A short and straight forward appellate decision is worth reading about the actual cash value in Florida.1 The subsequent language “as determined by us” in the policy definition was the insurance company’s rescission:
Tower Hill’s liability under the policy was to pay the “actual cash value” of the loss. Typically, “real cash value” is defined as “replacement cost less depreciation.” Trinidad v. Fla. Peninsula Ins. Co., 121 So. 3d 433, 443 (Fla. 2013). At the close of SFR’s case, Tower Hill moved for directed verdict, pointing out that the repair cost presented by SFR was insufficient evidence of “actual cash value”
; because it did not account for depreciation.Under different circumstances, Tower Hill’s point may be well taken. In this case, however, Tower Hill’s policy defines “actual cash value” as:
‘[t]he cost of repairing or replacing covered property, at the time of loss or damage, regardless of whether that property has suffered partial or total damage, with materials of similar kind and quality, less deterioration, diminution in value and obsolescence as determined by ‘us’…’
The language of the particular policy at issue in this case placed the burden of establishing the impairment on Tower Hill. Under this policy, SFR did not have the initial burden of proving the amount of depreciation.
A concurring opinion went even further:
Although I agree with the result reached, I write to state that there is a separate reason why the district court should not have entered a directed verdict. When an insured is entitled to “actual cash value” of a loss under the terms of a policy, Florida courts have held that the “broad evidence rule” applies. Looks Worcester Mut. Fire Ins. Co. v. Eisenberg, 147 So. 2d 575, 576 (Fla. 3d DCA 1962) (“Florida will follow the so-called “Broad Evidence Rule.” Under this rule, any evidence that logically tends to establish a correct estimate of the value of the property damaged or destroyed may be considered by the trier of fact to determine “actual cash value” at the time of the loss.’).
SFR admitted into evidence an appraisal prepared by Mills Mehr & Associates, Inc. for Tower Hill. That estimate formed the basis of Tower Hill’s “fair cash value” determination, and it included a 21% allowance for depreciation. Under the broad evidence rule, I see no reason why that percentage could not be used in conjunction with SFR’s estimate. Tower Hill argues that the 21% depreciation deduction calculation cannot be used because SFR’s estimate was for the replacement of a larger number of tiles. However, there is no indication that the tiles included in the Mills Mehr estimate were of a different age or had additional wear than any other tile on the roof. In any event, Tower Hill’s argument would bear on the weight of such evidence, not its admissibility.
Tower Hill strives for accuracy where Florida law does not require it. Looks McCall v. Sherbill, 68 Thus. 2d 362, 364 (Fla. 1953) (‘[D]images are not made unsafe because they cannot be calculated with absolute precision. It is sufficient that there is a reasonable basis of calculation even if the result may only be approximate.’); W. Boca Med. Ctr., Inc. v. Marzigliano, 965 So. 2d 240, 244 (Fla. 3d DCA 2007) (‘The reasonable safety rule for calculating damages does not require mathematical precision[.]’).
This consensus is important. Damages are seldom exact when determining what is owed after real estate loss. Contractors charge different amounts for the same scope of work. The quality and guarantees of performance by the contractors also vary. The methodology for repair may even be current. The theoretical damages of loss are usually a range of “reasonable” for acceptance in adjustment. However, juries and judges can only provide a number at the time of sentencing.
For those who want to study the Florida law regarding the actual cash value, I suggest you read, Do you have a Florida property insurance appraisal dispute? Understand the differences between replacement cost value, fair cash value and how the broad evidence rule works.
The above picture shows Merlin Law solicitor Dennis Bailey next to me at his Indian themed wedding last night. Dennis grew up in a family of trial lawyers. His father was a trial lawyer. His brother Tim is still a judge, as Dennis Bailey was before he joined our firm as our general counsel and a member of the litigation team.
Today’s thought
Fast is good, but accuracy is everything.
— Wyatt Earp
1 SFR Services v. Tower Hill Prime Ins. Co., no. 6D23-118 (Fla. 6Th DCA 26 May 2023).
Source link
