      Third District Court of Appeal
                              State of Florida

                           Opinion filed July 2, 2014.
        Not final until disposition of timely filed motion for rehearing.

                              ________________

                              No. 3D13-3175
                        Lower Tribunal No. 12-26826
                            ________________


                       Nieve and Marisol Linares,
                                  Appellants,

                                       vs.

       Universal Property and Casualty Insurance Company,
                                   Appellee.



     An Appeal from the Circuit Court for Miami-Dade County, Marc
Schumacher, Judge.

      Diverse Legal Solutions, a Law Firm, and S. Antonio Jimenez, for
appellants.

     Loughren and Doyle, P.A., and Richard B. Doyle, Jr., for appellee.


Before WELLS, LAGOA, and LOGUE, JJ.

     LOGUE, J.
      Nieve and Marisol Linares, the homeowners, appeal a final summary

judgment entered in favor of Universal Property and Casualty Insurance Company.

The trial court determined the homeowners’ breach of contract action was barred

by the five-year statute of limitations period. We reverse.

      On October 24, 2005, the homeowners’ property sustained damage as a

result of Hurricane Wilma. The homeowners reported the damage to the insurance

company approximately two months later. On February 21, 2006, the insurance

company sent a letter to the homeowners stating that the damages fell below the

insurance policy’s deductible. Although the letter also stated that the insurance

company had concluded its investigation, the letter did not clearly or conclusively

deny the claim. Instead, the letter provided, “[i]f you discover any additional

damages or information regarding this matter, please forward it to our office for

consideration.”

      Some three years later, in December 2009, the homeowners provided the

insurance company with the report of a private adjuster estimating the damages to

exceed the policy deductible by a factor of ten. The homeowners also demanded

that the insurance company participate in the appraisal process as provided for in

the policy. In response, the insurance company requested that the homeowners

participate in examinations under oath and provide sworn proof of loss. The

homeowners complied with the requests. On August 24, 2010, the insurance



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company sent a letter to the homeowners denying the claim in plain and

unambiguous language: “the original assessment of damages relating to Hurricane

Wilma, when the claim was filed in 2005, was adequate and accurate, and the

recently presented claim must be denied.”

      The homeowners brought suit on July 9, 2012, alleging one count of breach

of contract. The insurance company moved for summary judgment on the basis of

the statute of limitations. The trial court granted the motion. This appeal followed.

      The applicable statute of limitations provides that an action for breach of a

property insurance contract must be filed within five years of the cause of action

accruing. See § 95.11(2)(b), Florida Statutes (2010). “A cause of action accrues

when the last element constituting the cause of action occurs.” § 95.031(1), Fla.

Stat. (2010). This generally occurs, in insurance contract actions, at the time the

insurance policy is breached. State Farm Mut. Auto. Ins. Co. v. Lee, 678 So. 2d

818, 821 (Fla. 1996).1

      The insurance company argued, and the trial court agreed, the statute of

limitations began to run when the insurance company sent the February 2006 letter

stating that the claim was below the deductible. We disagree.

1 In 2011, the Legislature shortened the limitations period for property insurance
claims by specifying that such actions begin to run from the date of loss. §
95.11(2)(e), Fla. Stat. (2011). That amendment to section 95.11(2) does not apply
retroactively to this case. Rizo v. State Farm Fla. Ins. Co., 133 So. 3d 1114 n.1
(Fla. 3d DCA 2014) (citing Fla. Ins. Guar. Ass’n, Inc. v. Devon Neighborhood
Ass’n, Inc., 67 So. 3d 187 (Fla. 2011)).

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      The court in Oriole Gardens Condominiums, III v. Independence Casualty &

Surety Company, No. 11-60294-CIV, 2012 WL 718803 (S.D. Fla. March 6, 2012),

addressed a case with remarkably similar facts. The insured submitted a claim for

property damage sustained during Hurricane Wilma. Id. at *1. The insurer

responded with a letter, similar to the February 2006 letter in the present case,

stating the damages fell below the insurance policy’s deductible and inviting the

submission of additional information. Id.

      Three years later, the insured submitted a sworn proof of loss for damages

exceeding the policy deductible. Id. The insurer requested that the insured

participate in examinations under oath and submit further document in support of

the claim. Id. The insured complied with the requests and demanded that the

insurer participate in the appraisal process as provided for in the policy. Id. The

insurer eventually sent a letter clearly denying the claim and stating it was standing

by its initial determination that the amount of loss fell below the policy’s

deductible. Id. at *2. Over five years after the insured received the initial letter

stating the damages fell below the policy’s deductible, but less than five years after

the second letter denying the claim, the insured brought a one-count complaint for

breach of contract against the insurer. Id.

      The court held the cause of action was not barred by Florida’s five-year

statute of limitations period. Id. at *12. First, the initial letter informing the insured



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that its claim fell below the policy’s deductible contained no language clearly

denying the claim. Id. at *11. Second, the insurer’s correspondence and actions

regarding the insured’s claim indicated that the claim was open and ongoing. Id.

We find this reasoning to be persuasive and applicable to the present case.

      Reversed and remanded for proceedings consistent with this opinion.




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