       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

         MARGARET HURCHALLA, JAMES HURCHALLA,
  LAKE POINT PHASE I, LLC, a Florida limited liability company, and
    LAKE POINT PHASE II, LLC, a Florida limited liability company
                          Appellants,

                                     v.

   HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE
           COMPANY, INC., a Florida corporation,
                       Appellee.

                     Nos. 4D18-2740 and 4D18-2935

                            [October 16, 2019]

   Consolidated appeals from the Circuit Court for the Nineteenth Judicial
Circuit, Martin County; Barbara W. Bronis, Judge; L.T. Case No.
14000054CAAXMX.

   Virginia P. Sherlock and Howard K. Heims of Littman, Sherlock &
Heims, P.A., Stuart, for appellants Margaret Hurchalla and James
Hurchalla.

   Ethan J. Loeb, Jon P. Tasso and Michael J. Labbee of Smolker, Bartlett,
Loeb, Hinds & Thompson, P.A., Tampa, for appellants Lake Point Phase I,
LLC, and Lake Point Phase II, LLC.

   Robert Alden Swift of Cole, Scott & Kissane, P.A., Orlando, for appellee.

WARNER, J.

   Appellants challenge a final summary judgment in favor of appellee
insurance company which summarily determined that the company had
no duty to defend or indemnify appellants Hurchalla against a civil action.
Because the appellee failed to conclusively negate appellants’ affirmative
defenses to the complaint filed by the insurance company, the court erred
in granting summary judgment. We reverse.

   Lake Point Phase I, LLC and Lake Point Phase II, LLC (collectively “Lake
Point”) brought a civil action against Margaret Hurchalla and her husband
(collectively “Hurchalla”) alleging she tortiously interfered with agreements
which Lake Point had with South Florida Water Management District and
Martin County (“the tort litigation”). 1 Initially, appellee Homeowners
Choice Property & Casualty Insurance Company, Hurchalla’s
homeowner’s insurer, provided Hurchalla with a defense. Homeowners
Choice defended Hurchalla for more than a year in the tort litigation. After
a year of litigation, Homeowners Choice filed a complaint for declaratory
judgment against Hurchalla, Lake Point, SFWMD and Martin County,
seeking a determination that Hurchalla’s policy does not provide coverage
for the claims asserted against her for “intentional acts,” but covered only
bodily injury or property damage. Hurchalla filed an answer and denied
the allegations regarding lack of coverage and also raised affirmative
defenses of laches, estoppel, waiver, failure to state a cause of action and
breach of the duty of good faith and fair dealing.

    Homeowners Choice subsequently moved for summary judgment on
grounds that the policy provided coverage for only bodily injury or property
damage, not intentional acts. The motion was initially denied on grounds
there were disputed issues of fact regarding waiver, estoppel and laches.
After the tort litigation resulted in a substantial verdict against Hurchalla,
Homeowners Choice filed a renewed motion for summary final judgment,
arguing that because the jury found against Hurchalla on an intentional
tort, there were no disputed issues of material fact. Homeowners argued
that under the policy, coverage was excluded for intentional torts.
Hurchalla opposed the motion, arguing both that Homeowners Choice had
not negated her affirmative defenses and that she had not received a
reservation of rights letter required by section 627.426(2), Florida Statutes
(2013), which fact was supported by both deposition testimony and
affidavit. Despite the conflicting evidence, the court granted the motion,
determining that the claim and verdict were based on an intentional tort,
for which coverage was excluded under the policy. In rejecting Hurchalla’s
estoppel defense the court relied on Doe v. Allstate Insurance Co., 653 So.
2d 371 (Fla. 1995). The court interpreted Doe as holding that the fact that
an insurance company assumes representation of an insured does not
mean that an event, that was not covered under the policy, is covered.
Coverage under a policy could not be extended by the doctrine of estoppel.
The court then entered final summary judgment. 2 This appeal follows.

1The agreements are described in detail in Hurchalla v. Lake Point Phase I, LLC
and Lake Point Phase II, LLC, 2019 WL 2518748 (Fla. 4th DCA June 9, 2019).

2 Because the final judgment did not refer to Lake Point, which was a named
defendant in the declaratory judgment action, the parties were uncertain as to
whether it disposed of all judicial labor. Homeowners Choice filed another motion
for summary judgment against Lake Point. Lake Point opposed the motion and

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    The standard of review of an order granting summary judgment is de
novo. Frost v. Regions Bank, 15 So. 3d 905, 906 (Fla. 4th DCA 2009).
When reviewing a ruling on summary judgment, an appellate court must
examine the record in the light most favorable to the non-moving party.
Summary judgment cannot be granted unless the pleadings, depositions,
answers to interrogatories, and the admissions on file together with
affidavits, if any, conclusively show that there is no genuine issue as to
any material fact and the moving party is entitled to judgment as a matter
of law. See also State v. Presidential Women’s Ctr., 937 So. 2d 114, 116
(Fla. 2006) (assuming there is no disputed issue of fact, the correctness of
a summary judgment is a matter of law which is subject to the de novo
standard of review). Where the defendant has raised affirmative defenses,
the plaintiff must factually refute them or establish that they are legally
insufficient before being entitled to summary judgment in its favor. See
Corya v. Sanders, 76 So. 3d 31, 34 (Fla. 4th DCA 2011) (quoting Knight
Energy Servs., Inc. v. Amoco Oil Co., 660 So. 2d 786, 788 (Fla. 4th DCA
1995)).

   Under Florida Rule of Civil Procedure 1.510(c), a motion for summary
judgment must state with particularity the grounds upon which it is
based. This is intended to prevent trial by “ambush” by allowing the
nonmoving party to be prepared for the issues that will be argued at the
summary judgment hearing. City of Cooper City v. Sunshine Wireless Co.,
Inc., 654 So. 2d 283, 284 (Fla. 4th DCA 1995). It is reversible error to
enter summary judgment on a ground not raised with particularity in the
motion for summary judgment. See Ambrogio v. McGuire, 247 So. 3d 73,
75 (Fla. 2d DCA 2018).

   Hurchalla raised five affirmative defenses, including estoppel.
Homeowners Choice’s renewed motion for summary judgment failed to
address any of them, and the trial court granted summary judgment
without addressing those defenses. This was error. See Corya.

  Homeowners Choice’s contention, that it was not obligated to negate
Hurchalla’s affirmative defenses until Hurchalla raised them in response


moved for rehearing of the final summary judgment to the extent that it did
dispose of the entire case. The trial court denied Lake Point’s motion for
rehearing. Subsequently, the trial court entered separate final summary
judgments against Lake Point I and Lake Point II, determining that Hurchalla had
no coverage under the Homeowners Choice policy. These were separately and
timely appealed by Lake Point in case number 4D18-2935. The two appeals
(4D18-2740 and 4D18-2935) have been consolidated.

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to its motion for summary judgment, is clearly wrong. “Where the movant
merely denies the affirmative defenses and the affidavit in support of
summary judgment only supports the allegations of the complaint and
does not address the affirmative defenses, the burden of disproving the
affirmative defenses has not been met.” Stop & Shoppe Mart, Inc. v. Mehdi,
854 So. 2d 784, 786 (Fla. 5th DCA 2003); Elkins v. Barbella, 603 So. 2d
726, 727 (Fla. 4th DCA 1992).

   The trial court may have presumed that the affirmative defense was
legally insufficient by citing to Doe. However, Doe does not support
summary judgment in this case. In Doe, an insured was sued for an
intentional tort. Allstate initially provided the insured a defense but did
not send a written reservation of rights to the insured regarding coverage,
as required by section 627.426(2), Florida Statutes. Subsequently,
Allstate filed an action for declaratory relief in federal court asking the
court to determine that the policy did not afford coverage to the insured.
The district court agreed that there was no coverage and granted summary
judgment to Allstate. Upon an appeal to the Eleventh Circuit, the court
certified an issue to the Florida Supreme Court. The minor’s parents
argued summary judgment should not have been granted because Allstate
was estopped to deny coverage because it had not complied with section
627.426(2). In resolving the issue, the court harmonized Cigarette Racing
Team, Inc. v. Parliament Insurance Co., 395 So. 2d 1238 (Fla. 4th DCA
1981), with AIU Insurance Co. v. Block Marina Investment, Inc., 544 So. 2d
998 (Fla. 1989), and held:

      [W]hen the insurer undertakes the defense of a claim on
      behalf of one claiming to be an insured, we have recognized
      substantial duties on the part of both the insurer and the
      insured. If an insurer erroneously begins to carry out these
      duties, and the insured, as required, relies upon the insurer
      to the insured's detriment, then the insurer should not be able
      to deny the coverage which it earlier acknowledged. However,
      we clearly state that the insured must demonstrate that the
      insurer's assumption of the insured's defense has prejudiced
      the insured. It is the fact that the insured has been prejudiced
      which estops the insurer from denying the indemnity
      obligation of the insurance policy.

Doe, 653 So. 2d at 374. Thus, under Doe an insurance company may be
estopped from denying coverage, even where the policy does not cover the
claim, where the insured has been prejudiced by the insurer’s assumption
of the insured’s defense.


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   Here, Hurchalla alleged equitable estoppel as an affirmative defense.
Her claim was legally sufficient, and Homeowners Choice did not negate it
factually. Therefore, the court erred by granting summary judgment.

   As to the remaining affirmative defenses, none were addressed in the
motion for summary judgment nor in anything filed with the court. Nor
did the court address these. Whether they are legally sufficient may be
addressed in further proceedings.

   For the foregoing reasons, we reverse the final summary judgments
entered in both consolidated appeals and remand for further proceedings.

   Reversed and remanded.

GROSS and GERBER, JJ., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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