DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

WILLY MICHAEL GOLDMAN and SHIRLEY GOLDMAN,

Appellants,

v.

UNITED SERVICES AUTOMOBILE ASSOCIATION,

Appellee.

No. 4D17-1098

[April 18, 2018]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Martin J. Bidwill, Judge; L.T. Case No. CACE15-016834 

(05).

Daniel L. Monfiston of The Monfiston Firm, P.A., Miami, for appellants.

Paige B. Segrera, Michael Simon and Jennifer V. Ortega of Simon, Reed 

& Salazar, P.A., Miami, for appellee.

KUNTZ, J.

This is an appeal of the circuit court’s final summary judgment in favor 

of the insurer. After a plumbing line leak damaged their house, the 

homeowners notified their insurer, which investigated the claim and 

issued payment. Without informing their insurer that they disputed the 

amount of payment, the homeowners filed a lawsuit for breach of the 

insurance policy. The insurer immediately moved to compel appraisal; an 

appraisal took place; and the insurer timely paid the appraisal award. 

Because the appraisal process established the amount of damages, and 

the insurer paid that amount, the court granted summary judgment in the 

insurer’s favor. 

The homeowners appeal and spend nearly eight pages of their brief 

discussing Johnson v. Omega Insurance Co., 200 So. 3d 1207 (Fla. 2016). 

But Johnson is not applicable. In Johnson, the insurer denied the 

homeowner’s claim in its entirety, leaving the homeowner with few options 

other than a lawsuit. Id. at 1210. Here, the insurer valued the loss and 

paid the claim based on that valuation. The homeowners did not object. 

Until the filing of the complaint, the insurer was unaware of a 
2

disagreement with the damage valuation. Once informed, the insurer 

demanded appraisal and paid the appraisal. 

There was never a breakdown in the claims adjusting or 

communications process, nor was there a refusal to pay the claim. “It is 

only when the claims adjusting process breaks down and the parties are 

no longer working to resolve the claim within the contract, but are actually 

taking steps that breach the contract, that the insured may be entitled to 

an award of fees under section 627.428, Florida Statutes.” Hill v. State 

Farm Fla. Ins. Co., 35 So. 3d 956, 960 (Fla. 2d DCA 2010) (citing Lewis v. 

Universal Prop. & Cas. Ins. Co., 13 So. 3d 1079, 1081 (Fla. 4th DCA 2009)).

The homeowners seek to distinguish Hill, arguing it is the incorrect 

denial of benefits and not some sinister concept of wrongfulness that 

triggers fees. They are correct that it is the incorrect denial of benefits that 

triggers an award of attorney’s fees under section 627.428; yet, they are 

wrong to distinguish Hill on that basis. In Hill, and here, the insured never 

gave the insurer the opportunity to incorrectly deny the benefits before

filing a lawsuit. The Hill court questioned “whether this lawsuit was filed 

to force [the insurer] to conduct an appraisal or whether it was merely a 

preemptive lawsuit intended to obtain attorneys’ fees for the usual efforts 

in negotiating an insurance claim.” 35 So. 3d at 960. Here, the circuit 

court found that was the exact reason the lawsuit was filed. Thus, the 

court properly granted summary judgment in favor of the insurer.

Affirmed.

GROSS and TAYLOR, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.