McMillion, Nicole v. Southern Oak Insurance Company

Matthew Bernstein (Deland, FL) (Property) obtained Summary Judgment in a property claim. Prior to filing suit, benefits for damages to the dwelling under Coverage A were exhausted. The Insured/Plaintiff also made a pre-suit claim for Law & Ordinance benefits, but the carrier denied those benefits because the County had not sought to enforce any applicable codes for the necessary repairs. Plaintiff filed suit seeking the Law & Ordinance benefits, as well as a claim for Additional Living Expenses for the first time. We moved for Summary Judgment as to both L&O and ALE. In opposition, the Plaintiff presented an affidavit from her contractor that bringing the property up to code was necessary. She also presented an affidavit of having to rent another place temporarily while the repairs were being completed. The Court granted our Summary Judgment Motion in favor of the carrier because (a) L&O is an incurred benefit, which only occurs when the local governing body enforces the codes in the particular claim (and that had not occurred here); and (b) a carrier cannot breach a policy by failing to pay for benefits not claimed prior to filing suit for said breach.