Middle District of Florida Grants Partial Summary Judgment in Favor of Insurer for Replacement Cost Value Damages

In Rr. Restoration, LLC A/A/O Amblewood Cond. Ass’n, Inc. v. Empire Indem. Ins. Co., the U.S. District Court for the Middle District of Florida, Fort Myers Division granted in part and denied in part Empire Indemnity Insurance Company’s (“Empire”) motion for summary judgment. In its motion, Empire argued that the Plaintiff only made a request for Replacement Cost Value (“RCV”) benefits and, because the claimed repairs were not actually completed, Empire does not owe RCV.

The policy at issue provides that Empire will not pay RCV until the lost or damaged property is actually repaired or replaced and unless the repairs or replacement are made as soon as reasonably possible. So, under the Policy, the Plaintiff would have to actually make the repairs before being able to be paid for them on an RCV basis. The Court found it is undisputed that the repairs have not been completed and, accordingly, there is no breach of the insurance contract. The Court therefore held that Empire is entitled to summary judgment with respect to any claim for RCV damages.

However, the Court held that a genuine issue of material fact remains as to whether a request for Actual Cash Value (“ACV”) benefits was made under the policy. Specifically, the Plaintiff argued that a jury could return a verdict for it because “the estimates [attached to the complaint and] submitted pre-suit . . . necessarily include[] the ACV amount as the ACV is derived specifically from RCV.” The Court noted that each of the estimates attached to the complaint contains a figure under the title, “ACV Total,” which a jury could find put Empire on notice that the Plaintiff was seeking ACV damages and, as to Empire’s argument that the estimates did not apply depreciation, that the policy does not require the claimant to include depreciation in its initial proof of loss and does not explain that depreciation is an element of a claim for ACV.

Kelly Vogt is the Co-Managing Partner of Clausen Miller’s Florida offices. She focuses her practice on first party property and insurance coverage matters. She is also experienced in the areas of third party liability, appellate law, general civil litigation, and professional liability defense.