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Juan E. Ceballo v. Citizens Property Insurance Corp.
SC06-1088
WE WILL MOVE TO OUR
FINAL CASE OF THE MORNING
CEBALLO!!$$!!!!!!!!!!!!
CEBALLO, CEBALLO, WHICH IS
CITIZENS PROPERTY.
>> MAY IT PLA HE IS THE ZMURT
JUST YOU GIVE ONE MINUTE, BE
SURE HE IS READY.
>> CERTAINLY.
>> OKAY.
>> MAY IT PLEASE THE COURT.
I'M LORIE ROTH REPRESENT THE
CEBALLO!!$$!!!!!!!!!!!!
CEBALLOS, AS YOU KNOW, THIS
CASE INVOLVES WHEN OR NOT THE
VALUED PROPERTY LAW APPLIED TO
LAW -- COVERAGE WHEN OR NOT
INSURERS HAVE TO COME
OUT-OF-POCKET TO PAY THE COST
AS THE THIRD DISTRICT RULED.
>> HOW DOES DID THIS CASE GET
THEIR CERTIFICATE CONSULATE
WITH ANOTHER OPINION, OPINION.
>> 4th DISTRICT.
>> WHERE IS THE CONSULATE IN
THOSE TWO CASES?
.
>> THE CONSULATE IN THOSE TWO
CASES!!$$!!!!!!!!
CASES, HAS TO DEAL WITH --
CONSONANT WHEN OR NOT THE
VALUED PROPERTY LAW APPLIES,
AND CONTROLS WITH REGARD TO
LAW AND ORDINANCE COVERAGE AND
REQUIRES A SUM CERTAIN TO BE
PAID FOR THE LAW AND ORDINANCE
COVERAGE AND OH --
>> DISTRICT TALK ABOUT THAT
YOU HAVE TO IN THEY 4th
DISTRICT OPINION AS I READ IT
THERE IS NOTHING IN THERE THAT
SAYS THAT YOU ARE ENTITLED TO
THIS WHEN YOU HAVE -- WEATHER
WHETHER OF YOU ACTUALLY
INCURRED THESE SUMS OR NOT.
>> NO, WHAT THE 4th DISTRICT
DECIDED WAS YOU WERE ENTITLED
TO IT UPON PROOF THAT THE
VALUE OF THE PROPERTY MORE
THAN HALF OF THE VALUE OF THE
PROPERTY WAS REQUIRED IN ORDER
TO MAKE TOTAL COSTS OF REPAIRS!!$$!!!!!!!!!!!!
REPAIRS.
>> THAT IS FOR THE VALUE
POLICY LOSS SECTION OF IT;
CORRECT --
>> ORDINANCE THE LAW AND
ORDINANCE SECTION, IF YOU LOOK
AT -- IF YOU LOOK AT, FIRST,
PAGE, IT IS UNDER, NOTE FOUR
WHERE, THEY ARE TALKING ABOUT
THE LAW AND ORDINANCE
PROVISION AN ORDINANCE WHERE
THE HOME IS LOCATED PROVIDES
THAT WHAT REPAIRS IN
ALTERATIONS AMOUNTING TO MORE
THAN 50% OF THE VALUE ARE MADE
THEY MUST CONFORM TO THE
BUILDING CODES IN EFFECT AT
THE TIME, AND A LOCAL BUILDING
OFFICIAL DETERMINED THAT THE
TOTALLY COST OF REPAIRS TO THE
INSURED BUILDING WOULD EXCEED
HALF A -- NOT THAT IT HAD NOT
THAT THEY PAID THOSE COSTS.
THEN THE COURT GOES ON TO HOLD
UNDER THE LAW AND ORDINANCE
PROVISION THAT THE PROVISION
OF THE POLICY FOR AFFORDS A
DIFFERENT AN ADDITIONAL 25% IN
BENEFITS, AND EXCESS OF THE
FACE AMOUNT OF THE POLICY,
WHAT THE BUILDING IS DEEMED A
TOTALLY LOSS AND MUST BE RE!!$$!!
REBUILT.
THE ONE THING WE DO AGREE UPON
IN THIS CASE, IS THAT THERE
WAS NO EVIDENCE FROM A
BUILDING OFFICIAL IN THIS CASE
THAT THE PROPERTY WOULD HAVE
TO BE REBUILT AND THAT THE
VALUE OF REBUILDING WOULD COST
ONE HALF THE VALUE OF THE
PROPERTY ITSELF.
THAT WOULD HAVE BEEN 62500
DOLLARS!!$$!!!!!!!!!!!!
DOLLARS.
THAT WAS NOT IT.
WILL.
>> I SEE FROM THE -- YOU SEE
OPINION MAYBE YOU CAN CORRECT
ME IT IS KIND OF LONG THAT
THEY QUOTED THE LAW AND
ORDINANCE PROVISION IN THE
POLICY IN MIRZ WA SO HE
MIERZWA SO WE DON'T KNOW IF
THAT POLICY REQUIRED THE TELL
YOU SPENDTURE OF THE FUNDS
BEFORE YOU COULD RECOVER OR
NOT.
>> ACTUALLY, WHAT THEY SAY
THEY DETERMINED THAT IN FACT,
THAT THAT IT HAD TO IF YOU
LOOK AT THE ORDINANCE, THEY
DETERMINED THAT BY OPERATIONAL
LOCAL LAW THE BUILDING IS A
TOTAL LOSS IN OUR CASE, THE
BUILDING WAS STIPULATED AS A
TOTALLY LOSS, AND -- TOTAL
LOGS THEY ALSO DETERMINED THAT
THE BUILDING CODE IN FOOTNOTE
FOUR THAT THE ORDINANCE THAT
THE BUILDING OFFICIAL USED A
FORMULA TO REACH AN ESTIMATED
VALUE AND BASED ON THE VALUE
PROPERTY LAW IN FACT, THERE
WERE NO COSTS EXPENDED THEY
WOULD BE EXPENDED.
>> WHAT YOU SAY IS THE ISSUE
OF CONFLICT, WHICH IS THE
THIRD DCA SAID YOU HAVE TO
EXPEND MONEY FIRST BEFORU
ACTUALLY GET IT THAT IS WHAT
THE POLICY REQUIRES, AND THE
4th DCA CASE WE DON'T KNOW
WHAT THE POHL REQUIRED.
>> -- POLICY REQUIRED.
>> WELL, WELL, THAT IS -- THE
POLICY ITSELF IS NOT QUOTED IN
THE.
.
>> THAT IS WHAT I'M --
>> I AGREE WITH YOU THAT THE
POLICY ITSELF IS NOT YETTED --
QUOTED IN THE OPINION BUT THE
LOGIC --
>> FOR THERE TO HAVE BEEN A
CONFLICT, I KNOW IT IS
CERTIFICATED SO WE HAVE
JURISDICTION ANYWAY BUT FOR
THERE TO BE TELL YOU CONFLICT,
WE HAD TO KNOW THAT THE 4th
DCA CASE SAYS THAT THE POLICY
IN THAT CASE SAID YOU HAVE TO
EXPEND THE FUNDS, YOU HAVE TO
INCUR THE COSTS AND THE FOURTH
DCA SAYING NO DON'T YOU HAVE
TO BECAUSE UNDER THE POLICY
LAW DON'T YOU HAVE TO.
>> I ADOPT AGREE WITH REGARD
TO THE CONFLICT, BECAUSE I
THINK THAT THE TWO POSITIONS
ARE PATENTLY IRRECONCILABLE ON
ONE HAND THE FOURTH DISTRICT
SAID VALUE POLICY LAW CONTROLS
OVER THE POLICY LANGUAGE
ITSELF REGARDLESS WHAT THE
POLICY LANGUAGE ACTUALLY SAYS,
THE VALUE POLICY LAW CONTROLS.
THEN WE GO TO THE THIRD
DISTRICT OPINION, THIRD
DISTRICT OPINION SAYS THE
POLICY CONTROLS OVER THE
VALUED POLICY LAW, AND THAT
THE VALUED POLE LAW DOESN'T --
POFL LAW DOESN'T EFFECT
RESULTS AT ALL.
>> --
>> IN ISSUE, FOLLOW-UP,
QUESTIONS, YOU HAD FROM THE
OTHER PANEL MEMBERS THAT IS
READING THE FOURTH DISTRICT
OPINION IT APPEARS THAT YOUR
CLIMBANTS ARE CLAIMING THAT
THE TRIAL COURT -- DIDN'T GIVE
EFFECT TO THE ADDITIONAL 25%.
>> CORRECT.
>> -- AND THAT, FWUA SAID
WELL, THAT IS EXCLUDED.
AND -- NOW THOSE ARE THOSE ARE
TWO DIFFERENT ISSUES, OKAY,
THE ISSUE.
>> -- OKAY.
>> WHERE -- I'M READING FROM
THE ENDING OF THE FOURTH
DISTRICT OPINION, AND THEY
ACTUALLY HAD IT SET OUT, IN A
SEPARATE SECTION OF THE
OPINION, AND ITS ONLY TWO PAR
FRAVS LONG.
>> PARAGRAPHS LONG.
>> RIGHT?
>> ABSOLUTELY.
>> ALL THEY HAD HERE IS THAT
FWUA ARGUED THAT THE ADDITION!!$$!!!!!!!!!!!!!!
ADDITIONAL ORDINANCE -- ALL
COVERAGE WAS EXCLUDED BY THE
GENERAL EXCLUSIONS IN THE
POLICY.
AND THE FOURTH DISTRICT
DISAGREES WITH THAT.
AND ENDS UP SAYING THAT -- NO,
YOU ARE WRONG, IT IS NOT
EXCLUDED AND THEY ARE ENTITLED
TO THAT COVERAGE, AND THEN
THEY CONCLUDE THAT THE OPENER
HAS ESTABLISHED BEYOND ANY
QUESTION ENTITLEMENT TO THE
ADDITIONAL 25%, THAT IS AN
ENTIRELY SEPARATE ISSUE AS THE
INSURANCE COMPANY CLAIMING --
WELL, JUDGE, THEY HAVE TO
APPROVE EACH -- PROVE EACH
ELEMENT SHOWING THEY EITHER
CONTRACT!!$$!!!!!!!!!!!!!!
CONTRACTED FOR THAT DEBRIS
REMOVAL OR WHATEVER WHICH IS
THE ISSUE THAT WAS FACED IN
THE THIRD DISTRICT, SO I'M --
I'M NEED SOME HELP FROM YOU,
TO GUIDE ME HOW, THERE IS --
BETWEEN THE FOURTH DISTRIBUTOR
SAYING, NO, WE REJECT THE
PROPOSITION!!$$!!!!!!!!!!!!!!!!!!!!
PROPOSITION, THAT THIS
COVERAGE WAS EXCLUDED THEY'VE
GOT THE COVERAGE, THEY ARE
ENTITLED TO THAT COVERAGE.
>> SO --
>> AND THE DECISION.
THIRD DISTRICT THAT SAYS WELL
WE AGREE YOU HAVE THE
COVERAGE, ALL RIGHT WHICH IS
NO DISAGREEMENT WITH THE
FOURTH DISTRICT DECISION, OUR
ONLY ADDITIONAL FINDING IS
THAT YOU HAVE PROPERTY TO GOT
TO APPROVE YOU HAD THE LOSS.
>> WELL -- THE COVERAGE
PROVING THAT THEY ARE TALKING
ABOUT HERE, THAT THAT IS SAT
EXCLUSIONS BUT THIS IS AN
ADDITIONAL AMOUNT OF COVERAGE,
IS EXACTLY THE COVERAGE
PROVISION WE HAVE IN THIS
CASE.
IF YOU LOOK AT --
>> I DON'T THINK THERE IS
DISPUTE ABOUT THAT.
WHAT THE THIRD DISTRICT WAS
RULING ON, WAS AN ARGUMENT BY
THE INSURANCE COMPANY, THAT
SAYS, THEY WE AGREE IT GOT
THEY GOT THE COVERAGE BUT IN
ORDER TO ACTUALLY GET PAYMENT
UNDER THE POLICY THEY'VE GOT
TO DEMONSTRATE THAT THEY GOT
BILLS OR ESTIMATE, OR WHATEVER
THAT THEY WERE ARGUING THERE,
FOURTH DISTRIBUTOR DOESN'T
ADDRESS THAT ISSUE.
>> THE FOURTH DISTRICT DOES
ADDRESS THE ISSUE INSOFAR AS
THEY SAY THAT THAT THE LAW AND
ORDINANCE COVERAGE IN THE
FIRST PARAGRAPH UNDER
PARAGRAPH A, THEY SAY THAT THE
LAW AND ORDINANCE PROVISION OF
THE POLICY AAFFORDS AN
ADDITIONAL 25% IN BENEFITS IN
EXCESS OF FACE AMOUNT WHEN THE
BUILDING IS DEEMED A TOTAL
LOSS AND MUST BE REBUILT.
THAT IS WHAT WE'VE GOT IN THIS
CASE.
IT IS THE SAME PROVISION.
AND IT IS ALSO THE SAME
PROOVENGS!!$$!!!!!!!!!!!!!!!!
PROOVENGS --
>> FOURTH DISTRIBUTOR DOESN'T
DISPUTE THAT.
>> THAT IS RIGHT.
BUT THE THIRD DISTRICT DOES
DISPUTE, THAT THAT VALUE
POLICY LAW APPLIES AT ALL THAT
IS WHERE THE CONFLICT IS THIRD
DISTRICT SAYS, THE POLICY
PROVISION APPLIES, AND YOU
HAVE TO COME OUT OF POCKET TO
PAY THOSE COSTS, AND SUBMIT
THEM FOR ACTUAL REIMBURSEMENT
THEN HE VALUE POLICY LAW DOES
NOT CHANGE THIS RESULT AT ALL
SO THAT IS WHERE THE CONFLICT
IS, AND WHAT I SAY, IS IN
TERMS OF THE DEFICIENCY IN
PROOF IN THIS CASE THE
DEFICIENCY IN PROOF IN THIS
CASE IS NOT WHAT THE THIRD
DISTRICT REMANDED FOR, WHICH
IS TO REPAY THE COSTS.
THE DEFICIENCY IN PROOF IS
THAT WE NEED A BUILDING
OFFICIAL, OR SOMEBODY ELSE TO
COME IN AND SAY IT WOULD COST
MORE THAN 50% TO CONFORM WITH
CURRENT BUILDING CODES IN
ORDER FOR THIS PROPERTY TO BE
REBUILT.
APPEAR ADDITIONAL 50%.
THAT IS WHAT THE DEFICIENCY IN
PROOF IS THAT IS THE REASON
FOR A NEED FOR A REMABD, BUT
NOT REMAND, BUT NOT FOR TO MAY
-- PAY OUT OF POCKET COSTS,
BUT THE TWO THERE ARE TWO
SEPARATE ISSUES IN MIERZWA ONE
CONCURRENT CAUSE ONE FROM AN
ACTUALLY -- CAUSE, SUCH AS
WIND, OR WATER, THAT WAS TWO
CONCURRENT RISKS, ONE WAS
COVERED ONE WAS EXCLUDED.
WE ARE NOT THERE.
WE ARE NOT THERE.
THE ONLY ISSUE IN THIS CASE
THAT IS COULD HAVE BEENED BY
THE COX CASE WHICH IS ALSO
CERTIFICATED TO THIS COURT, AS
A QUESTION OF GREAT PUBLIC
IMPORTANCE THE ISSUE IN THIS
CASE, IS THE FOURTH DISTRICT
BASICALLY SAID VALUE PROPERTY
LAW COVERS LAW AND ORDINANCE
COVERAGE ONCE YOU DETERMINE,
THAT THERE IS LAW AND
ORDINANCE COVERAGE, IN THE
CASE, AND THERE IS A 50%
DETERMINATION THAT YOU HAVE TO
BUILD UP TO CODE, THEN YOU GET
THE 25%, YOU DON'T HAVE TO
COME OUT-OF-POCKET, YOU DON'T
HAVE TO PAY THE COST.
SO THAT IS THE DISTINCTION AND
THE -- IRRECONCILABLE
DIFFERENCE BETWEEN THE FOURTH
AND THIRD DISTRICT.
>> YOU SEE THAT IS STILL THE
PROBLEM I HAVE YOU IS THAT THE
FOURTH DISTRICT, DOES NOT AS I
READ THEIR OPINION ADDRESS
WHEN OR NOT YOU ACTUALLY HAVE
TO COME OUT OF THE POCKET.
THEY SAY CLEAR THAT -- CLEARLY
THAT YOU ARE ENTITLED TO THAT
25%, BUT THEY DO NOT SAY THAT
WHEN OR NOT YOU HAVE TO COME
OUT-OF-POCKET!!$$!!!!!!!!!!!!!!!!!!!!!!!!
OUT-OF-POCKET.
BEFORE YOU GET IT.
>> WELL, LOOK AT THE LOOK AT
THE FINDING WHERE THEY SAY IT
IS AUTOMATIC THAT YOU GET IT.
THEY SAY, THE PROOF WAS THAT
UP CONTROVERTSIBLE THAT THEY
GET IT.
>> I UNDERSTAND YOUR ARGUMENT
ON THAT I THINK WE ARE.
>> LET ME ASK YOU THIS BECAUSE
WE SPENT HALF YOUR ARGUMENT ON
THE JURISDICTIONAL ISSUE, ON
HE ON THE MERITS THERE IS NO
QUESTION THERE IS NO DISPUTE
THAT THE VALUE POLICY LAW
APPLIES AS FAR AS THE PAYMENT
FOR THE VALUE OF THE HOUSE,
AND TOTAL LOSS; RIGHT?
AND THE VALUE POLICY WILL LAW
SEEMS TO SAY PARAPHRASING THIS
APPLIES TO A SECTION OF THE
POLICY THAT GIVES A SPECIFIC
NUMBER FOR THE VALUE OF THE
HOME.
>> NO THAT IS A DIFFERENT
PROVISION!!$$!!!!!!!!!!!!!!!!
PROVISION, WHAT IS NORMALLY
BROUGHT OF VALUE POHL LAW
PARAGRAPH NUMBER ONE, THEN IT
HAS ALL THE EXCEPTIONS TO
VALUED POLICY LAW, PARAGRAPH
ONE, DEALS WITH VALUE POLICY
LAW AND IT REQUIRES TWO
THINGS, ONE, YOU HAVE TO HAVE
A TOTAL LOSS ANY OF BUILDING,
WHICH IS FROM A A-CONSERVED
PERIL WE HAD IT IS A FIRE
LOSS.
IT WAS A TOTAL LOSS THEY
AGREED IT WAS TOTAL LOSS.
>> AGREED TO PAY FOR THAT?
RIGHT.
>> NO.
THEY HAVEN'T.
AND I WILL TELL YOU WHY.
>> -- THE VALUE --
>> OH, ABSOLUTELY THEY PAID --
THE DWELLING, THEY DIDN'T PAY
THE LAW ORDINANCE I WILL TELL
YOU WHY I THINK IT IS IS
COVERINGED IF YOU LOOK THE
SECOND CONDITION IS -- UNDER
THE POLICY THE TOTAL LOSS
SHALL BE THE AMOUNT OF MONEY
FOR WHICH SUCH PROPERTY WAS SO
INSURED AT SPECIFIED IN THE
POLICY, AND FOR WHICH A
PREMIUM HAS BEEN CHARGED AND
PAID.
WELL THE AMOUNT SPECIFIED IN
THE POLICY IS NOT JUST 125,000
DOLLARS!!$$!!!!!!!!!!!!
DOLLARS, UNDER ADDITIONAL
COVERAGE, AS TO COVERAGE A,
WHICH IS DEING -- DWELLING, IT
PROVIDES FOR 25% OR BUILDING
INCREASE FOR LAW AND ORDINANCE
COVERAGE, THAT IS WHERE YOU
GET IT.
BUT IT FALLS UNDER DWELLING
COVERAGE, COVERAGE A. SO THE
AMOUNT UNDER THIS IS THE
AMOUNT SPECIFIED IN THE POLICY
IS 125,000, A PREMIUM WAS
CHARGED AND PAID FOR THE
ADDITIONAL LAW AND ORDINANCE
COVERAGE, AND YOU SHOULD GET
IT.
BUT THERE IS NO DISPUTE OVER
THE TOTAL LOSS, OR THE FACT
THAT YOU WERE CHARGED AND PAID
A PREMIUM FOR THIS COVERAGE,
AND PART OF COVERAGE A, WHICH
IS DWELLING COVERAGE.
>> ARE THEY TAKING THE
POSITION THAT INCURRING, MEANS
THAT YOU ACTUALLY HAVE TO HAVE
SPENT THE MONEY, OR IS IT THAT
YOU HAVE TO THIS IS NOT AN --
AGAIN WHAT IS NOT AT ISSUE IS
THEY AGREE THAT IT IS SOME
POINT, THEY WOULD BE LIABLE TO
PAY OUT BUT THE QUESTION IS
WHAT POINT IT IS, IS IT THAT
YOU GET READY TO REBUILD YOUR
HOUSE YOU FIND OUT YOU HAVE TO
DO THESE THINGS DON'T YOU HAVE
THE MONEY, YOU SAY WELL HERE
IS MY HERE IS THE --
>> NO.
THEY TAKE THE POSITION AND
THAT IS WHAT THE THIRD
DISTRICT FOUND, THAT YOU HAVE
TO PRESENT THEM WITH THE COST
OUT-OF-POCKET!!$$!!!!!!!!!!!!!!!!!!!!!!!!
OUT-OF-POCKET, YOU HAVE TO
GIVE THEM THE COST.
>> YOU AGREE THAT THEIR POLICY
REQUIRES THAT.
>> NO.
-- WELL, THE AMICUS HAS TAKEN
THE POSITION OUR AMICUS HAS
TAKEN THE POSITION THAT THE
WORD "INCURRED" UNDER THE
POLICY ITSELF ACTUALLY MEANS
INCURRED LIABILITY AS OPPOSED
TO INCURRED THE COST.
THEY JUST -- DOSE POOUT THAT
IN THIRD DISTRICT TELL US THAT
YOU WOULD GET A WINDFALL IF
YOU HAD NOT ACTUALLY PAID OUT
THE COST FIRST, AND SOUGHT
REIMBURSEMENT!!$$!!!!!!!!!!!!!!!!!!!!!!!!
REIMBURSEMENT, PEOPLE CAN'T
PAY OUT OF POCKET FOR.
>> HE NOW, WE ARE -- TWO
DIFFERENT THINGS, YOU ARE NOT
MAKING THE ARGUMENT THAT THIS
IS AN AMBIGUOUS TERM?
>> I HAVE NOT MADE -- I HAVE
NOT MADE THAT ARGUMENT.
>> I APPRECIATE YOUR BEING
FORTHRIGHT ON THAT, ON HE ON
THE ISSUE OF THE WHETHER THE
VALUE POLICY LAW APPLIES AND
IT IS NOT ONE I'M FARM WITH --
FAMILIAR WITH WHAT IS THE
UNDERLYING POLICY OF THE VALUE
POLICY LAW IN WHY -- WHAT IS
IT IS THE LAW AMBIGUOUS, OR --
>> THE LAW, STRAIGHTFORWARD
THE STRAW LAW WAS
STRAIGHTFORWARD IT WAS WRITTEN
THIS LAW PARTICULAR LAW
WASWRITTEN BACK IN 1899.
IT HAS BEEN ON THE BOOKS IN
FLORIDA SINCE THEN BUT I AM I
IT CAME INTO EFFECT LONG
BEFORE THAT THE POLICY BEHIND
VALUED POLICY LAW WAS, WAS
INSURANCE COMPANIES WERE
SIMPLY IN ACCEPTING WHATEVER
AMOUNT THE INSURED WAS PUTTING
ON AS THE VALUE OF THEIR
PROPERTY.
AND THEN THEY WERE DOING NO
INVESTIGATION AS TO WHETHER
PROPERTY WAS WORTH THAT AMOUNT
OR NOT.
BUT THEN, AFTER ACCEPTING THE
PREMIUMS AND AFTER ACCEPTING
COMMISSION!!$$!!!!!!!!!!!!!!!!!!
COMMISSIONS, FOR THOSE
PREMIUMS!!$$!!!!!!!!!!!!!!
PREMIUMS, FOR YEARS AND YEARS
AND YEARS, THEN THE INSURED
WOULD PUT IN A CLAIM AND THEN
THE INSURANCE COMPANY WOULD
CONTEST THE AMOUNT AND YOU
SEE.
>> AN ESTOPPEL ARGUMENT.
>> THAT IS WHAT IT WAS?
YOU PAID FOR THIS MUCH
COVERAGE, YOU ARE GOING TO GET
IT IF THERE IS A TOTAL LOSS.
NOW HOW DOES THAT APPLY OR NOT
APPLY TO SOMETHING THAT IS NOT
A FACE AMOUNT BUT IS A -- A
25% OF THE TOTAL LOSS.
>> OKAY, BECAUSE IT IS
ADDITIONAL COVERAGE FOR THE
DWELLING ITSELF.
AND THERE IS A SLEW OF CASES,
THAT WHEN AND THIS WAS THE
HARD PART I HAD WITH THIS
CASE.
WHEN YOU ARE LOOKING AT ALL OF
THE CASES THAT COME UP,
USUALLY!!$$!!!!!!!!!!!!
USUALLY, LAW AND ORDINANCE
COVERAGE CAME UP AS AN ISSUE
WITH REGARD TO WHEN OR NOT
THERE WAS A TOTAL LOSS.
INSURANCE COMPANIES WERE
TAKING THE POSITION THAT YOU
COULD HAVE THE BUILDING WOULD
BE DESTROYED, BUT A LAW AND
ORDINANCE OF THE MUNICIPALITY
WOULD PREVENT THE BUILDING
FROM BEING REBUILT AND THEY
TOOK THE POSITION THAT UNDER
THAT SITUATION, IT WAS ONLY A
PARTIAL LAW, THE LAW AND
ORDINANCE PROVISION -- THE
VALUE-ADDED THE VALLEY
PROPERTY STATUTE DIDN'T APPLY
AT ALL.
IT WAS A PARTIAL LOSS AND
THEREFORE THEY ONLY HAD TO PAY
THE ACTUAL LOSSES THERE WERE
ACTUALLY INCURRED.
AND THE COURTS UNIFORMLY OVER
ALL OVER THE COUNTRY SAID NO,
THE ENACTMENT OF THE LAW AND
ORDINANCE PROVISION WHICH
MAKES YOU MAKES YOU OR
PREVENTS FROM YOU REBUILDING
MADE IT A TOTAL LOSS BY
OPERATION OF LAW.
>> ALL RIGHT WHAT IS IN THE
SINCE I HAVE THE LAW IN FRONT
OF ME, WHAT IS THE WORD THAT
IS EITHER THAT WE ARE
INTERPRETING HERE SAYS SHALL
BE IF THE AMOUNT OF MONEY FOR
WHICH SUCH PROPERTY WAS SO
INSURED SO IS IT THAT THE
QUESTION OF WHETHER THE AMOUNT
OF MONEY IS THIS 25% MEANS THE
AMOUNT -- AND IS THAT -- IS
THAT S -- WITH.
>> MONEY SO INSURED IS
125,000, PLUS ADDITIONAL 25.
>> THAT IS STATUTORY
INTERPRETATION.
>> CORRECT.
>> QUESTION.
>> THAT IS RIGHT.
AND THAT IS THE ISSUE FOR THIS
COURT.
WHETHER THAT SUBSECTION
SUBSECTION ONE INCLUDES,
INCLUDES LAW AND ORDINANCE
COVERAGE BECAUSE YOU HAVE MADE
A PREMIUM FOR IT, AND IT IS
INCLUDED IN THE PLAIN READING
OF SUBSECTION ONE.
>> YOU ARE INTO REBUT -- INTO
REBUTTAL --
>> THANK YOU.
>>,,
.
>> GOOD MORNING PLACE IT
PLEASE THE COURT JAMES PRIF
NAN PRICHD TO REPRESENT
CITIZENS PROPERTY INSURANCE
BEFORE THE COURT THIS MORNING
ON THIS ISSUE.
>> MR. FISHERMAN WOULD YOU
KAUK THROUGH ONE QUICK ISSUE
ON THE CONFLICT WITH ME.
>> YES, SIR.
>> BE SURE THAT I UNDERSTAND
THAT, I'M LOOKING TO IT IS IN
ON PAGE THREE.
OF THE FOURTH DISTRICT
OPINION.
>> YES, SIR.
>> -- AND IT TALKS IN TERMS OF
WHAT IT IS NECESSARY FOR THE
FOR THE VPL ELECTRICITY I NEED
IT -- ELECT I NEED ONE YOU
HAVE COVERAGE TWO A TOTAL LOSS
THEN GOES ON AND SAYS, IF
THESE TWO FACTS ARE TRUE, VPL
MANDATES THE CARRIER IS LIABLE
TO THE OWNER FOR THE FACE
AMOUNT OF THE POLICY NO MATTER
THIS IS THE POINT HERE, NO
MATTER WHAT OTHER FACTS ARE
INVOLVED AS TO THE COST OF THE
RE-PARIS FOR REPLACEMENT,THEN
I TURN TO THE THIRD DISTRICT
OPINION IT TALKS IN TERMS OF
AND AGAIN ON PAGE THIS IS PAGE
EIGHT OF THAT OPINION, IT
TALKS IN TERMS OF THE TOTAL
LOSS, AND IF THE BUILDING IS
DEEMED A TOTAL LOSS CERTAINLY
BE DEEMED FOR THE PURPOSES OF
LAW AND ORDINANCE THEN GOES ON
IN THE FINAL PARAGRAPH AND IT
SAYS, HOWEVER, AS PROVIDED IN
THE POLICY THEY MAY RECEIVE
THAT 25% ONLY, ONLY IF THEY
ACTUALLY IN-- INCURRED COVERED
EXPENSE, WHEN I VOTED TO
ACCEPT JUSHGSDICTION THAT IS
WHAT I WAS LOOKING AT.
CAN YOU TELL ME THAT THAT IS
THAT DOESN'T CONFLICT WITH ONE
ANOTHER?
ONE SEEMS TO SAY TO ME DOESN'T
MAKE ANY DIFFERENCE, NO OTHER
FACT IS CONSIDERED -- IN THE
THIRD DISTRICT SAYS ONLY THE
ACTUALLY INKURD THE EXPENSE
THAT IS WHERE I NEED AN
EXPLANATION, WHY WE WOULD NOT
HAVE IT UNDER THOSE TWO
SENTENCE!!$$!!!!!!!!!!!!!!
SENTENCES.
>> OKAY, I CAN RESPOND TO THAT
VERY SIMPLY BY SAYING THAT YOU
HAVE TO TAKE THE ENTIRE VALUED
POLICY LAW AS A WHOLE WITH ALL
OF IT'S SUBPARTS IN ORDER TO
UNDERSTAND WHAT THE MEANING OF
THAT PHRASE WAS.
AND IF I MAY, IN THE FLESHMAN
CASE VERSUS VPL EVERY STATUE
MUST BE READY IN HOLE WITH
MEANING DESCRIBINGED TO EVERY
PORTION IN DO YOU REGARD GIVEN
TO SEMANTIC COP TEXTUAL
INTERRELATIONSHIP BETWEEN IT'S
PARTS WHAT WE HAVE A VALUED
POLICY LAW FIRST PARAGRAPH
WHICH SKUNS DISCUSSED WHICH
TALKS ABOUT THE COVERED LOSS,
AND A TOTAL LOSS, A COVERED
CLAIM AND TOTAL LOSS WE HAVE
NO DISPUTE WITH THAT WE PAID
THE COVERAGE, A, AMOUNT.
WHAT WE HAVE A DISPEW WITH IS
THE TOTAL DISREGARD OF
PARAGRAPHS TWO THROUGH 8,!!$$!!EIGHT,
WHICH IF YOU LOOK AT THE
ENTIRE STATUTE, IT TAKES THE
STATUTE, IT GIVENS THEY
GENERAL RULE IT GIVES YOU THE
ACCEPT HE EX EPIONS GIVE IN
YOU PARAGRAPHS EIGHT THE
ADDITIONAL OPPORTUNITY TO
OFFER INDEMOCRATIFICATION AS
THE DISTINGUISHED FROM THIS
LIQUIDATED DAMAGE CONCEPT IN
PARAGRAPH ONE, YOU HAVE GOT
INDEMOCRAT ANY$$!!!!IFICATION
PROVISION EXPLICIT EXPRESS
TEMPERATURES IN THE LAW SO IF
WE LOOK AT PARAGRAPH, FIVE,
AND IT TALKS ABOUT EXCLUSION,
OF ANY KIND OF CLAIM, THAT HAS
NOT BEEN EX SUPPRESSED IN A
DOLLAR VALUE, AND I MIGHT
POINT OUT TO THE COURT, IF WE
ARE TALKING ABOUT STATUTORY
INTERPRETATION, IT SAYS IT
TWICE, WITHIN THE SAME
SENTENCE, YOU MUST HAVE A
DOLLAR VALUE EXPRESSED IN THE
COVERAGE, IN ORDER FOR IT TO
FIT, IT ALSO SAYS IF THAT SAME
PAR GRAPH --
>> LET'S GO BACK I'M REALLY
TRYING TO UNDERSTAND REALLY
TRYING TO UNDERSTAND THAT
WOULD MEAN THAT THE 25% IS NOT
COVERED IN THE VALUE POLICY
LAW AT ALL.
>> THAT IS CREAK.
>> THAT IS WHAT YOU ARE
SAYING.
>> THAT IS --
>> THE QUESTION THAT I'M
ASKING THAT IS A DIFFERENT
ISSUE.
>> OKAY
>> WHAT YOU ARE SAYING, IS
THAT AND IT IS NOT EXPRESSED
IN HERE, THAT A 25% IS NOT
COVERED AT ALL WHILE BOTH OF
THESE COURTS SEEM TO SAY THAT
IT IS, THE THIRD DISTRICT SAYS
IT IS ONLY IF YOU ACTUALLY
EXPEND IT THE FOURTH SAYS IT
IS IRRELEVANT.
>> LET ME CLARIFY WHAT OUR
POSITION IS WITH REGARD TO
JURISDICTION IN THE COURT DOES
NOT TALK ABOUT THE VALUE OF
THE ORDINANCE IN LAW, BENEFIT
THAT IS BEING PAID TO THAT
PARTY.
THEY ONLY SAY IF YOU HAVE A
TOTAL LOSS ORDINANCE AND LAW
BECOMES AVAILABLE IN THE
RECORD, IN THAT CASE, IT WAS
CLEAR, THAT THAT PARTY HAD
INCURRED!!$$!!!!!!!!!!!!!!
INCURRED, THOSE LOSSES.
>> -- I'M NOT WAIT A MINUTE,
I'M LOOKING FOR THAT, BUT IT
DOES NOT SAY INCURRED THERE.
IT SAYS WITHOUT REGARD --
>> NO.
?
NO MATTER WHAT OTHER FACTS ARE
INVOLVED AS TO THE COST OF
REPAIRS OR REPLACEMENT.
>> CORRECT.
>> THAT IS WHAT IT SAYS SO IF
CORRECT.
>> -- IS THERE SOMEPLACE ELSE
TELL US THAT IS INCURRED.
>> YES IF WE LOOK AT PAGE 779
OF THE OPINION, AND WOULD BE
FOUND UN-- UNDER FOOTNOTE
NINE.
THE OWNER HAS ESTABLISHED
BEYOND ANY QUESTION
ENTITLEMENT TO ADDITIONAL 25%
IN BENEFITS, UNDER ORDINANCE
AND LAW IN THAT SITUATION.
>> BUT -- IN GET -- JUSTICE
LEWIS' QUESTION IN MY HEAD AND
THAT IS IS AS YOU YOUR
POSITION, OR NOT THAT A 25% IS
PART OF THE FACE VALUE OF THE
FACE AMOUNT OF THE SNOEFL IS
IT 25% --
>> THE POSITION THAT IT IS NOT
PART OF THE FACE VALUE OF THE
POLICY, VERY SIMPLY, BECAUSE
PARAGRAPH FIVE EXPRESSLY
STATES THAT THIS DOES NOT THE
VALUE POLICY LAW DOES NOT
INCLUDE ANY CLAIM COVERAGE OR
CLAIM, IN WHICH THE DOLLAR
AMOUNT, IS NOT DIRECTLY STATED
IN THE POLICY, AS A DOLLAR
AMOUNT, SPECIFICALLY, APPEAR
LIKE TOBL THAT STRUCTURE WHAT
WE ARE TALKING ABOUT IS
SOMETHING THAT IS EXPRESSED IN
A PERCENTAGE, THAT IS SEPARATE
AND APART FROM THE LIQUIDATED
DAMAGE AMOUNT THAT WE HAVE
UNDER COVERAGE A, NOW WE ARE
TALKING ABOUT AN INDEMOCRAT
ANY$$!!!!IFICATION CONCEPT FOR THE
ORDINANCE AND LAW COVERAGE
WHICH IS EXPRESSLY AUTHORIZED
IN SUBPARAGRAPH 8.
THAT IS WHY I'M SO CONCERNED,
THAT WE ARE TAKING THIS
STATUTE APARTPIECE MEAL NOT
LOOKING AT IT IN CON TENTH,
AND IN A RE-- RELATIONSHIP TO
WHAT IS BEING ACCOMPLISHED
HERE.
>> TO MAKE SURE YOU ARE
TALKING ABOUT NOT -- BECAUSE
PARAGRAPH FIVE YOU ARE NOT
TALKING ABOUT THE PAEFL YOU
ARE ACTUALLY IN THE VALUE
POLICY LAW, IN ADDITION TO THE
-- THE FIRST PART THAT TALKS
ABOUT THE AMOUNT OF MONEY,
SUBSECTION TALKS ABOUT WHEN IT
DOESN'T THIS -- THAT THIS
SECTION DOES NOT APPLY AS TO
PERSONAL PROPERTY.
>> EXCEPT INSURANCE.
>> YOU ARE SAYING THIS SECTION
MEANS THE WHOLE 627.702.
>> THAT IS CORRECT YOUR HONOR
IT GOES SPECIFICALLY, ON TO
TALK ABOUT ANY COVERAGE, OR
ANY CLAIM THAT IS NOT EXPRESS!!$$!!!!!!!!!!!!
EXPRESSED IN DOLLAR AMOUNT
DOES NOT FALL WITHIN THIS
STATUTE.
>> DO WE KNOW WAS THAT
SUBSECTION ADDED LATER
BECAUSE -- IT HAS BEEN
REPRESENTED THAT THIS THE LAW
HAS BEEN IN AN IN EXISTENCE,
SINCE, BEFORE THE LAST
CENTURY, WERE THESE SECTIONS
ADDED AT DIFFERENT TIMES DO WE
KNOW.
>> I DON'T KNOW SPECIFICALLY
WHEN THIS SECTION WAS ADDED
BUT SUBSTANTIALLY PREDATES
THIS LOSS.
AND THIS CASE.
>> I KNOW BUT IT IS PROBABLY
SUBSTANTIALLY AFTER 1899.
>> YES YOUR HONOR.
>> AND THEN, THE SUBSECTION 8.
WHICH TALKS ABOUT THE
ENDORSEMENT THAT CAN PEADDED
IS IT YOUR POSITION, THAT THE
ENDORSEMENT HERE, FOR THE 25%,
IS AN ENDORSEMENT OF
CONTEMPLATED IN SUBSECTION 8.
>> PRECISELY THE LANGOCASE I
CITED IN FEE OF THE BRIEF
ALMOST ALL ON 4s WITH THIS YOU
ARE TALKING ABOUT EQUIVALENT
OF TREJSD PLACEMENT COST
COVERAGE IT IS A SITUATION,
WHERE YOU ARE ADDING SOMETHING
ADDITION!!$$!!!!!!!!!!!!!!
ADDITIONAL,OVER AND ABOVE THAT
LIQUIDATED DAMAGE AMOUNT IN
COVERAGE A, YOU ARE ADDING
SOMETHING ADDITIONAL THAT IF
THEY ROW BUILD IF THEY INCUR
THE COSTS WHICH I DON'T I
DISAGREE WITH COUNSEL'S
REPRESENTATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!
REPRESENTATION, THAT I THAT I
-- DISPUTED THE READING OFFOI
IN KURD" I THINK -- THINK
INCURRED MEANS BECOME LIABLE
FOR IF THEY SAY TO THE
CONTRACTOR GIVE IN THE A
CONTRACT THEY SIGN THE C THEY
GAVE IT TO THE INSURANCE
COMPANY THE INSURANCE COMPANY
IS IN AINGS PO, TO HONOR IT.
TO LOOK AT IT, AND TO ADJUST
IT.
>> ALL RIGHT SO YOU ARE
ACTUALLY -- SO THAT IS THAT --
CERTAINLY IN TERMS OF BEING
CONCERNED, ABOUT HOW THESE
THINGS GO I'M THINKING OF
SOMEBODY HAVING A HOUSE -- IN
LUB!!$$!!!!
LUBEL THEY NOW GET CITED BY,
HE CODE ENFORCEMENT, OR HAVING
A NUISANCE THEY NEED TO START
TO REMOVE THE RUBBLE.
>> RIGHT.
>> -- IS THAT -- IF YOU GOT
CITED AND YOU HAVE THAT IS
THAT --
>> THERE IS DEBRIS REMOVAL
COVERAGE, THERE IS LANDSCAPING
REPAIR COVERAGE AND THERE IS
ORDINANCE AND LAW COVERAGE.
>> ALL OF WHICH MAY HAVE SOME
BEARING ON THAT.
THE ORIGINAL MOTION IF THE
COURT WILL RECALL AT THE TRIAL
LEVEL WAS FOR SUMMARY JUDGMENT
AS TO ALL THREE OF THOSE
COVERAGES, TWO OF WHICH HAVE
BEEN DECLINED BY THE TRIAL
COURT.
AND HAVE NOT A WORD HAS BEEN
SPOKEN ABOUT I COUNSEL ABOUT
ANY OF THAT, GOING RIGHT BY ON
THE SAME TEST ON THE SAME
BASIS!!$$!!!!!!!!
BASIS, THAT THEY WOULD BE
ENTITLED TO HERE, NOT
MENTIONED THERE
>> SO WE ARE CLEAR INCURRED
YOU ARE SAYING IS A BROADER
TERM UNDER YOUR POLICY.
>> ABSOLUTELY.
>> ON BEHALF OF THE INSURANCE
COMPANY, MISS ROTH SHOULD BE
HAPPY WITH THAT CONCESSION.
>> I AM.
>> WE ARE IN AGREEMENT.
>> I'M STILL HAVE A PROBLEM
WITH YOUR PREDICATE ARGUMENT.
>> I APOLOGIZE.
>> BEING LOO BEING BAG BACK AT
FOURTH DISTRICT OPINION IN
CONCLUDING PARAGRAPHS OF THE
MAJORITY PIN IT TALKS IN TERMS
OF IT IS EXPRESSED AS A
PERCENTAGE THEY ARE INCLUDING!!$$!!!!!!!!!!!!!!!!
INCLUDINGING THAT PERCENTAGE
COVERAGE AS PAST OF THE PAEFL
VOEFL VPL, YOU KEEP SAYING
THAT IT IS NOT I'M HAVING
DIFFICULTY ACCEPTING YOUR
PREMISE I'M TRYING TO WORK
THROUGH THIS, BUT DO THEY NOT
SAY THAT?
>> IT IS UNDER, UNDER THE HEAD
NOTE 8,!!$$!!EIGHT, YOU HAVE THE PAGE
RIGHT THERE IN FRONT OF YOU.
BECAUSE THAT SPECIFICALLY THIS
LAW THE ORDINANCE AND LAY
COVERAGE.
>> YES.
>> AND IT TALKS UNDER THAT
POLICY WAS ALSO, 25%, RIGHT?
>> YES, SIR.
>> THEN THEY GO ON AND SAY TO
RESOLVE THAT THAT IF THE
BUILDING IS A TOTAL LOSS, IT
SHOULD CERTAINLY BE A TOTAL
LOSS FOR THE PURPOSES OF THIS
COVERAGE AS WELL.
>> RIGHT AND THEN.
>> -- I SUPPOSES THAT IT IS
GOING TO BE REBUILT.
BUT THE OTHER SIDE OF THE COIN
IS IF YOU HAVE A STRUCTURE
THAT IS BUILT TODAY, AND IT
BURNS DOWN THAT ITS --
AFTERNOON WHEN BUILT REBUILT
TOMORROW, THERE IS NO
INCURRING OF ADDITIONAL COSTS
AS A RESULT OF THE ENFORCEMENT
OF ORDINANCE AND LAW COVERAGE,
THE PROBLEM IS THAT THE
PLAINTIFFS IN THIS CASE THE EP!!$$!!
EPILON, WANTS AUTOMATIC
ENTITLEMENT TO ADDITIONAL 25%.
>> I UNDERSTOOD YOUR ARGUMENT
BEFORE IT WAS NOT PART OF THAT
BECAUSE IT WAS PERCENTAGE.
>> THAT IS MY ARGUMENT.
>> THE FOURTH DISTRICT SAYS
THAT IS WRONG.
>> WELL --
>> HELP ME UNDERSTAND.
>> OKAY.
>> --
>> I'M NOT IN AGREEMENT WITH
THE FOURTH DISTRICT ON THAT
POINT.
>> OKAY.
>> I WOULD ALSO POINT OUT TO
THE COURT THAT I THINK THE
FOURTH DISTRICT WAS SPENDING
MOST TIME ON THE BODY OF THE
POLICY, AND NOT SO MUCH TIME
ON THE ORDINANCE AND LAW AND
IT WAS AN AFTER THOUGHT IN
THIS PARTICULAR CIRCUMSTANCE,
WHERE THAT COVERAGE WAS DENIED
BY THE CARRIER, IN OUR
SITUATION WE DIDN'T DENY
COVERAGE, WE ARE ONLY TALKING
ABOUT THE VALUE OF THE
BENEFIT.
>> OKAY.
>> -- YOU ARE SAYING THAT THE
FOURTH DISTRICT WAS WRONG WHEN
THEY EVEN PROVIDED THAT
BENEFIT.
>> YES, SIR.
>> THAT IS WHAT YOU ARE
SAYING.
>> YES.
>> THEY DID IT THOUGH, AND
NOW, THE THIRD DISTRICT IS
SAYING, THAT WE ARE GOING TO
DO IT, TOO BUT ONLY IF YOU
EXPEND IT.
>> THAT IS NOT EXPEND EXPEND
IS --
>> INCURRED BETTER WORD AT
LEFT ON THE FACE OF THIS WE
HAVE A CONFLICT BETWEEN THE
TWO THEY BOTH MAY BE WRONG,
MAYBE IT DOES AIN'T PLY AT ALL
IS WHAT YOU ARE ARGUING, BUT
LEAST ON THE FACE, THAT THESE
TWO CAN'T STAND --
>> I UNDERSTAND YOUR ARGUMENT,
AND IP.
>> IT IS NOT I'M TRYING TO
MAKE SURE I UNDERSTAND YOUR
ARGUMENT THAT IS WHAT I WANT
TO DO.
>> YIM OF THE OPINION THAT THE
MIERZWA COURT OAKING AT ONLY
COVERAGE LIVE ORDINANCE AND
LAW REALLY NOT FOCUSED ON WHAT
THE COURT IS NOW NOW UKSINGING
ON THAT DICTA, THEY DEALT WITH
A THEIR MAIN BODY, AT MADE
THEIR MAIN RULING THREW IN
ORDINANCE IN LAW AS AFTER
THOUGHT.
>> IT WAS CLAIM.
>> YES, SIR.
>>IT IS A CLAIM SO IT IS NOT
DICTA THIS IS HOLDING -- WITH
REGARD TO THAT COVERAGE.
>> HOLDING, THE HOLDING SAYS
THERE IS COVERAGE, IT DOESN'T
SAY THE VALUE OF THE COVERAGE.
AND MY POINT IS COVERAGE, IS
NOT AN ISSUE IN OUR CASE.
>> WELL IT SAYS, THAT THE
RESOLUTION TO THIS CLAIM IS
PARTIALLY RELATED TO DECISION
ON THE -- ISSUE IF BILLING
TOTAL LOSS FOR PURPOSES OF
VPL, IT IS CERTAINLY BE DEEMED
AT A A TOTAL LOSS FOR PURPOSE
OF THIS ORDINANCE, OR LOSS
COVERAGE.
>> AND THAT IS WHY THE COURT,
IN THE FIRST DISTRICT COURT OF
APPEAL!!$$!!!!!!!!!!
APPEAL, IN THE COX DECISION,
STARTED BACKING AWAY FROM THAT
DECISION EVEN THOUGH THEY SAID
THEY WERE DUTY POUND TO FOLLOW
IT.
THEY ALSO WENT INTO THE FACT
THAT THEY SAID THE POWER IF
THE POWER OF LEGISLATURE WERE
OURS INSTEAD,CONSIDERATIONS
LIKE EASE OF ACTUARIAL
ANALYSIS THE ECONOMICS OF THE
INSURANCE INDUSTRY, AND EVEN
OUR OWN NOTIONS OF FAIRNESS
MIGHT WELL LEAD US TO
INTERPRETATION OF THE 2004
STATUTE NOT UNLIKE WHAT THE
STATUTE HAS REQUIRED SINCE IT
WAS SIGNIFICANTLY REVISED IN
2005!!$$!!!!!!
2005, EVERYBODY IS MOVING AWAY
FROM THIS TYPE OF ANALYSIS.
THERE ARE SERIES OF CASES I
CITED TO YOU IN SUPPLEMENTAL
AUTHORITI,THE CHANCE CASE,
WHICH JUST CAME DOWN, A COUPLE
WEEKS AGO, IN WHICH THE COURT
HAS STAYED A RULING PENDING
THE OUTCOME OF THIS AND COX ON
-- RELYING MORE ON THE SYSTEM
ABAYTYPE AN AL VAS VANGUARD
DOLMAN AS CASE ANOTHER FIRST
DISTRICT CASE THE ADDITIONAL
COVERAGE THEY DETERMINED, WERE
NOT COVERED WERE NOT COVERED
BY THE VALUE POLICY LAW.
AND THEY FOLLOWED THE MIERZWA
ANALYSIS!!$$!!!!!!!!!!!!!!
ANALYSIS.
SO THESE COURTS ARE NOT VERY
COMFORTABLE WITH WHAT HAPPENED
IN THE MIERZWA CASE AND THEY
ARE STARTING TO CHIP AWAY AT
THOSE ANALYSES.
>> YOU -- I MEAN, SO IT SEEMS
TO ME, THAT YOUR POSITION
WOULD BE THAT SINCE A
CERTIFICATED CONFLICT AND
SINCE MIERZWA IS AT LEAST IT
IS CERTAINLY CONFUSING, THAT
YOU WOULD URGE US TO RESOLVE
THE TAKE THE KEEP THIS CASE.
>> YES YOUR HONOR ACTUALLY,
EVEN THOUGH I'M NOT.
>> -- LONG AND SHORT OF IT --
>> EVEN THOUGH I'M NOT REALLY
COMFORTABLE WITH JURISDICTION.
>> -- STATE IS WAITING OR.
>> SAID WE HAVE JURISDICTION.
>> YES, SIR -- MA'AM.
>> I DON'T KNOW IF YOU ASKED,
DID YOU ASK THE THIRD DISTRICT
TO CERTIFICATE.
>> I DID -- CERTIFY.
>> I DID NOT IN ANY EVENT
WE'VE GOT JURISDICTION SO YOU
THE TWO OF YOU NOW WE'VE GOT
TWO THAT YOU BOTH AGREE, WE
HAVE JURISDICTION.
>> WE WORKED THROUGH THAT ONE.
>> WE SHOULD ACCEPT.
>> SORRY IT TOOK SO LONG.
>> AND THEN YOU BOTH AGREE OR
NOW THAT INCUR MEANS SOMETHING
LESS THAN HAVING THE EXPENSE
AND NOW WE JUST GET BACK TO
WHETHER SUBSECTIONS 5 AND 8,!!$$!!
EIGHT, REALLY TRUMP THE
INITIAL STATEMENT, AND REALLY
HAVE TO BE CONSIDERED, IN A
STATUTORY CONSTRUCTION
ANALYSIS WHICH NEITHER THE
THIRDOR THE FOURTH DID IT THE
THIRD DIDN'T DO IT AT ALL.
>> YOU BRING UP A VERY
IMPORTANT POINT, BECAUSE.
>> I DO?
>> YES, MA'AM.
>> THANKS.
>> YOU ARE BRINGING UP HERE
THAT THE -- STATUTES -- READ
AS A WHOLE SHOULD BE ANALYZED
AS DISTINGUISHED FROM THE EP!!$$!!
EPILONARGUMENT SAYING THE
STATUTE TRUMPS THE POHL THIS
IS NOT A STATUE VERSUS POLICY
ARGUMENT THIS IS AN ANALYSIS
OF THE STATUTE, TAKING INTO
CONSIDER!!$$!!!!!!!!!!!!!!
CONSIDERATION, ITS ENTIRETY$$!!!!ITY
IN CONTEXT.
>> I THINK SAYING IN FAIRNESS
THE STATUE EITHER THE THIRD
DISTRICT INCLUDED THE STATUTE
APPLIES TO THIS TYPE OF
COVERAGE, AND THE FOURTH --
DOES NOT APPLY TO THIS TYPE OF
COVERAGE THE FOURTH DISTRICT
CONCLUDED IT WILL DID APPLY WE
ARE REALLY A TRUMP I THING WE
GO TO TO THE SAME PLACE.
>> OKAY.
>> THE FINAL ANALYSIS IF WE
LOOK AT A CASE LIKE LANGHORNE
CASE, IN WHICH THIS IS BY
ANALOGY NOW NOT ORDINANCE IN
LAW CASE, BUT TO EXTENDED
REPLACEMENT COST COVERAGE CASE
YOU ARE LOOKING AT A
SITUATION, WHERE THE UNDER!!$$!!!!!!!!
UNDERLYING COVERAGE IS PAID
THE QUESTION IS DID THEY
INCUR, OR DID THEY COME AND
PAY OUT, THOSE ADDITIONAL
COSTS, SO THEY COULD BE PAID
BACK, FOR THAT EXTENDED
REPLACEMENT COST COVERAGE, THE
COURT MADE THE SAME ANALYSIS
THAT WE ARE TALKING ABOUT,
THEY SAID THAT PARAGRAPH 8,!!$$!!
EIGHT, DOES NOT CONFLICT WITH
PARAGRAPH ONE OF THE VALUED
POLICY LAW, AND THAT THE
ENDORSEMENT IN THAT CASE WHICH
IS VERY MUCH LIKE THE
ENDORSEMENT THAT WE ARE
DEALING WITH HERE, WHICH IS AN
ENDORSEMENT THAT SPECIFIES
SPECIFIED OF IT'S OWN TERMS
THAT THIS IS FURTHER
INDEMOCRAT IF I XAIGS OF THE
INSURER SAYS SPECIFICALLY THAT
THE CARRIER CAN BY APPROPRIATE
RIDER OR ENDORSEMENT OTHERS
PROVIDE INSURANCE INF,,,,,,,,,,
TO REBUILD AND REPLACE THE
PROPERTY.
SO, IF WE LOOK AT THE
ARGUMENT WHERE, SOMEBODY'S
HOUSE IS BUILT TODAY AND
IT'S BURNT BY FIRE AND IT'S,
DEMOLISHED AND IT'S REBUILT
THERE IS NEVER GOING TO BE
UNDER THAT SCENARIO AN
ORDINANCED IN LAW COVERAGE
AS WE READ THE POLICIED ASED
WE READ THE STATUTE.
AS DISTINGUISHEDDED FROM THE
POGSD WIDTH THEY HAD GET
12 5ED PERSD OF COUGHEDRAGE
A BECAUSE IT'S A TOTALED
LOSS, ALL I CAN
EN TITLEMENT WE'RE ALL HERE
AT A TIME WED NODED THERED'S
A CRISIS IN THE PROPERTY
INWITH WE'RE TALKING ABOUT
IS GIVING AWAY 25% OF EVERY
ADDITIONAL POLICY.
EVERY TOTAL LOSS MATTER.
>> WE'RE NOT HERE TO MAKD A
POLICY DECISION.
>> NO.
>> WOOERD HERE TO MAKE AD
STAT TORD KROUXD, SOUND
ANALYSIS AS THERE LAW
COMPELS THE PAYMENT OF
ADDITIONAL 25% OR NOT.
>> I UNDERSTAND THAT, AND I
FULLY APPRECIATE THAT, BUT
THAT IS GOING TO BE THE
PRACTICAL RESULT BECAUSE
YOU'RE GOING TO HAVE
HUNDREDS OF THOUSANDS OF
POLICIES OUT THERE ON THE
STREET AND WHEN YOU HAVE,
HEAVEN FORBID YOU HAVE
ANOTHER TOTAL LOSS SITUATION
OF AN IVAN OR ANDREW
SOMETHING OF THAT NATURE OR
FIRE LOSSES OR ANYTHING ELSE
YOU'RE LOOKING SITUATION
WHERE YOU'RE GOING TO HAVE A,
LINE OF PLAINTIFFS COMING TO
DOOR OR CLAIMANTS OR
INSUREDS OR POLICYHOLDERS
COMING TO THE DOOR LOOKING
FOR 100% OF THEIR COVERAGE A,
25% OF THEIR ORDINANCE IN
LAW WHETHER THEY INCUR ANY
OF THOSE COSTS OR NOT,
WHETHER ANY CITY OFFICIAL
SAYS YOU MUST IMPROVE YOUR
PROPERTY TO THE LEVEL OF
CURRENT BUILDING CODE OR
NOT.
PLUS DEBRIS REMOVAL.
PLUS LANDSCAPING WHICH HAVE
BEEN TOTALLY DISREGARDED BY
COUNSEL'S ARGUEMENTS.
SO UNDER THE SECOND QUARTER
DISTINGUISHING BETWEEN WHAT
IT COSTS WHEN WE AGREE UPON
A VALUE UP FRONT IN
LIQUIDATED DAMAGE AMOUNT FOR
WHAT THE LOSS IS FROM, WHAT
THE STATUTE SPECIFICALLY
AUTHORIZED US TO DO WHICH IS
GIVE THIS, ADDITIONAL
ENDORSEMENT, TO HELP, THE
POLICYHOLDER REBUILD THE
PROPERTY.
THOSE ARE COMPLETELY
DIFFERENT CONCEPTS AND
RESPECTFULLY, WE BELIEVE
THAT THE THIRD DISTRICT WAS
CORRECT IN ITS RULING BELOW
AND WE ASK THAT IT BE
AFFIRMED.
THANK YOU, YOUR HONOR.
>> THANK YOU.
ORAL ARGUMENT CERTAINLY
HELPED IN THIS CASE.
YES?
>> THANK YOU.
MIGHTY PLEASE ADDRESS
PARAGRAPH 8?
BECAUSE PARAGRAPH 8 DOES NOT
DEAL WITH THIS ISSUE AT ALL.
IF I COULD EXPLAIN IT
BECAUSE I'VE READ IT NOW TEN
TIMES AT LEAST.
AND YOU THINK I UNDERSTAND
WHAT IT'S ABOUT BUT I THINK
I CAN DEMONSTRATE TO YOU WHY
IT DOESN'T APBLEW TO LAW AND
ORDINANCE COVERAGE.
PARAGRAPH TALKS ABOUT
INDEMNIFYING INSURED BETWEEN
THE INSUREABLE VALUE OF THE
INSURED PROPERTY AT THE TIME
OF THE LOSS.
WHICH IS WHEN THE FIRE
OCCURRED.
AND THE AMOUNT ACTUALLY
EXPENDED WITH NEW MATERIALS.
THIS HAS TO DO WITH A
CATASTROPHIC MARKET
INFLATION PROVISION.
YOU KNOW THAT WHEN A
HURRICANE HITS, MATERIALS GO
THROUGH THE ROOF.
WE ALL KNOW THAT.
THIS IS EXTENDED REPLACEMENT
COVERAGE TO COVER THE COSTS
AND INCREASED VALUE OF
MATERIALS WHEN THEY GO UP AS
A RESULT OF THE CATASTROPHIC
EVENT.
>> HOW ABOUT HE DEALING WITH
LANGUAGE IN 4th DISTRICT'S
OPINION?
SAYS THE PURPOSE OF THIS
PARTICULAR PROVISION IS TO
COVER THE INCREASED COST OF
RECONSTRUCTION CAUSED BY
CHANGES IN LOCAL BUILDING
CODES ADOPTED AFTER THE
ORIGINAL CONSTRUCTION
BUILDING.
>> EXACTLY.
I'M SORRY.
I'M READY.
>> YOUR OPPONENT REPEATEDLY
BROUGHT UP THE IMAGE OF, IF
THE BUILDING CODE HASN'T
CHANGED, YOU KNOW BECAUSE OF
THE FACT THAT THE, FLORIDA
IS PROBABLY A GOOD EXAMPLE
THAT, WE HAVE AN ENORMOUS
AMOUNT OF NEW CONSTRUCTION.
AND SO, IF YOU DON'T HAVE
THE CHANGE IN LOCAL BUILDING
CODES, THE HOUSE WAS
FINISHED SIX MONTHS AGO,
ABSOLUTELY NO CHANGE.
IT'S STILL YOUR POSITION,
THAT, YOUR IS IT AL 25%?
>> NO.
>> OH SO YOU --
>> NO.
THAT'S THE POSITION WHAT
I'VE TRIED TO STOP FOR A
MINUTE SO I UNDERSTAND.
YOU WOULD AGREE EVEN THOUGH
YOU HAVE THAT COVERAGE, ALL
RIGHT, YOU WOULD HAVE TO
MAKE A DEMONSTRATION IN THE
TRIAL COURT OR WHEREVER,
THAT THE BUILDING CODE HAS
CHANGED?
>> ABSOLUTELY.
AND I HAVE MY BRIEF.
>> WHY WOULD IS YOU HAVE TO
MAKE THAT SHOWING IF IT'S
AUTOMATIC?
IT'S JUST ANOTHER 25% AND
NOW, 125%?
>> BECAUSE YOU STILL, THE
CONDITION PRECEDENT IS NOT
THE PAYMENT OF COST.
THE CONDITION PRECEDENT IS
SHOWING THAT THE BUILDING
CODES HAVE CHANGED.
NOW, WITH REGARD TO THIS
PROPERTY, THIS PROPERTY WAS
BUILT IN 195 A VERY GOOD
ASSUMPTION, -- 59.
FLORIDA BUILDING CODES
DIDN'T COME INTO EFFECT IN
THE '70s.
WE KNOW THEY HAVE CHANGED
WE'RE HAPPY TO HAVE REMAND
TO MAKE THAT SHOWING.
--
>> THAT WHATS YOUR OPPONENT
OUTLINED THERE WERE ACTUALLY
THREE?
>> YOUR HONOR, HE CONFUSED A
COUPLE OF DIFFERENT ISSUES
OKAY?
WE'RE HERE BECAUSE THE TRIAL
COURT GRANTED SUMMARY
JUDGMENT FOR THE PLAINTIFFS
WITH REGARD TO LAW AND
ORDINANCE COVERAGE.
THE COURT DENIED SUMMARY
JUDGMENT AS TO THE SEPARATE
COVERAGES FOR THE LANDSCAPE
THAT WAS NOT AN APPEALABLE
ORDER.
HOWEVER IT WAS A PARTIAL
SUMMARY JUDGMENT WITH REGARD
TO THIS SEPARATE COVERAGE.
SO IT WENT TO THE THIRD
DISTRICT AS A IT PARTIAL
SUMMARY JUDGE ISSUE.
IT HAS COME UP ON THAT
SEPARATE ISSUE.
WE DON'T ADDRESS THE OTHER
TWO COVERAGES BECAUSE IT WAS
AN APPEALABLE ORDER.
IT WASN'T BEFORE THE THIRD
DISTRICT AND IT ISN'T HERE.
>> THIS ISSUE OR ASPECT OF
IT IS STRICTLY THE CHANGE IN
THE BUILDING CODE?
CONCLUDE DEBRIS RECOVERY OR
ANY OF THAT?
>> IT CAN'T BECAUSE IT
WASN'T AN APPEALABLE ORDER
AS THAT ISSUE.
PARAGRAPH FIVE, BY THE WAY
DEAL WITH APPURSUANTNANT AND
OTHER STRUCTURES SUCH AS
OUTBUILDING.
>> YOU HAVE WITH OUR HELP
GONE BEYOND YOUR TIME.
I THANK BOTH OF YOU.
ORAL ARGUMENTS IN THIS CASE
ARE ENLIGHTENING FOR ALL OF
US AND WE THANK YOU FOR YOUR
CANDOR DURING THE ARGUMENTS
AND RESPONDING TO OUR
QUESTIONS TRYING TO FIND
WHAT THIS CASE IS REALLY B
WE THANK YOU THE CASE UNDER
ADVISEMENT.
THE COURT WILL STAND IN
RECESS.
>> PLEASE RISE