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Calderon v. Scottsdale Insurance Co.

United States District Court, S.D. Florida, Miami Division

October 7, 2019

FELIX CALDERON, Plaintiff,
v.
SCOTTSDALE INSURANCE COMPANY, Defendant.

          ORDER GRANTING MOTION TO COMPEL APPRAISAL

          FEDERICO A. MORENO UNITED STATES DISTRICT JUDGE.

         THIS CAUSE came before the Court upon Defendant's Motion to Dismiss Complaint and to Compel Appraisal and Abate All Proceedings Pending Completion of Appraisal (D.E. 3), filed on March 19, 2019.

         THE COURT has considered the motion, the response, the reply, the pertinent portions of the record, and is otherwise fully advised in the premises.

         DISCUSSION

         Under Florida law, "appraisal provisions contained within insurance policies are generally treated the same as arbitration provisions." 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) (collecting cases). Consequently, "motions to compel appraisal should be granted whenever the parties have agreed to the provision." Id. (citing Preferred Mut. Ins. Co. v. Martinez, 643 So.2d 1101, 1103 (Fla. 3d DCA 1994)). Enforcing appraisal provisions are "preferred over lawsuits 'as they provide a mechanism for prompt resolution of claims and discourage the filing of needless lawsuits.'" Id. (quoting First Protective Ins. Co. v. Hess, 81 So.3d 482, 485 (Fla. 1st DCA 2011)).

         Here, Section G of the Conditions section of the applicable policy between the Parties contains the following appraisal provision:

         G. Appraisal

If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent and impartial appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the choice be made by a judge of a court of record in the state where the Described Location is located. The appraisers will separately set the amount of loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of loss.
Each party will:
1. Pay its own appraiser; and
2. Bear the other expenses of the appraisal and umpire equally.

(D.E. 3-1 (emphases added).) In a letter dated March 11, 2019, the Defendant notified Plaintiffs counsel that the Defendant was "invok[ing] the appraisal provision of [the Plaintiffs] policy." (D.E. 3-3 at 1.) Eight days later, the Defendant moved the Court to compel appraisal and to abate this action pending completion of appraisal. (See D.E. 3 at 6-7.)

         Plaintiff opposes the Defendant's request for appraisal, arguing the Defendant waived its right to appraisal by failing to invoke the provision at any point between July 2018-when the Defendant first received "actual knowledge" of a "significant disagreement between the parties as to the amount of loss"[1]-and March 2019, when the Defendant finally invoked the provision.

         (D.E. ...


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