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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Interpleader Protects All Claimants Against Life Policy and the Insurer
Who’s on First to Get Life Insurance Proceeds
Post 5184
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Interpleader Protects All Claimants Against Life Policy and the Insurer
In Metropolitan Life Insurance Company v. Selena Sanchez, et al, No. 2:24-cv-03278-TLN-CSK, United States District Court, E.D. California (September 3, 2025) the USDC applied interpleader law.
Case Overview
This case involves an interpleader action brought by the Metropolitan Life Insurance Company (Plaintiff-in-Interpleader) against Selena Sanchez and other defendants (Defendants-in-Interpleader).
Key Points
Plaintiff-in-Interpleader’s Application:
The Plaintiff-in-Interpleader...
A Claim by Any Other Name is not a Claim
Post 5182
It is Imperative that Insured Report Potential Claim to Insurers
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In Jeffrey B. Scott v. Certain Underwriters At Lloyd’s, London, Subscribing To Policy No. B0901li1837279, RLI Insurance Company, Certain Underwriters At Lloyds, London And The Insurance Company, Subscribing To Policy No. B0180fn2102430, No. 24-12441, United States Court of Appeals, Eleventh Circuit (August 25, 2025) the court explained the need for a claim to obtain coverage.
Case Background:
This appeal arises from a coverage dispute under a Directors & Officers (D&O) insurance policy. Jeffrey B. Scott, the plaintiff-appellant, was terminated from his role as CEO, President, and Secretary of Gemini Financial Holdings, LLC in October 2019. Following his termination, Scott threatened legal action against Gemini, and ...
A Claim by Any Other Name is not a Claim
Post 5182
It is Imperative that Insured Report Potential Claim to Insurers
Read the full article at https://lnkd.in/gfbwAsxw, See the full video at https://lnkd.in/gea_hgB3 and at https://lnkd.in/ghZ7gjxy, and at https://zalma.com/blog plus more than 5150 posts.
In Jeffrey B. Scott v. Certain Underwriters At Lloyd’s, London, Subscribing To Policy No. B0901li1837279, RLI Insurance Company, Certain Underwriters At Lloyds, London And The Insurance Company, Subscribing To Policy No. B0180fn2102430, No. 24-12441, United States Court of Appeals, Eleventh Circuit (August 25, 2025) the court explained the need for a claim to obtain coverage.
Case Background:
This appeal arises from a coverage dispute under a Directors & Officers (D&O) insurance policy. Jeffrey B. Scott, the plaintiff-appellant, was terminated from his role as CEO, President, and Secretary of Gemini Financial Holdings, LLC in October 2019. Following his termination, Scott threatened legal action against Gemini, and ...
Barry Zalma: Insurance Claims Expert Witness
Posted on September 3, 2025 by Barry Zalma
The Need for a Claims Handling Expert to Defend or Prove a Tort of Bad Faith Suit
© 2025 Barry Zalma, Esq., CFE
When I finished my three year enlistment in the US Army as a Special Agent of US Army Intelligence in 1967, I sought employment where I could use the investigative skills I learned in the Army. After some searching I was hired as a claims trainee by the Fireman’s Fund American Insurance Company. For five years, while attending law school at night while working full time as an insurance adjuster I became familiar with every aspect of the commercial insurance industry.
On January 2, 1972 I was admitted to the California Bar. I practiced law, specializing in insurance claims, insurance coverage and defense of claims against people insured and defense of insurance companies sued for breach of contract and breach of the implied covenant of good faith and fair dealing. After 45 years as an active lawyer, I asked that my license to practice law be declared inactive ...
The Need for a Claims Handling Expert to Defend or Prove a Tort of Bad Faith Suit
© 2025 Barry Zalma, Esq., CFE
When I finished my three year enlistment in the US Army as a Special Agent of US Army Intelligence in 1967, I sought employment where I could use the investigative skills I learned in the Army. After some searching I was hired as a claims trainee by the Fireman’s Fund American Insurance Company. For five years, while attending law school at night while working full time as an insurance adjuster I became familiar with every aspect of the commercial insurance industry.
On January 2, 1972 I was admitted to the California Bar. I practiced law, specializing in insurance claims, insurance coverage and defense of claims against people insured and defense of insurance companies sued for breach of contract and breach of the implied covenant of good faith and fair dealing. After 45 years as an active lawyer, I asked that my license to practice law be declared inactive and became a consultant and expert witness for lawyers representing insurers and lawyers ...
APPRAISAL AWARD SETS AMOUNT OF DAMAGES RECOVERED FROM INSURER
Post 5180
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It’s a Waste of Time to Sue Your Insurer if You Don’t Have Evidence
Evidence Required to Prove Breach of Contract
Read the full article at https://www.linkedin.com/pulse/evidence-required-prove-breach-contract-barry-zalma-esq-cfe-rfelc, see the full video at https://rumble.com/v6yd2z0-evidence-required-to-prove-breach-of-contract.html and at https://youtu.be/2ywEjs3hZsw, and at https://zalma.com/blog plus more than 5150 posts.
It’s a Waste of Time to Sue Your Insurer if You Don’t Have Evidence
In Debbie Beaty and Jonathan Hayes v. Homeowners Of America Insurance Company, No. 01-23-00844-CV, Court of Appeals of Texas, First District (August 26, 2025) Debbie Beaty and Jonathan Hayes filed a claim under their homeowner’s insurance policy with Homeowners of ...
