailable because "an insured was only entitled to prejudgment interest on the amount of the appraisal award that was not timely paid to it by the insurer from the date such payment became due under the terms of the policy." The court disagreed. The Florida statute stated that interest began to accrue from the date the insurer received notice of the claim. Las Brisas reported the loss on June 6, 2018, but Empire did not tender any payment for more than five months. Again, Empire failed to meet its burden to exclude evidence supporting Las Brisas' request for interest. 

    Finally, Las Brisas sought reasonable attorney's fees and costs pursuant to the Florida statute. The statute provided, "Upon adverse adjudication at trial or upon appeal, the authorized insurer shall be liable for damages, together with court costs and reasonable attorney's fees incurred by the plaintiff." Empire also failed to meet its burden here to exclude evidence supporting Las Brisas' request for attorney's fees. The court would not preclude Las Brisas from reference damages association with its attorney's fees and costs as permitted under Florida law.