A Florida appellate court recently held that an insurer’s pre-suit acknowledgment of coverage and partial payment of an insured’s claim did not result in waiver of the insurer’s right to rely on an exclusion in the policy. Gamero v. Foremost Ins. Co., 2017 WL 104935 (Fla. 3d DCA Jan. 11, 2017).

The insured made a claim under his homeowner’s policy for cracked floor tiles. The insurer accepted coverage for the loss and tendered payment to the insured. The insured disagreed with the amount paid and invoked appraisal to resolve the dispute. After the appraisal award was entered, the insurer paid the insured for the covered portion of the appraisal award, but denied coverage for the replacement of the tile flooring throughout the home. The insured sued the insurer for breach of contract. The insurer raised the policy’s marring exclusion as an affirmative defense to coverage for replacement of all of the tiles in the home. The trial court denied the insured’s motion for summary judgment, finding that, as a matter of law, coverage for the insured’s loss beyond the damaged tiles was excluded. The insured appealed.

On appeal, the insured argued that the insurer waived its right to rely upon the marring exclusion by its pre-suit conduct of acknowledging coverage and paying a portion of the claim. The appellate court disagreed, noting that, even if the insurer’s actions amounted to a waiver, the insured did not preserve the issue by failing to reply to, or avoid, the insurer’s affirmative defense, instead raising the issue for the first time in opposition to the insurer’s motion for summary judgment.