Monthly Archives:' September 2016

September 07, 2016

JUSTIFIED REFUSAL TO HONOR THE INSURER'S DECISION TO REPAIR

Published by AAPIA on September 6, 2016 http://www.aapia.org/community/blog.php?user=11&blogentry_id=192

Just a few weeks ago another lawyer said to me . . . the property Insurer’s “option / right to repair” is absolute! TRUTH OR DARE?  Does the law absolutely require Florida homeowners to submit to repairs being invoked or implemented using deceptive trade practices?  Do they have to suffer a completed botched dry-out, remediation, or rebuild before taking action?  Do Florida homeowners have to sit back and take it when corners are cut or inferior materials are being put into their homes?  When might a homeowner be justified in refusing to honor the insurer’s decision to use its Managed Repair contractor and pursue a breach of contract action for payment of their claim?

Well, we already know from recent case law that the “right or option” to repair is not absolute when it is not properly invoked. Fla. Peninsula Ins. Co. v. Wagner, 2016 Fla. App. LEXIS 8262, 41 Fla. L. Weekly D 1279, 2016 WL 3065065 (Fla. Dist. Ct. App. 2d Dist. June 1, 2016)   And, the Insurer is not the absolute determiner of the “scope” of the repairs.  Diaz v. Fla. Peninsula Ins. Co., 2016 Fla. App. LEXIS 8341, 41 Fla. L. Weekly D 1289, 2016 WL 3087811 (Fla. Dist. Ct. App. 4th Dist. June 1, 2016)  But what about other justifications for refusing to permit the Insurer to enforce its “option”?

At least one Florida Court, in the context of auto insurance, has recognized that there are absolutely circumstances that justify the Insured’s refusal to honor the insurer’s exercise of its “option”.  In Auto-Owners Ins. Co. v. Green, 220 So. 2d 29 (Fla. 1st DCA 1969), the court found that the automobile owner was justified in refusing to allow the insurer to repair when the insurer asked the insured to sign a scope related release though there was an indication of potential hidden damage. Applying this to the homeowner context – the option is not absolute when the Insurer attempts to use “the option” to pre-maturely gain agreement to cut-off available coverage.  But, what “other circumstances” will become “justified” remains an open question.  Here are some initial thoughts:

  • Unfair or deceptive practices by the Managed Repair Contractor;
  • Unreasonable delay in invoking the option or beginning repairs;
  • Wrongfully asking the Insured to pay out-of-pocket for covered repairs;
  • Refusal to provide information showing the Managed Repair Contractor is properly licensed, insured, and complying with all applicable laws;
  • Refusal to fully warrant the work of the Managed Repair Contractor (not pass-off that obligation);
  • Refusal to undertake a duty to defend and hold the Insured harmless or otherwise obtain a release of any and all liens related to the Managed Repair;

So where does that leave Florida homeowners?  For now, Florida homeowners may be about to break new ground in the embattled arena of Managed Repair.  It’s time to take a stand and show that unfair circumstances imposed on the homeowners justify their refusal to honor the insurer’s “right to repair” option.  We must shed light on the problems with this onerous “option” even if it has to be done one porch at a time.

Indeed, Stockham Law Group P.A. has already filed a case challenging the enforceability of the “option” where the Insurer and Repairer use unfair forms and practices to cut-off homeowners’ rights.  Stay tuned, as we continue to work to give homeowners back the right to repair their own homes.

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