Don’t Put the Suit Before the Proof: Bailetti’s Message on Premature Breach Suits

December 16, 2025

Florida’s First District Court of Appeals delivered a clear warning to policyholders and their counsel in Bailetti v. Universal Property & Cas. Ins. Co., — So. 3d —, 2025 WL 2845101 (Fla. 1st DCA Oct. 8, 2025): a breach of contract suit must be grounded in a breach that exists at filing, not one manufactured later through litigation.

After Hurricane Sally damaged the insureds’ Pensacola home, Universal inspected the home, prepared an actual cash value (ACV) estimate, and paid the ACV estimate in accordance with the policy’s loss-settlement provision and section 627.7011(3)(a), Florida Statutes. Four months later, the insureds sued—before performing repairs, before submitting invoices to recover depreciation, and before providing a competing ACV estimate. Years afterward, on the eve of and during trial, they produced expert valuation. The First District Court of Appeals (“First DCA”) affirmed a defense verdict, holding that the insureds’ “failed to show that as of June 2021, when they filed their breach of contract action, Universal had breached the insurance policy.” In other words, litigation-created estimates, which were prepared years after the loss, could not retroactively manufacture a breach, and replacement cost value (RCV) remains payable only as repairs are performed and expenses incurred.

Bailetti relied upon, and fits squarely within, the First DCA’s framework articulated in Homeowner’s Choice Property & Cas. Ins. Co. v. Clark, 410 So. 3d 99 (Fla. 1st DCA 2025). Clark explains that an insurer’s initial duty is to pay at least the ACV of the insured loss and, once that payment is made, the burden shifts to the insured to timely demonstrate that the ACV payment was insufficient; RCV is owed only after costs are incurred under the policy and statute. Additionally, the Bailetti ruling relies on Citizens Property Ins. Corp. v. Salazar, 388 So. 3d 115 (Fla. 3d DCA 2023) and Universal Property & Cas. Ins. Co. v. Qureshi, 396 So. 3d 564 (Fla. 4th DCA 2024), which hold that, where an insured offers only RCV evidence or fails to present competent proof that the actual cash value exceeded the insurer’s payment, no additional amount is owed and no breach occurs.

Filing suit without first creating a timely, evidence-based dispute over ACV and without satisfying the contractual conditions to recover depreciation is premature. Florida assesses breach at the time plaintiff brings the action, not at trial, and the ACV-then-RCV structure dictates both the sequence and the proof required. Bailetti, reinforced by Clark, Salazar, and Qureshi, underscores a disciplined order for Florida property claims: the insurer pays ACV, the insured must promptly substantiate any shortfall, and RCV follows when expenses are actually incurred. Skip those steps, and a breach claim is simply an attempt to cash a check that has not been written.

For any further questions, please contact Shannon Alfonso.