First-Party Property

The Second District Court of Appeal revived an insurance coverage suit a homeowner brought against his insurance carrier, removed the presiding judge from the case and assigned it to a new judge to preserve any appearance of bias.

In 2016, the insured sued Universal Property, accusing it of breaching his homeowner’s property insurance contract by failing to pay for an allegedly covered claim. During this time, the insured’s attorney was initially suspended and then later disbarred for mishandling his firm’s cases. While suspended, other attorneys at the firm took over the case. However, in 2023, after languishing for over six years, the court dismissed the case of its own accord, noting the delays, the insured had not complied with an order establishing deadlines and the case was still not ready for trial. 

The insured initially attempted to revive the case by filing a motion for rehearing and a motion to disqualify the trial court judge. These motions argued the judge denied the insured due process, failed to conduct an evidentiary hearing, granted relief to Universal Property that Universal had not requested, and failed to consider the binding precedent established by the 1993 Florida Supreme Court Case in Kozel v. Ostendorf before dismissing the case as a sanction. Additionally, the insured argued the judge “improperly” advocated for Universal and “made comments reflecting animosity” towards the insured’s initial attorney. Without elaborating, the judge denied the motion for rehearing. He also denied the motion to disqualify himself as the presiding judge over the matter, stating it was legally and procedurally insufficient.

In its opinion, the Second District Court of Appeal stated the trial court judge “failed to make any written factual findings, and [that] the record before us does not indicate that the judge considered the Kozel factors.” The district court further went on to state, given the insured’s representation by his prior counsel, it was unclear whether he was personally responsible for missing any court deadlines or for the delay in the case being ready for trial. The court concluded that dismissing the insured’s case without an evidentiary hearing was a “reversible error,” and “the dismissal of his case appears to have been done as a means of punishing [the homeowner] for his attorneys’ actions or inactions by imposing a more severe sanction than the one Universal requested,” and, therefore, the case should be revived and an evidentiary hearing held. 

The district court further found that the trial court judge was wrong to deny the insured’s motion for recusal as being insufficient. In discussing this, the court stated: “The judge’s remarks at the pretrial hearing could reasonably be viewed as disparaging” towards the homeowner’s attorneys and the law firm representing him as well as potentially being seen as advocating on the insurance carrier’s behalf. The court concluded those remarks would reasonably lead a person, such as the insured, to question the judge’s impartiality, to fear that they may not receive a fair and impartial trial, and that it was wrong for the trial court judge to deny the insured’s motion. 

---

 

_{Legal Update for Florida Coverage & Property Litigation – March 2025 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}