July 31, 2023

Kelley Kronenberg Secures Dismissal Based on Plaintiffs’ Insufficient Notice of Intent

Kelley Kronenberg Partners, Todd Schwartz and Katie Koener, prevailed on a Motion to Dismiss Plaintiffs’ Complaint in this first-party property suit pending in Florida’s Thirteenth Judicial Circuit. The Honorable Marc S. Makholm, of the Hillsborough County Court, presided over the proceedings.  

This Breach of Contract action stemmed from a property insurance claim made by Plaintiffs against American Integrity Insurance Company of Florida (“American Integrity”) regarding alleged storm damage.  

On February 7, 2022, Plaintiffs notified American Integrity that the insured property had allegedly incurred storm damage on or about January 16, 2022. After inspection of the claimed damages, American Integrity wrote to Plaintiffs advising it was accepting coverage for repairs to the roof; however, said damage was below the applicable deductible under the policy.    

On August 12, 2022, Plaintiffs submitted to the Department of Financial Services a defective Notice of Intent to Initiate Litigation (“Notice”) prior to filing suit pursuant to Florida Statutes § 627.70152(5). Said notice stated as the Alleged Acts or Omissions of the Insurer: “Wrongfully Underestimated the Insured’s Claim and Damages and Wrongful Denial of Coverage Afforded Under the Subject Policy. Insureds received a copy of Notice. The DFS Notice Site does not accept the itemized estimate of damages which was produced to the insurer prior to the filing of this Notice.” 

Our defense team launched an aggressive defense, pointing out all the insufficiencies within Plaintiffs’ Notice, and the insufficiencies were plentiful. In our Motion, we argued that American Integrity had not waived Plaintiffs’ duty to comply with the condition precedent notice requirements of Florida Statutes § 627.70152(5). In fact, a demand response was sent out on August 26, 2022, with a counteroffer. No response was received and after a follow up email on September 9, 2022, American Integrity deemed the lack of response a rejection of the offer. 

Our team further argued that, while the insured filed a Notice of Intent prior to the lawsuit, the Notice did not comply with the strict requirements of the statute. The issue was whether the Notice was sufficient, despite not meeting every element of the statute. 

In the powerful Motion submitted to the Court, our team noted Plaintiffs incorrectly asserted their claim had been denied, failed to provide an itemized and specific detail of their damages, and failed to provide the required documentation to support their claim, amongst numerous other points. In a well-crafted and persuasive pleading, our attorneys incorporated legislative authority, providing a framework upon which the Court could make the proper determination.  

Armed with a virtual treatise on the topic, the Court agreed with our first-party property insurance defense team, entering an Order dismissing Plaintiffs’ Complaint.  

Through the vigilance and thoroughness of Mr. Schwartz and Ms. Koener, our client averted damages of approximately $20,000.00, plus attorney’s fees and costs of an unknown amount.