United States District Court, M.D. Florida, Fort Myers Division
WATERFORD CONDOMINIUM ASSOCIATION OF COLLIER COUNTY, INC., Plaintiff,
EMPIRE INDEMNITY INSURANCE COMPANY, a foreign profit corporation, Defendant.
REPORT AND RECOMMENDATION
DOUGLAS N. FRAZIER UNITED STATES MAGISTRATE JUDGE.
THE UNITED STATES DISTRICT COURT
cause is before the Court on Plaintiff Waterford Condominium
Association of Collier County, Inc.'s Motion to Compel
Appraisal and Stay Proceedings (Doc. 28) filed on April 12,
2019. Defendant Empire Indemnity Insurance Company filed a
Response to Plaintiff's Motion to Compel Appraisal and
Stay Proceedings (Doc. 31) on May 6, 2019. With leave of
court, Plaintiff filed a Reply to Defendant's Response to
Plaintiff's Motion to Compel Appraisal and Stay
Proceedings (Doc. 34) on May 23, 2019. For the reasons
explained below, the undersigned respectfully recommends that
Plaintiff's motion be GRANTED.
an insurance breach of contract case. Plaintiff initially
filed this case in Florida state court and the case was
removed on February 8, 2019. According to Plaintiff's
Amended Complaint, Plaintiff had an insurance policy issued
by Defendant that provided coverages for Plaintiff's
property, a condominium complex. (Doc. 3 ¶¶ 4-5).
On or about September 10, 2017, Plaintiff's property
sustained physical damage and losses due to Hurricane Irma.
(Doc. 3 ¶ 6). Plaintiff alleges that it promptly
notified Defendant of the covered losses, but Defendant has
failed to fully compensate Plaintiff as required under the
insurance policy (Doc. 3 ¶¶ 7-9). Plaintiff argues
that its property suffered extensive damages that its
contractor has determined amount to $5, 421, 919.94, but that
Defendant has only made a payment of $51, 817.31. (Doc. 28 p.
2). On March 27, 2019, Plaintiff, through its counsel, made a
written demand for appraisal of the amount of the loss to
instant motion, Plaintiff is requesting the Court to compel
the appraisal of the amount of loss consistent with the
appraisal clause in the insurance policy issued to Plaintiff
by Defendant and to stay the proceedings until the appraisal
process is completed. Plaintiff argues that appraisal is
proper because Defendant acknowledged that Plaintiff suffered
a covered loss as a result of the hurricane, because it is
indisputable that there is a disagreement regarding the
amount of the loss, and because appraisal is the most
efficient method to determine the amount of the loss.
response, Defendant argues that Plaintiff's motion to
compel appraisal is an improper summary judgment motion.
Further, Defendant argues that Plaintiff's claim for any
benefits never matured. Defendant also argues that it
requested mediation, which must come before appraisal when
requested. Finally, Defendant argues that Plaintiff's
motion seeks to deprive Defendant of a jury trial on the
major issue of covered damages without allowing a forum to
raise defenses to appraisal after conducting discovery. (Doc.
31 p. 2).
Florida law, a dispute regarding a policy's coverage for
a loss is exclusively a judicial question, ” but a
dispute regarding the amount of the loss may be subject to
appraisal. McPhillips v. Scottsdale Ins. Co., No.
2:18-cv-421-FtM-99CM, 2018 WL 3805865, at *2 (M.D. Fla. Aug.
10, 2018) (citing Gonzalez v. Am. Sec. Ins. Co., No.
8:15-cv-1515-36EAJ, 2015 WL 12852303, at *4 (M.D. Fla. Nov.
10, 2015); Freeman v. Am. Integrity Ins. Co. of
Fla., 180 So.3d 1203, 1208 (Fla. 1st DCA 2015)).
Appraisal provisions in insurance policies generally are
treated the same as arbitration clauses, and thus
“motions to compel appraisal should be granted whenever
the parties have agreed to the provision.” Wright
Way Emergency Water Removal, LLC v. Mt. Hawley Ins. Co.,
No. 8:16-cv-1163-T-17MAP, 2016 WL 9526569, at *2 (M.D. Fla.
July 29, 2016) (citing Fla. Ins. Guar. Ass'n, Inc. v.
Castilla, 18 So.3d 703, 704 (Fla. 4th DCA 2009);
Preferred Mut. Ins. Co. v. Martinez, 643 So.2d 1101,
1102 (Fla. 3d DCA 1994)). A party waives the right to
appraisal, however, if it extensively litigates the amount of
loss or otherwise acts inconsistently with its appraisal
rights. See Bullard Bldg. Condo. Ass'n, Inc. v.
Travelers Prop. Cas. Co. of Am., No. 806CV-1194T-27MSS,
2006 WL 2787850, at *1 (M.D. Fla. Sept. 26, 2006) (citing
Shoma Dev. Corp. v. Rodriguez, 730 So.2d 838 (Fla.
3d DCA 1999); Gray Mart, Inc. v. Fireman's Fund Ins.
Co., 703 So.2d 1170, 1172 (Fla. 3d DCA 1997)).
case, the undersigned recommends that appraisal is
appropriate. First, appraisal is appropriate because the
parties dispute the amount of the loss. Here, Plaintiff
submitted a claim, Defendant estimated the damage at $551,
732.72 and made a payment of $51, 817.37. Plaintiff's
contractor's estimate totals $5, 421, 912.94. Defendant
acknowledged coverage under the policy for Hurricane
Irma-related damage and denied that there was an agreement as
to the extent and value of such damage and amount needed to
repair the damage. See (Doc. 8 ¶ 8).
Accordingly, the parties dispute the amount of the loss.
Plaintiff has not acted inconsistently with its right to
appraisal. Plaintiff invoked its right to appraisal within
two months after the case was removed to federal court and
before propounding any discovery or engaging in motion
practice. See Marram Corp. v. Scottsdale Ins. Co.,
No. 2:18-cv-204-FtM-38MRM, 2018 WL 4346809, at *4 (M.D. Fla.
Aug. 21, 2018), report and recommendation adopted,
2018 WL 4333618 (M.D. Fla. Sept. 11, 2018).
undersigned rejects Defendant's argument that
Plaintiff's motion is improper because it “amounts
to an insufficient motion for summary judgment.” (Doc.
31 p. 5). As Plaintiff notes, courts in the Middle District
of Florida have compelled appraisals in numerous similar
cases. See (Doc. 28 p. 6) (collecting cases).
the undersigned rejects Defendant's argument that
appraisal cannot occur because Defendant requested
contractual mediation. First, Defendant requested mediation
after Plaintiff's requested appraisal. Second, despite
claiming that “given the language of the policy”
mediation must occur before appraisal, Defendant cites to no
language in the policy explaining the timing of mediation and
requests that if the case is sent for appraisal then the
appraisal should be broken down by line-item. Plaintiff
argues that the policy does not require a line item award and
the court should not re-write the policy to include such a
requirement. The Court agrees with Plaintiff. Requiring a
line-item appraisal would likely benefit the Court if a
coverage dispute later arose between the parties. See
Baldwin Realty Grp. Inc. v. Scottsdale Ins. Co., No.
6:18-cv-785-Orl-41DCI, 2018 WL 4381206, at *6 (M.D. Fla.
Sept. 6, 2018); McPhillips, 2018 WL 3805865, at *3.
Because it is a tenet of contract law that the Court should
not impute meaning absent from the parties' contract,
however, the Court recommends enforcing the appraisal
provision as it is written rather than fashioning
requirements to which the parties did not agree. See
Intervest Constr. of Jax, Inc., 133 So.3d at 497
(“Courts may not rewrite contracts, add meaning that is
not present, or otherwise reach results contrary to the
intentions of the parties.” (internal quotation marks
IS RESPECTFULLY ...