Avatar Property & Casualty Insurance Company v. Cecilia Castillo and Jorge Gullen

District Court of Appeal for the State of Florida, Fourth District

No. 4D18-3154 (April 22, 2020)

In this appeal from the Circuit Court for the Fifteenth Judicial Circuit in Palm Beach County, the Fourth District Court of Appeal (“DCA”) of the State of Florida determined Avatar’s insurance policy did not require the insureds to produce the handyman or the employees of the water mitigation company they had hired post-loss for Examination Under Oath (“EUO”).

After a pipe leak caused water damage to the interior of their residence, the insureds hired a handyman to repair the pipe and a water mitigation company for dry-out. During the claim adjustment, the insurer requested the EUOs of the insureds, their handyman, and the water mitigation company’s employees. To support its request, the insurer relied on the “Duties After Loss” provision requiring not just the insureds to submit to an EUO, but also “your agents, your representatives, including any public adjuster engaged on your behalf.” The parties exchanged pre-suit correspondence disagreeing on the issue, and litigation followed.

The parties filed Cross Motions for Final Declaratory Judgment on the issue. The trial court found no disputed issues of material fact and decided the case as a matter of law. First, it addressed that the terms “agent” and “representative” were undefined in the policy, but noted this fact alone did not make the insurance policy ambiguous. Cheetham v. S. Oak Ins. Co., 114 So. 3d 257, 263 (Fla. 3d DCA 2013) (holding that the mere failure to define a term within an insurance policy does not render the term ambiguous). The trial court then examined Black’s Law Dictionary, and noted that the terms “agent” and “representative” had the same meaning therein: “one who is authorized to act for or in place of another; a representative.” Because neither the handyman nor the water mitigation employees were authorized to act “for or in place of” the insureds, but were contracted only for their labor, the trial court concluded that the policy did not require them to appear for an EUO.

The insurer appealed the trial court’s ruling to the Fourth DCA, which reviewed the case de novo. The Fourth DCA applied the “plain meaning” test to the terms “agent” and “representative” “so as to give every provision its full meaning and operative effect.” Allstate Ins. Co. v. Orthopedic Specialists, 212 So. 3d 973, 975-76 (Fla. 2017). The Fourth DCA also consulted Black’s Law Dictionary and determined that neither the insureds’ handyman nor the water mitigation employees were authorized to “stand in [the insureds’] place.” Thus, the Fourth DCA agreed with and affirmed the trial court’s finding that the policy language did not allow the insurer to compel the handyman or the mitigation employees to attend an EUO. Critically, the Fourth DCA drew on its instructive ruling in Nawaz v. Universal Property Casualty Insurance Co., 91 So. 3d 187 (Fla. 4th DCA 2012), noting that to the extent the policy remains uncertain, such uncertainty should be construed against the drafter.

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