Kaiser v. Citizens Insurance Company

FIRST D ISTRICT COURT OF APPEAL
S TATE OF FLORIDA
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No. 1D2024-0884
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M ICHAEL KAISER ,
Appellant,
v.
C ITIZENS PROPERTY I NSURANCE
C ORPORATION ,
Appellee.
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On appeal from the Circuit Court for Leon County.
James Lee Marsh, Judge.
November 19, 2025
O STERHAUS, C.J.
Michael Kaiser had a home and property insurance policy
with Citizens Property Insurance Corporation (“Citizens”) when a
hurricane hit the State of Florida and substantially damaged his
Naples property. Kaiser filed a claim and then sued Citizens for
failing to timely indemnify him for the damages. Within a few
months, Kaiser and Citizens settled the claim for $32,000 and
Kaiser signed a full and final release agreement. When Citizens
took forty days to send him the settlement payment and failed to
include a couple-hundred extra dollars for late-payment interest,
Kaiser filed a class action complaint under his insurance policy’s
“Loss Payment” provision and § 627.4265, Florida Statutes. The
Loss Payment provision of the Policy made losses payable within

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20 days after the insurer receives a proof of loss and reaches a
written agreement with the insured. Section 627.4265 similarly
requires insurers to “tender payment according to the terms of the
[claim settlement] agreement no later than 20 days after such
settlement is reached [or pay] interest at a rate of 12 percent per
year.”
The 	circuit 	court 	ultimately 	granted 	judgment 	on 	the
pleadings for Citizens on the interest claim mainly because Kaiser
alleged a breach of contract only as to the Policy and not as to the
release and settlement agreement. The Policy wasn’t incorporated
into the release and settlement agreement. And because Kaiser
released 	all 	claims 	related 	to 	his 	lawsuit, 	the 	circuit 	court
concluded that Citizens did not breach the Policy. The court also
denied Kaiser’s claim for a declaratory judgment, concluding that
§ 627.4265 doesn’t create a private cause of action in the absence
of alleging a valid contract claim.
Kaiser 	reiterates 	on 	appeal 	that 	Citizens’ 	failure 	to 	pay
interest on its settlement payment constituted a new breach of
contract claim arising from the prompt-payment provision of the
Policy. “This Court reviews a trial court’s order granting a motion
for judgment on the pleadings de novo.” Hines v. Whataburger
Restaurants, LLC, 301 So. 3d 473, 474 (Fla. 1st DCA 2020) (citing
Martinez v. Fla. Power & Light Co., 863 So. 2d 1204, 1205 (Fla.
2003)).
The release and settlement agreement entered by the parties
on 	Kaiser’s 	property 	claim 	included 	a 	robust 	claim-discharge
provision in which Kaiser received $32,000 in return for giving up
his right to bring additional claim-related actions against Citizens.
The release expressly identified the parties’ intention to settle
interest claims arising out of the subject insurance claim: “claim
handling . . ., as well as all associated interest.” (Emphasis added.)
The agreement proceeded to
fully, 	completely, 	and 	forever 	release 	and 	discharge
Citizens . . . from and against any and all past, present,
and future losses, liabilities, responsibilities, demands,
obligations, 	. 	. 	. 	causes 	of 	action, 	rights, 	judgments,
interest, damages, compensation of any kind . . . and

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claims whatsoever, in law or in equity, whether based in
statute, [or] contract . . . or any other theories in law . . .
which 	arise 	out 	of 	or 	relate 	to 	the 	claim(s) 	or
Proceedings[.]
(Emphasis added.) In sum, the release discharged the interest-
payment 	right 	that 	Kaiser 	possessed 	under 	the 	Policy’s 	loss
payment provision, which wasn’t carried over from the Policy into
the new agreement. As a result, any subsequent claim about the
timeliness and sufficiency of Citizen’s $32,000 payment could only
arise from a breach of the release and settlement agreement, which
Kaiser did not assert to be the basis for his breach of contract claim
here.
Related factors lead us to affirm the circuit court’s decision on
Kaiser’s claim for declaratory relief. Declaratory relief on the issue
of whether Citizens breached an implied § 627.4265-timeliness
requirement within the Policy is not available here because the
terms of the Policy no longer govern this matter. Kaiser broadly
settled and released all matters under the Policy “which arise out
of or related to the claim(s) or Proceedings.” Thus, the circuit court
didn’t err by ruling that he lacks standing to litigate Citizens’
performance of the Policy via a statute-focused declaratory action.
See Moon-Vileno v. Fla. Ass’n of Ct. Clerks, 383 So. 3d 128, 129
(Fla. 1st DCA 2024) (denying standing to obtain declaratory relief
where Appellants lacked a private right of action).
Finally, we acknowledge the last sentence of Kaiser’s initial
brief that would have us broaden his breach-of-contract claim
beyond the terms of the Policy to encompass a breach of the release
and settlement agreement as well as a standalone violation of
§ 627.4265. But it is not proper for the appeals court to pass upon
newly hatched legal theories. See, e.g., Dade Cnty. Sch. Bd. v.
Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) (noting the
general rule that claims not raised in the trial court will not be
considered on appeal). The reply brief was also not the place for
Kaiser to raise a new appellate issue involving the denial of leave
to amend his complaint. See Tillery v. Fla. Dep’t of Juv. Just., 104
So. 3d 1253, 1255–56 (Fla. 1st DCA 2013) (citing Goings v. State,
76 So. 3d 975, 980 (Fla. 1st DCA 2011)) (“As we have previously

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stated, an argument not raised in an initial brief is waived and
may not be raised for the first time in a reply brief.”).
A FFIRMED.
KELSEY and M.K. T HOMAS, JJ., concur.
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Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Adam Abraham Schwartzbaum of Edelsberg Law, Miami; Scott
Adam 	Edelsberg 	of 	Edelsberg 	Law, 	Aventura; 	Andrew 	John
Shamis of Shamis & Gentile, P.A., Miami; Edwin Eliu Elliott of
Shamis & Gentile, P.A., Miami; and Michael Alan Cassel of Cassel
& Cassel, P.A., Hollywood, for Appellant.
Russell Scott Kent of Citizens Property Insurance Corporation,
Tallahassee; Jason Brent Gonzalez of Lawson Huck Gonzalez
PLLC, 	Tallahassee; 	Raymond 	Lee 	Cordova 	of 	Lawson 	Huck
Gonzalez PLLC, Tallahassee; and Mathew Daniel Gutierrez of
Lawson Huck Gonzalez PLLC, Coral Gables, for Appellee.