Kelley Kronenberg Partner and Business Unit Leader Todd Schwartz, assisted by Legal Assistant Rose Lowrie, secured a dismissal with prejudice of a first-party property lawsuit in Charlotte County, Florida, on behalf of the firm’s client, Chubb. The plaintiff dismissed the case during the safe harbor period after the firm served a motion for sanctions under Section 57.105, Florida Statutes. The claim carried approximately $90,000.00 in exposure. 

The insured reported damage to the roof, siding, and other exterior components of a rental property, attributing it to Hurricane Milton. The loss was not reported until about a year after the storm. The carrier investigated with a field adjuster and a licensed engineer. The engineer found no storm damage to the roof. The damage claimed was visible in aerial images from January 2023, more than a year and a half before Milton, and the siding conditions appeared in images from 2022. The carrier denied the claim because of pre-existing damage, wear and tear, and deterioration. The insured disputed the denial and filed suit. 

During litigation, the team uncovered a key fact. In 2022, the same insured had reported a Hurricane Ian claim on the same property, seeking the same roof replacement and siding repairs. The carrier had afforded coverage for the loss. Historical photographs and the absence of any permit records showed the work was never done. 

Todd took the position that submitting a claim for the same damages already reported and paid, without making the repairs, was a misrepresentation of material facts under the policy’s concealment and fraud provision. He also argued that the claim was not supported by the material facts or existing law. The policy excludes pre-existing damage and loss outside the policy period, and the insured had no new, covered loss to claim. 

The firm then served a Section 57.105 motion on the plaintiff and plaintiff’s counsel. The statute allows a court to award attorney’s fees against a party and its attorney for pursuing a claim unsupported by the facts or the law. The motion gave the plaintiff the required 21-day safe harbor to withdraw the claim. The plaintiff dismissed the case with prejudice before the motion was filed. 

Learn more about the firm’s First-Party Property and Coverage Division: click here. 

Read our First-Party Property newsletter: https://www.kelleykronenberg.com/category/newsletter/