Non-Emergency and Unnecessary Mitigation Services - Summary Judgment for Insurance Carrier

Jake Huxtable recently won Summary Judgment in a breach of contract case stemming from a first-party insurance dispute where a third-party mitigation company (the plaintiff) sued Peterson Bernard’s client (the insurance carrier) pursuant to an Assignment of Benefits contract executed by the homeowner and named insured under the policy at issue. The plaintiff sought to recover approximately $10,000 directly from the insurance company for water mitigation and dry-out services rendered to the homeowner and named insured’s property relating to damages that were alleged to have been a result of Hurricane Irma on September 10, 2017.  The plaintiff mitigation company claimed these services were “emergency and necessary” and therefore covered under the insurance policy.
 
Jake Huxtable, on behalf of the insurance company, did not dispute the amount of plaintiff’s invoice for which they were seeking to recover as damages, but instead, defended solely on the issue of liability and argued that the plaintiff’s mitigation services were not in fact “emergency and necessary” in relation to the alleged date of loss, because the first point in time the plaintiff company had actually begun its services performed at the named insured’s property was over nine (9) months after Hurricane Irma. In the course of written discovery, Jake Huxtable was able to get the plaintiff to admit that its services did not begin until over nine (9) months after Hurricane Irma by using the plaintiff company’s own business records and service documents generated from the mitigation work plaintiff performed at the property, which showed that plaintiff’s services commenced on June 15, 2018 and were completed on June 20, 2018. The plaintiff did not, and could not, dispute the accuracy and genuineness of its own documents, and therefore, was forced to admit that these dates of service were correct. There were no depositions were taken.
 
In applying the plain and ordinary meaning to the terms “emergency and necessary” as used in the policy and defined by Black’s Law Dictionary, the Miami-Dade County Court agreed that the plaintiff’s mitigation services could not have conceivably been “emergency and necessary” in relation to the alleged date of loss (Hurricane Irma), because the plaintiff admitted that they were not even rendered until over nine (9) months after the property damage allegedly occurred.  
 
Therefore, the court ruled there was no coverage for plaintiff’s “delayed services” under the insurance policy at issue and granted Final Summary Judgment in favor of the insurance company. Jake Huxtable is now seeking to recover the insurance company’s attorney’s fees and costs incurred in defending the lawsuit and for which it is entitled to recover as the prevailing party.
 

Jake D. Huxtable

West Palm Beach, Florida
Phone:561.686.5005 extension 1315
jake.huxtable@petersonbernard.com