To Recover Appraisal Award Insured Must Actually Repair or Replace
Post 4855
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Cresthaven appealed the district court’s denial of its motion for relief from the court’s order dismissing without prejudice Cresthaven’s suit against Empire Indemnity Insurance Company (“Empire”) and for leave to file a supplemental complaint.
In Cresthaven Ashley Master Association, Inc. v. Empire Indemnity Insurance Company, No. 23-12761, United States Court of Appeals, Eleventh Circuit (August 7, 2024) the Eleventh Circuit resolved the dispute.
FACTS
Cresthaven, a condominium association, purchased a commercial property policy from Empire for a period covering March 17, 2017 to March 17, 2018 (the “Policy”). On September 10, 2017, Hurricane Irma struck the state of Florida. Cresthaven timely filed a claim with Empire for property damages sustained in the storm, which Empire denied on April 19, 2019.
Cresthaven’s Complaint, filed on July 15, 2019, sought a declaratory judgment that it did not breach its post loss duties, as well as the enforcement of the Policy’s appraisal provision and damages for breach of contract. Over the next three years, the parties conducted an appraisal and Cresthaven received two awards for property damages.
Empire a Motion to Dismiss for Lack of Subject-Matter Jurisdiction arguing that Cresthaven’s case no longer presented an actual Case or Controversy under Article III. The Court granted Empire’s motion on March 24, 2022.
March 24, 2022 Dismissal Order
Cresthaven needed to first identify an applicable law or ordinance that, if enforced, could result in a loss in value to the undamaged portion of the building or an increased cost to reconstruct any portion of the building, whether damaged or not. Second, the applicable law or ordinance needed to be enforced. Third, the applicable ordinance or law must have resulted in the aforementioned “loss in value” or “increased cost”. Cresthaven failed to satisfy any of the three preconditions.
The Court dismissed Cresthaven’s claims for failing to present an actual Case or Controversy.
Post-Dismissal Events
Cresthaven diligently commenced and completed repairs for several of its structures. Cresthaven never completed repairs or completed them timely to recover benefits under the Replacement Cost coverage under Empire’s Policy. Empire effectively invoked the five year statute of repose for property insurance claims under Fla. Stat. §95.11(2)(e).
DISCUSSION
Empire never waived its right to invoke the statute of repose. Without evidence that Empire represented that it would not invoke the statute of repose, the Eleventh Circuit could not conclude that the district court abused its discretion in declining to attribute bad faith to Empire’s communications about adjusting the claim with Cresthaven after the dismissal.
Empire’s written waiver was very specific and waived only the “as soon as reasonably possible” and the two-year deadline with respect to repairs, the temporal limitations that appeared in the Policy itself.
Empire’s July 8, 2022, letter invited Cresthaven to complete repairs and submit requests for payment. The fact that Empire did invoke the five-year statute of repose after its expiration merely indicates that Empire intended to exercise its rights under the Policy provisions and the law, which intention was apparent from the very inception of Cresthaven’s claim.
Empire’s waiver of two very specific rights is not a basis on which to infer a waiver of all rights.
The Policy provisions required Cresthaven to perform the work and identify the relevant ordinance before seeking reimbursement and the district court still would have granted the motion.
ZALMA OPINION
Waiver is a legal concept that allows parties to agree that certain conditions of a contract of insurance will not apply as long as it is knowingly made without coercion. Empire waived two rights provided to it in the policy. That was all it waived, nothing more, and it certainly did not waive the Statute of Repose, which, when it expired destroyed the entire lawsuit and arguments of Cresthaven. An insured should never sit on its rights.
(c) 2024 Barry Zalma & ClaimSchool, Inc.
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The Professional Claims Handler
Post 5218
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Claims Commandment X – Thou Shall Not Pretend to be a Lawyer
Some experienced and professional claims people know the law in their area of expertise better than most lawyers.
Adjusters should be adjusters and leave lawyering to lawyers. Similarly, lawyers should be lawyers and never try to be adjusters.
Claims Commandment XI – Thou Shall Empathize With the Claimant
Everyone presenting a claim is unhappy, disturbed, shocked, injured and needs help.
Empathy is identification with and understanding of another’s situation, feelings, and motives. It is the ability to understand another person’s circumstances, point of view, thoughts, and feelings....
HOW TO CREATE AN EXCELLENCE IN CLAIMS HANDLING PROGRAM
See the full video at https://rumble.com/v70wb2i-the-zalma-philosophy-of-claims-handling-part-6.html and at https://youtu.be/tL5nDKPEs40 and at https://zalma.com/blog plus more than 5200 posts.
Post 5217
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry.
An Excellence in Claims Handling program begins with a statement in the insurer’s claims manual or statement of professionalism that it is dedicated to providing excellence in claims handling to every insured who presents a claim.
The excellence in claims handling program should include, at a minimum:
A series of lectures supported by text materials explaining:
A definition of insurance.
How to read and understand an insurance policy.
How to interview an insured, witness, or claimant.
How to assist an insured in the insured’s obligation to ...
The Professional Claims Handler
Post 5216
Read the full article at https://www.linkedin.com/pulse/zalma-philosophy-claims-handling-part-5-barry-zalma-esq-cfe-jde8c, see the full video at https://rumble.com/v70q4x8-the-zalma-philosophy-of-claims-handling-part-5.html and at https://youtu.be/6b9tZQsEkB4, and at https://zalma.com/blog plus more than 5200 posts.
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry.
Standards to be a Professional Claims Adjuster
The Insurance claims professional should be a person who:
1. Can read and understand the insurance policies issued by the insurer.
2. Understands the promises made by the policy.
3. Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
4. Are competent investigators.
5. Have empathy and recognize the difference between empathy and sympathy.
6. ...
The Professional Claims Handler
Post 5219
Posted on October 31, 2025 by Barry Zalma
An Insurance claims professionals should be a person who:
Can read and understand the insurance policies issued by the insurer.
Understands the promises made by the policy.
Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
Are competent investigators.
Have empathy and recognize the difference between empathy and sympathy.
Understand medicine relating to traumatic injuries and are sufficiently versed in tort law to deal with lawyers as equals.
Understand how to repair damage to real and personal property and the value of the repairs or the property.
Understand how to negotiate a fair and reasonable settlement with the insured that is fair and reasonable to both the insured and the insurer.
How to Create Claims Professionals
To avoid fraudulent claims, claims of breach of contract, bad faith, punitive damages, unresolved losses, and to make a profit, insurers ...
The History Behind the Creation of a Claims Handling Expert
The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
The History Behind the Creation of a Claims Handling Expert
The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
