Northern District of Florida Holds the Defendant Insurer Is Entitled to Summary Judgment Because the Plaintiff Made a Claim For Replacement Cost Value, Not Actual Cash Value, And Plaintiff Had Not Repaired or Replaced the Damaged Property as Required by the Policy to Recover.

By Irene Thaler

In Monterrey’s Grill Inc. v. Axis Surplus Ins. Co., 2025 U.S. Dist. LEXIS 93465 (N.D. Fla. May 13, 2025), the Plaintiff operated a restaurant in Pensacola. In September 2020, the building suffered damage due to Hurricane Sally and Plaintiff submitted a claim under Axis’ policy. The claim was for $600,000.00 (the policy limit) based on a Sworn Proof of Loss listing the damage amount as $662,144.84. The amount in the Sworn Proof of Loss corresponded to an estimate submitted on Plaintiff’s behalf which reflected a replacement cost value of damages. The Court noted that the estimate was a ‘replacement cost estimate’ because it did not include any deductions for depreciation, the replacement cost value and actual cash value columns on the estimate were the same, and the summary page of the estimate referred to the $662,144.84 amount as ‘replacement cost value.’

The Axis policy provided for payment of the replacement cost value of the covered loss, but only if the damaged property was: 1) actually repaired or replaced; and 2) the repair or replacement was made as soon as reasonably possible after the loss or damage. Axis determined there was coverage for a portion of the claim, but the covered damage was considerably less than the policy’s $30,000.00 deductible. Thus, Axis did not make payment on the claim.

Plaintiff argued it made some repairs to the insured property with funds it had available, but it did not have the funds needed to repair all of the hurricane-related damage. The Court noted there was no evidence the repairs made by Plaintiff exceeded the policy deductible and none of the repairs listed in Plaintiff’s estimate had been completed.

Axis argued that it was entitled to summary judgment because Plaintiff made a claim for replacement cost, not actual cash value, and Plaintiff had not repaired or replaced the damaged property as required by the policy. The Northern District Court agreed and granted summary judgment in favor of Axis. The Court rejected all of Plaintiff’s arguments in opposition, e.g., the Court did not find the Policy to be ambiguous, Florida’s Valued Policy Law (§627.702, Fla. Stat.) did not apply, Axis did not waive any requirements that Plaintiff submit an ACV claim, the prevention of performance doctrine did not shield Plaintiff from its obligation to repair, Axis was not required to establish prejudice because Plaintiff’s failure to submit an actual cash value claim was a condition precedent to payment, and lastly, a reasonable jury could not find that the Plaintiff made a claim for actual cash value. The Court noted that the record contained no evidence of depreciation from which a jury could determine what the actual cash value of the loss was or whether it was more than the policy deductible. That being the case, the Court concluded that Plaintiff could not establish that Axis breached the policy by not paying anything on the claim and determined summary judgment was appropriate.