MARQUEZ v. CLEAR BLUE SPECIALTY INSURANCE COMPANY (2024)

ORDER

This cause comes before the Court on Defendant Clear Blue Specialty Insurance Company's (“Clear Blue”) Motion In Limine to Exclude Evidence and Testimony Regarding Replacement Cost Value Of Damages, Matching, and to Limit Damages to Direct Physical Loss (Doc. 43). Although the Certificate of Conference indicates the Motion was opposed (id. at 11), Plaintiffs failed to file any opposition to the Motion.

On August 21, 2023, Plaintiffs sued Clear Blue for denial of coverage under their homeowners policy (the “Policy”)¹ for damage to their home at 4410 Brookdale Court, Orlando, Florida, allegedly caused by Hurricane Ian on September 28, 2022. (Doc. 1-4). Clear Blue now seeks to exclude evidence and argument related to the Replacement Cost Value (“RCV”) calculation of damages and matching damages, and restricted evidence to only those items which sustained direct physical loss. Clear Blue argues that the damages Plaintiffs can potentially recover in this lawsuit are limited to the Actual Cash Value (“ACV”) based on the plain language of the Policy. Clear Blue argues that the Policy covering Plaintiffs’ property, consistent with Florida Statute § 627.7011(3)(a), requires Clear Blue to pay only the ACV of the damage unless and until repairs are made, at which point the RCV of the damage becomes payable. (Doc. 43).

 Standard for Motion in Limine

The purpose of a motion in limine is to notify the trial judge of the movant's position in order to avoid the introduction of damaging evidence that may irrevocably affect the fairness of the trial. Amegy Bank Nat'l Ass'n v. DB Private Wealth Mortg., Ltd., No. 2:12-cv-243-FtM-38CM, 2014 WL 791505, at *1 (M.D. Fla. Feb. 24, 2014) (citation omitted). “A court has the power to exclude evidence in limine only when evidence is clearly inadmissible on all potential grounds.” Id. (citations omitted). Motions in limine are typically disfavored; the better practice is to rule upon questions of admissibility as they arise at trial. Stewart v. Hooters of Am., Inc., No. 8:04-cv-40-T-17-MAP, 2007 WL 1752873, at *1 (M.D. Fla. June 18, 2007); see Ortiz v. Home Depot USA, Inc., No. 12-61512-CIV, 2013 WL 5774873, at *1 (S.D. Fla. Oct. 25, 2013) (“If evidence is not clearly inadmissible, evidentiary rulings should be deferred until trial to allow questions of foundation, relevancy, and prejudice to be resolved in context.”).

 Application

Clear Blue contends that the Policy only requires Clear Blue to pay the ACV of the damage unless and until repairs are made, at which point the RCV of the damage becomes payable. The Policy provides:

(Doc. 40-1 at 22-23). Pursuant to the relevant Florida Statute, an insurer's obligation to pay under homeowners’ policies is as follows:

(3) In the event of a loss for which a dwelling or personal property is insured on the basis of replacement costs:

(a) For a dwelling, the insurer must initially pay at least the actual cash value of the insured loss, less any applicable deductible. The insurer shall pay any remaining amounts necessary to perform such repairs as work is performed and expenses are incurred ․ If a total loss of a dwelling occurs, the insurer shall pay the replacement cost coverage without reservation or holdback of any depreciation in value, pursuant to s. 627.702.

Fla. Stat. § 627.7011(3)(a). Clear Blue argues that, under the plain language of the “Loss Settlement” clause of the Policy and § 627.7011, it is only required to pay the ACV of the direct physical loss (less the deductible) and ACV does not include un-incurred costs to “match” items or for undamaged items. (Doc. 43 at 4).

Clear Blue contends that the actual cash value of the direct physical loss is generally defined as “fair market value” or “[r]eplacement cost minus normal depreciation,” where depreciation is defined as a “decline in an asset's value because of use, wear, obsolescence, or age”; thus, the difference between ACV and RCV is that depreciation is withheld from ACV. (Doc. 43 at 2 (citing Goff v. State Farm Florida Ins. Co., 999 So. 2d 684, 690 (Fla. 2d DCA 2008) (“As replacement cost policies are intended to operate, following a loss, both actual cash value and the full replacement cost are determined. The difference between those figures is withheld as depreciation until the insured actually repairs or replaces the damaged structure.”); Black's Law Dictionary, 506, 1690 (9th ed. 2009); Trinidad v. Fla. Peninsula Ins. Co., 121 So. 3d 433, 438 (Fla. 2013)). Clear Blue also argues that the value of non-damaged items is irrelevant to ACV determination and does not cover contingent future mismatch, or advanced payments for repairs. (Doc. 43 at 5 (citing New York Cent. Mut. Fire Ins. Co. v. Diaks, 69 So. 2d 786, 789 (Fla. 1954)). Because Plaintiffs are not entitled in this case to payment for repairs or matching costs they have not yet incurred, Clear Blue argues, evidence or testimony regarding those matters must be excluded at trial.

Plaintiffs have failed to file any opposition to Clear Blue's arguments to limit the evidence, testimony, and arguments at trial to the ACV of the property. Therefore, the Court treats the Motion as unopposed per the Local Rules. See M.D. Fla. L.R. 3.01(c) (“Time To Respond. A party may respond to a motion within fourteen days after service of the motion․ If a party fails to timely respond, the motion is subject to treatment as unopposed.”). Without a response from Plaintiffs as to whether any repairs have been completed, or the extent of the damage as a percentage of the RCV, the Court must treat Clear Blue's representation that “no such repair or replacement” to the damaged property has taken place. (See Doc. 43 at 9, 10).

Thus, the Policy provides that the “loss settlement” amount is “replacement cost without deduction for depreciation” subject to various conditions and Clear Blue is obligated to “pay no more than the actual cash value of the damage until actual repair or replacement is complete.” (Doc. 40-1 at 22); see also Fla. Stat. § 627.7011(3)(a) (“The insurer shall pay any remaining amounts necessary to perform such repairs as work is performed and expenses are incurred.”); Vazquez v. Citizens Property Ins. Corp., 304 So. 3d 1280, 1282 (Fla. 3d DCA 2020) (affirming the trial court's ruling granting the insurer's motion in limine to preclude “matching” costs based on language of the policy and applicable statute).

Based on the foregoing, it is ordered as follows:

1. Defendant Clear Blue Specialty Insurance Company's Motion In Limine to Exclude Evidence and Testimony Regarding Replacement Cost Value Of Damages, Matching, and to Limit Damages to Direct Physical Loss (Doc. 43) is GRANTED.

DONE and ORDERED in Chambers, in Orlando, Florida on December 4, 2024.

FOOTNOTES

1.   Policy No. AL01-189361-01 for the period of February 19, 2022, to February 19, 2023. (Doc. 40-1).

ANNE C. CONWAY, United States District Judge