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Levi Holding, LLC v. Scottsdale Insurance Co.

United States District Court, M.D. Florida, Fort Myers Division

July 25, 2018

LEVI HOLDING, LLC, doing business as Nino's Bakery, Plaintiff,
v.
SCOTTSDALE INSURANCE COMPANY, Defendant.

          OPINION AND ORDER

          JOHN E. STEELE JUDGE

         This matter comes before the Court on defendant's Motion to Abate Pending Completion of Appraisal (Doc. #3) filed on May 23, 2018. Plaintiff filed a Response in Opposition (Doc. #7) on June 7, 2018, and defendant filed a Reply (Doc. #12) on June 21, 2018. For the reasons set forth below, the Motion is granted in part.

         I.

         Plaintiff Levi Holding, LLC d/b/a Nino's Bakery (“Insured”) originally filed this action on April 23, 2018 in state court before defendant Scottsdale Insurance Company's (“Scottsdale”) removal on May 23, 2018. (Doc. #1.) Plaintiff alleges one count for breach of contract with respect to a business owner's insurance policy, Policy No. CPS26199399, issued by Scottsdale (Doc. #2-1, the “Policy”). Scottsdale filed the Motion to compel appraisal (Doc. #3) the same day it removed the case.

         On or about September 10, 2017, plaintiff discovered property damage due to Hurricane Irma on its building in Punta Gorda, Florida, which was insured by Scottsdale. (Doc. #2, ¶¶ 6-7.) Plaintiff submitted a claim to Scottsdale for property damage. (Id., ¶ 8.) Scottsdale accepted coverage for wind and water damage caused by Hurricane Irma, but the parties dispute the valuation of the covered damages. Scottsdale denies coverage for food spoilage, stating it is excluded under the Policy, and plaintiff believes that it is entitled to the full cost of repair of the damage to the property, including food spoilage. (Id., ¶¶ 9, 16; Doc. #3, p. 2.) By failing to pay the benefits for a covered cause of loss, plaintiff claims defendant breached the Policy, causing damages. (Doc. #2, ¶ 14.)

         On April 25, 2018 (the day it was served with the Complaint), Scottsdale invoked appraisal to resolve the dispute regarding the amount of loss. (Doc. #3-1). Scottsdale believes that it is entitled to appraisal because it invoked its right to appraisal listed under the “Loss Conditions” of the Policy and under Florida law[1] an appraiser may determine the value of the loss so the parties can then allow the Court to resolve the coverage issues. (Doc. #3, p. 2-4.) The Policy's appraisal clause states:

         E. Loss Conditions . . .

         2. Appraisal

If we and you disagree on the value of the property or the amount of loss, either may make written demand for an appraisal of the loss, either may make written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding. Each party will
a. Pay its chosen appraiser;
b. Bear the other expenses of the appraisal and umpire equally.
If there is an appraisal, we will still retain our right to deny the claim.

(Doc. #1-1, p. 35).

         Plaintiff objects to an appraisal, arguing that because Scottsdale is in material breach of the Policy for its failure to pay the full amount of the loss, Scottsdale has waived its right to appraisal. (Doc. #7, ¶ 5.) Plaintiff also argues that defendant waived its right to ...


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