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Landmark American Insurance Co. v. Richardt

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

June 13, 2019

LANDMARK AMERICAN INSURANCE COMPANY, Plaintiff,
v.
H. ANTON RICHARDT, DDS, PA, Defendant.

          OPINION AND ORDER

          JOHN E. STEELE JUDGE

         This matter comes before the Court on defendant's Motion for Judgment on the Pleadings (Doc. #37) filed on April 30, 2019. Plaintiff filed a Response in Opposition and Cross-Motion for Judgment on the Pleadings (Doc. #38) on May 14, 2019, and defendant filed a Response (Doc. #39) and Notices of Filing (Docs. #41, #44, #46) with supplemental authority attached. Plaintiff also filed supplemental authority. (Doc. #45.)

         I.

         “After the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “Judgment on the pleadings is appropriate when there are no material facts in dispute, and judgment may be rendered by considering the substance of the pleadings and any judicially noticed facts.” Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998) (citations omitted). The Court accepts “the facts alleged in the complaint as true and view them in the light most favorable to the nonmoving party.” Cannon v. City of W. Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001) (citation omitted). “The complaint may not be dismissed ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'” Slagle v. ITT Hartford, 102 F.3d 494, 497 (11th Cir. 1996) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

         II.

         Landmark American Insurance Company (Landmark) is an insurance company. H. Anton Richardt, D.D.S., doing business as International Institute for Cosmetic Dentistry (International), is the insured under a policy issued by Landmark for coverage of property located in Naples, Florida. On or about September 10, 2017, International's property sustained damages as a result of Hurricane Irma.

         International claimed $596, 875.04 in damages to its property and a loss of business income and extra expense in the amount of $96, 080.50. The estimate of damages came from Stellar Public Adjusting Services (Stellar). Landmark however determined that International's building suffered only $12, 984.15 in covered damages, and no payment was issued because the policy carried a $65, 000 deductible.[1] Landmark further determined that there was no coverage for the business interruption and extra expense claim based on an applicable policy exclusion.[2] The determination was communicated in writing on or about December 6, 2017. On June 11, 2018, International forwarded correspondence to Landmark enclosing a March 28, 2018, estimate created by Stellar and demanding appraisal. Mr. Rami Boaziz of Stellar conducted the appraisal for International. Landmark investigated International's claim and assigned Engle Martin and Associates to investigate the claim and to estimate the cost of repair.

         The policy's appraisal provision requires that each party select a ‘competent and impartial appraiser':

E. Loss Conditions The following conditions apply in addition to the Common Policy Conditions and the Commercial Property 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. In this event, each party will select a competent and impartial appraiser.

(Doc. #30, ¶ 38.) Stellar's compensation agreement with International provides it with a direct financial interest in the outcome of the appraisal, a percentage, which percentage amount is in dispute.[3] The compensation agreement provides that International agrees to pay and assigns to Stellar 10% “of all payments made by the insurance company related to the loss, whether contractual or extra-contractual. In the event appraisal or mediation is demanded or a lawsuit is filed on the above claim, there will be an additional charge of five-percent. The total contractual percentage shall not exceed the maximum allowed by law. The fee will be based on the total amount of the settlement after the application of the deductible. Fees will only be charged on monies paid by the Insurer after the date this Agreement is signed.” (Doc. #30-8, Ex. F.) Landmark's appraiser, Phillip Ambrose wrote an email to International's public adjuster. Both Landmark and International's appraisers signed the Declaration of Appraisers.

         International has refused to appoint another appraiser, and the parties agree that there is a bona fide, actual, present and practicable need for a declaration as ...


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