United States District Court, M.D. Florida, Fort Myers Division
WATERFORD CONDOMINIUM ASSOCIATION OF COLLIER COUNTY, INC., Plaintiff,
EMPIRE INDEMNITY INSURANCE COMPANY, Defendant.
OPINION AND ORDER
POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE.
the Court is United States Magistrate Judge Douglas
Frazier's Report and Recommendation (R&R),
recommending that the Court grant Waterford Condominium
Association of Collier County, Inc.'s Motion to Compel
Appraisal and Stay Proceedings. (Doc. 39). Defendant Empire
Indemnity Insurance Company filed Objections (Doc. 41) and
requested oral argument (Doc. 42), and Waterford responded to
both (Doc. 43; Doc. 44). After independently examining the
file and on consideration of Judge Frazier's findings and
recommendations, the Court will accept and adopt the R&R
for the reasons stated.
2017, Hurricane Irma damaged Waterford's property in
Naples, Florida. Empire insured the property at the time.
When Waterford reported the damage, Empire's adjustor
inspected the property and found the anticipated repair cost
to be $551, 732.72. After subtracting depreciation and
deductibles, Empire paid Waterford $51, 817.37. Waterford
then submitted a repair estimate of $2, 144, 858.31. Empire
continued its investigation and commissioned a second
estimate of $595, 098.00. Waterford sued in state court a few
Empire removed the case to this Court, Waterford moved to
stay the case and compel appraisal under the insurance
policy. Judge Frazier found appraisal appropriate because the
parties dispute the amount of the loss and Waterford has not
acted inconsistently with its right to appraisal. (Doc. 39).
Judge Frazier rejected Empires' arguments that the Court
should apply a summary judgment standard to Waterford's
motion and that appraisal cannot occur because Empire
requested mediation. Judge Frazier also declined to recommend
a line-item appraisal because the parties did not agree to
one in the policy. Empire now objects to the R&R and
requests oral argument.
district judge “may accept, reject, or modify in whole
or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1). The
district judge “shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made.”
Id. This requires that the district judge
“give fresh consideration to those issues to which
specific objection has been made by a party.”
Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d
507, 512 (11th Cir.1990) (quoting H.R. 1609, 94th Cong.,
§ 2 (1976)). And “[t]he district judge reviews
legal conclusions de novo, even in the absence of an
objection.” See Cooper-Houston v. Southern
Ry. Co., 37 F.3d 603, 604 (11th Cir.1994).
raises seven objections to the R&R: (1) a motion to
compel appraisal must be supported by summary judgment
evidence; (2) Waterford's claim is not ripe for
appraisal; (3) if the claim is ripe, appraisal should be
limited to the amount demanded pre-suit; (4) Waterford waived
its right to appraisal; (5) mediation must occur before
appraisal; (6) Empire is entitled to a line-item appraisal;
and (7) there is no reason to stay discovery.
first argues that a motion to compel appraisal is equivalent
to a motion for summary judgment and must be supported by
summary-judgment evidence. Empire tried this argument two
months ago in a case before Judge Steele, who explained the
difference between summary judgment and appraisal: an
“appraiser determine[s] the amount of loss[, ]”
while “the purpose of summary judgment is to dispose of
the merits of claims and defenses that are factually
unsupported.” CMR Constr. & Roofing, LLC v.
Empire Indem. Ins. Co., No. 2:18-CV-779-FTM, 2019 WL
2281678, at *3 (M.D. Fla. May 29, 2019). The case Empire
cites in its objection, Indian Harbor Ins. Co. v.
Int'l Studio Apartments, Inc., No. 09-CIV-60671,
2009 WL 10668574 (S.D. Fla. Sept. 22, 2009), accords with
Judge Steele's analysis. One of the counts in Indian
Harbor was a demand for appraisal, so the court treated
a motion to compel appraisal as a request for summary
judgment on that claim. Indian Harbor, 2009 WL
10668574, at *3. Because appraisal will not dispose of any
claims or defenses, the Court will not treat Waterford's
motion to compel appraisal as one for summary judgment.
See CMR Constr. & Roofing, LLC, 2019 WL
2281678, at *3 (“Unlike a summary judgment motion, a
determination of whether appraisal is appropriate does not
determine whether there is a genuine disputed material fact
or whether the moving party is entitled to judgment.”).
next argument is based on a provision in the policy that
allows Waterford to elect between two measures of damages:
replacement cost or actual cash value. Empire asserts that
Waterford cannot compel appraisal because repairs have not
been performed, making a replacement-cost claim unripe, and
because Waterford has not made an actual-cash-value claim,
there is no dispute as to that amount. But these arguments
have nothing to do with the appraisal provision, which allows
either party to compel appraisal if they “disagree on
the value of the property or the amount of loss.” (Doc.
3 at 43). In its Answer, Empire specifically “[d]enied
that there was an agreement as to the extent and value
of…damage and amounts needed to repair the
damage.” (Doc. 8 at 2). Waterford is thus entitled to
invoke the appraisal clause. Failure to claim
actual-cash-value or replacement-cost damages “may be
defenses to the amount of damages that [the insured] may
obtain, but [they] are not bases for denying
appraisal.” CMR Constr. & Roofing, 2019 WL
2281678, at *4.
also argues that appraisal is not ripe because it has not
investigated Waterford's most recent estimate of $5
million. (Doc. 41 at 9-11). For this point, Empire relies on
Galindo v. ARI Mut. Ins. Co., 203 F.3d 771, 777
(11th Cir. 2000), in which the insureds sought to compel
appraisal on supplemental claims made five years after they
settled their initial claims without allowing their insurers
to first investigate the new supplemental claims.
Galindo, 203 F.3d at 773-4. The Eleventh Circuit
held that the “insureds must comply with the post-loss
terms of their respective homeowner's policies, which