If an insurer violates a state's emergency order prohibiting cancellation of a policy for 90 days after repairing a dwelling from hurricane damage, does the insured have a private cause of action to enforce the order?  In Sailboat Pointe Condo. Ass'n v. Aspen Specialty Ins. Co., No. 08-621129, 2009 U.S. Dist. LEXIS 6781 (S. D. Fla. Feb. 1, 2009), the court answered "no."

    The insured held a homeowner's policy effective through July 2, 2006 with Aspen.  On October 25, 2005, Hurricane Wilma caused substantial property damage to the insured's property.  Aspen accepted coverage and sent an adjuster to the property, but failed to pay the full value of the damages.  Aspen notified the insured the policy would be canceled on July 3, 2006 because the insured had delayed unreasonably in repairing or replacing the property.  The insured's property deteriorated and it was unable to secure any subsequent wind coverage.

    Immediately after Hurricane Wilma struck, the Florida Insurance Commissioner issued an Emergency Order, barring any insurer from canceling or failing to renew a policy for property damaged by Hurricane Wilma for 90 days after repair of the dwelling.  Aspen's cancellation violated the Emergency Order, leaving the insured without wind coverage unless a much higher premium was paid.

    The insured filed suit, alleging breach of contract and violation of the Emergency Order.  Aspen sought to dismiss the claim for violation of the Commissioner's Emergency Order because the Order did not provide a private cause of action in the event it was violated.  The district court agreed.  The insured's claim for damages was in the nature of a tort claim for which the breach of duty purportedly arose from the violation of the statute.  But a statutory claim, by itself, did not exist for such a claim under the plain language of the Emergency Order.

    The court also considered whether the insured stated a common law claim based on the same allegations. This also failed, however, because the insured's complaint sought damages caused not by the premature cancellation of the policy when the loss was suffered, but for the insureds' inability to obtain substitute coverage at a comparable premium.  There was no common law duty of an insurer not to cancel an insured's policy simply because comparable substitute coverage could not be obtained.