United States District Court, S.D. Florida
TAMIAMI CONDOMINIUM WAREHOUSE PLAZA ASSOCIATION, INC., Plaintiff,
MARKEL AMERICAN INSURANCE COMPANY, Defendant.
ORDER DENYING MOTION TO COMPEL APPRAISAL AND STAY
SMITH UNITED STATES DISTRICT JUDGE
CAUSE is before the Court on Plaintiff Tamiami
Condominium Warehouse Plaza Association, Inc.'s
(“Plaintiff”) Motion to Compel Appraisal and Stay
Proceedings (“Motion to Compel Appraisal”) (ECF
No. 55), filed on October 24, 2019. Defendant Markel American
Insurance Company's (“Defendant”) filed its
Response on October 31, 2019 (ECF No. 62). Plaintiff filed
its Reply on November 5, 2019 (ECF No. 66). The Court has
carefully reviewed the Motion to Compel Appraisal, the
Response, the Reply, all supporting and opposing submissions,
and the record as a whole. For the reasons set forth below,
Plaintiff's Motion to Compel Appraisal (ECF No. 55) is
case involves an insurance coverage dispute relating to
damages from Hurricane Irma to Plaintiff's properties
located in Miami, Florida (the “Property”). The
Property was covered by Plaintiff's insurance policy with
Defendant (the “Policy”), which was in effect on
September 10, 2017, when Irma made landfall on South Florida
and caused damage to the Property. Plaintiff filed a claim
with Defendant under the Policy to recoup those damages.
After satisfying its obligations under the Policy, Plaintiff
contends that Defendant failed to pay the total amount of the
damages that were caused by the hurricane. Defendant admits
that Irma caused $17, 222.91 in damage to the Property but
denies that Plaintiff is entitled to benefits under the
Policy because that sum fell within the deductible of the
originally filed its complaint in state court on February 13,
2019 (ECF No. 1-2). The case was removed to this Court on
April 5, 2019 (ECF No. 1). Plaintiff filed an Amended
Complaint on May 16, 2019 (ECF No. 18). Defendant filed an
Answer and Affirmative Defenses on May 29, 2019 (ECF No. 21).
Both parties have actively engaged in discovery and motion
months after Plaintiff initially filed this action, on
October 24, 2019, Plaintiff filed the present Motion to
Compel Appraisal, seeking to invoke its contractual right
under the insurance policy to have its loss amount determined
by appraisal. Plaintiff also seeks to stay the current
proceedings until completion of the appraisal. Defendant
argues that Plaintiff has waived its right to demand
appraisal in this matter by taking action inconsistent with
its right to appraisal.
law in Florida is clear that issues of coverage and liability
under an insurance policy are for the court or jury,
respectively, whereas a dispute regarding the amount of loss
found to be covered under the policy is subject to appraisal
if so provided in the insurance policy.” Arvat
Corp. v. Scottsdale Ins. Co., No. 14-22774, 2015 WL
6504587, at *2 (S.D. Fla. Oct. 28, 2015) (citing State
Farm Florida Ins. Co. v. Hernandez, 172 So.3d 473, 476
(Fla. 3d DCA 2015)). However, “the right to an
appraisal may be waived if a party maintains a position
inconsistent with the appraisal remedy.” Pena v.
Scottsdale Ins. Co., No. 15-23116-CIV, 2015 WL 12828122,
at *1 (S.D. Fla. Oct. 22, 2015) (citing Gray Mart, Inc.
v. Fireman's Fund Ins. Co., 703 So.2d 1170, 1172
(Fla. 3d DCA 1997)). “A waiver of the right to seek
appraisal occurs when the party seeking appraisal actively
participates in a lawsuit or engages in conduct inconsistent
with the right to appraisal.” J&E Investments,
LLC v. Scottsdale Ins. Co., No. 16-61688-CIV, 2016 WL
8793337, at *2 (S.D. Fla. Aug. 18, 2016) (citing Florida
Insurance Guaranty v. Maroulis, 153 So.3d 298, 300 (Fla.
5th DCA 2014)), report and recommendation adopted,
No. 16-61688-CIV, 2016 WL 8793338 (S.D. Fla. Sept. 7, 2016).
“[T]he question of waiver of appraisal is not solely
about the length of time the case is pending or the number of
filings the appraisal-seeking party made. Instead, the
primary focus is whether [the insurer] acted inconsistently
with [its] appraisal rights.” Id.
Policy contains the following language regarding invoking the
If “you” and “we” do not agree on the
amount of the loss or the value of the covered property,
either party may demand that these amounts be determined by
If either party makes a written demand for appraisal, each
party will select a competent, independent appraiser and
notify the other of the appraiser's identity within 20
days of receipt of the written demand. The two appraisers
will then select a competent, impartial umpire. If the two
appraisers are unable to agree upon an umpire within 15 days,
“you” or “we” can ask a judge of a
court of record in the state where the property is located to
select an umpire.
The appraisers will then determine and state separately the
amount of each loss.
The appraisers will also determine the value of the covered
property items at the time of ...