                   NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                   8B




                          MOTION AND, IF FILED, DETERMINED
                         9B




                                             IN THE DISTRICT COURT OF APPEAL
                                             10B




                                             OF FLORIDA
                                             1B




                                             SECOND DISTRICT
                                             12B




CITIZENS PROPERTY INSURANCE
13B                                          )
CORPORATION,
14B                                          )
                                             )
                                             15B




             Appellant,
             16B                             )
                                             )
                                             17B




v.
18B                                          )       Case No. 2D14-4274
                                             )
                                             19B




ARIETY AMAT and BRICEIDA LEON,
20B                                          )
                                             )
                                             21B




             Appellees.
             2B                              )
                                             )
                                             23B




Opinion filed February 19, 2016.
24B




Appeal from the Circuit Court for
25B




Hillsborough County; James M. Barton, II,
26B




Judge.

Jonathan D. Franklin of Franklin Legal
27B




Group, PA, Miami, for Appellant.
28B




Aaron S. Kling of Smith, Kling & Thompson,
29B




P.A., Tampa, for Appellees.


WALLACE, Judge.
30B




             Citizens Property Insurance Corporation (Citizens) appeals a final
             31B




judgment for money damages entered in favor of homeowners Ariety Amat and Briceida

Leon (the Homeowners) following a jury trial. The parties' dispute concerned the

Homeowners' claim under their policy of homeowners insurance with Citizens for
alleged damages to their home caused by a sinkhole. On appeal, Citizens makes

multiple arguments. We affirm in part and reverse in part.

                   I. THE FACTUAL AND PROCEDURAL BACKGROUND

             The Homeowners reported damage to their home resulting from
             32B




suspected sinkhole activity in June 2011. Citizens hired Madrid Engineering Group, Inc.

(MEG), to investigate. In January 2012, based upon MEG's finding that "the conditions

and minor cracking" in the home were the result of multiple causes other than sinkhole

activity, Citizens denied the claim. The Homeowners sought a second opinion from

Florida Testing and Environmental, Inc. (FTE), and based on FTE's conclusion that the

damage to the Homeowners' residence was caused by sinkhole activity, the

Homeowners filed suit. 10F




             The case proceeded to a jury trial. The jury found that Citizens had failed
             3B




to prove that the damage was caused "solely by excluded perils" and "not in

combination with sinkhole activity." Upon reaching this finding, the verdict form asked

the jury to determine "the total amount necessary to stabilize the land and building,

repair the foundation[,] and repair the above ground damages." In a general verdict, the

jury determined the Homeowners' total damages to be $169,665.77. This figure

corresponded exactly to the total of the amounts requested by the Homeowners'




             1Although   Citizens advised the Homeowners of their right to pursue their
claim further through the neutral evaluation process, described in section 627.7074,
Florida Statutes (2010), the Homeowners declined to take advantage of this method to
resolve their dispute with Citizens.



                                           -2-
counsel in his closing argument: (1) $72,952 for grouting, (2) $52,500 for underpinning,

and (3) $44,213.77 for "cosmetic" or above ground repairs. 2  1F




              In accordance with the jury's verdict, the trial court entered a final
              34B




judgment in favor of the Homeowners and against Citizens for money damages of

$167,167.77, plus prejudgment interest of $25,416.22. Citizens filed a "Motion to Set

Aside the Verdict and Enter Judgment in Accordance with its Motion for Directed

Verdict, or Alternatively, Motion for New Trial or Motion for Rehearing of the Final

Judgment." Among other things, Citizens requested correction of a two-dollar

scrivener's error in the amount of the final judgment and a $2500 credit against the

amount of the verdict based on the applicable policy deductible. Subsequently, the trial

court entered an amended final judgment in accordance with Citizens' motion for

damages of $167,165.77 and prejudgment interest of $25,041.43 for a total of

$192,207.20. In all other respects, the trial court denied Citizens' post trial motion. This

appeal followed.

                                     II. DISCUSSION

A. Citizens' Appellate Arguments

              On appeal, Citizens raises four points. First, Citizens argues that the trial
              35B




court erred in entering a money judgment requiring it to pay for the cost of the

subsurface repairs without requiring the Homeowners to enter into a contract for those

repairs. Second, Citizens contends that the trial court erred in awarding prejudgment


              2The amounts necessary to repair subsurface damages are treated
differently than amounts required for cosmetic repairs under the provisions of policies
such as the one at issue in this case and as authorized under section § 627.707(5),
Florida Statutes (2010). Accordingly, the trial court should have required the jury to set
forth these amounts separately in its verdict.



                                            -3-
interest to the Homeowners. Third, Citizens claims that the trial court erred by failing to

reduce the amount of the judgment by the amount of the policy's sinkhole loss

deductible. Fourth, Citizens asserts that the policy's sinkhole loss endorsement

established coverage for a sinkhole loss as a named peril. Based on this assertion,

Citizens argues that the trial court erred in allocating to it the burden to prove that the

Homeowners' loss occurred as a result of an excluded peril rather than sinkhole activity.

                    Citizens' third point is baseless. The trial court gave Citizens a credit for
                    36B




the $2500 policy deductible in the amended final judgment. Citizens' fourth point is also

without merit. This court has previously resolved the issue raised on Citizens' fourth

point adversely to it. See Mejia v. Citizens Prop. Ins. Corp., 161 So. 3d 576, 578-79

(Fla. 2d DCA 2014); Citizens Prop. Ins. Corp. v. Munoz, 158 So. 3d 671, 674 (Fla. 2d

DCA 2014). We turn now to a consideration of Citizens' first and second points.

B. The Necessity of a Contract for the Subsurface Repairs

              37B   The sinkhole endorsement on the policy at issue in this case contains the

following loss settlement provisions pertaining to a sinkhole loss:

                    (5) In event of "sinkhole loss":
                    38B




                    (a) We will pay for "Sinkhole loss," subject to (e)(ii) below, up
                    39B




                    to the applicable Section I - Property Coverage Limit of
                    Liability shown in your Declarations.

                    (b) We will pay no more than the actual cash value of the
                    40B




                    damaged property; not including underpinning or grouting or
                    any other repair technique performed below the existing
                    foundation of the building, until you enter into a contract for
                    the performance of building stabilization or foundation
                    repairs.

                    (c) Once you enter into such contract, we will pay the
                    41B




                    amounts necessary to begin and perform such repairs as the
                    work is performed and as the expenses are incurred.



                                                  -4-
                    42B   (d) We may at our option, and with your written approval and
                          written approval of any lienholder, make payment directly to
                          the persons selected by you to perform the land and building
                          stabilization and foundation repairs.

                          (e) If repair has begun and the professional engineer
                          43B




                          selected or approved by us determines that the repairs will
                          exceed the applicable Limit of Insurance, we will at our
                          option; either:

                               (i) Complete the professional engineer’s
                                      4B




                          recommended repairs; or

                                 (ii) Pay the policy limits without a reduction for the
                                      45B




                          repair expenses incurred.

Subparagraph (b) allows for immediate payment for only cosmetic repairs, i.e., repairs
46B




for damages occurring above the ground. In contrast, subparagraph (b) provides that

payment will not be made for subsurface stabilization and repair, i.e., damages

occurring below the ground, until the insureds enter into a contract for the subsurface

repairs. In addition, subparagraph (c) provides for progress payments, i.e., "as work is

performed and expenses are incurred" for the subsurface repairs. This language is

      consistent with section 627.707(5)(b), Florida Statutes (2010).

                          Before trial, Citizens filed a motion requesting that the trial court apply the
                                47B




policy restrictions regarding payment for subsurface repairs in any final judgment. The

trial court did not rule on the motion before trial. After trial, the Homeowners filed a

      response in opposition to Citizens' motion. The trial court agreed with the Homeowners

      and entered the final judgment and the amended final judgment awarding damages for

      the cost of the subsurface repairs without regard to the limitations of the sinkhole

      endorsement to the policy.




                                                        -5-
              48B   The Homeowners argue that because Citizens breached the insurance

contract, it waived the right to insist on their compliance with the disputed provisions of

the policy, and that this breach "was sufficient to authorize the Homeowners to treat the

contract as put to an end." However, the cases upon which the Homeowners rely for

their argument do not support this legal conclusion. For example, Mercury Insurance

Co. of Florida v. Anatkov, 929 So. 2d 624, 627 (Fla. 3d DCA 2006), held that where the

insurer has breached a contract by improperly denying coverage, the insurer "cannot be

allowed to rely upon a contractual provision prohibiting the insured from settlement of

the claim with a responsible party in order to relieve itself from liability," (quoting Infante

v. Preferred Risk Mut. Ins. Co., 364 So. 2d 874, 875 (Fla. 3d DCA 1978)). Stated more

generally, the effect of an improper denial of coverage may operate to waive an

insurer's right to claim as a complete defense that the insureds failed to comply with

certain contractual conditions precedent to recovery. See Wegener v. Int'l Bankers Ins.

Co., 494 So. 2d 259, 259-60 (Fla. 3d DCA 1986) (compiling cases). But Citizens does

not seek to employ the provisions regarding payment for the cost of repair of subsurface

damages resulting from sinkhole activity in an attempt to avoid liability. Citizens seeks

only to enforce the provisions of the policy that control how and when it will make the

payments for subsurface stabilization and repair. The other case the Homeowners cite,

Muñiz v. Crystal Lake Project, LLC, 947 So. 2d 464 (Fla. 3d DCA 2006), involves an

action for specific performance of a real estate sales contract, and is inapposite.

                    In the alternative, the Homeowners argue that, by virtue of Citizens'
                    49B




breach, the contract of insurance should be considered "put to an end." But relief of this

sort is generally available when the defaulting party has committed a total breach of the




                                                 -6-
contract of the kind more commonly seen in the context of agreements for the sale and

purchase of real estate and construction contracts. In this regard, Rector v. Larson's

Marine, Inc., 479 So. 2d 783 (Fla. 2d DCA 1985), is instructive. The dispute in Rector

involved an action for the alleged breach of a contract to repair a boat. The owner of

the marina had refused to complete repairs undertaken on a boat, and the owner of the

boat filed an action for damages. Id. at 784. This court described the case as involving

"a total breach of contract," and we stated the applicable rule as follows:

                         In a case that involves a total breach of contract . . .
                         0B




                  an injured party . . . may treat the contract as void and seek
                  the damages that will restore him to the position he was in
                  immediately prior to entering the contract. Alternatively, he
                  may elect to affirm the contract, insist upon the benefit of his
                  bargain, and seek the damages that would place him in the
                  position he would have been in had the contract been
                  completely performed.

Id. (citing McCray v. Murray, 423 So. 2d 559 (Fla. 1st DCA 1982)). Unlike Rector, the
1B




case before us does not involve nonperformance of an entire contract. This case is just

a dispute about coverage. Thus Citizens' determination that the Homeowners' claim for

damages was not a covered loss under the policy did not change the scope of coverage

that it had contracted to provide any more than it eliminated the policy deductible or the

policy limits. See Gordon v. 21st Century Ins. Co., Nos. B160115, B163835 2004 WL

1682130 *7 (Cal. Ct. App. July 28, 2004) ("A claim denial can excuse an insured[']s

obligation to perform an act required by the policy, but it does not expand the scope of

coverage.") (footnote omitted); see also Six L's Packing Co. v. Fla. Farm Bureau Mut.

Ins. Co., 268 So. 2d 560, 563 (Fla. 4th DCA 1972) ("The general rule is well established

that the doctrine of waiver and estoppel based upon the conduct or action of the insurer

     (or his agent) is not applicable to matters of coverage as distinguished from grounds for



                                                -7-
forfeiture."). Moreover, the Homeowners did not seek to rescind the entire contract. In

      their complaint, they alleged, in pertinent part:

                    Plaintiffs seek the following damages . . . complete
                         2B




                    guaranteed repair of the property in its entirety, including but
                    not limited to, ground stabilization, building stabilization,
                    foundation repair, and cosmetic repair, or if the property is
                    not repairable the full replacement cost for the property.

Thus, even if this case could be said to involve "a total breach of the contract," the
3B




Homeowners themselves chose to enforce the contract, not to rescind it. Based on the

jury's finding of coverage, the trial court was obligated to enforce the contract, including

the policy's restrictions on Citizens' obligations to pay for the cost of the repair for

subsurface damages.

                    This case cannot be distinguished from Tower Hill Select Ins. Co. v.
                    4B




McKee, 151 So. 3d 2 (Fla. 2d DCA 2014). 3 As we stated in McKee:
                                                  2F




                    [W]e agree that it was error for the trial court to order Tower
                    5B




                    Hill to pay for subsurface repairs before McKee entered into
                    a contract for those repairs. Because the insurance policy
                    contained a loss settlement provision tracking the language
                    of section 627.707(5)(b), Florida Statutes (2010), Tower Hill
                    had the authority to withhold payment for subsurface repairs
                    until McKee entered into a contract for those repairs.

Id. at 4. Accordingly, we conclude that the trial court erred in ordering Citizens to pay
50B




for subsurface repairs before the Homeowners enter into a contract for those repairs.

We have considered the remainder of the Homeowners' arguments on this issue.

These arguments are without merit and do not warrant discussion.


                    3The
                   Homeowners argue that McKee is distinguishable because "in
McKee, the carrier conceded coverage and did not force the case to a jury trial." The
Homeowners appear to have misread McKee. Tower Hill denied coverage, and the
only reason the case did not go to a jury trial is because the case was resolved on
summary judgment.



                                                       -8-
C. Prejudgment Interest

              6B   "[F]or the purpose of assessing prejudgment interest, a claim becomes

liquidated and susceptible of prejudgment interest when a verdict has the effect of fixing

damages as of a prior date." Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212,

214 (Fla. 1985) (quoting Bergen Brunswig Corp. v. State, Dep't of Health & Rehab.

Servs., 415 So. 2d 765, 767 (Fla. 1st DCA 1982)). Here, the request for prejudgment

interest was first raised after the jury returned its verdict, and there was no indication

that the jury was determining the amount of the loss for any date other than the date of

the verdict. See Citizens Prop. Ins. Corp. v. Alvarez, 40 Fla. L. Weekly D2428, D2429

(Fla. 2d DCA Oct. 30, 2015) (holding that the insureds were not entitled to an award of

prejudgment interest where "[t]here was [a] dispute as to the cost of the repair, and the

jury resolved that dispute and liquidated the claim as of the date of the verdict"); see

also McKee, 151 So. 3d at 4 (holding that the homeowners were not entitled to

prejudgment interest on an award for subsurface damages where they had not entered

into a contract for subsurface repairs.) Accordingly, the trial court erred in awarding

prejudgment interest.

                                       III. CONCLUSION

              7B   For the foregoing reasons, we reverse the amended final judgment to the

extent that it awarded money damages payable to the Homeowners without recognizing

Citizens' right to withhold payment for the cost of the subsurface repairs until the

Homeowners enter into a contract for those repairs. We also reverse the award of

prejudgment interest. In all other respects, the final judgment is affirmed. On remand,




                                              -9-
the trial court shall enter a second amended final judgment in accordance with this

opinion and the provisions of the sinkhole endorsement to the policy.

             Affirmed in part, reversed in part, and remanded.
             51B




LaROSE and CRENSHAW, JJ., Concur.
52B




                                         - 10 -
