This post follows up on my last post involving the insurance carriers’ right to repair. In a recent court case,1 the insurer invoked its option to repair and asked that litigation be stayed until the policyholder complied with the “right to repair” option in the policy, however the appellate court reversed trial court’s the stay order. This means the lawsuit for breach of contract will proceed.

This is an important case and it is one of the few recent cases in Florida involving the right/option to repair that many of us are seeing occur with great frequency in claims here. It is great that there is finally a recent case from a Florida appellate court speaking to the right/option to repair. The way the usual scenario goes is the policyholder files a lawsuit for breach of contract after the claim gets denied when they do not proceed with repairs from the insurance carrier’s preferred vendor contractor. In litigation, the carrier asks the Court to abate or stay the litigation and force the claim to go through the repair program with the carrier’s preferred vendor contractor. Often, there is not any agreement about the scope of repairs and what will even be repaired. Florida’s Fourth District Court of Appeals issued its opinion recently.

In the Robinson case, the policyholder filed a claim for damage to his property with Florida Peninsula Insurance Company; the carrier determined the loss was covered, notified him of its intent to exercise the repair option of the policy, and attempted to coordinate repairs through its contractor. The policyholder questioned the scope and sufficiency of the contractor’s proposed repairs, and Florida Peninsula eventually denied the claim because of his refusal to allow its contractor to complete the repairs. The policyholder completed most of the repairs at his own expense and filed suit for breach of contract and to declare whether Florida Peninsula properly exercised its right to repair; whether he was required to allow Florida Peninsula’s contractor to repair his home without agreeing to the repair scope; and whether Florida Peninsula was entitled to deny coverage when he disputed the scope of proposed repairs by Florida Peninsula. Florida Peninsula filed a motion to abate the litigation and to compel Robinson comply with the right/option to repair from the policy. The trial court granted Florida Peninsula’s motion and ordered the case abated and for the policyholder to comply with the right/option to repair.

The policyholder filed an appeal of that ruling to the Fourth District Court of Appeal. The mechanism for this appeal was certiorari review—meaning that the policyholder argued the order departed from the essential requirements of law. Unfortunately the appellate court did not address the issue of whether the right/option to repair was properly invoked by Florida Peninsula. But the appeal court held that the trial court order departed from the essential requirements of law because it effectively amounted to a dismissal of the complaint. The appellate court noted that if Robinson had completed the repairs, the abatement would likely be indefinite. Florida Peninsula conceded in the trial court that Robinson would be entitled to a judgment of at least Florida Peninsula’s contractor estimate.

The case was sent back to the trial court to proceed with litigation. The abatement order was overturned and the trial court will decide whether the right/option to repair was properly invoked. We will continue to provide updates if there is further information regarding this case but it is important to note that it is one of the first recent cases in the Florida appellate court as it relates to the right/option to repair involved in so many residential claims in Florida.

1 Robinson v. Florida Peninsula Ins. Co., Case No. 4D14-1350 (Fla. 4th DCA Nov. 12, 2015).