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“Irreparable harm”? Not so fast

“Irreparable harm”? Not so fast

April 25
07:44 2017

“Irreparable harm”? Not so fast

Rebecca Fernandez–Andrew owned a house that was insured under a homeowners policy issued by Florida Peninsula Insurance Company (FPIC). Her house was damaged as a result of a plumbing leak that occurred on July 20, 2014, while the policy was in force. Fernandez-Andrew reported the loss to FPIC on July 30, 2014, and FPIC informed her that her covered damages would be repaired.

The policy’s option to repair provision stated:

9. Our Option

At our option, in lieu of issuing any loss payment, if we choose to exercise our option:

a. For losses settled on an actual cash value basis, we may repair or replace any part of the damaged property with material or property of like kind and quality;

b. For losses covered under Coverage A—Dwelling, insured for Replacement Cost Loss Settlement as outlined in Section 1—Conditions, Loss Settlement, we may repair the damaged property with material of like kind and quality without deduction for depreciation.


f. You must execute all work authorizations to allow contractors and related parties entry to the property.

g. You must otherwise cooperate with repairs to the property.


i. Our right to repair or replace, and our decision to do so, is a material part of this contract and under no circumstances relieves you or us of our mutual duties and obligations under this contract.

In early October 2014, FPIC sent two contractors, one of which was Florida Executive Builders (FEB), to the property. Each provided an estimate of repairs. On November 25, 2014, Fernandez-Andrew’s public adjuster, Robert Inguanzo, sent FPIC a letter stating a “damage estimate comparison depicting an overall difference of $13,852.23 due to scope differences.” Fernandez-Andrew subsequently signed the work authorization for FEB, adding the handwritten words, “All rights reserved; Executed under protest.” Fernandez-Andrew continued to insist that FPIC provide an updated estimate and scope of work that matched Inguanzo’s estimate; and that prior to beginning work, FPIC assure her that the work performed by FEB would comply with the scope detailed in Inguanzo’s estimate.

In July 2015, Fernandez-Andrew filed for declaratory relief, seeking a determination of, among other things, the scope of repairs to be performed and whether the option to repair provision was properly invoked under the terms of the policy. In response, FPIC filed a motion to abate action and/or compel Plaintiff to comply with FPIC’s right to exercise option to repair damaged property. Fernandez-Andrew then filed a motion for summary judgment and response to FPIC’s motion to abate and/or compel. She argued that FPIC’s estimate was insufficient and failed to address all needed repairs given the scope of damage and that Inguanzo’s estimate accurately reflected the full scope, cost, and extent of damages. The court granted FPIC’s motion to abate action and/or compel Fernandez-Andrew to comply with FPIC’s option to repair provision. Fernandez-Andrew petitioned the appellate court for a writ of certiorari seeking to quash the trial court’s order abating her declaratory judgment action against FPIC and enforcing the policy’s option to repair provision.

The appellate court sought to determine whether Fernandez-Andrew had established that the trial court’s order granting FPIC’s motion to abate and to compel her to comply with FPIC’s option to repair constituted (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case, (3) that could not be corrected on post-judgment appeal, such that certiorari relief was warranted.

In support of her contention that she had demonstrated irreparable harm, Fernandez-Andrew asserted that the work authorization was a full release of liability in favor of FPIC, and that it “inoculated” FPIC from any attempt by her to lift the abatement and reopen proceedings against it. Counsel for FPIC represented that after the repairs were made, Fernandez-Andrew might properly seek to lift the abatement to dispute the scope of repairs or allege the failure of FPIC to return the property to its pre-loss condition.

Because FPIC agreed that Fernandez-Andrew was not precluded from maintaining her suit after FEB completed its repairs to the property, the appellate court held that the trial court’s order did not result in irreparable harm and that relief via certiorari was not available. Accordingly, the court dismissed the petition for certiorari for lack of jurisdiction.

Fernandez-Andrew vs. Florida Peninsula Insurance Company-District Court of Appeal of Florida, Third District-January 25, 2017- No. 3D16–331.

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