DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY,

Appellant,

v.

IRMA QURESHI and GEORGE GUERRERO,

Appellees.

No. 4D2023–1338

[July 24, 2024]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; David A. Haimes, Judge; L.T. Case No. CACE21007238.

Kara Rockenbach Link and David A. Noel of Link & Rockenbach, PA, 

West Palm Beach, for appellant.

Elliot B. Kula and William D. Mueller of Kula & Associates, P.A., Miami, 

for appellees.

ARTAU, J.

This case requires us to address the measure of damages recoverable 

for the breach of a replacement cost property insurance policy. We 

conclude that the trial court erroneously allowed the jury to consider 

evidence of the estimated cost to repair items damaged by a covered loss 

because Irma Qureshi and George Guerrero (“the insureds”) sold the 

property before making the repairs. We therefore reverse and remand for 

a new trial on the issue of damages. In so doing, we certify conflict with 

Citizens Property Insurance Co. v. Tio, 304 So. 3d 1278 (Fla. 3d DCA 2020).

Background

A jury awarded the insureds $57,836.83 in damages on their claim that 

Universal Property & Casualty Insurance Company (“Universal”) breached 

some but not all of the coverage terms of the insureds’ property insurance 

policy by paying them only the $10,000 policy limit for damage caused by 

mold without including payment for the damage caused by the water leak

at the property that resulted in the mold. However, the insureds never 
2

repaired the damaged items described in an estimate they had submitted 

for reimbursement from Universal prior to selling their property.

Before trial, Universal moved in limine to preclude the insureds from 

presenting any evidence related to either the cost of any repairs not 

performed prior to their sale of the property, or any diminution in value to 

the property resulting from the covered loss. Universal argued that the 

evidence it sought to exclude was irrelevant to calculating the damages 

awardable for the claimed policy breach because the policy’s loss 

settlement terms neither required Universal to pay any amount to the 

insureds for “diminution in value” caused by a covered loss, nor required

Universal to pay for repairs that were never made—and now cannot be 

made given the insureds’ sale of the property prior to trial.

The policy’s loss settlement terms, upon which Universal relied in 

support of its motion in limine, provided that “the valuation of any covered 

property losses” could not include, and Universal would not pay, “any 

amount for ‘diminution in value,’” defined in the policy as “any reduction 

in value of any covered property prior to or following repair or replacement 

as compared to the value of that property immediately before the loss.”

The policy’s loss settlement terms also included a provision tracking the

language of section 627.7011(3)(a), Florida Statutes (2020), which provides

that, in the event of a loss for which a dwelling is insured on the basis of 

replacement costs, “the insurer must initially pay at least the actual cash 

value of the insured loss, less any applicable deductible,” and “shall pay 

any remaining amounts necessary to perform such repairs as work is 

performed and expenses are incurred.”

The trial court granted Universal’s motion in limine with respect to any 

evidence of a diminution in the property’s value, but otherwise denied the 

motion, thereby allowing the insureds to present evidence concerning the 

estimated cost for damages caused by the loss despite the insureds’ failure 

to perform any of the repairs or incur any of the estimated expenses.

At trial, Universal renewed its motion in limine and objected to the 

insureds’ introduction into evidence of the estimate reflecting the repair 

costs for the damaged items that the insureds neither repaired nor 

replaced prior to their sale of the property. Universal argued that the 

estimate should not be considered by the jury because the insureds never 

made the repairs reflected in the estimate and could no longer make the 

repairs given their sale of the property. However, the trial court denied 

Universal’s renewed motion.
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Thereafter, Universal moved for a directed verdict and for a new trial, 

which the trial court denied, reasserting its argument that the estimate 

should not have been introduced into evidence.

Analysis

We generally review a trial court’s ruling on a motion in limine for 

abuse of discretion. See Dessaure v. State, 891 So. 2d 455, 466 (Fla. 

2004). However, “[s]uch discretion is limited by the rules of evidence, and 

a trial court abuses its discretion if its ruling is based on an ‘erroneous 

view of the law or on a clearly erroneous assessment of the evidence.’” 

Patrick v. State, 104 So. 3d 1046, 1056 (Fla. 2012) (quoting McDuffie v. 

State, 970 So. 2d 312, 326 (Fla. 2007)). Furthermore, where the trial 

court’s ruling “presents a question of insurance policy interpretation[,]” 

our review is de novo. Trinidad v. Fla. Peninsula Ins. Co., 121 So. 3d 433, 

437 (Fla. 2013).

Universal argues that the trial court reversibly erred by allowing the 

insureds to introduce into evidence at trial the estimated repair costs for

work that was never performed even though both the policy’s terms and 

section 627.7011(3)(a) require payment by the insurer only “as work is 

performed and expenses are incurred.” We agree.

Moreover, we reject the dissent’s reliance upon Tio and the Nebraska 

Supreme Court’s opinion in D & S Realty, Inc. v. Markel Insurance Co., 816 

N.W.2d 1 (Neb. 2012), for the circular argument that Universal’s failure to 

tender payment for the estimated damages prevented the insureds from 

performing the repair work, thereby rendering the policy provision 

requiring the insureds to perform or incur the expense of the repairs as a 

condition precedent to payment unenforceable on the equitable theories of 

waiver or estoppel.

Both the dissent and Tio are seemingly at odds with our supreme 

court’s precedent, which has never adopted the view of the Nebraska 

Supreme Court, as expressed in D & S Realty, Inc.

As our supreme court explained in Doe on behalf of Doe v. Allstate 

Insurance Co., 653 So. 2d 371 (Fla. 1995), “[f]or many years the law in 

Florida has been ‘well established that the doctrine of waiver and estoppel 

based upon the conduct or the action of the insurer (or an agent) is not

applicable to matters of coverage as distinguished from grounds for 

forfeiture.’” Id. at 373 (quoting Six L’s Packing Co. v. Fla. Farm Bureau Mut. 

Ins. Co., 268 So. 2d 560, 563 (Fla. 4th DCA 1972), decision adopted by, 

276 So. 2d 37 (Fla. 1973)). In other words, “while an insurer may be 
4

estopped by its conduct from seeking a forfeiture of a policy, the insurer’s 

coverage or restrictions on the coverage cannot be extended by the 

doctrine of waiver and estoppel.” Id.

Accordingly, in similar insurance policy disputes, “[c]ourts have almost 

uniformly held that an insurance company’s liability for replacement cost 

does not arise until the repair or replacement has been completed.” 

Ceballo v. Citizens Prop. Ins. Corp., 967 So. 2d 811, 815 (Fla. 2007) 

(alteration in original) (quoting State Farm Fire & Cas. Co. v. Patrick, 647 

So. 2d 983, 983 (Fla. 3d DCA 1994)).

Furthermore, “[i]nsurance contracts are construed according to their 

plain meaning[.]” Field v. Certain Underwriters at Lloyd’s, 302 So. 3d 930, 

932 (Fla. 4th DCA 2020) (quoting U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 

2d 871, 877 (Fla. 2007)). Thus, “[w]hen the language of an insurance 

policy is plain and unambiguous, a court must interpret the policy in 

accordance with [its] plain meaning in order to give effect to the policy as 

written.” Id. (citing Wash. Nat’l Ins. Corp. v. Ruderman, 117 So. 3d 943, 

948 (Fla. 2013)).

As this court has explained, “[c]ourts, without dispute, are not 

authorized to rewrite clear and unambiguous contracts.” Inlet Colony, LLC 

v. Martindale, 340 So. 3d 492, 495 (Fla. 4th DCA 2022) (quoting Andersen 

Windows, Inc. v. Hochberg, 997 So. 2d 1212, 1214 (Fla. 3d DCA 2008)). 

When construing an insurance policy, as with any other contract, we are 

required to “consider its plain language and take care not to give the 

contract any meaning beyond that expressed.” Id. (quoting Walker v. State 

Farm Fire & Cas. Co., 758 So. 2d 1161, 1162 (Fla. 4th DCA 2000)). In 

other words, “courts are not to ‘rewrite’ insurance contracts and should 

bear in mind that ‘if a policy provision is clear and unambiguous, it should 

be enforced according to its terms whether it is a basic policy provision or 

an exclusionary provision.’” Acosta, Inc. v. Nat’l Union Fire Ins. Co., 39 So. 

3d 565, 573 (Fla. 1st DCA 2010) (quoting Taurus Holdings, Inc. v. U.S. Fid. 

& Guar. Co., 913 So. 2d 528, 532 (Fla. 2005)).

Here, the insureds’ policy is clear and unambiguous. The insureds are

not entitled to their repair costs unless and until “work is performed and 

expenses are incurred.”

In Buckley Towers Condominium, Inc. v. QBE Insurance Corp., 395 Fed. 

App’x 659, 663 (11th Cir. 2010), the United States Court of Appeals for the 

Eleventh Circuit, applying Florida law and interpreting a similar policy 

provision, rejected the notion that equitable doctrines could be asserted to 

expand insurance coverage to require payment before any expenses are 
5

incurred for performed repair work on the insured property. As the 

Eleventh Circuit explained:

Applying the doctrine of prevention of performance in this case 

would impermissibly rewrite the insurance contract on the 

equitable theory that it would be too costly for [the insured] to 

comply with the terms of the agreement. Under Florida’s 

binding law, however, courts are not free to rewrite the terms 

of an insurance contract and where a policy provision is ‘clear 

and unambiguous, it should be enforced according to its 

terms.’ Allowing [the insured] to claim [replacement cost] 

damages without repairing or replacing entirely removes the 

[insured’s] obligations under the [relevant] section of the 

contract. The parties freely negotiated for that contractual 

provision and it is not the place of a court to red-line that 

obligation from the contract.

Id. (internal citation to Acosta, 39 So. 3d at 573, omitted).

This court expressly adopted Buckley’s reasoning in Florida Insurance 

Guaranty Ass’n v. Somerset Homeowners Ass’n, 83 So. 3d 850 (Fla. 4th 

DCA 2011), where we held that the doctrine of prevention of performance 

could not excuse an insured from its contractual obligation to first incur 

expenses for performed repairs that are necessitated by a covered loss 

before receiving payment for the cost of those repairs. See id. at 852–53. 

We are required to follow Somerset here.

In addition, we are required to follow “well established” Florida law 

rejecting application of the doctrines of waiver or estoppel to create 

insurance coverage. See Doe, 653 So. 2d at 373; Six L’s Packing Co., 268 

So. 2d at 563. An expansion of insurance coverage—as the dissent 

argues—to include payment for estimated but not yet incurred repair costs 

would improperly create insurance coverage by waiver or estoppel contrary 

to our supreme court’s precedent in Doe and our precedent in Six L’s 

Packing Co.

Conclusion

Because the trial court impermissibly allowed the jury to consider 

evidence of estimated but not yet incurred repair costs in determining 

recoverable damages, we reverse and remand for a new trial on the issue 

of damages. We also certify conflict with the Third District’s contrary 

decision in Tio.
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On remand, the trial court is directed, consistent with this opinion, to 

confine the proof at the new trial on damages to only those damages for 

which recovery is permitted under the policy’s clear and unambiguous 

terms.

Reversed and remanded with instructions; conflict certified.

LEVINE, J., concurs.

WARNER, J., dissents with opinion.

WARNER, J., dissenting.

Under the facts of this case, I would apply Citizens Property Insurance 

Co. v. Tio, 304 So. 3d 1278 (Fla. 3d DCA 2020), and affirm.

Universal refused to cover the homeowners’ water damage, explaining 

to the homeowners that the policy excluded coverage for such damage 

which occurred over months or years. Thus, it rejected coverage for that 

claim entirely. See Goldberg v. Universal Prop. & Cas. Ins. Co., 302 So. 3d 

919, 925 (Fla. 4th DCA 2020). The jury found that Universal breached the 

insurance policy by denying the water damage claim. The fact that 

Universal breached the policy by denying a covered claim distinguishes 

this case from Buckley Towers Condominium, Inc. v. QBE Insurance Corp., 

395 Fed. App’x 659 (11th Cir. 2010), Florida Insurance Guaranty Ass’n v. 

Somerset Homeowners Ass’n, Inc., 83 So. 3d 850 (Fla. 4th DCA 2011), and 

Ceballo v. Citizens Prop. Ins. Corp., 967 So. 2d 811 (Fla. 2007).

In Buckley, the insurer did not reject the claim but considered the 

sworn proof of loss to demand replacement cost damages which were not 

due until repairs were made. 395 Fed. App’x at 661–62. Similarly, in 

Somerset, the insurer did not deny the claim. Instead, the insurer in 

Somerset made partial payments, but the insured sued, claiming more was 

owed. 83 So. 3d at 851. Thus, neither Buckley nor Somerset involved the 

complete denial of coverage. Likewise, Ceballo, cited by the majority, also 

did not involve the complete denial of coverage. Similar to Somerset, the 

insurer in Ceballo had advanced significant sums to cover the loss, but 

the insured sought additional funds under the policy.

Where the insured sues because of a complete denial of coverage, the 

analysis is different. Tio is on point under this circumstance. As the Third 

District stated in Tio:

Citizens makes the rather creative, though unavailing, 

argument that, when an insurer wrongfully denies coverage of 
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a claim – causing its insured to file suit against the insurer for 

breaching the insurance contract – section 627.7011(3) limits 

the breach of contract damages a jury may award, as if the 

insurer had not breached the insurance contract. Citizens 

suggests that, after breaching the policy, it may enforce the 

terms of the policy at its convenience.

Section 627.7011(3), however, governs an insurer’s post-loss 

obligations in adjusting and settling claims covered by a 

replacement cost policy, and does not operate as a 

limitation on a policyholder’s remedies for an insurer’s breach 

of an insurance contract. Citizens contracted with Tio to 

provide coverage for a direct loss to property covered by the 

policy.

304 So. 3d at 1280 (emphasis added).

The majority argues that including the repair costs for unperformed 

repairs amounts to rewriting the insurance policy. However, as the Third 

District noted in Tio, provisions based on section 627.7011(3) govern an 

insurer’s obligations in adjusting and settling covered claims. Here, 

however, Universal issued a complete denial of coverage. “[T]he effect of 

an improper denial of coverage may operate to waive an insurer’s right to 

claim as a complete defense that the insureds failed to comply with certain 

contractual conditions precedent to recovery.” Citizens Prop. Ins. Co. v. 

Amat, 198 So. 3d 730, 733 (Fla. 2d DCA 2016). While such a waiver 

cannot create coverage, “[p]rovisions that forfeit insurance coverage . . . 

can be waived by the insurer’s conduct.” Axis Surplus Ins. Co. v. Caribbean 

Beach Club Ass’n, 164 So. 3d 684, 687 (Fla. 2d DCA 2014).

In Axis Surplus, the Second District considered a provision stating that 

the insurer would not pay for increased costs of construction due to 

enforcement of an ordinance or law, unless the insured actually repaired 

the property within two years of the loss. Id. at 686. The court held that 

this was a forfeiture provision because “[i]t outlines neither the covered 

scope of loss nor dollar limits of coverage; rather, it imposes post-loss 

procedural requirements with which the insured must comply to receive 

payment for existing coverage.” Id. at 687. Similarly, in this case, the 

provision requiring that the homeowners actually incur expenses before 

receiving repair costs did not create coverage, but imposed post-loss 

requirements for the homeowners to receive payment for existing coverage.

While the policy only covers the lesser of the replacement cost value or 

the amount actually spent on repairs, this is also in the context of settling 
8

covered losses. As the Nebraska Supreme Court noted in D & S Realty, 

Inc. v. Markel Insurance Co., 816 N.W.2d 1 (Neb. 2012), the majority view 

across the country is that a complete denial of coverage waives a 

policyholder’s obligations to make repairs before receiving replacement 

cost coverage. Id. at 13 (“When the insurer, in breach of the insurance 

contract, denies liability for the insured’s loss, most courts conclude that 

such denial may excuse the insured’s duty under the repair/replace 

condition to replacement cost coverage.”); see also id. at 13 n.31 (collecting 

authorities).

In D & S, the insured purchased a replacement value insurance policy 

with a provision that the insurer would pay the actual cash value of the 

loss, and the insured could seek replacement cost, but the insurer would 

not be required to pay the replacement cost until after repairs or 

replacements had been made. Id. at 5. The property suffered a loss due 

to water damage during the policy period, but the insurer denied coverage 

and did not pay the actual cash value of the loss. Id. at 6. The insured 

brought suit, claiming replacement cost as its damages. Id. The case was 

tried twice, and in the second trial, the insurer moved in limine to prevent 

the introduction of evidence of replacement cost because the insured had 

not made the repairs to the property, as the policy required. Id. at 8. The 

court denied the motion and then denied the insurer’s motion for directed 

verdict which claimed that the insured did not prove the actual cash value 

of the loss and was not entitled to the replacement cost. Id. The jury 

rendered a verdict in favor of the insured for the replacement cost as 

damages. Id. at 9. After post-verdict motions were denied, the insurer 

appealed. Id.

In a well-reasoned opinion, the Nebraska Supreme Court approved the 

application of the doctrine of prevention where the insurer has denied 

coverage and concluded that the trial court did not err in denying the 

insurer’s motion in limine:

When the insurer, in breach of the insurance contract, denies 

liability for the insured’s loss, most courts conclude that such 

denial may excuse the insured’s duty under the 

repair/replace condition to replacement cost coverage. While 

other theories are sometimes relied upon, most courts frame 

the issue in terms of the doctrine of prevention.

Id. at 13 (footnotes omitted).

The D & S court explained the doctrine of prevention:
9

The doctrine of prevention states that where a promisor 

prevents, hinders, or renders impossible the occurrence of a 

condition precedent to his or her promise to perform, the 

promisor is not relieved of the obligation to perform and may 

not invoke the other party’s nonperformance as a defense 

when sued upon the contract.

Id. (citing 13 Samuel Williston, A Treatise on the Law of Contracts § 39:3 

(Richard A. Lord ed., 4th ed.2000)). Florida law is in accord. See Ward v. 

Branch, 429 So. 2d 71, 74 (Fla. 4th DCA 1983) (“It is a well-established 

principle of law that one who prevents the happening of a condition 

precedent upon which his liability is made to depend, cannot avail himself 

of his own wrong and thereby be relieved of his responsibility to perform 

under the contract.”).

The D & S court also noted that where the insurer has denied coverage, 

it would be a useless act to require the insured to make repairs when it is 

undecided whether the insured will ever recover:

[I]t would be “wasteful [ ] and useless” to require the insured 

to comply with the repair/replace condition when, by doing 

so, the insured would not obtain recognition of coverage. The 

law does not require the doing of a useless act. According to 

Williston on Contracts, “the performance of a condition 

precedent is waived where the other party has unequivocally 

declared by word or act that performance of the condition will 

not secure performance of the counterpromise.”

Courts have explained that not allowing claims of prevention 

based on the erroneous denial of coverage would trap the 

insured “in a no win situation.” The insured, in order to 

recover under the replacement cost coverage he or she 

purchased, would have to incur the cost of repairs and 

replacements when there is no guarantee that a future breach 

of contract action by the insured will be successful.

Id. at 14 (second alteration in original) (footnotes omitted).

Additionally, D & S considered whether excusing performance should 

be allowed where the insured may still be able to make repairs, and held 

that the insured should not be entitled to a benefit for which it did not 

contract, but at the same time the insurer should not “be permitted to take 

advantage of the insured’s failure to perform a condition precedent under 

the contract when the insurer has materially contributed to that failure.” 
10

Id. at 18. Similar to this case, the insured in D & S had sold the building 

without repairing it during the pendency of the lawsuit. Id. at 8. This did 

not negate liability on the insurer, as the court held, “if the delay in 

determining the insurer’s liability materially contributed to a situation 

where the insured can no longer perform the condition after the coverage 

dispute is resolved, then the condition will be absolutely excused.” Id. at 

18.

The Southern District came to a similar conclusion as D & S in Vantage 

View, Inc. v. QBE Insurance Corp., No. 07–61038–CIV, 2009 WL 536546 

(S.D. Fla. Mar. 3, 2009). In Vantage View, the insurer argued that it was 

entitled to a judgment as a matter of law because the jury awarded the 

estimated cost to repair and replace windows and doors, while the insured 

had not actually made such repairs, and the policy contained a similar 

provision as does the instant policy, requiring repairs actually to be made 

before reimbursement. Id. at *1–*2. The Southern District denied the 

insurer’s motion and held that by refusing to advance the insured any 

funds with which to make repairs, the insurer frustrated the insured’s 

efforts to comply with the requirement to make repairs before seeking RCV 

damages. Id. at *3 (“Defendant failed to provide Plaintiff any funds to allow 

it to make repairs. By so doing, Defendant frustrated Plaintiff’s efforts to 

make any repairs and prevented Plaintiff’s compliance with the 

replacement cost provision in the policy.”). The court further held that the 

insurer’s breach in denying coverage excused the insured from the 

replacement cost provision of the policy. Id. at *4 n.2 (“It is Defendant’s 

actions in breaching the contract that give rise to Plaintiff’s ability to avail 

itself of the replacement cost provision of the policy.”).

Buckley and Somerset, on which the majority relies, concluded that the 

doctrine of prevention of performance did not apply to those cases’ 

respective policies, which both required the insured to make repairs before 

the insurer became liable for replacement cost. But neither case involved 

a complete denial of coverage. That is the distinguishing factor, as in this 

case, Universal denied coverage entirely and frustrated the homeowners’ 

ability to comply with the policy terms by failing to provide what the policy 

required, namely the “actual cash value” of the loss.

As the majority opinion requires a new trial, in any new trial 

replacement cost is still evidence which must be considered. While “actual 

cash value” is not defined in the policy, “actual cash value is generally 

defined as ‘fair market value’ or ‘[r]eplacement cost minus normal 

depreciation,’ . . .” Trinidad v. Fla. Peninsula Ins. Co., 121 So. 3d 433, 438 

(Fla. 2013). Thus, the replacement cost must be considered together with 

the depreciation. Universal is not simply liable for the repair costs that 
11

the homeowners made to date, but rather the policy requires that 

Universal must pay the homeowners the actual cash value of the loss. The 

homeowners should also be allowed to show that Universal’s breach of the 

policy and refusal to furnish the actual cash value precluded them from 

making repairs, resulting in them selling the house at a loss.

I agree that the majority opinion is in conflict with Tio, and I concur in 

the certification of conflict to the supreme court.

* * *

Not final until disposition of timely filed motion for rehearing.