By: Jennifer N. Myers
2021 WL 1153052 (Fla. 4th DCA March 26, 2021)
A Motion for Summary Judgment was granted due to imputed misrepresentation and/or fraud by public adjuster. A claim was submitted for a water leak in a second-floor bathroom. A public adjuster submitted an estimate for $43,181.01, which included $11,107.72 for damage to the kitchen. The estimate was adopted by the policyholder in her “sworn interrogatory responses.” 2021 WL 1153052 at *1 (Fla. 4th DCA March 26, 2021). The policyholder’s attorney conceded that “the estimate should not have included $11,000 for damages to the kitchen and that it would therefore be appropriate for the trial court to grant partial summary judgment, or alternatively, strike $11,000 from the total damages claimed by the Homeowner.” Id. at *2. The policyholder, in her deposition “… all but conceded that the estimate contained false statements” and admitted the kitchen cabinets were damaged by a prior leak in the kitchen for which she made a claim with a different insurer and the water remediation company she hired after discovering the leak did no work on the first floor. Id. at *2.
The insurer moved for summary judgment as a matter of law upon application of the policy provisions providing there is no coverage if the “insureds” have:
(1) Intentionally concealed or misrepresented any material fact or circumstances;
(2) Engaged in fraudulent conduct; or
(3) Made material false statements; relating to the insurance.
Id. at *2.
The Court granted summary judgment for the insurer, rejecting the plaintiff’s argument she should not be held responsible for the false material statements in the estimate because she did not intentionally rely thereon. The Court noted two reasons for rejecting her argument. (1) She knew the kitchen cabinets had not been damaged by the leak, but relied on the estimate in reporting the claim and later adopted the estimate as her own statement in the lawsuit. After her deposition, she did not try to revise the estimate before the summary-judgment hearing. (2) a showing of intent is not required under the policy’s concealment or fraud provision.
“Simply put, an insured cannot blindly rely on and adopt an estimate prepared by his or her loss consultant without consequence. This is not to say that an insured will always be bound by the representations made in an estimate…. However, when an insured relies on or adopts an estimate containing material false statements to support his or her claim, the insured is bound by the estimate and cannot avoid application of the concealment or fraud provision simply because he or she did not prepare the estimate.”
Id. at *3.
A concurring opinion reached the same conclusion, but only because of the attorney’s concession that SafePoint was entitled to partial summary subject on the kitchen damages were false. Id. at *3.
