SJ Entered in Insurer’s Favor on RCV Only Claim Where No Repairs Made
By Tony Pagán, Jr.
The United States District Court for the Southern District of Florida (Fort Lauderdale Division) recently ruled on an insurance carrier’s motion for final summary judgment, finding that because the insured sought “replacement cost” damages only and had yet to perform any repairs, the insured failed to establish a breach of the subject policy and entitlement to recovery.
In Meir v. Westchester Surplus Lines Ins. Co., the carrier defendant moved for final summary judgement on the basis that, because the subject policy required the insured to perform repairs prior to recovery of “replacement cost” damages, the insured’s failure to perform any such repairs precluded entitlement and recovery. In support, the carrier pointed to the insured’s sole estimate, which reflected only “replacement cost” damages without any reference to depreciation.
After careful consideration, the Court agreed with the carrier, finding that the carrier had not breached the subject policy as to “replacement cost” damages because the insured failed to establish her entitlement to same by performing repairs. Moreover, the insured failed to establish that the carrier’s denial of coverage waived the subject policy provision deferring payment of “replacement cost” damages.
In so finding, the Court examined the insured’s record evidence (sole estimate and proof of loss) and expert report (silent on depreciation) to establish that the insured’s complaint sought only “replacement cost” damages, regardless of what was provided in her proof of loss and/or argument in opposition to summary judgment. See Metal Prod. Co., LLC v. Ohio Sec. Ins. Co., No. 21-11612, 2022 WL 104618, at *3 (11th Cir. Jan. 11, 2022) (finding that an estimate that listed the same amount for both Replacement Cost Value and Actual Cash Value but did not address depreciation sought only Replacement Cost Value and the plaintiff could not change the nature of its demand for payment by asserting, in its opposition to summary judgment, that its estimate contained both Actual Cash Value and Replacement Cost Value).
Private: Tony Pagán, Jr.