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Gassman v. State Farm Florida Ins. Co.

Florida Court of Appeal, Fourth District

November 2, 2011

Jane GASSMAN, Appellant,
v.
STATE FARM FLORIDA INSURANCE COMPANY, Appellee.

Rehearing Denied Dec. 29, 2011.

Joshua A. Blacksten of Stabinski & Funt, P.A., West Palm Beach, for appellant.

Kara Berard Rockenbach of Methe & Rockenbach, P.A., West Palm Beach, for appellee.

Page 211

HAZOURI, J.

Jane Gassman insured her house under a residential property insurance policy written by State Farm Florida Insurance Company. Gassman filed suit against State Farm for damages sustained as a result of Hurricane Wilma, which hit central Palm Beach County in October of 2005, after Gassman and State Farm could not agree on the extent of damage caused by the hurricane and the cost of repairs. State Farm filed a motion to stay the lawsuit pending the completion of the appraisal process which the trial court granted. That order is the subject of this appeal. We reverse the trial court's order staying the lawsuit pending the completion of the appraisal process.

Gassman argues that the trial court erred in granting the stay because State Farm failed to comply with the requirement in section 627.7015, Florida Statutes (2007), of notifying her of her right to participate in mediation when an insured files a first party claim for the property damage. State Farm argues that it did not violate section 627.7015 because there was never a " dispute between an insurer and an insured relating to a material issue of fact." § 627.7015(9), Fla. Stat. (2007). We agree with Gassman.

This court reviews de novo a trial court's order compelling an appraisal under an insurance policy. Sunshine State Ins. Co. v. Corridori, 28 So.3d 129, 130 (Fla. 4th DCA 2010).

Section 627.7015 provides for an alternative procedure for resolution of disputed property insurance claims. The statute states as to its purpose that " [t]here is a particular need for an informal, nonthreatening forum for helping parties who elect this procedure to resolve their claims disputes because most homeowner's and commercial residential insurance policies obligate insureds to participate in a potentially expensive and time-consuming adversarial appraisal process prior to litigation." § 627.7015(1), Fla. Stat. (2007). Subsection (2) provides:

At the time a first-party claim within the scope of this section is filed, the insurer shall notify all first-party claimants of their right to participate in the mediation program under this section. The department shall prepare a consumer information pamphlet for distribution to persons participating in mediation under this section.

§ 627.7015(2), Fla. Stat. (2007). With respect to the appraisal process, subsection (7) provides:

If the insurer fails to comply with subsection (2) by failing to notify a first-party claimant of its right to participate in the mediation program under this section or if the insurer requests the mediation, and the mediation results are rejected by either party, the insured shall not be required to submit to or participate in any contractual loss appraisal process of the property loss damage as a precondition to legal action for breach of contract against the insurer for its failure to pay the policyholder's claims covered by the policy.

§ 627.7015(7), Fla. Stat. (2007).

In Universal Property and Casualty Insurance Co. v. Colosimo,61 So.3d 1241 (Fla. 3d DCA 2011), the insureds reported a claim for water damage to their kitchen to their insurer. The insurer first wrote to the insureds that the claim was not covered under the policy but then advised the insureds two months after the claim that it was covered. After the insureds sent in a sworn proof of loss, the insurer sent them another proof of loss form ...


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