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State Farm Florida Ins. Co. v. Gonzalez

Florida Court of Appeal, Third District

December 7, 2011

STATE FARM FLORIDA INSURANCE COMPANY, Appellant,
v.
Carlos Tomas GONZALEZ and Margarita Gonzalez, Appellees.

Page 35

Russo Appellate Firm, and Elizabeth K. Russo, Miami; Foreman Friedman, P.A., and Esperanza D. Briscoe, for appellant.

Duboff Law Firm, and Kenneth R. Duboff, for appellees.

Before CORTIÑ AS, ROTHENBERG, and LAGOA, JJ.

ROTHENBERG, J.

State Farm Florida Insurance Company (" State Farm" ) appeals from a Final Judgment Pursuant to Appraisal Award, entered in favor of its insureds, Carlos and Margarita Gonzalez (" the Insureds" ), and from the denial of rehearing. We reverse the order under review, but remand to allow the Insureds to file a complaint seeking relief consistent with this opinion.

The Insureds' home was damaged by a hurricane in 2005. State Farm acknowledged that there was a covered loss, but after the parties failed to reach an agreement as to the amount of loss, the policy's appraisal provision [1] was invoked. In April 2008, the Insured's appraiser and the umpire executed the appraisal award, finding that the Insureds' amount of loss was $29,763 for ordinance and law coverage and $84,090.36 for dwelling coverage. The appraisal award, however, provides: " The amounts above are subject to previous payments, deductible(s), depreciation, if applicable, the terms and conditions of the policy and the laws of the State of Florida."

Page 36

(emphasis added). Thereafter, in May 2008, State Farm paid the dwelling amount, but withheld the ordinance and law portion of the appraisal award based on the policy's provision providing that building ordinance and law coverage is not payable " until the dwelling is actually repaired." [2]

The Insureds filed a " Petition to Confirm Appraisal Award" (" Petition to Confirm" ), alleging that State Farm failed to pay the ordinance and law portion of the appraisal award within sixty days as required by the policy's " Loss Payment" provision,[3] and that all conditions precedent have been performed, met, or waived. See Fla. R. Civ. P. 1.120(c) (" Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred." ). The Insureds requested that the trial court confirm the appraisal award and enter a final judgment awarding them the ordinance and law amount, plus interest, attorney's fees, and costs.

State Farm did not file a response to the Petition to Confirm. Instead, State Farm set the Petition to Confirm for hearing and filed a certified copy of the homeowner's insurance policy.

At the hearing, the Insureds' counsel argued that pursuant to the policy's Loss Payment provision, State Farm was required to pay the appraisal award within sixty days, and therefore, the trial court should grant the Petition to Confirm, and enter final judgment in favor of the Insureds. Thereafter, the trial court asked the Insureds' counsel what statute he was " traveling under." In response, counsel acknowledged that the Florida Arbitration Code (" Arbitration Code" ), Chapter 682, Florida Statutes, does not " specifically deal with the appraisal process," however, because appraisal awards are " akin" to arbitration awards, the Arbitration Code should be looked at for guidance. Thereafter, the Insureds' counsel and trial court discussed several provisions of the Arbitration Code. Under the Arbitration Code, a party may apply to confirm an arbitration award, and the court " shall confirm" the award if a party to the arbitration has not applied, within applicable time limits, to vacate, modify, or correct the arbitration award.[4] Thus, the Insureds argued that

Page 37

because State Farm did not apply to vacate, modify, or correct the appraisal award within ninety days, the trial court was compelled to grant their Petition to Confirm and enter final judgment in their favor. See ยง 682.15, Fla. Stat. (2008) (" Upon the granting of an order confirming, modifying or correcting an [arbitration] award, judgment or decree shall be entered in conformity therewith and be enforced as any other judgment or decree." ).

In response, State Farm argued that when it received the Petition to Confirm, it was not " entirely sure what this action was all about, because this is a petition ... to compel to confirm the appraisal award, and there's nothing in the rules that allows for that action." Further, State Farm argued that the appraisal award was subject to the terms and conditions of the policy, including the Building Ordinance or Law Coverage Limitations, and therefore, ...


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