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 Empire Indemnity Insurance Company's Motion
for Reconsideration of Order Granting Motion to Compel
Appraisal and Stay Litigation Based on Newly Discovered
Evidence (Doc. 47) and Plaintiff Waterford
Condominium Association of Collier County, Inc.'s
response (Doc. 49).
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
months later. After removing the case to this Court, Empire
admitted the damage was covered by the policy and
acknowledged a dispute over the extent and value of the
damages. Waterford then moved to stay the case and compel
appraisal under the insurance policy. The Court granted
Waterford's motion over the objections of Empire. Empire
asks the Court to reconsider because it has discovered what
it calls evidence of fraud.
may reconsider non-final orders at any time before entry of
judgment, but “reconsideration is an extraordinary
remedy that should be granted sparingly.” Asokan v.
Am. Gen. Life Ins. Co., 302 F.Supp.3d 1303, 1310 (M.D.
Fla. 2017). A party requesting reversal of a court's
prior decision must make a convincing case, generally by
showing “(1) an intervening change in controlling law;
(2) newly discovered evidence; or (3) the need to correct
clear error or prevent manifest injustice.”
policy Empire issued to Waterford allows either party to
demand appraisal if they “disagree on the value of the
property or the amount of loss.” (Doc. 1-4 at
43). Despite Empire's attempts to reframe the issue,
the pleadings leave no doubt that the parties disagree on the
amount of Waterford's covered loss. Empire now argues
that appraisal should nevertheless be denied or stayed while
Empire considers whether to assert a fraud defense, deny the
claim, and seek to void the policy. But the mere possibility
that Empire might raise a fraud defense does not undermine
the Court's rationale for enforcing the policy's
appraisal provision. Even if Empire decides to reverse course
and deny the claim, appraisal is still appropriate to
determine the amount of loss because a fraud defense would
address the separate issue of coverage. In fact, the policy
anticipates this situation: “If there is an appraisal,
we still retain our right to deny the claim.” (Doc.
1-4 at 43). Empire's consideration of a fraud
defense is no reason to stop or stay appraisal.
also argues that Florida law requires trial courts to resolve
coverage disputes before ordering appraisal. Waterford
counters that Empire's legal authority is on the minority
side of a split among Florida's district courts of
appeal, and that the majority view gives courts discretion
over the relative timing of appraisal and coverage
determinations. Waterford appears correct. Compare
Citizens Prop. Ins. Corp v. Admiralty House, Inc., 66
So.3d 342, 344 (Dist. Ct. App. Fla. 2011) and
Citizens Prop. Ins. Corp. v. Galeria Villas Condo.
Assoc., Inc., 48 So.3d 188, 191-92 (Dist. Ct. App. Fla.
2010) (stating the view of Florida's Second and Third
Districts that courts have discretion) with
Sunshine State Ins. v. Corridori, 28 So.3d 129, 131
(Dist. Ct. App. Fla. 2010) (stating the view of Florida's
Fourth District that coverage issues must be decided before
appraisal). At any rate, a dispute over coverage is
hypothetical at this point. Empire admitted that
Waterford's losses were covered by the policy (Doc. 8
at 2), and although Empire might request leave to amend
its answer, it has not done so yet.
it is now
Indemnity Insurance Company's Motion for Reconsideration
of Order Granting Motion to Compel Appraisal and Stay
Litigation Based on Newly Discovered Evidence (Doc.
47) is DENIED.
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