final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; William W. Haury, Jr., Judge; L.T. Case No.
Berard Rockenbach, David A. Noel, and Daniel M. Schwarz of
Link & Rockenbach, PA, West Palm Beach, for appellant.
Matthew G. Struble and Christine D. Skubala of Struble, P.A.,
Fort Lauderdale, for appellee.
insurer appeals a final judgment entered against it in favor
of its insured. The sole issue on appeal relates to the
meaning of "disinterested appraiser" in the
insurance policy's appraisal clause. Can an insured's
public adjuster later be appointed the insured's
disinterested appraiser? The circuit court found that the
public adjuster could. On the facts here, we disagree and
reverse the circuit court's judgment.
in the insured's home caused water damage. Two weeks
later, the insured signed an agreement with a public
adjuster. As part of the agreement, the insured assigned 20%
of any recovery from the insurance company to the public
adjuster. The agreement stated that "[a]s security for
payment of policyholder's obligations to the [public
adjuster]. . ., the Policyholder hereby assigns the [public
adjuster] that portion of the insurance proceeds sufficient
to pay the [public adjuster]'s fees . . . ."
the insured retained the public adjuster, the public adjuster
contacted the insurer about the claim, attended the property
inspection, and sent follow-up correspondence about the
inspection to the insurer. Ultimately, the insurer sent
payment for its valuation of the loss and demanded appraisal
to resolve any remaining dispute about the valuation. The
appraisal clause in the insurance policy controls the process
and states in part:
Each party will select a qualified, disinterested
appraiser and notify the other of the appraiser's
identity within 20 days of receipt of the written
demand. Each party shall be responsible for the
compensation of their selected appraiser. The two appraisers
shall then select a qualified, disinterested 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 residence premises is located to select an
umpire. Reasonable expenses of the appraisal and the
reasonable compensation of the umpire shall be paid equally
by you and us.
the demand for appraisal, the public adjuster sent a letter
to the insurer naming himself the insured's appraiser.
The insurer objected to the public adjuster's appointment
of himself, arguing that the appointment of the public
adjuster violated the policy's requirement that the
parties select a "qualified, disinterested
appraiser." The insured disagreed and filed an action
for declaratory relief in the circuit court.
hearing, the circuit court entered summary judgment in the
insured's favor, finding "as a matter of law that
[the insured's] public adjuster can be his
'disinterested' appraiser." That conclusion was
generally based on two opinions from the Third District with
now-questionable futures-Rios v. Tri-State Insurance
Co., 714 So.2d 547 (Fla. 3d DCA 1998), and Galvis v.
Allstate Insurance Co., 721 So.2d 421 (Fla. 3d DCA
1998). See State Farm Fla. Ins. Co. v. Sanders, 44
Fla.L.Weekly D1901 (Fla. 3d DCA July 24, 2019) (finding the
insured's public adjuster could not act as a
disinterested appraiser under the insurance policy where the
public adjuster, by separate contract, would receive 10% of
any insurance recovery).
insurer asks that we conclude, as a matter of law, that an
insured's public adjuster cannot later be appointed the
insured's disinterested appraiser where there is a
contingency-fee arrangement. But we can resolve this issue on
narrower grounds: the actions of the insured's appraiser
combined with his financial interest.
the insured signed a contract with the public adjuster
entitling the public adjuster to a portion of any recovery
from the insurer and assigning a portion of the claim to the
public adjuster. Next, the public adjuster inspected the
property and submitted the claim to the insurance company.
Later, the public adjuster sent a letter appointing himself
facts of this case, we easily conclude the public adjuster
was not "disinterested" and reverse the circuit
court's judgment. On remand, the circuit court should
enter judgment for the insurer on the issue of this specific
public adjuster's ability to serve as the disinterested
appraiser for this insured.
Conner, Klingensmith and Kuntz, JJ., concur.
J., concurring specially.
the Court's opinion in full. But I would also directly
address the broader-and simple-question the insurer raises:
Is a person disinterested in an insurance claim if the person
is entitled to a percentage of the recovery from the same
insurance claim? The answer, like the question, is simple:
No. This conclusion is supported by ...