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Incorrect estimate of "consultant" assumed by the insured is fraud



Jennifer Mezadieu (the "Homeowner") is appealing the Court's decision in a final summary judgment in favor of the SafePoint Insurance Company ("SafePoint") for breach of contract. The trial court made a final summary judgment in accordance with the "hidden or fraudulent" provisions of the policy after establishing that the repair estimate prepared by the homeowner's loss consultant contained material false statements. In Jennifer Mezadieu v. SafePoint Insurance Company No. 4D20-2, District Court of Appeal of the State of Florida's Fourth District (March 26, 2021), the court sought to exclude her from trusting the consultant and adopting the false estimate.

In the appeal, the homeowner claimed that the summary assessment was incorrect as questions of material facts remained as to:

  • the estimate contained false statements;
  • the false allegations were material; and
  • the homeowner intended to rely on false statements.

FACTS

The homeowner owns a home insured by SafePoint. On February 25, 2016, the homeowner submitted a notice of claim to SafePoint claiming that the home was hit by a water leak in the bathroom on the second floor. The notice identified Contender Claims Consultants ("Contender") as the homeowner's loss consultant.

SafePoint had the home inspected by an independent adjuster and a building researcher. According to SafePoint's building researcher, a loss consultant from Contender was present during the inspection and directed SafePoint's agents to parts of the home that were alleged to have suffered damage from the leak, including the kitchen located directly under the bathroom on the second floor. After completing its investigation, SafePoint determined that the alleged damage was consistent with chronic moisture exposure that occurred for a period of at least six weeks prior to the reported loss date and was incompatible with the damage caused by a single leak. SafePoint therefore denied the claim under Section I of the Policy, which excludes coverage for damages caused by “[c] immediate or repeated leakage or leakage of water or steam. . . occurring over a period of time.

In response, homeowners sued SafePoint. In her complaint, the homeowner claimed that she provided SafePoint "with an estimated loss loss of $ 43,181.01" and that she "repaired unpaid damages of $ 43,181.01." The homeowner later submitted the detailed, detailed estimate – prepared by Contender – to the court. The estimate claimed damages for almost every room in the house. The estimate included in particular rows for replacing kitchen cabinets.

In her sworn questioning answer, the landlord answered the question of damages as follows: “$ 43,181.01, according to the written estimate prepared by [Contender] submitted with the plaintiff's Responsive Document to the defendant's request for production.

At the homeowner's deposit, she confirmed that she, in accordance with the estimate, claimed $ 43,181.01 in damages. On the question of the lines of the estimate, however, the owner admitted, except that the estimate contained false statements. For example, when asked if the reported leak caused damage to the kitchen cabinets, the homeowner revealed that the cabinets had actually been damaged by a previous leak in the kitchen – a leak that the homeowner claimed with another insurance company – and that the current leak did not cause any damage. kitchen cabinets.

Based on the homeowner's sworn interrogation response and depository testimony, SafePoint amended its response to include an affirmative defense based on the "hidden or fraud" policy provision. That provision states that SafePoint will not provide coverage for an otherwise covered loss if, either before or after the loss, one or more "insured" have:

(1) Intentionally concealed or distorted any material fact or circumstance;

(2) Engaged in fraudulent conduct; or

(3) Makes material false statements; related to this insurance.

SafePoint moved to a summary assessment under that provision.

ANALYSIS

At no time before the hearing did the homeowner attempt to revise the estimate or otherwise submit a new estimate. At the hearing, the landlord's attorney made the following concessions:

  • The landlord "never said she did not agree with [the] sworn evidence of loss."
  • The homeowner adopted the estimate; and
  • the estimate should not have included $ 11,000 for damage to the kitchen and that it would therefore be appropriate for the court to issue a partial summary judgment, or alternatively, strike $ 11,000 from the total damages claimed by the homeowner.

At the conclusion of the hearing, the trial court found that the unconverted evidence in the summary judgment established the estimate contained material false statements. The court also concluded that the false allegations were attributed to the homeowner because she accepted the estimate as her own in both her sworn interrogation answers and depository testimony and that Contender acted as her agent.

It is well established that a party is bound by his or her assumptions under oath, whether through deposition or interrogation. The homeowner adopted the estimate as his own statement. Since the estimate undoubtedly included at least $ 11,000 in repairs that were not related to the leak, the homeowner made significant false statements regarding the claim.

Even after the landlord admitted during her deposit testimony that the kitchen cabinets were not damaged by the leak, she still made no attempt to revise the estimate before the summary hearing. Even if the homeowner did not intend to rely on the erroneous statements in the estimate, a show of intent is not required under the policy's hidden or fraudulent provisions. I Universal Property & Casualty Insurance Co . v . Johnson 114 So. 3d 1031, 1036 (Fla. 1st DCA 2013). the court analyzed the same "hidden or fraudulent" clause, albeit in the context of a false statement in an insurance application, and considered that the substantive false statement need not be intentional. In that capacity, Johnson stated to the Court that "in view of the language of the subsection [(1)]subsection [(3)] would be superfluous if a" false statement "under [(3)] only intentionally contained false statements." [19659003] Simply put, an insured cannot blindly rely on and accept an estimate prepared by his or her loss consultant without consequences. This is not to say that an insured will always be bound by the petitions made in an estimate prepared by his or her loss consultant.

When an insured person relies on or adopts an estimate that contains material false statements to support his or her claim, the insured is bound by the estimate and cannot avoid the application of hidden or fraudulent provisions simply because he or she did not prepare the estimate. . insured is to collect from the insurer due to the claim presentation. Regardless, the claim is made by the insured and if the loss consultant – as Contender did in this case – the insured knew that the presentation of Contender was false and so testified at the deposit. She thereby acknowledged that she accepted the fraudulent claim prepared by Contender and tried to defraud her insurance company. Although she may have had a legitimate claim – which is doubtful – the fraud defeated her attempt to obtain money from her insurer.


© 2021 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance management, insurance sentiment and insurance fraud almost

insurers and insurers. He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine / ACE Legend Award.

For the past 53 years, Barry Zalma has devoted his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to enable insurers and their claims staff to become insurance claims staff.

Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma; Follow Zalma on Twitter at https://twitter.com/bzalma ; Go to Barry Zalma videos on Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the library for insurance claims – https://zalma.com/blog/insurance-claims- [195659035] bibliotek / Read posts from Barry Zalma at https://parler.com/profile / Hymn / post; and Read the last two issues of ZIFL here.


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