Thought Leadership

A Florida appellate court upheld the dismissal of a homeowner’s breach of contract lawsuit after finding the insured could not challenge on appeal a procedure she had advocated for in the trial court. The case arose after the insurer denied the homeowner’s claim and challenged the validity of her Notice of Intent to Initiate Litigation. Although the trial court dismissed the complaint without prejudice, the appellate court ultimately ruled that the insured’s reliance on the Notice at the trial level barred her from arguing on appeal that the court erred by considering it, applying the invited error doctrine.

The insured filed a claim for damage to her property, which was insured by the carrier. After the carrier denied the claim, the insured submitted a Notice of Intent to Initiate Litigation. In its response, the carrier advised that the Notice was invalid as it only made generic conclusory allegations, and they requested that the insured amend the Notice. 

Instead of amending, the insured filed a breach of contract lawsuit against the carrier. The carrier moved to dismiss, arguing the Notice submitted did not state with specificity their alleged acts or omissions giving rise to the lawsuit. The trial court agreed and dismissed the complaint without prejudice. 

The insured appealed, but the appeal was stayed due to liquidation of the carrier, which resulted in Florida Insurance Guaranty Association (FIGA) being substituted as the appellee.

Initially, the court issued affirmance per curiam. However, the insured filed a motion for written opinion. In her motion, the insured advised that the primary issue on appeal was whether the court erred by looking beyond the four corners of the complaint as her complaint did not include the Notice as an attachment. 

The court responded, under the invited error doctrine, a party cannot win on appeal by complaining about something it asked the trial court to do. The court explained that the insured used multiple exhibits, including her Notice, in arguing against the carrier’s motion to dismiss. The court conveyed that the insured was attacking a procedure she advocated in the trial court below. Thus, the court denied the insured’s appeal due to the invited error doctrine. 

_{Legal Update for Florida Coverage & Property Litigation – September 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.}