By William Rabb 

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Insureds cannot recover damages from the insurance company if they failed to comply with the policy and failed to allow the insurer to make the needed repairs, a Florida appeals court decided Wednesday.

Florida’s 3rd District Court of Appeal upheld without comment a 2020 decision by Miami-Dade Circuit Judge Mark Blumstein.

“As a result of plaintiffs’ actions, inactions and lack of cooperation, Florida Peninsula was unable to restore the property to its pre-loss condition, although Florida Peninsula was ready, willing, and able to do so,” Blumstein wrote. “Thus, plaintiffs’ failure to comply with the option to repair bars any recovery under the policy.”

An insurer’s right to repair with its own contractors has been a point of contention for at least a decade, with a number of homeowners and plaintiffs’ attorneys arguing that some restoration work has been incomplete and subpar in quality. But appeals courts have upheld the policy provisions in several cases.

In this case, John Rose vs. Florida Peninsula, the insurer actually paid for some plumbing repairs that were not covered by the policy. But the insured’s refusal to cooperate with Florida Peninsula’s other repair efforts, as well as legal maneuvering by the claimant’s attorney, ultimately doomed any attempt to win damages through litigation, the circuit court found.

“Even a court order could not get the plaintiffs to allow the repairs to commence,” Judge Blumstein wrote.

The claim began almost a decade ago after the Roses said their home suffered water damage from a leak. Florida Peninsula notified them that it was exercising its option to repair, in keeping with the policy. Months later, in October 2013, the insurer said the claim would be denied if the repair work did not begin within 14 days.

Despite that, the homeowners still would not allow the repairs and their attorney, with the Alvarez, Carbonell and Feltman firm in Coral Gables, alleged that the invocation of the insurer repair clause was improper “for reasons left unstated,” the court explained. The lawyer then requested copies of all estimates, communications, emails, and invoices between Florida Peninsula and its contractor.

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In the lawsuit complaint, the Roses’ lawyer argued that the couple had, in fact, allowed access to the property and the insurance company had improperly denied the claim.

The judge didn’t agree.

“In sum, the uncontested facts show that Florida Peninsula exercised the option to repair the damages at the plaintiffs’ property consistent with the policy’s option to repair provision,” Blumstein wrote. “Despite Florida Peninsula’s request and a court order, the plaintiffs failed and/or refused to allow the repairs to commence. Instead, they used threats and unsupported conditions to prevent the repairs from commencing. This was in violation of Florida law and the policy.”

The 3rd DCA also upheld a Miami-Dade court’s ruling against Citizens Property Insurance Corp. In the decision, Citizens vs. Carlos Hernandez, the court also agreed to a motion by Hernandez to award his attorney’s fees.