Florida/Georgia Personal Injury & Workers Compensation

...Florida Peninsula Insurance Co., 99 So.3d 502, 504 (Fla. 3d DCA 2011), the Third District Court of Appeal concluded that Florida Peninsula Insurance Company was not required by either its replacement cost homeowner’s insurance policy or the applicable provisions of section 627.7011, Florida Statutes (2008), to pay Amado Trinidad, its insured, costs for a general contractor’s overhead and profit because Trinidad did not repair or contract to repair the damage to his home....

...be required to pay costs for a general contractor’s overhead and profit for the completion of repairs in the same way the insured would have to pay other replacement costs he or she is reasonably likely to incur in repairing the property. Because section 627.7011, Florida Statutes (2008), and the replacement cost policy in this case, did not require the insured to actually repair the property as a condition precedent to the insurer’s obligation to make payment, the insurer was not authorize...

...the policy, Florida Peninsula was required to pay only costs actually spent or costs Trinidad became contractually obligated to spend to repair the damage to his home. Id. at 504 . In addition, the Third District rejected Trinidad’s assertion that section 627.7011(3), Florida Statutes (2008), which required the insurer to pay “replacement costs without reservation or holdback of any depreciation in value, whether or not the insured replaces or repairs the dwelling,” altered its analysis. Trinidad, 99 So.3d at 505 (quoting § 627.7011(3), Fla....

...se Trinidad had not actually incurred those costs. Trinidad, 99 So.3d at 505 . Trinidad contends that the Third District’s conclusion was erroneous for two principal reasons. First, he asserts that the Third District erred in its interpretation of section 627.7011, which requires payment of replacement costs without holdback of depreciation, whether or not the insured replaces or repairs the damaged property....

...tor for the repairs. We now determine if the applicable statute or policy permitted Florida Peninsula to withhold payment of those particular replacement costs until Trinidad actually incurred them. To answer this question, we first consider whether section 627.7011 provides authority to an insurer for not requiring payment of overhead and profit because those costs were not actually incurred. II. Section 627.7011 When construing a statute, this Court attempts to give effect to the Legislature’s intent, looking first to the actual language used in the statute and its plain meaning....

...“When considering the meaning of terms used in a statute, this Court looks first to the terms’ ordinary definitions^ which] ... may be derived from dictionaries.” Metro. Cas. Ins. Co. v. Tepper, 2 So.3d 209, 214 (Fla.2009). The 2008 version of section 627.7011, the applicable statutory provision for the period of time during which Trinidad incurred his loss, provided in relevant part as follows: (3) In the event of a loss for which a dwelling or personal property is insured on the basis of...

...bility shown on the policy declarations page; (b) The reasonable and necessary cost to repair the damaged, destroyed, or stolen covered property; or (c) The reasonable and necessary cost to replace the damaged, destroyed, or stolen covered property. § 627.7011, Fla. Stat. (2008) (emphasis added). 3 *440 Both Trinidad and Florida Peninsula assert that the plain language of section 627.7011, as it existed in 2008 at the time of Trinidad’s covered loss, is clear, but they disagree about the effect of the statute on the issue in this case. Trinidad argues that, because section 627.7011(3) states that replacement costs must be paid regardless of whether the insured actually replaces or repairs the damaged property, insurers are not permitted to hold back any portion of the replacement cost payment contingent on the insured actually incurring a particular cost....

...The statute does not require payment of profit and overhead which have not been incurred nor are likely to be incurred.”). We conclude that the Third District’s statutory construction analysis was flawed. For property “insured on the basis of replacement costs,” section 627.7011(3) has two primary objectives....

...First, the statute requires insurers to pay the replacement cost of a covered loss irrespective of whether the insured actually repairs or replaces the damaged property. Second, the statute requires that depreciation not be withheld pending the actual repair. In other words, pursuant to section 627.7011(3), it is immaterial in a replacement cost policy whether the damaged structure is replaced or repaired; that factor simply does not affect the statutory mandate as it would if payments were being made on an actual cash value basis....

...roperty if the insured decides to do so. Because we have concluded that overhead and profit are replacement costs where the insured is reasonably likely to need a general contractor for the repairs, it is clear that, as with other replacement costs, section 627.7011(3) does not permit an insurer to withhold overhead and profit pending actual repair. Requiring the insurer to pay overhead and profit regardless of whether the insured actually repairs the property is also consistent with section 627.7011(6), which provides that the insurer may limit its liability to the “reasonable and necessary cost” to repair or replace the damaged property....

...isions and construe related statutory provisions in harmony with one another.” Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 199 (Fla.2007) (quoting Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So.2d 891, 898 (Fla.2002)). Although section 627.7011(3) provides that an insurer must pay replacement costs, section 627.7011(6) provides that the insurer can limit its liability to those costs “reasonable and necessary” to the replacement or repair....

...Therefore, *441 reading these two sections together provides that costs “reasonable and necessary” to the repair are included in the replacement costs the insurer is statutorily required to pay, regardless of whether the property is repaired. Accordingly, if the insured is unlikely to incur overhead and profit, section 627.7011(6) would allow the insurer to withhold payment of those costs consistent with section 627.7011(3) because they are not “reasonable and necessary” to the repair. See § 627.7011(6), Fla....

...This logically follows because, if the insured is not reasonably likely to incur overhead and profit in repairing the damaged property, then overhead and profit are not replacement costs of the insured’s covered loss. On the other hand, if overhead and profit are going to be “reasonable and necessary” to the repair, section 627.7011(3) would mandate their payment as replacement costs....

...Simply put, overhead and profit are no different than any other costs of a repair that the insured is reasonably likely to incur, all of which are considered replacement costs and are not actually incurred until the repair is made — a requirement not imposed by section 627.7011. Such an interpretation of replacement cost insurance — that is, excluding all costs until they are actually incurred — would in actuality render the coverage meaningless. We therefore hold that the Third District erred in concluding that section 627.7011 does not require the insurer to include overhead and profit in a payment based on replacement costs simply because overhead and profit have not been incurred....

...s, was the applicable provision, Florida Peninsula would not have been required to pay Trinidad anything because Trinidad did not actually spend anything on repairs. An interpretation of the policy that permitted such an outcome would be contrary to section 627.7011, which requires payment of replacement costs regardless of whether the insured replaces or repairs the property, and would therefore be unenforceable....

...CONCLUSION For the reasons set forth above, we hold that replacement cost insurance includes overhead and profit where the insured is reasonably likely to need a general contractor for repairs. We therefore conclude that the Third District erred in determining both that the 2008 version of section 627.7011 and the insurance policy itself permitted Florida Peninsula to withhold payment of overhead and profit because Trinidad had not actually incurred those costs....

...nably likely to need a general contractor for the repairs that encompass his covered loss. It is so ordered. LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur. POLSTON, C.J., dissents with an opinion, in which CANADY, J., concurs. . The 2008 version of section 627.7011 is the applicable version in this case because that is the version of the statute that was in effect when Trinidad incurred his loss. Section 627.7011, however, has since been amended, most recently in 2011....

...United Policyholders, a nonprofit organization that provides information and advocates for insurance consumers, filed an amicus curiae brief in support of Trinidad. . Although the 2008 version of the statute is the relevant version governing our analysis in this case, section 627.7011 has since been amended to provide that the insurer must pay "at least the actual cash value of the insured loss, less any applicable deductible,” except in *440 the case of a "total loss of a dwelling,” in which case "the insurer...

...covering only 25% of their home’s value. Nonetheless, their position is that had they actually suffered a loss, they would have been entitled to 50% of their home’s value, not 25%. The Allens appeal the district court’s dismissal of their complaint, arguing Florida Statutes § 627.7011(2) entitles them to a refund of the difference in premiums USAA would have charged for 25% rather than 50% BOL coverage. We agree with the district court that the plain language of § 627.7011(2) does not require an insurer to obtain a policyholder’s written consent on a form approved by the Florida Office of Insurance Regulation (Regulation Office) before issuing BOL coverage greater than 25%....

...The policies effective from 2006 to 2013 contain a page titled “Building Ordinance or Law Coverage – Florida,” which specifies each policy includes 50% BOL coverage. Neither this nor any other page is an approved Regulation Office form pursuant to Florida Statutes § 627.7011(2). Section 627.7011(2) mandates that “[t]he rejection or selection of alternative coverage shall be made on a form approved by the [Regulation] [O]ffice.” According to Florida Administrative Code Rule 69O-167.011, insurers can comply with § 627.7011(2)’s form requirement in two ways....

...23 on an approved Regulation Office form. Instead, they contracted to purchase 50% BOL coverage on USAA’s non-approved form. The Allens filed a proposed class action complaint in the Northern District of Florida alleging USAA violated § 627.7011(2) by providing 50% BOL coverage without the Allens’ written consent on a form approved by the Regulation Office. The time period encompassed by the complaint includes USAA policies issued since April 1, 2008....

...dismiss the complaint for failure to state a claim. The district court stayed discovery and class certification pending adjudication of the motion to dismiss. 2 After a hearing, the district court entered an order dismissing the complaint. The district court held § 627.7011(2) does not require an insurance provider to obtain 2 While the motion to dismiss was pending, Matthew J....

...1993). III. DISCUSSION The Allens signed USAA’s contract for 50% BOL coverage. They did not, however, give written consent to this coverage on an approved Regulation Office form. The question before us is whether USAA violated Florida Statutes § 627.7011(2) by providing 50% BOL coverage without the Allens’ written consent on a form approved by the Regulation Office. To answer this question, we begin by interpreting § 627.7011(2). We then examine whether, even assuming USAA violated § 627.7011(2), the Allens’ complaint should be dismissed pursuant to Florida Statutes § 627.418(1). A. Florida Statutes § 627.7011(2) Both parties agree an insurer must obtain a policyholder’s written consent on a form approved by the Regulation Office before issuing less than 25% BOL coverage. The Allens argue the district court erred in concluding Florida Statutes § 627.7011(2) does not require a policyholder’s written consent on an approved Regulation Office form before issuing BOL coverage greater than 25%. According to the Allens, when the Florida Legislature enacted § 627.7011(2), it sought to ensure homeowners were sufficiently, but not excessively, insured. 7  Case: 14-13478 Date Filed: 06/25/2015 Page: 8 of 23 To accomplish this objective, the Allens assert, § 627.7011(2) sets 25% as the default BOL coverage, then requires the policyholder’s written consent on an approved form to depart upward or downward from this 25% level....

...from paying for unnecessary insurance. If a home were built within the past two years, for example, BOL coverage would be virtually useless because the home is likely in compliance with the most recent building codes. In response, USAA argues § 627.7011(2) does not require an insurer to obtain a policyholder’s written consent on a form approved by the Regulation Office before issuing BOL coverage greater than 25%. According to USAA, § 627.7011(2) is a gap-filling rule that applies only when the insured has refused BOL coverage altogether and imposes no restrictions on how a homeowner acquires extra BOL insurance. 1. Statutory text We analyze Florida Statutes § 627.7011(2) in accordance with Florida law because a federal district court sitting in diversity applies the substantive law of the state in which it sits....

...of 23 Kortum, 95 So. 3d 85, 90 (Fla. 2012). “[W]ords or phrases in a statute must be construed in accordance with their common and ordinary meaning.” Donato v. Am. Tel. & Tel. Co., 767 So. 2d 1146, 1154 (Fla. 2000). Subsection (2) of § 627.7011 states, in relevant part: Unless the insurer obtains the policyholder’s written refusal of the policies or endorsements specified in subsection (1), any policy covering the dwelling is deemed to include the law and ordinance coverage limited to 25 percent of the dwelling limit....

...Rather than lay out subsection (1) in full, we describe its provisions in abridged form due to its protracted length.3 Pursuant to subsection (1), the insurer must offer each homeowner two “policies or endorsements” and the following three coverage options. Fla. Stat. § 627.7011(1)....

...First, under subsection (1)(a), the insurer must offer a “policy or endorsement” to adjust claims on the basis of “replacement cost[],” which does not deduct depreciation from the value of the claim, as opposed to “actual cash value,” which does deduct depreciation value from the claim. 4 Id. § 627.7011(1)(a). This option excludes BOL coverage. Id. Second, under subsection (1)(b), the insurer 3 The text of § 627.7011 relevant to this appeal is attached as an appendix. 4 “In other words, replacement cost policies provide greater coverage than actual cash value policies because depreciation is not excluded from replacement cost coverage, whereas it generally is excluded from actual cash value.” Trinidad v....

...2013). 9  Case: 14-13478 Date Filed: 06/25/2015 Page: 10 of 23 must offer a “policy or endorsement” to adjust claims on the basis of replacement cost including 25% BOL coverage. Id. § 627.7011(1)(b)....

...There are accordingly two “policies or endorsements” and three coverage options. Turning to subsection (2), a policy is deemed to include 25% BOL coverage “[u]nless the insurer obtains the policyholder’s written refusal of the policies or endorsements specified in subsection (1).” Id. § 627.7011(2)....

...roved by the Regulation Office. The Allens’ entire argument hinges on a single sentence in subsection (2): “The rejection or selection of alternative coverage shall be made on a form approved by the [Regulation] [O]ffice.” Fla. Stat. § 627.7011(2)....

...2002) (“[T]he Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.”). The Allens’ argument is severely undermined, however, when this single sentence in subsection (2) is considered within the entire context of § 627.7011. “Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So....

...Analysis of the whole statute establishes the approved form requirement applies only when a policyholder seeks to choose less than 25% BOL coverage. Although subsection (2) requires the written rejection or selection of alternative coverage on an approved form, Fla. Stat. § 627.7011(2), subsection (1) contains no such requirement and simply provides a BOL policy “may be limited to 25 percent or 50 percent of the dwelling limit, as selected by the policyholder,” id. § 627.7011(1)....

...4th DCA 2003). Furthermore, contrary to the Allens’ argument, the inclusion of the word “selection” in subsection (2) is not superfluous merely because a policyholder’s selection of BOL coverage over 25% is not subject to the approved form requirement, Fla. Stat. § 627.7011(2)....

...Where another, plausible reading of the statute that does not render any language surplusage is available, a court “does not assume such clumsy draftsmanship.” Dewsnup v. Timm, 502 U.S. 410, 425, 112 S. Ct. 773, 782 (1992). The statutory purpose of § 627.7011 is consistent with the interpretation that subsection (2)’s approved form requirement does not apply to BOL coverage 14  Case: 14-13478 Date Filed: 06/25/2015 Page: 15 of 23 exceeding 25%. Under Florida law, “to the extent that there is any ambiguity as to the intent of [a statutory provision], we are guided by the stated statutory purpose.” Woodham, 829 So. 2d at 897. The statutory purpose of § 627.7011(2) is evident in subsection (4)....

...The Legislature intended to “encourage policyholders to purchase sufficient coverage to protect them in case events excluded from the standard homeowners policy, such as law and ordinance enforcement . . . , combine with covered events to produce damage or loss to the insured property.” Fla. Stat. § 627.7011(4)....

...Read in conjunction with the prior sentence’s discussion of “sufficient coverage,” id., this language signals the Legislature’s intent to have insurance agents warn policyholders about the dangers of underinsuring one’s home. The overriding concern of § 627.7011 is to decrease the prevalence of underinsurance, not excessive insurance....

...of a statute is irrelevant.” First Healthcare Corp. v. Hamilton, 740 So. 2d 1189, 1196 (Fla. 4th DCA 1999), disapproved on other grounds by Fla. Convalescent Ctrs. v. Somberg, 840 So. 2d 998 (Fla. 2003). We nonetheless note the legislative history of § 627.7011 is consistent with our plain reading of the Legislature’s intended meaning. The Legislature originally enacted § 627.7011 in 1993. Act of Nov. 10, 1993, ch. 93-410, § 17, 1994 Fla. Laws 37–38 (codified at Fla. Stat. § 627.7011). The Legislature passed the statute in response to the widespread property insurance availability crisis caused by Hurricane Andrew....

...several feet, a renovation that typically cost $10,000 to $30,000. Id. The Legislature created the Study Commission on Property Insurance and Reinsurance, which met during the summer of 1993 and recommended the contract reforms codified in § 627.7011....

...The Commission recommended the Legislature “mandat[e] offer of replacement cost coverage up to policy limits” and “mandat[e] offer of law and ordinance coverage with limits of 25 percent of dwelling limits.” Id. The Legislature did precisely that by enacting § 627.7011. Nothing in the legislative history suggests the Legislature passed § 627.7011(2) to protect homeowners from having too much insurance....

...The Legislature instead sought to ward off the financial calamity many Floridians experienced when Hurricane Andrew destroyed their homes and they lacked the funds to rebuild in accordance with federal law and modern building codes. Both the plain language of § 627.7011(2) and its legislative history demonstrate a homeowner need not give written consent on an approved Regulation Office form to acquire BOL coverage above 25%. Since USAA did not violate § 627.7011(2), the district court did not err in dismissing the complaint. The Allens failed to allege a violation of § 627.7011(2), and USAA therefore did 17  Case: 14-13478 Date Filed: 06/25/2015 Page: 18 of 23 not breach the contract because the Allens paid for and received the 50% BOL coverage in the policy. B. Florida Statutes § 627.418(1) Alternatively, even if USAA had violated § 627.7011(2), the district court did not err in dismissing the complaint....

...We affirm the district court’s dismissal of the complaint. AFFIRMED. 21  Case: 14-13478 Date Filed: 06/25/2015 Page: 22 of 23 APPENDIX 627.7011....

...NOTES [1] The law and ordinance coverage under the policy provides reimbursement for up to 25% of dwelling policy limits for increased repairs and replacement costs incurred by the insured to comply with requirements of the applicable laws and ordinances regulating construction or repair of property. See, e.g., § 627.7011(1)(b), Fla....

...the replacement or repair costs to the lesser of the policy limits, the replacement costs for like construction and use, or the necessary amounts actually spent to repair or replace. On appeal, Slayton argues that the provisions cited above violated section 627.7011, Florida Statutes (2009). 1 Specifically, section 627.7011(3) states: (3) In the event of a loss for which a dwelling or personal property is insured on the basis of replacement costs, the insurer shall pay the replacement cost without reservation or holdback of any depreciation in value, whether or not the insured repairs the dwelling or property....

...Our decision does not preclude Slayton from submitting supplemental claims to Universal. It does preclude Slayton from recovering for attorney’s fees incurred in pursuing the action below or for this appeal. AFFIRMED. GRIFFIN and BERGER, JJ., concur. . Section 627.7011 was substantially altered by the legislature in 2011....

...Consequently, an initial payment based on the amount of the insurer’s estimate (less deductible) coupled with an allowance for supplemental claims is certainly consistent with the terms of the loss settlement provision, as the Fifth District held in Slayton. Id. However, the analysis does not end there. Section 627.7011(3)(a), Florida Statutes (2017), sets a minimum amount for initial payments made pursuant to a replacement cost homeowners’ policy: (3) In the event of a loss for which a dwelling or personal property is...

...performed 2 The statute was amended in 2011. The prior version required payment of “replacement cost without reservation or holdback of any depreciation in value, whether or not the insured replaces or repairs the dwelling or property.” § 627.7011(3), Fla....

...e, subject to the policy limits. (emphasis added). Were it not for this endorsement,3 the loss settlement provision cited above in Slayton and in the Seigels’ policy, standing alone, would violate the initial payment requirement in section 627.7011 because the current version requires the insurer to pay “at least the actual cash value” as opposed to the lower of either the limit of liability, the replacement cost or the amount actually spent to repair or replace the dama...

...Tower Hill contends that Slayton allows an insurer to fully comply with the initial payment requirement by simply paying the amount of its own estimate. This is plainly not so since Slayton explicitly declined to address the payment requirement in section 627.7011. Although Ms. Slayton argued on appeal that the loss settlement provision above violated section 627.7011, Florida Statutes (2009),4 the Fifth District declined to address the argument because it was not preserved below....

...In short, Tower Hill 3 No comparable policy endorsement is mentioned in Slayton. 4Under the statute in effect in 2009, the required payment was more demanding. See supra note 2. 9 cannot rely on Slayton because Slayton is silent as to the initial payment requirement found in section 627.7011 and in the endorsement to the Siegels’ policy. Tower Hill also argues on appeal that it complied with the initial payment requirement of the policy and section 627.7011 because it paid more than required: the replacement cost value instead of the lower actual cash value....

...“[A] party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought....” Itiat, 28 So.3d at 141 (citation omitted). Section 627.7011(8), Florida Statutes (2008), provides that “[i]n the event of a loss for which a dwelling or personal property is insured on the basis of replacement costs, the insurer shall pay the replacement cost without reservation or holdback...

...at the insurer was not authorized to withhold replacement cost payment until the insured actually incurred the costs. Trinidad v. Fla. Peninsula Ins. Co., 121 So.3d 433 , 2013 WL 3333823, at *1 (Fla. July 3, 2013). The court examined the language of section 627.7011, Florida Statutes (2008), considered the legislative intent, and concluded that “it is immaterial in a replacement cost policy whether the damaged structure is replaced or repaired.” Id....

...ed loss....” Id. at *6. The court also ruled that the parties’ insurance policy did not authorize the insurer to withhold payment until the insured actually incurred the expenses, and that a contrary interpretation of the policy would contravene section 627.7011....

...See id. In fact, both the governing statute as well as the parties’ insurance policy expressly provide that an insurer may limit its liability to the “reasonable and necessary cost to repair the damaged, destroyed, or stolen covered property.” See § 627.7011(6)(b), Fla....

...n overhead and profit “are going to be ‘reasonable and necessary’ to the repair.” 121 So.3d at 441 . However, if overhead and profit are not “reasonable and necessary” to the repair, then the insurer may withhold payment. See id. (citing § 627.7011(6), Fla....

...Tower Hill Signature Insurance Co., No. 3D16-2089, 2017 Fla. App. LEXIS 13322, at *3 (Fla. 3d DCA Sept. 20, 2017). In doing so, we note the trial court did not have the benefit of these decisions when it entered the final judgment at issue. Based on the 2011 amendments to section 627.7011(3), Florida Statutes, if the homeowner files a claim under a replacement value policy, the insurance company is required to initially pay the actual cash value and is required to pay additional amounts up to replacement value only as work is performed and repair expenses incurred....

...statute by paying its estimate of actual cash value. In opposition, the homeowners filed the affidavit and estimate of their public adjustor. The trial court agreed with the insurance company and entered final judgment against the homeowners. This was error. Section 627.7011(3) requires payment of actual cash value – not merely the insurance company’s estimate of actual cash value....

...“costs necessary to meet applicable laws and ordinances regulating the construction, use, or repair of any property or requiring the tearing down of any 4 property, including the costs of removing debris.” § 627.7011(1)(b), Fla....

...asserted claims for breach of contract and declaratory relief. The Ganzemullers contended in the trial court, as they do here, that Omega improperly required them to pay a deductible when Omega invoked its right to repair the property. They argue that subsection 627.7011(5)(e), Florida Statutes (2015), which references subsection 627.702(7), prohibits an insurer from requiring that the insured pay a deductible when the insurer invokes its right to repair property damage, regardless of whether the damage is a partial or total loss....

...Ganzemullers did not have a viable claim. The trial court agreed and dismissed the action with prejudice, determining that neither the policy nor Florida law supported the Ganzemullers' cause of action. The issue on appeal is whether subsections 627.7011(5)(e) and 627.702(7) relieve the Ganzemullers and potential class members from the obligation to pay deductibles when Omega invokes its option to repair partial losses. This court conducts a de novo review of an order granting a motion to dismiss....

...effect on the date on which the loss occurred, equal to that portion of the premium paid for limits of insurance on the structure in excess of the cost of replacement. § 627.702(7). Section 627.7011 is titled "Homeowners' policies; offer of replacement cost coverage and law and ordinance coverage." Among other things, the statute specifies those policies or endorsements that an insurer must offer prior to issuing a homeowner's insurance policy. Subsection (5)(e) provides that the statute does not "[p]rohibit an insurer from exercising its right to repair damaged property in compliance with its policy and s. 627.702(7)." § 627.7011(5)(e). Even though subsection 627.702(7) is contained within the statute that addresses total losses, the Ganzemullers argue that the reference to it in subsection 627.7011(5)(e) makes subsection 627.702(7) equally applicable to partial losses....

...from requiring the insured to make any contribution when the insurer elects to make repairs in total loss situations. The parties do not dispute that deductibles are covered by the "without contribution" language. As discussed previously, section 627.7011 specifies those things that an insurer must offer prior to issuing a homeowner's policy. Subsection (5)(e) makes clear that section 627.7011 does not "[p]rohibit an insurer from exercising its right to repair damaged property in compliance with its policy and s. 627.702(7)." § 627.7011(5)(e). Nothing in this language suggests a statutory intent to eliminate policy deductibles for partial losses as well as total losses where the insurer elects to make repairs....

...contending that he was not required to submit a supplemental claim because Universal breached the policy by (1) failing to issue payment for at least the actual cash value of the insured loss, less any deductible, as required by both the policy and section 627.7011(3), Florida Statutes, and (2) failing to issue payment for the loss to his personal property. At the hearing on the motion for summary judgment, the trial judge focused on whether there was any record evidence of a breakdown in t...

...3d DCA 2006) (holding that where the insurer first breached the policy by denying coverage which actually existed, the insured was no longer bound by the policy provision prohibiting settlement). The policy in this case contains a provision tracking section 627.7011(3), Florida Statutes (2017)....

...less any applicable deductible.” In applying this statute, we agree with the approach taken by the Third District, which that court summarized in Vazquez v. Southern Fidelity Property & Casualty, Inc., 230 So. 3d 1242, 1243 (Fla. 3d DCA 2017): Section 627.7011(3) requires payment of actual cash value—not merely the insurance company’s estimate of actual cash value....

...at least the actual cash value of the insured loss, less any applicable deductible” and then “any remaining amounts necessary to perform [covered] repairs as work [wa]s performed and expenses incurred.” This loss settlement provision mirrors the language of section 627.7011(3)(a), Florida Statutes (2018), providing that “[i]n the event of a loss for which a dwelling ....

...We agree and reverse and remand for a new trial. Generally speaking, “[c]overed losses can be adjusted on the basis of either replacement cost value or actual cash value.” Siegel v. Tower Hill Signature Ins. Co., 225 So. 3d 974, 975 n.1 (Fla. 3d DCA 2017). However, section 627.7011(3)(a), which is incorporated into the subject insurance policy, provides: “For a dwelling, the insurer must initially pay at least the actual cash value of the insured loss, less any applicable deductible....

...Upon Tower Hill’s commendable confession of error, and because genuine issues of material fact exist as to the amount of the actual cash value of the insured loss at hand, we reverse the final summary judgment and remand the case to the trial court for further proceedings. See § 627.7011(3)(a), Fla....

...Upon Tower Hill’s commendable confession of error, and because genuine issues of material fact exist as to the amount of the actual cash value of the insured loss at hand, we reverse the final summary judgment and remand the case to the trial court for further proceedings. See § 627.7011(3)(a), Fla....

...Upon Tower Hill’s commendable confession of error, and because genuine issues of material fact exist as to the amount of the actual cash value of the insured loss at hand, we reverse the final summary judgment and remand the case to the trial court for further proceedings. See § 627.7011(3)(a), Fla....

...The homeowners claimed that the “Loss Settlement” provisions in their policies were ambiguous because they were silent on the insurer’s obligation to include GC Overhead in the pre-repair payment when that cost was reasonably likely to be incurred. They argued that sections 627.7011(3) and 627.7011(6), Florida Statutes (2008), require those amounts to be included, and the insurer violated the statute by refusing to make such payments until the expense was actually incurred....

...y the insured would have to pay other replacement costs he or she is reasonably likely to incur in repairing the property. Id. at 436 . Yet, the insurer argues that Trinidad II does not apply because the supreme court interpreted the 2008 version of section 627.7011, and the 2005 version is at issue in this cáse. The insurer also argues that the homeowners failed to plead and prove a reasonable likelihood that GC Overhead would be incurred. Although the 2008 version of section 627.7011 contains subsection (6), which the 2005 version did not, we find no meaningful distinction between the two versions that would dictate a different outcome....

...ent costs or the costs Trinidad actually incurs or which he demonstrates he is *504 likely to incur. Although overhead and profit costs must be included when payment is conditioned on an “actual cash value” basis, the Florida Legislature amended section 627.7011, Florida Statutes, to require all homeowners’ policies be adjusted on the basis of replacement costs, as opposed to actual cash value....

...Lorenzo, 969 So.2d 393, 395-96 (Fla. 5th DCA 2007) (holding that based on the policy language, which *505 provided for payment on a replacement cost basis, the insurer properly withheld a portion of the loss value until such cost was actually incurred). Our reading of section 627.7011(3), relating to depreciation holdbacks in replacement cost policies, also does not alter our conclusion in this case. Payment for profit and overhead is not mentioned in section 627.7011, which requires payment of “replacement costs without reservation or holdback of any depreciation in value, whether or not the insured replaces or repairs the dwelling.” § 627.7011(3)....

that: (i) under the “terms of the policy” and section 627.7011(3)(a) of the Florida Statutes, People’s Trust

...took place. Thus, the Clarks failed to show that Homeowners Choice breached sub- subsection 5.b.(4)(a) because Homeowners Choice was under no obligation to pay ACV when it was not shown that “actual repair or replacement” was “complete.” See § 627.7011(3)(a), Fla....

...You may then make claim for any additional liability according to the provisions of this Condition 5. Loss Settlement, provided you notify us of your intent to do so within 180 days after the date of loss. That provision mirrors the language of section 627.7011(3)(a), which states the following: (3) In the event of a loss for which a dwelling or personal property is insured on the basis of replacement costs: (a) For a dwelling, the insurer must initially pay at least the actual cash value of the insured loss, less any applicable deductible. The insurer shall pay any remaining amounts necessary to perform such repairs as work is performed and expenses are incurred. § 627.7011(3)(a), Fla....

...Although Homeowners Choice paying its estimate is not enough to show that 18 it paid “at least the actual cash value of the insured loss[,]” see Siegel v. Tower Hill Signature Ins. Co., 225 So. 3d 974, 978–79 (Fla. 3d DCA 2017), the Clarks misconstrue the burdens at issue here. Section 627.7011(3)(a) places the initial burden on the insurer to show that it paid “at least the actual cash value of the insured loss.” But once the insurer provides an ACV estimate and pays that estimate sum, the burden shifts to the insured to demonstrate that the payment did not reflect the fully insured loss....

...(emphasis supplied)); Qureshi, 396 So. 3d at 566 (“Universal argues that the trial court reversibly erred by allowing the insureds to introduce into evidence at trial the estimated repair costs for work that was never performed even though both the policy's terms and section 627.7011(3)(a) require payment by the insurer only ‘as work is performed and expenses are incurred.’ We agree.” (emphasis supplied)); id....

...JJ. PER CURIAM.  Affirmed. Vazquez v. Citizens Prop. Ins. Corp., 304 So. 3d 1280, 1285 (Fla. 3d DCA 2020) (holding that the cost of matching continuous flooring is not “included as part of the actual cash value calculation” under section 627.7011, Florida Statutes, and the plain language of the insurance policy); see also Bifulco v....

...le deductible. We will then pay any remaining amounts necessary to perform such repairs as work is performed and expenses are incurred," subject to other conditions. This policy term tracks the requirements for replacement-cost policies set forth in section 627.7011(3)(a), Florida Statutes (2020) ("In the event of a loss for which a dwelling ....

...the basis that the loss was not covered under the all-risks policy. 2  Following the denial, the Insureds sued the Insurer for breach of contract. They alleged that the loss was covered and, consistent with the language of the policy and section 627.7011, expressly demanded "the full replacement cost for the property." The Insurer's answer and defenses maintained that the loss was not covered....

...In support, the Insurer contended that despite the policy language providing coverage for the (higher) replacement cost, the proper measure of damages at trial was the (lower) actual cash value because the payment-splitting provision in the policy and section 627.7011 precluded any liability for replacement costs unless and until the work was performed....

...In particular, the payment- splitting provision the Insurer relies upon appears under the "Loss Settlement" section of its policy, which expressly describes how "[c]overed property losses are settled." (Emphasis added.) The corresponding statute is to the same effect. See § 627.7011(3)(a) (addressing permissible timing of payments for "the insured loss" (emphasis added)). Further, by discussing payments at all, these parts of the policy and statute necessarily contemplate at least some coverage....

...Yet at trial, it was permitted to take advantage of policy and statutory language permitting it to split payments on covered claims as the work unfolds. As the Insureds identified below, the Third District has explained the flaw in this reasoning. In particular, in Tio the court held that section 627.7011(3) "governs an insurer's post-loss obligations in 6 adjusting and settling claims covered by a replacement cost policy, and does not operate as a limitation on a policyholder's remedies for an insurer's breach of an insurance contract." 304 So. 3d at 1280. It accordingly rejected the Insurer's position that "when an insurer wrongfully denies coverage of a claim—causing its insured to file suit against the insurer for breaching the insurance contract—section 627.7011(3) limits the breach of contract damages a jury may award, as if the insurer had not breached the insurance contract." Id. In so holding, the Third District also expressly distinguished its own decision in Vazquez, which the Insurer relies upon....

...tiles so that they would match the replaced damaged tiles constituted actual cash value under the policy." Id. at 1280 n.2. Because "Tio initiated her lawsuit after Citizens erroneously determined Tio's losses were not covered by the policy," the court concluded "therefore, section 627.7011(3) and the corresponding policy provision are not implicated in the instant case." Id....

...Finally, we note that after the entry of judgment in this case, the Fourth District issued its opinion in Universal Property & Casualty Insurance Co. v. Qureshi, 396 So. 3d 564 (Fla. 4th DCA 2024). The majority opinion there certifies conflict with Tio and concludes that section 627.7011(3)(a) and corresponding policy language prohibit an insured from introducing at trial evidence of work that has not been performed, even where coverage has been completely denied....

.... [a]nd the burden to prove those facts is on the party bringing action under the contract." (footnotes omitted)), with Citizens Prop. Ins. v. Tio, 304 So. 3d 1278, 1280 (Fla. 3d 9 DCA 2020) (explaining that section 627.7011(3), Florida Statutes, and the corresponding policy provision "govern[] an insurer's post-loss obligations in adjusting and settling claims covered by a replacement cost policy[] and do[] not operate as a limitation on a policyholder'...

...reduction in value of any covered property prior to or following repair or replacement as compared to the value of that property immediately before the loss.” The policy’s loss settlement terms also included a provision tracking the language of section 627.7011(3)(a), Florida Statutes (2020), which provides that, in the event of a loss for which a dwelling is insured on the basis of replacement costs, “the insurer must initially pay at least the actual cash value of the insured loss, less...

...3d 433, 437 (Fla. 2013). Universal argues that the trial court reversibly erred by allowing the insureds to introduce into evidence at trial the estimated repair costs for work that was never performed even though both the policy’s terms and section 627.7011(3)(a) require payment by the insurer only “as work is performed and expenses are incurred.” We agree. Moreover, we reject the dissent’s reliance upon Tio and the Nebraska Supreme Court’s opinion in D & S Realty, Inc....

...As the Third District stated in Tio: Citizens makes the rather creative, though unavailing, argument that, when an insurer wrongfully denies coverage of 6  a claim – causing its insured to file suit against the insurer for breaching the insurance contract – section 627.7011(3) limits the breach of contract damages a jury may award, as if the insurer had not breached the insurance contract. Citizens suggests that, after breaching the policy, it may enforce the terms of the policy at its convenience. Section 627.7011(3), however, governs an insurer’s post-loss obligations in adjusting and settling claims covered by a replacement cost policy, and does not operate as a limitation on a policyholder’s remedies for an insurer’s breach of an insurance contract....

...ed by the policy. 304 So. 3d at 1280 (emphasis added). The majority argues that including the repair costs for unperformed repairs amounts to rewriting the insurance policy. However, as the Third District noted in Tio, provisions based on section 627.7011(3) govern an insurer’s obligations in adjusting and settling covered claims....

preserve the argument that the insurer violated section 627.7011, Florida Statutes, as in effect in 2009. In

...is somewhere within the contract. In this case, the declarations page lists "Forms and Endorsements." In that list is "FP CGCC (03/08)." This is the warning given to the insured. By contrast, the declarations page has two issues disclosed in bold type. Section 627.7011(4), Florida Statutes (2008), required a policy to "include" a statement in bold type concerning "law and ordinance coverage." Florida Peninsula dutifully placed that warning on the declarations page....

...The burden then shifts to the insurer to prove that the cause of the loss was excluded from coverage under the policy’s terms.”); Citizens Prop. Ins. Corp. v. Tio, 304 So. 3d 1278, 1280 (Fla. 3d DCA 2020) (As the Timing Protocol in the insurance policy has the same effect as section 627.7011(3), Florida Statutes (2022), it likewise “governs an insurer's post-loss obligations in adjusting and settling claims covered by a replacement cost policy, and does not operate as a limitation on a policyholder's remedies for an...

repair provision is invalid because it violates section 627.7011(3)(a), Florida Statutes (2017), which requires