Measure Twice, Cut Once – Irreparable Harm in the Option to Repair

by Jeremy Tyler, January 26, 2017

Florida’s Third District Court of Appeal knows that it is, “prudent to follow the old adage of carpenters ‘to measure twice and cut once.’” Florida Dept. of Agriculture and Consumer Services v. Lopez-Brignoni, 114 So. 3d 1135 (Fla. 3d DCA 2013). This is not a new concept. The reasoning is simple: it is better to plan properly than waste time and material if you do it wrong. Unfortunately, the Third District failed to follow its own advice recently in the case of Fernandez-Andrew vs. Florida Peninsula, 3D16-331, 2017 WL 363135 (Fla. 3d DCA Jan. 25, 2017).

Ms. Fernandez-Andrew filed an insurance claim with Florida Peninsula for damage to her home from a plumbing leak. Florida Peninsula covered the claim and opted to repair the home rather than pay money. A dispute arose as to what needed to be repaired, and Ms. Fernandez-Andrew filed suit asking the court to decide what needed to be fixed before anyone started doing it. Florida Peninsula asked the court to abate the lawsuit until after its contractor did what it thought needed to be done to fix the home. The court sided with Florida Peninsula and abated the lawsuit until Florida Peninsula’s contractor finished its proposed repair the home. Ms. Fernandez-Andrew appealed that decision and asked that the scope of repairs be resolved before work starts. Yesterday, the Third District held that there’s no harm in letting the insurance company measure once and cut twice. The Third District’s holding begs the question of whether you should decide what to fix before or after you start.

It’s no wonder why an enormous insurance company like Florida Peninsula wants to shoot first and ask questions later. It saves money in the long run. When you’re dealing with people’s homes, though, there’s more than just money involved. These are people’s homesteads, sanctuaries, and lives. They deserve to be treated with care, and not bulldozed over by a giant insurance company looking to save a few bucks. Florida’s Fourth District Court of Appeal got it right when in a nearly identical situation it held that, “with respect to the disputed scope of repairs, a homeowner is entitled to dispute the scope of repairs before the repairs are completed.” Diaz v. Florida Peninsula Ins. Co., 204 So. 3d 460 (Fla. 4th DCA 2016).

While it may appear at first glance that there are two competing opinions in two different District Courts, that is not necessarily the case. What the Third District actually decided in Fernandez-Andrew is that Ms. Fernandez-Andrew did not prove that she would suffer “irreparable harm” if the insurance company repaired first. It appears from the Opinion that the only harm raised by Ms. Fernandez-Andrew was that she would allegedly not be able to sue Florida Peninsula once its contractor finished the job, something that Florida Peninsula vehemently denied. “Let our contractor fix A, B, and C, then when that’s done, you can sue us for not fixing D, E, and F,” appears to have been the argument raised by Florida Peninsula. “Why wait?”, should have been the response. If Florida Peninsula refuses to fix D, E, and F, waiting until it is done fixing A, B, and C, isn’t going to change anything for the better. Water soaked wood and drywall, unlike a fine wine, does not get better with age. Resolving D, E, and F before work starts only aids efficiency and minimizes disruptions in homeowners’ lives. For now, however, at least in the Third District of Florida, anyone in the same position as Ms. Fernandez-Andrew will first have to prove some “irreparable harm” in letting the insurance company measure once, cut twice.

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