Maidwell v. Southern Fidelity

Terrence L. Lavy (Ft. Myers, FL) (Property) obtained Summary Judgment in Maidwell v. Southern Fidelity on July 30, 2021. The matter related to a dishwasher leak. The insured delayed reporting the claim and also in remediating the water, resulting in a substantial mold problem. We assisted in the claim investigation and conducted an examination under oath of the insured which clarified issues with respect to the leak and the loss of use claim. Southern Fidelity determined to pay the claim – mitigation was paid in full, the mold limits were paid and the build-back due to water damage was paid actual cash value – and continued to try to settle the matter prior to suit. However, the insured contended she was significantly underpaid as to build-back and loss of use damages. The insured never repaired the property (incurring extensive additional living expense) and the matter went into suit. Recognizing the risk of adverse verdict in a primarily scope-and-price dispute, Southern Fidelity offered an early, significant proposal for settlement. The insured rejected this offer and proceeded through contentious litigation. Ultimately, we moved for Summary Judgment as to lack of breach of contract based on the propriety of the payments and the insured’s failure to repair so as to trigger the obligation to pay replacement cost value. There could be no dispute as to the mitigation invoice being paid in full. The policy provision as to mold coverage imposed a $10,000 sublimit as to all damages, including loss of use – unless the insured could show that additional loss of use was not caused “in whole or in part” by mold. We presented her EUO testimony to show that the need to vacate the property was based, at least in part, on mold. The payment as to build-back damages was based on an independent adjuster estimate for ACV and RCV. Although the insured had a competing estimate from a public adjuster and a contractor, neither were appropriately authenticated or admissible – also neither calculated actual cash value of the water damage. The Honorable Keith Kyle entered summary Judgment in favor of the defendant. Owing to its attempts to settle the matter from the early going, Southern Fidelity has an entitlement to its attorneys fees and costs and is pursuing them.