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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No Right to Subrogation Against Tenant
Post 5231
Not Fair to Require Tenant to Pay for Damage Insured by LandlordSee the video at https://lnkd.in/gFkrp_6M and at https://lnkd.in/gQdFQBWj and at https://zalma.com/blog plus more than 5200 posts.
See the video at and at
For Insurer to Subrogate Lease Must Require Tenant to Obtain Insurance for the Benefit of the Landlord
In AmGUARD Insurance Co. v. Tyrone Ellis and Shakyra Ellis, U.S. District Court, District of Connecticut Civil No. 3:25-cv-946 (JCH) (November 19, 2025), Judge, Janet C. Hall the defendant’s Motion to Dismiss the Amended Complaint on the basis of Connecticut’s anti-subrogation doctrine required dismissal.
KEY FACTS
Landlord Michael Caldwell, a Connecticut citizen, owned a multi-family building in Windsor, Connecticut. Defendants Tyrone and Shakyra Ellis were residential tenants in the building. On or about March 1, 2025, a fire ...
Debt Resulting from Fraud is Not Dischargeable in Bankruptcy
Post 5230
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Knowing Misappropriation and Conversion of Funds is Fraud
In re Matthew Jene Tubbs (Bankr. N.D. Tex., Fort Worth Div., No. 22-42728-MXM-7; Adv. No. 23-04019-mxm), October 15, 2025 .
Key Facts
Plaintiffs (Robles) and Defendant (Tubbs) met through their church; both held leadership roles. In Feb 2021 Robles home suffered major water damage from Winter Storm Uri and insurance paid $173,000.
In the Fall of 2021: Tubbs represented to Mr. Robles that he personally built a newer house and large barn on his parents’ property “with his own hands” (except foundation/insulation). That he had 10 years’ experience overseeing window/door installations at a major home-improvement chain, was a licensed contractor (false) and carried general contractor liability insurance.
Relying on ...
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ZIFL-Volume 29 Number 22
THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL
Post 5228
Zalma’s Insurance Fraud Letter (ZIFL) continues its 29th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/
Read the full 20 page issue of ZIFL at http://zalma.com/blog/wp-content/uploads/2025/11/ZIFL-11-15-2025-1.pdf
Man Bites Dog Story – Hertz Sues Alleged Fraudsters
Hertz Successfully Refuses to Pay Alleged Fraudulent Health Care Providers
Proactive Victim of Fraud Defeats Health Care Providers
More McClenny Moseley & Associates Issues
This is ZIFL’s thirty eighth installment of the saga of McClenny, Moseley & Associates and its problems with the federal courts in the State of Louisiana and what appears to be ...
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 ...
