FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Seminole County, Jessica J.
A. Vaka and Nancy A. Lauten, of Vaka Law Group, PL, Tampa,
and Kelly L. Kubiak, of Merlin Law Group, Tampa, for
Matthew J. Lavisky, Anthony J. Russo and Lee Craig, of Butler
Weihmuller Katz Craig LLP, for Appellee.
MOTION FOR REHEARING
consideration of Appellee State Farm Florida Insurance
Company's Motion for Rehearing, we grant the motion,
withdraw our prior opinion, and substitute this one in its
this appeal, we consider whether, when an insurance contract
provides for an appraisal process, an insured must wait until
that process is completed before filing a civil remedy notice
pursuant to section 624.155, Florida Statutes (2008). Because
we find no such limitation in the statute or relevant case
law, we reverse.
2009, Phillip Landers's home sustained a loss from
suspected sinkhole activity. He submitted a claim to his
insurer, State Farm Florida Insurance Company ("State
Farm"). State Farm hired SDII Global Corporation
("SDII") to conduct a subsidence investigation.
SDII verified that sinkhole activity was the cause of the
damage, and State Farm admitted coverage. SDll initially
concluded that 975 cubic yards of grout needed to be injected
into forty-nine holes around the home's perimeter. SDII
did not recommend underpinning. After considering the report
of a neutral evaluator from the Department of Financial
Services pursuant to section 627.7074, Florida Statutes
(2008), SDII amended its report to require an additional
fifteen grout injection points.
obtained an independent opinion from Biller Reinhart
Structural Group ("Reinhart"). In Reinhart's
opinion, proper stabilization required
underpinning. State Farm provided Reinhart's report
for review by the neutral evaluator. The neutral evaluator
concluded that underpinning was unwarranted. While State Farm
demanded appraisal under the policy to resolve the
parties' disagreement over the amount of the loss,
Landers agreed, pursuant to the terms of the insurance
contract, to proceed with SDll's recommended repair plan,
despite his belief that the repairs were inadequate. State
Farm placed its appraisal demand on hold while the
stabilization repairs were made. Further appraisal would be
required to address cosmetic repairs to the home.
the repairs were completed in September 2011, State Farm
reiterated its request for appraisal of the cosmetic damage
to the home. The home continued to experience damage after
repairs were completed. As a result, Landers hired Sonny
Gulati, a geotechnical engineer, to examine the property. In
January 2012, while Gulati's report was pending, Landers
filed a civil remedy notice ("CRN"), alleging,
among other things, claim delay, failure to promptly and
properly investigate the claim, failure to adjust the loss,
and the failure to tender policy limits. Landers contended
that the repairs were completed pursuant to State Farm's
expert's recommendation, yet his home remained unlivable.
Landers demanded the immediate tender of "the policy
limits for dwelling . . . of $1, 026, 500.00 minus any prior
payments that have been made to the insured . . . so that
[Landers] may adequately complete the repairs [he] has
started to [his] home." In response, State Farm
requested that all issues be submitted to appraisal.
March 2012, Landers brought suit against State Farm for
breach of contract. In that suit, State Farm sought to compel
appraisal, which Landers opposed. The circuit court compelled
appraisal, and Landers appealed from that order. This Court
affirmed. Landers v. State Farm Fla. Ins. Co., 149
So.3d 33 (Fla. 5th DCA 2014). In July 2014, the appraisal
panel determined that the amount of loss exceeded the policy
limits. State Farm tendered the policy limits in August 2014,
without any deduction for the amounts previously paid.
then brought the underlying first-party bad-faith suit
against State Farm, alleging ten purported violations of
sections 624.155(1)(b)(1) and 626.9541(1)(i), Florida
Statutes (2008), including allegations of claim delay and
low-balling. Landers contended that his damages always
exceeded the policy limits and that State Farm acted in bad
faith by delaying payment of the policy limits until after
Farm moved for summary judgment. State Farm asserted that
when Landers filed the CRN, "there was no contractual
amount due and no damages owed under the contract"
because a condition precedent to payment-determining the
amount of loss through appraisal-had not been fulfilled.
Therefore, the CRN was not valid and Landers had no claim.
The trial court granted summary judgment, but the order
granting summary judgment contained no explanation, findings
of fact, or conclusions of law. This appeal followed.
Court reviews orders granting summary judgment de novo.
Volusia Cty. v. Aberdeen at Ormond Beach, 760 So.2d
126, 130 (Fla. 2000). The issue presented on appeal is
primarily a question of law: whether the insurer's demand
for appraisal tolls the filing of a CRN until the amount of
the appraisal has been established. State Farm asserts the
CRN was void because Landers's claim was not yet
claims are governed by section 624.155, Florida Statutes
(2008). Section 624.155(1) provides that:
(1) Any person may bring a civil action against an insurer
when such ...