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Tamiami Condominium Warehouse Plaza Association, Inc. v. Markel Insurance Co.

United States District Court, S.D. Florida

November 19, 2019




         THIS 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 DENIED.

         I. BACKGROUND

         This 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 Policy.

         Plaintiff 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 practice.

         Eight 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.


         “The 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.

         The Policy contains the following language regarding invoking the appraisal clause:

1. Appraisal
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 appraisal.
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 ...

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