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State Farm Florida Insurance Co. v. Sanders

Florida Court of Appeals, Third District

July 24, 2019

State Farm Florida Insurance Company, Petitioner,
v.
Charles Sanders and Diana Sanders, Respondents.

         Not final until disposition of timely filed motion for rehearing.

          A Writ of Certiorari to the Circuit Court for Miami-Dade County, Martin Zilber, Judge Lower Tribunal No. 18-27366.

          Link & Rockenbach, P.A., Kara Berard Rockenbach and David A. Noel (West Palm Beach), for petitioner.

          Marin, Eljaiek, Lopez & Martinez, P.L., Steven E. Gurian and Joe De Prado, for respondents.

          Before EMAS, C.J., and FERNANDEZ, and LINDSEY, JJ.

          FERNANDEZ, J.

         State Farm petitions this Court for a writ of certiorari to quash the trial court's April 9, 2019 order allowing the insureds' agent/public adjuster to act as their "disinterested" appraiser. We agree with State Farm and quash the order.

         Respondents/insureds Charles Sanders and Diana Sanders had a homeowners' insurance policy with State Farm to provide coverage for property damages. The appraisal condition in State Farm's Homeowner Policy states that, "Each party will select a qualified, disinterested appraiser . . ." On August 13, 2018, the insureds filed suit against State Farm for breach of contract arising out of a Hurricane Irma property damage claim, alleging that State Farm failed to provide coverage for the loss. In response to the complaint, State Farm filed a Motion to Invoke Appraisal, claiming that there was a pre-suit dispute regarding the insureds' selected appraiser.

         On December 12, 2018, the parties entered into an agreed order granting State Farm's Motion to Invoke Appraisal. The Order named Peter Patterson of VRS Vericlaim as State Farm's appraiser and required the insureds to designate their "qualified, disinterested appraiser," as stated in State Farm's policy. The insureds selected Gian Franco Debernardi of 911 Claims Corporation as their appraiser.

         Mr. Debernardi is the insureds' agent pursuant to their contract with 911 Claims Corporation, which states that he will "be the agent and representative, under the insurance contract by State Farm Insurance . . . to adjust, appraise, advise and assist in the settlement of the loss." In addition, the contract assigns 10% of the amount recovered to 911 Claims Corporation. Previously, Mr. Debernardi inspected the property, reported the insurance claim to State Farm, and prepared the $88, 536.41 estimate that is the subject of the dispute between State Farm and the insureds.

         On February 20, 2019, the insureds filed a Motion to Lift Stay and Compel Compliance with the Court Order, contending that appraisal should move forward with Mr. Debernardi as their appraiser. State Farm argued that Mr. Debernardi was not "disinterested" because of his agent/principal relationship with the insureds, his contingency fee, and his prior estimate of damages. On April 9, 2019, the trial court granted the Motion to Lift Stay and entered an order permitting Mr. Debernardi to act as the insureds' "disinterested" appraiser. State Farm then filed this petition for writ of certiorari.

         The trial court's April 9, 2019 order allowing Mr. Debernardi to act as the insureds' disinterested appraiser departs from the essential requirements of the law. This will cause material injury to State Farm that cannot be remedied on appeal. Rousso v. Hannon, 146 So.3d 66, 69 (Fla. 3d DCA 2014) ("To invoke an appellate court's certiorari jurisdiction, '[t]he petitioning party must demonstrate that the contested order constitutes "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[, ] (3) that cannot be corrected on post-judgment appeal."'" (first quoting Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., 99 So.3d 450, 454 (Fla. 2012); then quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004))).

         Allowing Mr. Debernardi to act as the insureds' "disinterested" appraiser is a harm that cannot be remedied on appeal, due to the nature of appraisal. The insureds contend in their Response to State Farm's petition, once an appraisal award is confirmed by the trial court, State Farm could then move to vacate it and then file an appeal.

         However, Florida case law does not support this position. After an insurer pays an appraisal award, the trial court is not required to confirm this award, as a petition to confirm an appraisal award is not authorized under Florida law. State Farm Fla. Ins. Co. v. Gonzalez, 76 So.3d 34, 37 (Fla. 3d ...


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