United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE JUDGE
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.)
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)).
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.
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. Landmark further determined
that there was no coverage for the business interruption and
extra expense claim based on an applicable policy
exclusion. 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.
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
. . .
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. 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
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 ...