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State Farm Florida Insurance Co. v. Valenti

Florida Court of Appeals, Fourth District

December 11, 2019


         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; William W. Haury, Jr., Judge; L.T. Case No. CACE-18-004015.

          Kara 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.

          PER CURIAM.

         An 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.

         A leak 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 . . . ."

         After 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.

(emphasis added).

         After 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.

         After a 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).[1]

         The 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.

         Here, 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 the appraiser.

         On the 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.

         Reversed and remanded.

          Conner, Klingensmith and Kuntz, JJ., concur.

          Kuntz, J., concurring specially.

         I join 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 ...

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