O'Connor Caselaw

Page 1
834 So.2d 395, 28 Fla. L. Weekly D256

(Cite as: 834 So.2d 395)
addressed merits of purchasers' case and which did

not assert right to arbitrate, company allowed litiga-
District Court of Appeal of Florida, tion to reach point at which a case management
Fifth District. conference was held, and at which case was set for
Albert K. MORRELL, Sr., Millicent Morrell, et al, mediation and trial, company and purchasers en-
Appellants, gaged in discovery and submitted their witness
v. lists, and company did not assert right to arbitrate
WAYNE FRIER MANUFACTURED HOME until eve of trial, nearly a year after complaint was
CENTER, etc., et al, Appellees. served on it; fact that purchasers filed an amended
complaint does nothing to revive company's right to
No. 5D02-105.
arbitration.
Jan. 17, 2003.
[2] Alternative Dispute Resolution 25T
After purchasers of a mobile home brought ac-
182(1)
tion against mobile home sales company regarding
home purchase, the company asserted its right to ar- 25T Alternative Dispute Resolution
bitrate. The Judicial Circuit Court, Citrus County, 25TII Arbitration
Patricia Thomas, J., ordered matter to arbitration. 25TII(D) Performance, Breach, Enforcement,
Purchasers appealed. The District Court of Appeal, and Contest
Thompson, C.J., held that company, which waited 25Tk177 Right to Enforcement and De-
until the eve of trial to assert its contractual right to fenses in General
arbitrate purchasers' claim against it, waived such 25Tk182 Waiver or Estoppel
right. 25Tk182(1) k. In General. Most
Cited Cases
Reversed.
(Formerly 33k23.3(1) Arbitration)
West Headnotes A contractual right to arbitrate a dispute may
be waived.
[1] Alternative Dispute Resolution 25T
182(2) [3] Alternative Dispute Resolution 25T 178
25T Alternative Dispute Resolution 25T Alternative Dispute Resolution

25TII Arbitration 25TII Arbitration
25TII(D) Performance, Breach, Enforcement, 25TII(D) Performance, Breach, Enforcement,
and Contest and Contest
25Tk177 Right to Enforcement and De- 25Tk177 Right to Enforcement and De-
fenses in General fenses in General
25Tk182 Waiver or Estoppel 25Tk178 k. In General. Most Cited
25Tk182(2) k. Suing or Participat- Cases
ing in Suit. Most Cited Cases (Formerly 33k23 Arbitration)
(Formerly 33k23.3(2) Arbitration) In ruling on a motion to compel arbitration, a
Mobile home sales company waived its con- court must determine whether: (1) a valid written
tractual right to arbitrate home purchasers' com- agreement containing an arbitration clause exists;
plaint against it, where company filed an answer, an (2) an arbitrable issue exists; and (3) the right to ar-
affirmative defense, and a motion to dismiss which bitration has been waived.
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 2
834 So.2d 395, 28 Fla. L. Weekly D256
(Cite as: 834 So.2d 395)
[4] Alternative Dispute Resolution 25T tion which is inconsistent with the right to arbitrate.
182(1)
*396 Kevin K. Dixon of Brannen, Stillwell & Per-
25T Alternative Dispute Resolution rin, P.A., Inverness, for Appellants.
25TII Arbitration
25TII(D) Performance, Breach, Enforcement, Frank C. Amatea, Ocala, for Appellees.
and Contest
25Tk177 Right to Enforcement and De- THOMPSON, C.J.
fenses in General Millicent and Albert K. Morrell, Sr., appeal an
25Tk182 Waiver or Estoppel order granting the motion of defendants Wayne Fri-
25Tk182(1) k. In General. Most er Manufactured Home Center of Homosassa
Cited Cases Springs, Inc., and Wayne Frier Mobile Home Sales,
(Formerly 33k23 Arbitration) Inc. (“Frier”), to require arbitration of the Morrells'
A party who opposes arbitration, on basis that complaint against Frier. We reverse.
other party waived right, need not demonstrate ac-
tual prejudice unless waiver is premised on delay in The Morrells, along with Joseph and Kathleen
asserting the right. Stafford (collectively “plaintiffs”) sued Frier under
The Motor Vehicle Retail Sales Finance Act,
[5] Alternative Dispute Resolution 25T Chapter 520, Florida Statutes. They alleged that the
182(1) Staffords had wanted to purchase a mobile home
from Frier to place on their land. The Morrells, who
25T Alternative Dispute Resolution
were Kathleen Stafford's parents, agreed to co-sign
25TII Arbitration
the credit application, and signed the documents
25TII(D) Performance, Breach, Enforcement,
given to them by Frier. After the home was placed
and Contest
on the Staffords' land, the plaintiffs discovered that
25Tk177 Right to Enforcement and De-
the Morrells were not co-signors, but were the own-
fenses in General
ers of the mobile home and the sole obligors on the
25Tk182 Waiver or Estoppel
note. They alleged that Frier had altered the credit
25Tk182(1) k. In General. Most
application submitted by the Morrells, resulting in
Cited Cases
an overstatement of their income by $2000. Further,
the plaintiffs discovered that instead of the model
Alternative Dispute Resolution 25T 182(2) contracted for, a five bedroom home with a fire-
place, Frier delivered a four bedroom model
25T Alternative Dispute Resolution without a fireplace.
25TII Arbitration
25TII(D) Performance, Breach, Enforcement, The complaint was served on 3 October 2000.
and Contest Frier answered the complaint in October 2000, and
25Tk177 Right to Enforcement and De- asserted as an affirmative defense that the Staffords
fenses in General were not signatories to the contract, an apparent
25Tk182 Waiver or Estoppel contention that the Staffords did not have standing
25Tk182(2) k. Suing or Participat- to sue under chapter 520. Frier also filed a motion
ing in Suit. Most Cited Cases to dismiss the complaint as to the Staffords, on the
(Formerly 33k23.3(2) Arbitration) ground that the Staffords were not signatories to the
A party waives its right to arbitrate by: (1) act- contract and therefore had no cause of action under
ively participating in the lawsuit; or (2) taking ac- chapter 520. On 4 June 2001, the plaintiffs filed no-

Page 3
834 So.2d 395, 28 Fla. L. Weekly D256
(Cite as: 834 So.2d 395)
tice that the action was ready for trial. A status con- exists; and (3) the right to arbitration has been
ference was held on 1 August 2000, and the attor- waived. North American Van Lines v. Collyer, 616
neys for all parties attended. On 2 August 2000, the So.2d 177 (Fla. 5th DCA 1993). A party who op-
court issued an “Order Setting Case for Mediation poses arbitration need not demonstrate actual preju-
Conference, Discovery Cut Off Date, Pretrial Con- dice unless waiver is premised on delay in asserting
ference and Trial.” Among other things, this order the right. Beverly Hills Development Corp. v.
set a pre-trial conference for 28 November 2001, George Wimpey of Florida, Inc., 661 So.2d 969
and required all attorneys to attend and to be ac- (Fla. 5th DCA 1995).
companied by someone authorized to settle. The at-
torneys were required to present all of the docu- [5] A party waives its right to arbitrate by: (1)
mentary evidence to be introduced at trial, a synop- actively participating in the lawsuit; or (2) taking
sis of testimony, and requests for preliminary rul- action which is inconsistent with the right to arbit-
ings. The case was set for trial during the 10 rate. Klosters Rederi; R.W. Roberts Construction
December 2001 docket. Co., Inc. v. Masters & Co., Inc., 403 So.2d 1114
(Fla. 5th DCA 1981) (the defendant's motion to
In July 2001, the plaintiffs requested produc- transfer the action, a contention that the case was in
tion of documents, and in August 2001, the defend- the court of the wrong county, rather than that the
ants complied. Twice in July 2001, Frier noticed case should not be in court at all, waived the right
the plaintiffs' depositions, but these were apparently to arbitration). Compare Mike Bradford & Co. v.
canceled. Also in July, Frier noticed a 14 August Gulf States Steel Co., 184 So.2d 911 (Fla. 3d DCA
2001 hearing on its motion to dismiss. It does not 1966) (waiver where the defendant submitted an
appear that this hearing was ever held. In August answer and a counterclaim without raising the issue
2001, Frier set the plaintiffs' depositions for 18 of arbitration, allowed the cause to proceed for five
September 2001, but four days before the depos- months, and allowed a jury to be impaneled); King
itions were to be taken, they were rescheduled by v. Thompson & McKinnon, Auchincloss, Kohlmey-
Frier for the same day but a different time. Appar- er, Inc., 352 So.2d 1235 (Fla. 4th DCA 1977)
ently, these depositions were also canceled. The (waiver where the defendant repudiated the right to
plaintiffs moved to amend their complaint to add a arbitration in the form of an answer to the cross-
count for fraud based on the allegations made with claim without a demand for arbitration, where the
respect to their claim under chapter 520. *397 In opposing party had submitted extensive requests for
September 2001, Frier served its motion to stay the discovery, and where the cross-defendant did not
proceedings and refer the matter to arbitration. In move to compel arbitration until nearly a year after
December 2001, the court entered an order allowing the cross-claim was filed); Marthame Sanders &
the plaintiffs to amend their complaint. On that Co. v. 400 West Madison Corp., 401 So.2d 1145
date, the court also entered the order on appeal, (Fla. 4th DCA 1981) (waiver where the defendant
which referred the matter to arbitration. answered and counterclaimed, participated in de-
positions, interrogatories, and document produc-
[1][2][3][4] A contractual right to arbitrate a tion, and where the defendant did not file its motion
dispute may be waived. See e.g., Klosters Rederi A/ to compel arbitration until the third continued date
S v. Arison Shipping Co., 280 So.2d 678 (Fla.1973); of trial, over three years after the complaint was
Graham Contracting, Inc. v. Flagler County, 444 filed); Transamerica Insurance Co. v. Weed, 420
So.2d 971 (Fla. 5th DCA 1983). In ruling on a mo- So.2d 370 (Fla. 1st DCA 1982) (waiver where the
tion to compel arbitration, a court must determine defendant answered the complaint without specific-
whether: (1) a valid written agreement containing ally mentioning the arbitration agreement, failed to
an arbitration clause exists; (2) an arbitrable issue object to the plaintiff's motion to set the case for tri-

Page 4
834 So.2d 395, 28 Fla. L. Weekly D256
(Cite as: 834 So.2d 395)
al, made two separate settlement offers, and did not Fla.App. 5 Dist.,2003.
move to compel arbitration until almost four Morrell v. Wayne Frier Manufactured Home Center
months after the complaint was filed, and where the 834 So.2d 395, 28 Fla. L. Weekly D256
plaintiff filed a detailed statement of inventory
loss); Bared and Co., Inc. v. Specialty Maintenance END OF DOCUMENT
and Construction, Inc., 610 So.2d 1 (Fla. 2d DCA
1992) (waiver where the defendant filed an answer
and a cross-claim without raising the arbitration is-
sue); Breckenridge v. Farber, 640 So.2d 208 (Fla.
4th DCA 1994) (waiver where the defendant
answered without demanding arbitration); Sterling
Condominium Ass'n. v. Herrera, 690 So.2d 703
(Fla. 3d DCA 1997) (waiver where the defendant
filed an answer, affirmative defenses, and a coun-
terclaim, and where the defendant actively particip-
ated in the litigation for over two years and did not
move to compel arbitration until the case was
already set for trial); *398Woodall v. Green Tree
Financial Servicing Corp., 755 So.2d 681 (Fla. 4th
DCA 1999) (waiver where the defendants respon-
ded to the complaint by filing a motion for sum-
mary judgment which was directed to the merits).
In the instant case, Frier filed an answer, an af-

firmative defense, and a motion to dismiss which
addressed the merits of the plaintiffs' case and
which did not assert the right to arbitrate. Frier al-
lowed the litigation to reach the point at which a
case management conference was held, and at
which the case was set for mediation and trial. Frier
and the plaintiffs engaged in discovery and submit-
ted their witness lists, and Frier did not assert the
right to arbitrate until the eve of trial, nearly a year
after the complaint was served on it. Under these
circumstances, we conclude that Frier waived its
asserted right to arbitration. The fact that the
plaintiffs filed an amended complaint does nothing
to revive Frier's right to arbitration. Compare
Hawkins v. James D. Eckert, P.A., 738 So.2d 1002
(Fla. 2d DCA 1999) (filing of counterclaim did not
revive a party's previously waived right to arbitra-
tion).
REVERSED.
SHARP, W. and SAWAYA, JJ., concur.

Page 1
745 So.2d 1136, 25 Fla. L. Weekly D34
(Cite as: 745 So.2d 1136)
25T Alternative Dispute Resolution

25TII Arbitration
District Court of Appeal of Florida, 25TII(D) Performance, Breach, Enforcement,
First District. and Contest
Jennifer Irene HILL, Appellant, 25Tk177 Right to Enforcement and De-
v. fenses in General
RAY CARTER AUTO SALES, INC., a Florida 25Tk182 Waiver or Estoppel
Corporation, Appellee. 25Tk182(2) k. Suing or Participat-
ing in Suit. Most Cited Cases
No. 99-1673.
Dec. 16, 1999.
Active participation in lawsuit may result in a
Buyer filed complaint against automobile deal- finding of waiver of right to arbitrate dispute.
er, alleging that dealer had sold buyer a defective
[3] Estoppel 156 52.10(2)
car. The Circuit Court, Duval County, W. Gregg
McCaulie, J., granted dealer's motion to stay and to 156 Estoppel
refer matter to arbitration. Buyer appealed. The 156III Equitable Estoppel
District Court of Appeal, Webster, J., held that: (1) 156III(A) Nature and Essentials in General
evidence supported finding that dealer had not 156k52.10 Waiver Distinguished
waived its right to arbitrate, but (2) hearing was re- 156k52.10(2) k. Nature and Elements
quired regarding validity of contract containing ar- of Waiver. Most Cited Cases
bitration clause. A “waiver” is the intentional or voluntary relin-
quishment of a known right, or conduct which war-
Affirmed in part, reversed in part, and re-
rants an inference of the relinquishment of a known
manded with directions.
right.
West Headnotes
[4] Estoppel 156 119
[1] 182(1)
156 Estoppel
25T Alternative Dispute Resolution 156III Equitable Estoppel
25TII Arbitration 156III(G) Trial
25TII(D) Performance, Breach, Enforcement, 156k119 k. Questions for Jury. Most
and Contest Cited Cases
25Tk177 Right to Enforcement and De- Whether a waiver has occurred in any given
fenses in General situation is generally a question of fact.
25Tk182 Waiver or Estoppel
[5] 210
25Tk182(1) k. In General. Most
Cited Cases 25T Alternative Dispute Resolution
(Formerly 33k23.3(1) Arbitration) 25TII Arbitration
Valid contractual right to arbitrate a dispute 25TII(D) Performance, Breach, Enforcement,
may be waived. and Contest
25Tk204 Remedies and Proceedings for
[2] 182(2)
Enforcement in General
25Tk210 k. Evidence. Most Cited

Page 2
745 So.2d 1136, 25 Fla. L. Weekly D34
(Cite as: 745 So.2d 1136)
Cases Robert E. O'Quinn, Jr., and Susannah D. Morrison

(Formerly 33k23.10 Arbitration) of Webb & O'Quinn, P.A., Jacksonville, for Ap-
Evidence supported trial court's finding that pellee.
automobile dealer did not waive its right to arbitrate
dispute with buyer, even though dealer filed answer
WEBSTER, J.
that did not raise issue; only two months passed
Appellant (Hill) seeks review of a non-final or-
between date on which dealer had been served and
der granting appellee's (Carter's) motion to stay and
on which motion requesting arbitration was filed,
to refer the matter to arbitration. We have jurisdic-
and dealer's counsel had not received copy of con-
tion. Fla. R.App. P. 9.130(a)(3)(C)(v). Because the
tract containing clause at time answer was filed.
trial court's finding that Carter did not waive any
[6] 211 right it might otherwise have had to arbitrate is sup-
ported by competent substantial evidence, we af-
25T Alternative Dispute Resolution firm that finding. However, because the trial court
25TII Arbitration failed to determine whether the agreement contain-
25TII(D) Performance, Breach, Enforcement, ing the arbitration clause was valid and enforceable,
and Contest we reverse, and remand for further proceedings.
25Tk204 Remedies and Proceedings for
Enforcement in General On November 30, 1998, Hill filed her com-
25Tk211 k. Trial or Hearing. Most plaint, alleging that Carter had sold her a defective
Cited Cases car. The complaint, interrogatories, a request for
(Formerly 33k23.11 Arbitration) production and requests for admissions were served
on Carter on December 3, 1998. On January 15,
199 1999, Carter objected to a portion of Hill's request
for production; and, on January 21, 1999, it respon-
25T Alternative Dispute Resolution ded to Hill's requests for admissions. On January
25TII Arbitration 27, 1999, Carter served a request for production on
25TII(D) Performance, Breach, Enforcement, Hill. Carter served its answer on January 28, 1999,
and Contest having obtained from Hill's counsel an agreement
25Tk197 Matters to Be Determined by to extend the time within which the answer must be
Court filed. The answer did not raise the subject of arbit-
25Tk199 k. Existence and Validity of ration. On January 29, 1999, Carter served interrog-
Agreement. Most Cited Cases atories on Hill. On February 4, 1999, Carter served
(Formerly 33k23.13 Arbitration) a motion requesting that the proceeding be stayed
When a party opposing arbitration disputes the and the matter referred to arbitration.
existence or validity of the agreement to arbitrate,
the trial court must resolve that issue as a part of its At the hearing on the motion to stay the pro-
consideration of the motion seeking to compel ar- ceeding and refer the matter to arbitration, Hill's
bitration; if necessary, the trial court must hold an counsel argued that Carter had waived any right it
evidentiary hearing on the issue. might otherwise have had to demand arbitration by
filing an answer which did not raise the issue, and
*1137 Stephen J. Pajcic, III, and Christine A. Clark otherwise actively participating in the litigation
, Jacksonville; William A. Bald of Dale, Bald, process. Carter's attorney responded that only two
Showalter & Mercier, P.A., Jacksonville, for Ap- months had passed between the date on which his
pellant. client had been served and that on which the motion
requesting arbitration was filed. In addition, he said

Page 3
745 So.2d 1136, 25 Fla. L. Weekly D34
(Cite as: 745 So.2d 1136)
that he had not yet received a copy of the contract answer when presented with an argument that a
which included the arbitration clause (and, there- party has waived a right it might otherwise have
fore, was unaware of the clause) at the time he pre- had to arbitrate the dispute which is the subject of
pared and served the answer but that, as soon as he the lawsuit is whether, in fact, a waiver has oc-
received it, he filed the motion requesting arbitra- curred. A “[w]aiver is the intentional or voluntary
tion. relinquishment of a known right, or conduct which
warrants an inference of the relinquishment of a
In its order granting Carter's motion, and refer- known right.” Board of County Comm'rs v. Interna-
ring the matter to arbitration, the trial court found tional Union of Operating Engineers, Local 653,
that “[w]hen [Carter] discovered the existence of 620 So.2d 1062, 1065 (Fla. 1st DCA 1993). Wheth-
the contract and the arbitration clause, it promptly er a waiver has occurred in any given situation is
requested arbitration.” It found, further, that generally a question of fact. Southeast Grove Man-
agement, Inc. v. McKiness, 578 So.2d 883 (Fla. 1st
Although [Carter] did participate in this litiga-
DCA 1991). We will reverse a decision of a trial
tion by filing an Answer and propounding discov-
court which is dependent upon a factual finding
ery, it also sought to *1138 invoke the provisions of
only if there is no competent substantial evidence to
the contract requiring arbitration in a timely fashion
support the finding. E.g., Manufacturers Nat'l Bank
and in a manner not inconsistent with the existence
v. Canmont Int'l, Inc., 322 So.2d 565 (Fla. 3d DCA
of the arbitration clause. It seems that [Carter's]
1975). Here, we cannot say that there exists no
counsel was trying to keep up the pace with [Hill's]
competent substantial evidence to support the trial
counsel but this is not necessarily inconsistent with
court's implicit finding that Carter did not waive
it's [sic] request for arbitration.
any right it might otherwise have had to request ar-
This appeal follows. bitration. Accordingly, we affirm that finding. We
note, in passing, that such a result is consistent with
[1][2] Hill correctly points out that a valid con- the generally favorable attitude of courts toward ar-
tractual right to arbitrate a dispute may be waived. bitration as a means of dispute resolution. See, e.g.,
E.g., Miller v. Drexel Burnham Lambert, Inc., 791 Roe v. Amica Mut. Ins. Co., 533 So.2d 279, 281
F.2d 850 (11th Cir.1986) (interpreting federal arbit- (Fla.1988) (“arbitration is a favored means of dis-
ration law); Klosters Rederi A/S v. Arison Shipping pute resolution”).
Co., 280 So.2d 678 (Fla.1973) (interpreting Florida
law). It is also true that numerous courts (including Our conclusion that competent substantial evid-
ours) have held that waiver may occur as the result ence supports the trial court's finding that no waiver
of active participation in a lawsuit. E.g., S & H occurred does not end our inquiry. In its answer,
Contractors, Inc. v. A.J. Taft Coal Co., 906 F.2d Carter implies in an affirmative defense that the
1507 (11th Cir.1990); Beverly Hills Dev. Corp. v. contract containing the arbitration clause is not val-
George Wimpey of Florida, Inc., 661 So.2d 969 id and enforceable. Hill's counsel argued to the trial
(Fla. 5th DCA 1995); Finn v. Prudential-Bache Se- court that an issue existed regarding whether the
curities, Inc., 523 So.2d 617 (Fla. 4th DCA 1988); contract was valid and enforceable. Although the
Maryland Cas. Co. v. Department of Gen. Serv., trial court recognized in its order that such an issue
489 So.2d 54 (Fla. 1st DCA 1986). Such conduct existed, it did not decide that issue. This was error.
may result in a finding of waiver because it is gen-
[6] When, as was the case here, a party oppos-
erally presumed to be inconsistent with an intent to
ing arbitration disputes the existence or validity of
insist on arbitration.
the agreement to arbitrate, the trial court must re-
[3][4][5] The question which a trial court must solve that issue as a part of its consideration of the

Page 4
745 So.2d 1136, 25 Fla. L. Weekly D34
(Cite as: 745 So.2d 1136)
motion seeking to compel arbitration. Jalis Constr.,

Inc. v. Mintz, 724 So.2d 1254 (Fla. 4th DCA 1999).
If necessary, the trial court must hold an eviden-
tiary hearing on the issue. Merrill Lynch Pierce
Fenner & Smith v. Melamed, 425 So.2d 127 (Fla.
4th DCA 1982). Because the trial court did not re-
solve that issue here, we reverse the order staying
the proceeding and referring the matter to arbitra-
tion, and remand. On remand, the trial court shall
conduct such further hearings as it *1139 deems ne-
cessary to permit it to decide whether a valid and
enforceable agreement to arbitrate exists.
AFFIRMED IN PART; REVERSED IN PART;

and REMANDED, with directions.
JOANOS and PADOVANO, JJ., CONCUR.
Fla.App. 1 Dist.,1999.
Hill v. Ray Carter Auto Sales, Inc.
745 So.2d 1136, 25 Fla. L. Weekly D34
END OF DOCUMENT

Page 1
616 So.2d 177, 18 Fla. L. Weekly D868
(Cite as: 616 So.2d 177)
courts instead of proceeding by arbitration as

agreed would depart from essential requirements of
District Court of Appeal of Florida, law.
Fifth District.
[2] T 113
NORTH AMERICAN VAN LINES, Florida Mov-
ing Systems, Inc., AA Moving & Storage, Thomas 25T Alternative Dispute Resolution
B. Deneen and Claudia Deneen, Appellants, 25TII Arbitration
v. 25TII(A) Nature and Form of Proceeding
James COLLYER and Patricia Collyer, Appellees. 25Tk113 k. Arbitration Favored; Public
Policy. Most Cited Cases
No. 92-1667. (Formerly 33k1.2 Arbitration)
April 2, 1993. Public policy favors arbitration as alternative to
litigation.
Consumers brought action for damages against
moving company and others alleging that their [3] T 152
household goods were lost through bad faith and
negligence. The Circuit Court for Brevard County, 25T Alternative Dispute Resolution
Lawrence V. Johnston, III, J., rescinded order refer- 25TII Arbitration
ring matter to arbitration based on claim by con- 25TII(B) Agreements to Arbitrate
sumers that they could not pay required deposit, 25Tk150 Operation and Effect
and defendants appealed. The District Court of Ap- 25Tk152 k. As Ousting Jurisdiction of
peal, Harris, J., held that consumers were not en- or Precluding Resort to Courts. Most Cited Cases
titled to avoid arbitration and proceed to circuit (Formerly 33k10.20 Arbitration)
court simply because they were unable to pay de- Consumers were not entitled to avoid unam-
posit required to perform unambiguous arbitration biguous agreement to arbitrate and proceed to dis-
provision to which they agreed in contract. trict court based solely on their inability to pay de-
posit to cover expenses of arbitrating; arbitration
Reversed and remanded. agreement was valid, arbitrable issue existed, and
right to arbitration had not been waived. West's
Griffin, J., filed concurring opinion.
F.S.A. § 682.03.
West Headnotes
[4] Contracts 95 143(3)
[1] T 151
95 Contracts
25T Alternative Dispute Resolution 95II Construction and Operation
25TII Arbitration 95II(A) General Rules of Construction
25TII(B) Agreements to Arbitrate 95k143 Application to Contracts in Gen-
25Tk150 Operation and Effect eral
25Tk151 k. In General. Most Cited 95k143(3) k. Rewriting, Remaking, or
Cases Revising Contract. Most Cited Cases
(Formerly 33k10.20 Arbitration) Court is not empowered to rewrite clear and
If court determines that right to arbitrate is not unambiguous provision, nor should it attempt to
in dispute, permitting parties to litigate dispute in make otherwise valid contract more reasonable for
one party.

Page 2
616 So.2d 177, 18 Fla. L. Weekly D868
(Cite as: 616 So.2d 177)
[5] Contracts 95 303(1) of the American Arbitration Association is to de-

prive the Plaintiffs of any avenue of redress. Pro-
95 Contracts ceeding in court is precluded by the arbitration pro-
95V Performance or Breach visions and proceeding in arbitration is precluded
95k303 Excuses for Nonperformance or De- by Plaintiff's inability to pay the deposit required.
fects
95k303(1) k. In General. Most Cited [1][2] The trial court, in effect, determined that
Cases the Collyers' inability to pay the agreed costs ex-
Unexpected difficulty or expense will not ex- cused them from the terms of their contract. We re-
cuse party to contract from performance. verse.
[6] Contracts 95 303(4) Section 682.03, Florida Statutes, provides in

relevant part:
95 Contracts
95V Performance or Breach A party to an agreement or provision for arbit-
95k303 Excuses for Nonperformance or De- ration subject to this law claiming the neglect or re-
fects fusal of another party thereto to comply therewith
95k303(4) k. Performance Prevented by may make application to the court for an order dir-
Other Party or Third Person. Most Cited Cases ecting the parties to proceed with arbitration in ac-
Parties who, by their own acts, prevent per- cordance with the terms thereof. If the court is sat-
formance of contract provision cannot take advant- isfied that no substantial issue exists as to the mak-
age of their own wrong. ing of the agreement or provision, it shall summar-
ily hear and determine the issue and, according to
*177 David E. Silverman of Krasny and Dettmer, its determination, shall grant or deny the applica-
P.A., Melbourne, for appellants. tion. [Emphasis added].
J. John Barker, Melbourne, for appellees. This language has been interpreted to mean:
The trial court's role when considering applica-
HARRIS, Judge. tions to compel arbitration under Section 682.03,
James and Patricia Collyer sued North Americ- Florida Statutes (1987), is limited to determining
an Van Lines, Florida Moving Systems, Inc., AA (1) whether a valid written agreement exists con-
Moving and Storage, and Thomas B. and Claudia taining an arbitration clause, (2) whether an arbit-
Deneen for damages arising from the contractual rable issue exists, and (3) whether the right to arbit-
relationship between the parties. On motion, the tri- rate was waived.
al court found that the civil action should be abated
Piercy v. School Bd. of Washington County,
and the matter, pursuant to the contract, referred to
Fla., 576 So.2d 806, 807 (Fla. 1st DCA 1991). If
arbitration. However, the trial court rescinded its
the court determines that the right to arbitrate is not
order when the Collyers asserted that they could not
in dispute, “permitting the parties to litigate the dis-
pay, and the arbitrator would not waive, a required
pute in the courts instead of proceeding by arbitra-
*178 deposit “to defray the expense of the arbitra-
tion as agreed would constitute a departure from the
tion, including the arbitrator's fee....” The trial court
essential requirements of law.” Vic Potamkin Chev-
held:
rolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA
The combined effect of the arbitration provi- 1980). This conclusion is buttressed by the fact that
sions of the contracts attached to the Motion to Stay public policy favors arbitration as an alternative to
and Abate Proceedings; and the deposit requirement litigation. Larry Kent Homes, Inc. v. Empire of

Page 3
616 So.2d 177, 18 Fla. L. Weekly D868
(Cite as: 616 So.2d 177)
America FSA, 474 So.2d 868 (Fla. 5th DCA 1985), an otherwise valid contract more reasonable for one
rev. denied, Anderton v. Larry Kent Homes, Inc., of the parties. Medical Center Health Plan v. Brick,
484 So.2d 7 (Fla.1986). 572 So.2d 548 (Fla. 1st DCA 1990). Moreover, un-
expected difficulty or expense will not excuse a
[3] In the instant case, the order appealed from party to a contract from performance. Bumby &
contains no finding that the arbitration clause is in- Stimpson, Inc. v. Peninsula Utilities Corp., 169
valid, that no arbitrable issue exists, or that the de- So.2d 499 (Fla. 3d DCA 1964). Finally, a party
fendants somehow waived their right to arbitration. who, by his own acts, prevents performance of a
Rather, the sole basis for the trial court's determina- contract provision cannot take advantage of his own
tion that the defendants are not entitled to arbitra- wrong. Hart v. Pierce, 98 Fla. 1087, 125 So. 243
tion is the fact that the Collyers cannot afford the (1929); Walker v. Chancey, 96 Fla. 82, 117 So. 705
deposit to cover the expenses of arbitrating. In con- (1928).
sidering the Collyers' financial status and their res-
ulting inability to comply with the arbitration provi- The effect of the order appealed from is to per-
sion, the trial court exceeded the scope of its lim- mit the Collyers to avoid arbitration and proceed to
ited role as defined by section 682.03 and Piercy. circuit court, where they wanted to be in the first
Having determined at the initial hearing on the de- place, simply because they are unable to perform an
fendants' motion to compel arbitration that the unambiguous contract provision to which they
agreement was valid, that an arbitrable issue exis- agreed. Regardless of their inability to seek relief
ted, and that the right to arbitration had not been from the defendants' alleged wrongdoing, this result
waived, the trial court was without authority to ig- ignores public policy favoring arbitration, defies
nore the parties' agreement to arbitrate merely be- well-established contract law, and is inherently un-
cause of the Collyers' financial circumstances. fair to the other contracting parties. As stated in
City of Tampa v. City of Port Tampa, 127 So.2d
The contract language is clear: the Collyers, in 119, 120 (Fla. 2d DCA 1961) quoting from 12
an arm's length transaction, agreed to settle all dis- Am.Jur., Contracts, § 362:
putes through arbitration under the rules of the
American Arbitration Association. Those rules Inconvenience or the cost of compliance,
provide that the AAA may require the parties to de- though they might make compliance a hardship,
posit, “in advance of any hearings,” [emphasis ad- cannot excuse a party from the performance of an
ded] such amount that the AAA deems necessary to absolute and unqualified undertaking to do a thing
defray the expense of the arbitration and that the that is possible and lawful. Parties sui juris bind
party initiating the arbitration must advance the ne- themselves by their lawful contracts, and courts
cessary fee. See also Kessel v. Dugand, 508 So.2d cannot alter them because they work a hardship.
45, 46 (Fla. 4th DCA 1987) (“We hold that the ini- The rights of the parties must be measured by the
tial payment of the arbitration expenses required to contract which they themselves made. A contract is
commence the proceeding should be paid by the not invalid, nor is the obligor therein in any manner
party initiating it, i.e., the party pursuing the discharged from its binding effect, because it turns
claim.”). out to be difficult or burdensome to perform. It has
been said that difficulties, even if unforeseen and
[4][5][6] Given the clear and unambiguous however great, are no excuse, and that the fact that
agreement to arbitrate, it is simply against *179 a contract has become more burdensome in its oper-
general contract principles to permit the Collyers to ation than was anticipated is not ground for its res-
avoid this aspect of their contractual bargain. A cission. * * * It has also been said that the answer
court is not empowered to rewrite a clear and un- to the objection of hardship is that it might have
ambiguous provision, nor should it attempt to make

Page 4
616 So.2d 177, 18 Fla. L. Weekly D868
(Cite as: 616 So.2d 177)
been guarded against by a proper stipulation. tection insurance, an overseas pack-up charge of
$550, and $200 in delinquent storage charges. The
REVERSED and REMANDED for further ac- letter included a demand for immediate payment of
tion consistent with this opinion. the storage charges and advised that if that amount
was not paid within two weeks, the Collyers' house-
GOSHORN, C.J., concurs.
hold goods would be sold at public auction.
GRIFFIN, J., concurs specially, with opinion.
FN2. The following narrative comes from
GRIFFIN, Judge, concurring specially.
the complaint filed below by appellees.
Although I agree with the result reached by the
majority, I write separately to emphasize the danger Upon receipt of the March 22 letter, Mr. Colly-
to the unwary consumer which is illustrated by this er telephoned Florida Moving to advise that their
case. statement contained a discrepancy in that the $550
for overseas pack-up had already been paid. Appel-
In 1988, the Collyers entered into a contract
lants demanded proof, which was sent by appellee
with a local moving company (“Florida Moving”)
by FAX. Collyer claims that no one advised him in
to pick up their household goods in Indialantic and
any of these communications that a public auction
store them. This form contract contained a standard
of his household goods had been scheduled for May
provision requiring arbitration of any disputes FN3
7. On that date the Collyers' household goods
through the American Arbitration Association
FN1 were sold at public auction to satisfy the $200 de-
(“AAA”).
linquent storage charges.
FN1. The majority refers to this as an
FN3. Florida Moving did send a letter by
“arms length transaction”, a questionable
regular mail in April, but it is unclear when
conclusion that may or may not have legal
it was received.
significance if appropriately raised.
Broemmer v. Abortion Services of Phoenix, When the Collyers filed their arbitration claim
Ltd., 173 Ariz. 148, 840 P.2d 1013 with AAA they were required to pay a $300 filing
(Ariz.1992). fee and to estimate the amount of their claim. Their
estimate was $90,000. Thereafter, as authorized by
The Collyers were billed monthly for the stor-
its rules, AAA required an additional deposit in the
age charges, which they claim they typically paid
FN2 amount of $2,350. AAA will not proceed with ar-
quarterly. After approximately a year and one-
bitration unless these monies are paid. The parties
half, in December, 1989, Mr. Collyer claims that he
have stipulated that, indeed, the Collyers do not
went to the office of Florida Moving, brought his
have the funds necessary to meet this requirement,
account current, informed them that he and his fam-
and are, therefore, unable to arbitrate.
ily were moving to England and that he would be in
contact when settled there to request an estimate for Assuming, arguendo, that the personal effects
shipping and to get a final balance due on the ac- of the Collyers were lost by the bad faith and negli-
count. In February, 1990, he called Florida Moving gence of the appellants, they are without a remedy
by telephone from England to determine what was because they cannot afford the only available for-
happening with his account and to request the cost um. By entering into the arbitration agreement, they
of shipping the goods to England. In response, he contractually relinquished their right of access to
received a letter dated March 22, 1990, that con- the courts in favor of a private “alternative dispute
tained a *180 schedule of various charges, includ- resolution” method which they cannot afford to ac-
ing transportation to England, replacement cost process. It will not matter to a court that when the con-

Page 5
616 So.2d 177, 18 Fla. L. Weekly D868
(Cite as: 616 So.2d 177)
sumer signed the form agreement which included

the arbitration clause, he or she was unaware of the
front-end fee requirement in the AAA rules, or that
these fees can be in the thousands of dollars. A.P.
Brown Co. v. Superior Court, 490 P.2d 867
(Ariz.App.1971). Nor will it matter that the con-
sumer is unable to pay the fee. As explained by the
majority opinion, the arbitration agreement will be
enforced according to its terms.
North American Van Lines v. Collyer
616 So.2d 177, 18 Fla. L. Weekly D868
END OF DOCUMENT

Page 1
703 So.2d 1170, 23 Fla. L. Weekly D1
(Cite as: 703 So.2d 1170)
217XXVII Claims and Settlement Practices

217XXVII(B) Claim Procedures
District Court of Appeal of Florida, 217XXVII(B)6 Appraisal
Third District. 217k3255 k. Waiver and Estoppel.
GRAY MART, INC., a Florida corporation, Appel- Most Cited Cases
lant, (Formerly 217k576(1))
v. Property insurer waived its right to appraisal
FIREMAN'S FUND INSURANCE COMPANY, a process for determining amount of theft loss by act-
California corporation, Appellee. ively litigating coverage issues until its motion for
summary judgment was denied on eve of trial, and
No. 97-657.
insured retailer would be prejudiced if it was forced
Dec. 17, 1997.
to proceed with appraisal process at late stage of
Rehearing Denied Jan. 28, 1998.
proceeding; even though rule on validity of apprais-
Insured retailer sued property insurer for al provision was changed in ruling by Supreme
breach of contract in denying claim for theft losses. Court on eve of trial, insurer had obligation to pre-
The Circuit Court, Dade County, Jon I. Gordon, J., serve appraisal issue by timely asserting issue in its
granted insurer's demand for appraisal and stay of pleadings in order to benefit from subsequent
proceedings. Insured appealed. The District Court change in law.
of Appeal held that insurer waived its right to ap-
*1171 Ginsberg & Schwartz and Sams & Martin,
praisal process for determining amount of theft
and Todd R. Schwartz, Miami, for appellant.
loss.
Heidi M. Roth, Coral Gables, for appellee.
Reversed and remanded.
West Headnotes Before LEVY and GREEN, JJ., and BARKDULL,

Senior Judge.
[1] Insurance 217 3255
217 Insurance PER CURIAM.

217XXVII Claims and Settlement Practices This is an appeal from a non-final order grant-
217XXVII(B) Claim Procedures ing a demand for an appraisal and a stay of the pro-
217XXVII(B)6 Appraisal ceedings below. On this appeal, appellant, Gray
217k3255 k. Waiver and Estoppel. Mart, Inc. (“Gray Mart”), asserts that appellee,
Most Cited Cases Fireman's Fund Insurance Company (“Fireman's
(Formerly 217k576(1)) Fund”), waived its right to an appraisal by actively
Right to appraisal of amount of theft loss could and aggressively litigating this cause for over four-
be waived if party maintained position inconsistent teen months and not demanding an appraisal until
with appraisal remedy, and showing of prejudice approximately one month prior to the scheduled tri-
would be indispensable to finding of waiver of right al of this cause. We agree and reverse.
to appraisal.
Gray Mart is an electronics retailer, which is
[2] Insurance 217 3255 insured against theft by Fireman's Fund pursuant to
a comprehensive American Business Coverage
217 Insurance
policy. The policy included an appraisal provision

Page 2
703 So.2d 1170, 23 Fla. L. Weekly D1
(Cite as: 703 So.2d 1170)
in the event that there was a dispute between the reasonably refusing to take a position on coverage.
parties as to the amount of any loss. This provision Finally, on July 28, 1995, Fireman's Fund denied
specifically provided that if the parties went Gray Mart's claim because of Gray Mart's purported
through the appraisal process, the insurer could still refusal to cooperate. At no time during this pre-
deny the claim, while the insured would be bound litigation period did either party request an apprais-
FN1
by the results of the appraisal. al of Gray Mart's alleged loss.
FN1. Specifically, the appraisal provision On or about July 27, 1995, Gray Mart filed the
in the policy was as follows: action below, seeking damages for breach of the in-
surance contract. In response, Fireman's Fund
If we and you disagree on the amount of moved to dismiss the complaint on September 6,
loss, either may make written demand 1995 on the grounds that Gray Mart had failed to
for an appraisal of the loss. In this event, comply with conditions precedent by not fully co-
each party will select a competent and operating with Fireman's Fund's investigation. This
impartial appraiser. The two appraisers motion was denied. Fireman's Fund then filed its
will select an umpire. If they cannot answer and numerous affirmative defenses to the
agree, either may request that selection complaint, but did not invoke the appraisal provi-
be made by a judge of a court having sion at this time.
jurisdiction. The appraisers will state
separately the amount of loss. If they fail Thereafter, Fireman's Fund initiated discovery.
to agree, they will submit their differ- On January 23, 1996, Fireman's Fund moved for
ences to the umpire. A decision agreed summary judgment on the grounds that Gray Mart
to by any two will be binding. Each had not complied with conditions precedent to re-
party will: covery under the policy, in that Gray Mart had
failed to supply appropriate documentation in sup-
(a) Pay its chosen appraiser; and port *1172 of its claim. Gray Mart's counsel sub-
mitted a personal affidavit in opposition to the mo-
(b) Bear the other expenses of the ap-
tion, concerning Gray Mart's efforts to cooperate
praisal and umpire equally.
with Fireman's Fund's investigation. Significantly,
If we submit to an appraisal we will still during the hearing on this motion, the lower court
retain our right to deny the claim. sua sponte inquired whether there was a provision
for arbitration in the policy. Counsel for Fireman's
According to the complaint filed below, Gray Fund responded and implicitly suggested that Gray
Mart allegedly sustained a theft loss at its store on Mart had waived the appraisal provision in the
FN2
or about August 26, 1994. At or around the same policy by initiating suit. The trial court then
time, it submitted its claim of loss to Fireman's proceeded to hear the motion. Counsel for Fire-
Fund, and from August, 1994 until July 28, 1995, man's Fund moved ore tenus for the court to strike
Fireman's Fund investigated this claim and continu- the affidavit in opposition to the motion for sum-
ously insisted that Gray Mart had not supplied it mary judgment on the grounds that it would thereby
with sufficient documentation for a determination render Gray Mart's counsel a witness in this action.
of whether a covered loss had occurred. Gray Mart, The lower court denied both the motion to strike
on the other hand, insisted that it had supplied all of and the motion for summary judgment, but left
the requested information in its possession in sup- open the possibility that Gray Mart's counsel would
port of its claim of loss and that Fireman's Fund have to be disqualified as counsel of record in this
was intentionally prolonging this process and un- cause.

Page 3
703 So.2d 1170, 23 Fla. L. Weekly D1
(Cite as: 703 So.2d 1170)
FN2. [The Court]: Isn't there some sort of of the scheduled February 24, 1997 trial and a stay
arbitration clause in the contract? of the proceeding below pending the outcome of the
appraisal. Fireman's Fund maintained in its motion
[Defense Counsel]: They went ahead and that by virtue of this court's decision in American
filed suit. We asked for documents and Reliance, Ins. Co. v. Village Homes at Country
we have all of this correspondence at- Walk, 632 So.2d 106 (Fla. 3d DCA), review denied,
tached to our motion. What had 640 So.2d 1106 (Fla.1994), appraisal clauses such
happened Judge, we need more docu- as the one in the subject policy were unenforceable
ments. They demanded a response within in this district at the time this dispute ensued. Fire-
24 hours. man's Fund further asserted that the law was not
changed until the supreme court's decision in State
Bottom line what had happened, I be-
Farm Fire & Casualty Co. v. Licea, 685 So.2d
lieve, it was simultaneous with the filing
1285 (Fla.1996), or approximately one month prior
of this lawsuit. Fireman's Fund issued a
to its demand for appraisal. Consequently, Fire-
letter to [plaintiff's counsel] saying
man's Fund argued to the court below that it could
based on what we have there are too
not have demanded an appraisal prior to Licea. The
many questions. We outlined the ques-
lower court granted the demand for appraisal and a
tions that exist. We need these docu-
stay of the proceedings. This appeal followed.
ments. If you are going to make us give
a response now we have no choice but to [1] Appraisal provisions in insurance policies
deny it because it has been unsubstanti- such as the one in the instant case have generally
ated. been treated as arbitration provisions. See Florida
Farm Bureau Casualty Insurance Co. v. Sheaffer,
Ultimately, Gray Mart recognized that its coun-
687 So.2d 1331, 1333 (Fla. 1st DCA), review
sel would have to be called as a witness in this
denied, 697 So.2d 510 (Fla.1997); State Farm Fire
cause as to pre-suit matters with Fireman's Fund
and Casualty Co. v. Middleton, 648 So.2d 1200,
and thereafter filed its notice of substitution of
1202 (Fla. 3d DCA 1995); Preferred Mutual Ins.
counsel. It then filed a motion in March, 1996 to
Co. v. Martinez, 643 So.2d 1101, 1102 (Fla. 3d
similarly disqualify counsel for Fireman's Fund.
DCA 1994); Intracoastal Ventures Corp. v. Safeco
The lower court apparently entertained Gray Mart's
Ins. Co., 540 So.2d 162, 163 (Fla. 4th DCA 1989).
motion during the pre-trial conference on Septem-
As with a contractual right to arbitration, the right
ber 6, 1996. The lower court gave Fireman's Fund
to an appraisal may be waived if a party maintains a
the option of either retaining new counsel to try the
position inconsistent with the appraisal remedy. See
case or abandoning its asserted affirmative defenses
Lane v. Sarfati, 691 So.2d 5, 5 (Fla. 3d DCA 1997);
that Gray Mart failed to cooperate and comply with
Wilson v. Par Builders II, Inc., 879 F.Supp. 1187,
conditions precedent. Fireman's Fund elected to
1189 (M.D.Fla.1995); NCR Credit Corp. v. Reptron
drop its coverage defenses rather than retain new
Elecs., Inc.. 863 F.Supp. 1561, 1565
counsel.
(M.D.Fla.1994); *1173Knight v. Xebec, 750
Accordingly, on January 14, 1997, or approx- F.Supp. 1116, 1118 (M.D.Fla.1990). We have re-
imately one month prior to the scheduled trial of cently taken the position, however, that a showing
this cause, Fireman's Fund amended its answer to of prejudice is indispensable to a finding of waiver
drop some of its coverage defenses. For the first of a right to arbitration or appraisal. See Lane, 691
time in the proceedings below, Fireman's Fund as- So.2d at 5. In so doing, we certified conflict with
serted a demand for appraisal in its amended an- Donald & Co. Sec., Inc. v. Mid-Florida Community
swer and simultaneously moved for a continuance Servs., Inc., 620 So.2d 192 (Fla. 2d DCA 1993) and

Page 4
703 So.2d 1170, 23 Fla. L. Weekly D1
(Cite as: 703 So.2d 1170)
Finn v. Prudential-Bache Sec., Inc., 523 So.2d 617 (Fla. 4th DCA), review denied, 680 So.2d 421
(Fla. 4th DCA), review denied, 531 So.2d 1354 (Fla.1996); Dupree v. State, 615 So.2d 713, 719
(Fla.), and cert. denied, 488 U.S. 917, 109 S.Ct. (Fla. 1st DCA), review denied, 623 So.2d 495
274, 102 L.Ed.2d 262 (1988), both holding that no (Fla.1993); Seaman v. State 608 So.2d 71, 73 (Fla.
prejudice is necessary to effectuate a waiver. See 3d DCA 1992).
Lane 691 So.2d at 5-6.
FN3. Particularly where, as here, the mem-
[2] On the record below us, we have little bers of this court as well as other district
trouble concluding that Fireman's Fund has waived courts were sharply divided on the issue.
its right to the appraisal process by actively litigat-
ing this cause until its motion for summary judg- For these reasons, the order granting the de-
ment was denied on the eve of trial and that Gray mand for an appraisal below is reversed and this
Mart would therefore be prejudiced if it was forced cause is remanded for further proceedings.
to proceed with the appraisal process at this late
stage of the proceedings. See Sterling Condomini-
Gray Mart, Inc. v. Fireman's Fund Ins. Co.
um Ass'n, Inc. v. Herrera, 690 So.2d 703, 705 (Fla.
703 So.2d 1170, 23 Fla. L. Weekly D1
3d DCA 1997) (condominium owner waived right
to compel arbitration of dispute with condominium END OF DOCUMENT
association by filing answer, affirmative defenses,
and counterclaim and by actively participating in
litigation in circuit court for over two years before
raising issue of arbitration); Preferred Mutual Ins.
Co. v. Matrix Constr. Corp., 662 So.2d 432, 432
(Fla. 3d DCA 1995) (appellees waived right to ar-
bitrate by seeking benefits of discovery rules prior
to filing motion to arbitrate). Indeed, the parties ag-
gressively litigated this cause in the judicial forum
below to the point where Gray Mart's original trial
counsel was ethically forced to withdraw and Fire-
man's Fund's counsel would have been forced to
similarly withdraw if certain of its affirmative de-
fenses had not been dropped.
Fireman's Fund argues that its failure to timely

demand an appraisal cannot be deemed a waiver
where the existing law in this district did not recog-
nize the enforceability of the subject appraisal pro-
vision and that law was not overturned by the su-
preme court until the eve of the scheduled trial. We
disagree. We conclude that Fireman's Fund had the
obligation to nevertheless preserve this appraisal is-
sue by timely asserting the same in its pleadings in
FN3
order to benefit from the change in the law. See
Smith v. State, 598 So.2d 1063, 1066 (Fla.1992);
Clay v. Prudential Ins. Co., 670 So.2d 1153, 1155

Page 1
969 So.2d 1133, 32 Fla. L. Weekly D2679
(Cite as: 969 So.2d 1133)
respondence sent to insured one month after filing

its answer, and minimal discovery was conducted
District Court of Appeal of Florida, during that month.
Second District.
William S. WILSON, Appellant, [2] Insurance 217 3261
v.
FEDERATED NATIONAL INSURANCE COM- 217 Insurance
PANY, Appellee. 217XXVII Claims and Settlement Practices
No. 2D06-5050. 217XXVII(B)6 Appraisal
Nov. 14, 2007. 217k3260 Award
Rehearing Denied Dec. 21, 2007. 217k3261 k. In General. Most Cited
Cases
Background: Insured brought action against prop- Circuit court should have confirmed appraisal
erty insurer to recover for failure to pay amount of award in favor of insured, rather than dismissing
loss determined by adjusters. The Circuit Court, his suit after property insurer deposited disputed
Charlotte County, Isaac Anderson, Jr., and Donald amount in escrow, where he was compelled to file
E. Pellecchia, JJ., granted insurer's motion to com- suit after insurer refused to pay amount determined
pel appraisal, later denied insured's motion to con- by its own adjusters, insurer continued to fail to pay
firm appraisal, and dismissed case after insurer de- full amount of loss determined by appraisers, and
posited disputed amount in escrow. Insured ap- insurer finally paid the balance into escrow on the
pealed. day its motion for partial final judgment was heard.
Holdings: The District Court of Appeal, Whatley, *1133 Matthew R. Danahy of Danahy & Murray,
J., held that: P.A, Tampa, for Appellant.
(1) insurer did not waive right to appraisal, and
(2) Circuit Court should have confirmed appraisal Anne D. Ogden of Bazinsky Korman Baker Profes-
award. sional Association, Plantation, for Appellee.

WHATLEY, Judge.
West Headnotes William S. Wilson appeals the partial final or-
der dismissing his complaint against Federated Na-
[1] Insurance 217 3255 tional Insurance Company with prejudice. We re-
verse.
217 Insurance
217XXVII Claims and Settlement Practices Wilson insured his home and personal property
217XXVII(B) Claim Procedures through a policy of insurance issued by Federated.
217XXVII(B)6 Appraisal After his home was damaged by Hurricane Charley
217k3255 k. Waiver and Estoppel. and he was unsuccessful in obtaining full payment
Most Cited Cases from Federated for the amount of the loss estimated
Property insurer did not waive right to apprais- by Federated's own adjusters, Wilson filed a com-
al by waiting four months to file motion to compel plaint against Federated alleging breach of contract
appraisal after filing answer and affirmative de- and seeking a declaratory judgment.
fenses; insurer invoked the appraisal process in cor-

Page 2
969 So.2d 1133, 32 Fla. L. Weekly D2679
(Cite as: 969 So.2d 1133)
Federated filed an answer and affirmative de- the clerk of court and there remained no outstand-
fenses, asserting as one of its affirmative defenses ing issues concerning the two counts of Wilson's
its right to invoke the appraisal clause of the insur- complaint. However, it was not until the day its mo-
ance policy. One month later, it did so in a letter to tion was heard that Federated deposited into escrow
Wilson. Wilson responded that he believed apprais- the amount that Wilson claimed remained due on
al was not appropriate and that Federated had the appraisal award. The circuit court heard Feder-
waived its right to appraisal. After more corres- ated's motion, as well as Wilson's second motion to
pondence between the parties in which they main- confirm appraisal and for entry of final judgment. It
tained their positions regarding the appraisal pro- granted Federated's motion for partial final order of
cess, Federated filed a motion to compel *1134 ap- dismissal with prejudice without comment and did
praisal. Over Wilson's objections, the trial court not address Wilson's motion.
granted the motion and stayed the litigation. The
appraisal process resulted in an award to Wilson of [1] In this appeal, Wilson argues that Federated
$75,718.48, which was almost ten times more than waived its right to enforce the appraisal provision
the amount Federated had attempted to pay Wilson of the insurance policy by participating in the litig-
FN1 ation before moving to compel appraisal. While
initially.
Federated filed the motion to compel appraisal four
FN1. Federated's first adjuster's final es- months after it filed its answer and affirmative de-
timate placed the replacement cost value at fenses, Federated had invoked the appraisal process
$18,339.72, and Federated sent Wilson in correspondence sent to Wilson one month after
three checks marked “paid in full” that filing its answer. During that one month, minimal
totaled $7,857.90. Federated's second ad- discovery was conducted. Under these circum-
juster placed the replacement cost value at stances, we cannot say that the circuit court abused
$40,048.60, but that amount was not re- its discretion in ordering that the parties participate
vealed by Federated until discovery. in the appraisal process.
Wilson filed a motion to lift the stay, and he [2] However, the circuit court did abuse its dis-
filed the appraisal award with the circuit court. He cretion in denying Wilson's motion to confirm the
then filed a motion to confirm the appraisal award appraisal award and to enter final judgment there-
and for entry of final judgment. In the meantime, on. Wilson was compelled to file suit against Feder-
Federated attempted to pay Wilson the amount it ated when Federated refused to pay what even its
contended was the balance owed on the appraisal own adjusters determined to be the amount of
award. Wilson rejected these attempts because he Wilson's loss. Then, after the appraisal process res-
claimed the amount was insufficient to satisfy the ulted in an award to Wilson of significantly more
appraisal award and because he maintained that the than the adjusters had estimated, Federated contin-
award was null and void due to Federated's alleged ued to fail to pay the full amount of his loss. Feder-
waiver of its right to demand appraisal. Federated ated finally filed the balance into escrow on the day
ultimately deposited the amount into escrow with its motion for partial final judgment was heard. Un-
the clerk of court. der these circumstances, the appropriate course of
action was not to dismiss Wilson's complaint with
The circuit court heard and denied Wilson's prejudice, but to confirm the appraisal award and
motion to confirm the appraisal award and for entry enter final judgment thereon. See Allstate Ins. Co.
of final judgment. Several days later, Federated v. Suarez, 833 So.2d 762 (Fla.2002); Travelers In-
filed a motion for partial final judgment of dis- dem. Ins. Co. v. Meadows, 900 So.2d 676 (Fla. 4th
missal on the ground that all monies due and owing DCA 2005). Cf. *1135Federated Nat'l Ins. Co. v.
pursuant to the appraisal award were in escrow with

Page 3
969 So.2d 1133, 32 Fla. L. Weekly D2679
(Cite as: 969 So.2d 1133)
Esposito, 937 So.2d 199 (Fla. 4th DCA 2006)

(holding that court erred in confirming appraisal
award and entering judgment because insurer
timely participated in appraisal and paid award
without necessity for court intervention). Accord-
ingly, we reverse the partial final order of dismissal
and remand with directions that the circuit court
confirm the appraisal award and enter final judg-
ment thereon.
NORTHCUTT, C.J., and KELLY, J., Concur.
Wilson v. Federated Nat. Ins. Co.
969 So.2d 1133, 32 Fla. L. Weekly D2679
END OF DOCUMENT

Page 1
805 So.2d 814, 25 Fla. L. Weekly D2614, 26 Fla. L. Weekly D390
(Cite as: 805 So.2d 814)
217 Insurance
District Court of Appeal of Florida, 217XXVII(B) Claim Procedures
Third District. 217XXVII(B)6 Appraisal
Mariano R. GONZALEZ and Rene Gonzalez, Ap- 217k3255 k. Waiver and Estoppel.
pellants, Most Cited Cases
v. Insurer did not waive its right to appraisal of
STATE FARM FIRE AND CASUALTY COM- home by failing to request appraisal prior to
PANY, a foreign corporation, Appellee. homeowners' filing of lawsuit to collect on
homeowner's insurance policy; nothing in policy or
No. 3D00-185.
law mandated presuit appraisal.
Nov. 8, 2000.
*815 Mariano R. Gonzalez, for appellants.
Homeowners filed suit against insurer to col-
lect on claim under their homeowner's insurance Adorno & Zeder, P.A., and William S. Berk;
policy. The Circuit Court, Dade County, Celeste Hardeman & Suarez, P.A., and Richard A. Warren,
Hardee Muir, J., confirmed award for zero. for appellee.
Homeowners appealed. The District Court of Ap-
peal, Cope, J., held that: (1) whether loss was
covered was a question for court, not appraisers, Before JORGENSON, COPE and RAMIREZ,JJ.
and (2) insurer did not waive its right to appraisal.
COPE, J.
This is an appeal by homeowners Mariano R.
West Headnotes Gonzalez and Rene Gonzalez after an appraisal
award of zero in their claim against their homeown-
[1] Insurance 217 3251 er's insurance policy. We conclude that the ap-
praisers impermissibly decided whether the entire
217 Insurance claim was within the coverage of the insurance
217XXVII Claims and Settlement Practices policy. We therefore reverse the final judgment in
217XXVII(B) Claim Procedures favor of State Farm Fire and Casualty Company.
217XXVII(B)6 Appraisal
217k3248 Contracts I.
217k3251 k. Subjects and Scope of The homeowners submitted a claim to State
Appraisal. Most Cited Cases Farm under their homeowner's insurance policy, as-
In considering claim under homeowner's insur- serting that blasting in the vicinity of their home
ance policy, question of whether loss was caused by had caused cracks in the walls and tiles. The insur-
blasting, which was a covered peril, or by settle- ance policy would provide coverage if blasting
ment of foundation, which was an excluded peril, were the cause of damage to the home.
was for court, not appraisers, under appraisal clause
providing that amount of loss would be set by ap- State Farm investigated and denied the claim.
praiser. State Farm said that based on its engineer's report,
the cracking was attributable to minor settling of
[2] Insurance 217 3255 the foundation, not blasting. Since settlement of the
foundation fell within a policy exclusion, State

Page 2
(Cite as: 805 So.2d 814)
Farm denied coverage. foundation, not blasting, and entered an award for
zero. The trial court confirmed the award, entering
The homeowners filed suit and State Farm de- final judgment in favor of State Farm. The
FN1
manded appraisal. Relying on State Farm Fire homeowners have appealed.
and Casualty Co. v. Licea, 685 So.2d 1285
(Fla.1996), State Farm argued that the appraisers II.
were allowed to decide whether this entire claim [1] The appraisal clause in the insurance policy
was within, or outside, the policy coverage. The tri- provides, “If you [the insured] and we [the insurer]
al court agreed, ruling that the “[a]ppraiser[s] fail to agree on the *816 amount of loss, either one
should give an opinion as to causation and dam- can demand that the amount of the loss be set by
ages.” appraisal.... Written agreement signed by any two
of these three [appraisers] shall set the amount of
FN1. The appraisal clause states: the loss.” (Emphasis added).
6. Appraisal. If you and we fail to agree Construing a similar appraisal clause, the Flor-
on the amount of loss, either one can de- ida Supreme Court has said:
mand that the amount of the loss be set
by appraisal. If either makes a written “A challenge of coverage is exclusively a judicial
demand for appraisal, each shall select a question ....” If a court decides that coverage ex-
competent, independent appraiser. Each ists, the dollar value agreed upon under the ap-
shall notify the other of the appraiser's praisal process will be binding upon both parties.
identity within 20 days of receipt of the
written demand. The two appraisers shall Thus, where there is a demand for an appraisal
then select a competent, impartial um- under the policy, the only “defenses” which re-
pire. If the two appriasers are unable to main for the insurer to assert are that there is
agree upon an umpire within 15 days, no coverage under the policy for the loss as a
you or we can ask a judge of a court of whole or that there has been a violation of the
record in the state where the residence usual policy conditions such as fraud, lack of no-
premises is located to select an umpire. tice, and failure to cooperate. We interpret the ap-
The appraisers shall then set the amount praisal clause to require an assessment of the
of the loss. If the appraisers submit a amount of a loss. This necessarily includes de-
written report of an agreement to us, the terminations as to the cost of repair or replace-
amount agreed upon shall be the amount ment and whether or not the requirement for a re-
of the loss. If the appraisers fail to agree pair or replacement was caused by a covered peril
within a reasonable time, they shall sub- or a cause not covered, such as normal wear and
mit their differences to the umpire. Writ- tear, dry rot, or various other designated, ex-
ten agreement signed by any two of cluded causes.
these three shall set the amount of the
State Farm Fire and Casualty Co. v. Licea, 685
loss. Each appraiser shall be paid by the
So.2d at 1287-88 (Fla.1996) (citation omitted; some
party selecting that appraiser. Other ex-
emphasis in original, some emphasis added).
penses of the appraisal and the compens-
ation of the umpire shall be paid equally In this case, State Farm's defense to the claim
by you and us. is that there is “no coverage under the policy for the
loss as a whole....” Id. Thus, under Licea, the ques-
State Farm's appraiser and the umpire decided
tion whether this loss was caused by blasting (a
that the entire loss was caused by settling of the

Page 3
(Cite as: 805 So.2d 814)
covered peril) or settlement of the foundation (an homeowner's insurance policy provides coverage
excluded peril) is for the court, not the appraisers. for windstorm damage to the roof, but does not
provide coverage for dry rot, the appraisers are to
State Farm points to the final quoted sentence inspect the roof and arrive at a fair value for the
from Licea, which states that appraisal “necessarily windstorm damage, while excluding payment for
includes determinations as to ... whether or not the the repairs required by preexisting dry rot.
requirement for a repair or replacement was caused
by a covered peril or a cause not covered, such as In the present case (unlike Licea ) State Farm
normal wear and tear, dry rot, or various other des- says that there is no coverage for the claim whatso-
ignated, excluded causes.” Id. State Farm argues ever, while the homeowners say that the claim falls
that under Licea, the appraisers in this case were al- within an applicable coverage. Whether the claim is
lowed to determine that the cause of the cracking covered by the policy is a judicial question, not a
was settling of the foundation and, based on that question for the appraisers. See id. at 1287-88;
finding, return an award for zero. Opar v. Allstate Ins. Co., 751 So.2d 758 (Fla. 1st
DCA 2000), review denied, No. SC00-545, 767
The problem is that State Farm is reading the FN2
So.2d 459 (Fla. July 13, 2000) ; Florida Farm
quoted sentence out of context. Earlier the Licea Bureau Cas. Ins. Co. v. Sheaffer, 687 So.2d 1331,
court explained that a challenge of coverage is a ju- 1334 (Fla. 1st DCA 1997); see also United States
dicial question, and that among the “ ‘defenses' Fidelity & Guar. Co. v. Romay, 744 So.2d 467,
which remain for the insurer to assert are that there 469-70 (Fla. 3d DCA 1999) (en banc); Atencio v.
is no coverage under the policy for the loss as a U.S. Sec. Ins. Co., 676 So.2d 489 (Fla. 3d DCA
whole....” Id. That is the situation here. Since State FN3
1996).
Farm's position is that this entire loss falls within a
policy exclusion, this defense is a judicial question FN2. Although immaterial here, we dis-
and not a question for the appraisers. agree with that part of Opar which states,
“Such appraisals, moreover, are considered
The Licea case involved a Hurricane Andrew conditions precedent to an insured's right
claim. See id. at 1286. Plainly there was coverage to maintain suit on the insurance contract.”
for hurricane damage under the homeowner's 751 So.2d at 760 (citations omitted).
policy. There was no attempt in Licea to deny cov- Whether appraisal is a condition precedent
erage for the loss as a whole, but “there was a dis- to the bringing of a lawsuit depends on the
pute as to the amount of damage.” Id. wording of the insurance contract. See
Paradise Plaza Condominium Ass'n, Inc. v.
Very simply, the Licea court was saying that
The Reinsurance Corp. of New York, 685
when the insurer admits that there is a covered loss,
So.2d 937, 940 n. 2 (Fla. 3d DCA 1996)
but there is a disagreement on the amount of loss,
(en banc).
it is for the appraisers to arrive at the amount to be
paid. In that circumstance, the appraisers are to in- FN3. The Second District apparently takes
spect the property and sort out how much is to be a different view of Licea. It appears that in
paid on account of a covered peril. See id. at 1288. Florida Select Insurance Co. v. Keelean,
In doing so, they are to exclude payment for “a 727 So.2d 1131 (Fla. 2d DCA 1999), the
cause not covered, such as normal wear and tear, court concluded that it was an issue for the
dry rot, or various other designated, excluded appraisers to decide whether the entire
causes.” Id. property loss was from vandalism (a
covered peril), or normal wear and tear (an
*817 Thus, in the Licea situation, if the
excluded peril). See 727 So.2d at 1133. It

Page 4
(Cite as: 805 So.2d 814)
is not clear, however, that either party in Likewise in Shoma Dev. Corp. v. Rodriguez,
that case argued the interpretation of Licea 730 So.2d 838 (Fla. 3d DCA 1999), *818 the
which we adopt here. See Florida Select, parties engaged in litigation and discovery for sev-
727 So.2d at 1133 (“ Keelean has failed to en months, before one of the parties invoked the ar-
assert any grounds that would block arbit- bitration clause. This court held that there had been
ration.”). a waiver of the right to arbitration, given the delay
and a determination of prejudice to the opposing
The judgment confirming the appraisal award party. See id. at 839.
must be reversed and the cause remanded for fur-
ther proceedings. There is no basis for a claim of waiver here,
where the appraisal clause was invoked at the start
III. of the litigation.
[2] The homeowners argue that State Farm
waived its right to appraisal because State Farm did IV.
not request appraisal prior to the homeowners' fil- The final judgment is reversed and the cause
ing of the lawsuit. That argument is without merit. remanded for further proceedings consistent here-
FN4
This policy allows appraisal if it is requested. See with.
supra note 1. Nothing in the insurance policy or the
law mandates presuit appraisal. See supra note 2. FN4. In light of the foregoing ruling we
State Farm had denied coverage. It would make no need not reach the homeowners' alternative
sense to say that State Farm was required to request due process claim.
a presuit appraisal on a loss it had already refused
We certify direct conflict with Nationwide Mu-
to pay.
tual Ins. Co. v. Johnson, 774 So.2d 779 (Fla. 2d
The homeowners also argue that State Farm DCA 2000).
waived the right to appraisal by participating in the
litigation filed by the homeowners. This contention
Gonzalez v. State Farm Fire and Cas. Co.
is equally without merit.
805 So.2d 814, 25 Fla. L. Weekly D2614, 26 Fla.
The homeowners filed suit. State Farm L. Weekly D390
promptly answered and in the answer, demanded
END OF DOCUMENT
appraisal. This was done within thirty days of the
filing of the lawsuit. The appraisal demand was
timely.
The cases relied on by the homeowners are

readily distinguishable. In Gray Mart, Inc. v. Fire-
man's Fund Ins. Co., 703 So.2d 1170 (Fla. 3d DCA
1997), the insurer litigated the entire insurance
claim for fourteen months, through and including
decision of a motion for summary judgment, before
the insurer requested appraisal. On those facts, this
court found waiver of the right to appraisal, where
there had been unreasonable delay and prejudice to
the insured. See id. at 1173.

Page 1
36 So.3d 704, 35 Fla. L. Weekly D802
(Cite as: 36 So.3d 704)
provide its notice of intentions regarding manner in

which claim will be evaluated after insurer receives
District Court of Appeal of Florida, sworn proof of loss did not apply to insurer's right
First District. to request appraisal of damaged property; there was
AMERICAN CAPITAL ASSURANCE CORP., no language in policy that required appraisal to be
Appellant/Cross-Appellee, invoked, if at all, within any set time from receiv-
v. ing or waiving sworn proof of loss.
COURTNEY MEADOWS APARTMENT, L.L.P.,
a Florida Corporation, Appellee/Cross-Appellant. [2] Insurance 217 3255
No. 1D09-2940. 217 Insurance

April 7, 2010. 217XXVII Claims and Settlement Practices
Rehearing Denied June 2, 2010. 217XXVII(B) Claim Procedures
Background: Insured brought action against prop- 217k3255 k. Waiver and estoppel.
erty insurer, seeking declaratory relief and alleging Most Cited Cases
numerous breaches of contract. Following a hear- Property insurer did not waive its right of ap-
ing, the Circuit Court, Duval County, Hugh A. praisal regarding damaged property; insurer had not
Carithers, J., granted in part and denied in part in- acted inconsistently with that right from the time of
surer's motion to compel appraisal. Insurer filed in- demand.
terlocutory appeal, and insured cross-appealed.
Holdings: The District Court of Appeal, Roberts,
J., held that: 217 Insurance
(1) 30-day time limit to provide notice of intentions 217XXVII Claims and Settlement Practices
regarding manner in which claim will be evaluated 217XXVII(B) Claim Procedures
did not apply to insurer's right to request appraisal, 217XXVII(B)6 Appraisal
and 217k3252 Compelling Appraisal
(2) granting of motion to compel appraisal of items 217k3253 k. In general. Most Cited
that had not yet been adjusted was premature. Cases
Trial court's granting of property insurer's mo-
Reversed and remanded. tion to compel appraisal of items that had not yet
been adjusted was premature in insured's action that
West Headnotes
sought declaratory relief and alleged numerous
[1] Insurance 217 3254 breaches of contract; without adjustment, it was im-
possible to know whether parties disputed amount
217 Insurance of loss to warrant appraisal.
217XXVII(B) Claim Procedures *704 Guy E. Burnette, Jr. and A. Dean Johnson of
217XXVII(B)6 Appraisal Guy E. Burnette, Jr., P.A., Tallahassee, for Appel-
217k3252 Compelling Appraisal lant/Cross-Appellee.
217k3254 k. Demand. Most Cited
Diane H. Tutt, of Diane H. Tutt, P.A.; P. Campbell
Cases
Ford of Ford, Miller & Wainer, P.A., Jacksonville
Thirty-day time limit for property insurer to
Beach, for Appellee/Cross-Appellant.

Page 2
36 So.3d 704, 35 Fla. L. Weekly D802
(Cite as: 36 So.3d 704)
ROBERTS, J. days after we receive the sworn proof of loss.

In this interlocutory appeal, the appellant,
American Capital Assurance Corporation (the in- ***
surer), and the appellee, Courtney Meadows Apart-
g. We will pay for covered loss or damage within
ment, L.L.P. (the insured), both challenge the trial
30 days after we receive the sworn proof of loss,
court's non-final order denying in part and granting
if you have complied with all of the terms of this
in part the insurer's motion to compel appraisal.
Coverage Part and:
The insurer raises two issues on appeal, only one of
which merits discussion. Specifically, the insurer (1) We have reached agreement with you on
argues the trial court erred in denying a portion of the amount of loss; or
its motion to compel appraisal because its demand
was untimely. The insured argues on cross-appeal (2) An appraisal award has been made.
that the trial court erred in granting appraisal of
*705 four items that had not been adjusted. We On June 1, 2008, a microburst hail storm
agree with both parties and reverse and remand. caused damage to the complex, after which the in-
sured filed a claim. In July 2008, the parties met to
The dispute underlying this appeal began when discuss the extent of damage to the complex. The
the insurer issued a policy of insurance to the in- insurer believed a majority of the complex's dam-
sured covering the Courtney Meadows apartment aged roofs could be repaired, but the insured be-
complex (the complex). The policy contained the lieved the same needed replacing. On October 3,
following provisions relevant to this appeal. Re- 2008, the insurer sent the insured a final estimate,
garding appraisal, section E.2. of the policy which indicated that only the office roof needed to
provided, in part: be replaced and that the remaining roofs in the
complex could be repaired. The final estimate also
If we and you disagree on the value of the prop- included other items of loss and estimated the total
erty or the amount of loss, either may make writ- amount of damage at $168,285.98. On October 22,
ten demand for an appraisal of the loss. 2008, the insurer tendered a check to the insured for
said amount and asked the insured to file a sworn
Regarding loss payment, section E.4. of the
proof of loss. The accompanying correspondence
policy provided:
also stated that if the parties were unable to resolve
a. In the event of loss or damage covered by this
the dispute the insurer may wish to proceed with
Coverage Form, at our option, we will either:
appraisal.
(1) Pay the value of lost or damaged property;
In a November 11, 2008, correspondence from
(2) Pay the cost of repairing or replacing the its attorney, the insured completely rejected the in-
lost or damaged property ... [;] surer's check as a gross under-evaluation of the
claim and refused to provide the sworn proof of
(3) Take all or any part of the property at an loss. The insured noted it was in agreement with the
agreed or appraised value; or portion of the final estimate regarding the following
items of loss: heat, vent, and air conditioning; win-
(4) Repair, rebuild or replace the property with dow reglazing; and painting the gazebo. The in-
other property of like kind and quality ... [.] sured also informed the insurer of additional items
of loss that were not included in the final estimate,
***
specifically: the trash compactor area, interior
c. We will give notice of our intentions within 30 building work, the garage fascia, and pillar damage.

Page 3
36 So.3d 704, 35 Fla. L. Weekly D802
(Cite as: 36 So.3d 704)
FN1
to compel appraisal of the additional items of loss
in the insured's November 11, 2008, correspond-
FN1. These items of loss are the subject of ence (the trash compactor area, the garage fascia,
the insured's cross-appeal. pillar damage, and interior apartment damage).
In a November 18, 2008, letter to the insured, [1] The underlying insurance policy does not
the insurer demanded appraisal. On December 23, set forth a time limit for demanding appraisal. The
2008, the insured filed a complaint, which was sub- policy's appraisal language is optional in that either
sequently amended,*706 seeking declaratory relief party “may” demand appraisal and makes no men-
and alleging numerous breaches of contract. The in- tion of a time limit in which to do so. The portion
surer in turn moved to dismiss and/or abate the ac- of the policy that mandates a 30-day time limit for
tion and to compel appraisal, arguing that it had the insurer to provide its “notice of intentions”
properly invoked the appraisal process under the refers to the manner in which the claim will be
terms of the policy. evaluated. In other words, within 30 days of receiv-
ing the sworn proof of loss, the insurer will either:
A hearing was held on the insurer's motion.
(1) pay the value of lost or damaged property; (2)
The insured argued that the insurer's pre-suit and
pay the cost of repairing or replacing the lost or
post-suit conduct demonstrated a waiver of the ap-
damaged property; (3) take all or any part of the
praisal clause of the policy and that, under the
property at an agreed or appraised value; or (4) re-
terms of the policy, the insurer's invocation of ap-
pair, rebuild, or replace the property with other
praisal was untimely. The trial court agreed that the
property of like kind and quality. There is no indic-
appraisal demand was untimely, finding that, when
ation that this provision extends to the time in
an insurer admits liability and coverage for loss,
which the insurer must demand appraisal.
formal proof of loss is waived and the time in
which the insurer is required to demand appraisal The trial court's reliance on the aforementioned
under the terms of the policy begins to run from its cases to support its position is equally misplaced. In
admittance of liability and coverage. The trial court the cited cases, the policies either mandated ap-
cited Bear v. New Jersey Insurance Co., 138 Fla. praisal or mandated a specific time in which to seek
298, 189 So. 252 (1939); American Bankers Insur- appraisal. For example, the policy language in
ance Co. of Florida v. Terry, 277 So.2d 563 (Fla. Bear, stated:
3d DCA 1973); Cincinnati Insurance Co. v.
Palmer, 297 So.2d 96 (Fla. 4th DCA 1974); and In the event of disagreement as to the amount of
Llerena v. Lumbermens Mutual Casualty Co., 379 loss the same shall, as above provided, be ascer-
So.2d 166 (Fla. 3d DCA 1980), to support its rul- tained by competent and disinterested appraisers
ing. The trial court found that, by sending the final ... the loss shall not become payable until 60 days
estimate and subsequently tendering the after the notice, ascertainment, estimate and satis-
$168,285.98 check, the insurer admitted liability factory proof of loss herein required to have been
and thus waived its right to sworn proof of loss on received by this company, including an award by
October 3, 2008. The trial court further found sec- appraisers when appraisal has been required.
tions E.4.a.(3) and E.4.c. of the policy required the
insurer to notify the insured of its intention to seek (Emphasis added.) Bear, 189 So. at 253. The
appraisal within 30 days after this date, such that Bear court specifically found that the insurer had
the insurer's November 18, 2008, demand for ap- 60 days from the waiver of *707 proof of loss to
praisal was untimely. Accordingly, the trial court demand appraisal. Id. at 299, 189 So. 252. In Terry,
denied the motion to compel appraisal of the items the policy language is not quoted, but the court re-
included the final estimate, but granted the motion ferred to a 60-day time limit in which to demand ar-

Page 4
36 So.3d 704, 35 Fla. L. Weekly D802
(Cite as: 36 So.3d 704)
bitration. Terry, 277 So.2d at 564. Likewise, in REVERSED and REMANDED to the trial
Llerena, the policy provided that either the insurer court to compel appraisal of the items of loss in the
or the insured may demand an appraisal within 60 insurer's motion that are appropriately in dispute.
days following the filing of proof of loss. Llerena,
379 So.2d at 167. The court went on to find the de- WOLF and VAN NORTWICK, JJ., concur.
mand for appraisal was untimely as it was outside
the 60-day time limit. Id. at 167-68. The court
American Capital Assur. Corp. v. Courtney Mead-
stated:
ows Apartment, L.L.P.
The law is well established that when an insurer
36 So.3d 704, 35 Fla. L. Weekly D802
admits liability in an unagreed amount, formal
proof of loss is thereby waived and the time in END OF DOCUMENT
which the insurer is required to demand appraisal
under the terms of the subject policy begins to
run from the time the insurer admits liability.
(Emphasis added.) Id. at 167.
[2] The instant case is distinguishable because

there is no language in the policy that requires ap-
praisal to be invoked, if at all, within any set time
from receiving or waiving the sworn proof of loss.
Thus, under the terms of the instant policy, the in-
surer's demand for appraisal was not untimely. Fur-
thermore, the insurer has not waived its right to ap-
praisal as it has not acted inconsistently with that
right from the time of demand. See Gonzalez v.
State Farm Fire & Cas. Co., 805 So.2d 814, 817
(Fla. 3d DCA 2000).
[3] Accordingly, because the insurance contract

provided for appraisal, the insurer's demand for
such was not untimely, and the insurer did not
waive its right to appraisal, the trial court erred in
partially denying the motion to compel appraisal.
See Preferred Mut. Ins. Co. v. Martinez, 643 So.2d
1101, 1102 (Fla. 3d DCA 1994); Fla. Ins. Guar.
Ass'n, Inc. v. Castilla, 18 So.3d 703, 705 (Fla. 4th
DCA 2009). Furthermore, granting appraisal of the
items of loss in the insured's cross-appeal was pre-
mature as those items had yet to be adjusted.
Without adjustment, it is impossible to know
whether the parties disputed the amount of loss to
warrant appraisal. See United States Fidelity &
Guar. Co. v. Romay, 744 So.2d 467, 469-70 (Fla.
3d DCA 1999).

Page 1
26 So.3d 610, 34 Fla. L. Weekly D2481
(Cite as: 26 So.3d 610)
The purpose of statute governing the presuit

mediation process in insurance cases is to use the
District Court of Appeal of Florida, mediation process to encourage an inexpensive and
Fourth District. speedy resolution of insurance claims prior to com-
The FLORIDA INSURANCE GUARANTY AS- mencing the appraisal process, or commencing lit-
SOCIATION, INC., Appellant, igation. West's F.S.A. § 627.7015(1).
v.
SHADOW WOOD CONDOMINIUM ASSOCI- [2] Insurance 217 3255
ATION, a Florida not-for-profit corporation, Ap-
pellee. 217 Insurance
No. 4D09-378. 217XXVII(B) Claim Procedures
Dec. 2, 2009. 217XXVII(B)6 Appraisal
Rehearing Denied Feb. 22, 2010. 217k3255 k. Waiver and estoppel.
Most Cited Cases
Background: Insured condominium association Failure by insolvent insurer to notify insured
brought action against insurance guaranty associ- condominium association, at the time association
ation, as successor to insolvent insurer, seeking ad- filed claim for hurricane damage, of its right to par-
ditional benefits for hurricane damage. The Seven- ticipate in presuit mediation relieved association of
teenth Judicial Circuit Court, Broward County, the obligation to participate in appraisal process re-
John T. Luzzo, J., denied insurance guaranty asso- quired by the insurance policy, and thus insurance
ciation's request to compel an appraisal and motion guaranty association that assumed insurer's obliga-
for a stay. Insurance guaranty association appealed. tions was not entitled to a stay of association's law-
suit seeking additional benefits under the policy
Holdings: The District Court of Appeal, Gross,
pending completion of the appraisal process. West's
C.J., held that:
F.S.A. § 627.7015(2, 7).
(1) insolvent insurer's failure to notify condomini-
um association of its right to participate in presuit [3] Insurance 217 3255
mediation relieved association of the obligation to
participate in appraisal process, and 217 Insurance
(2) appraisal process was a “precondition to legal 217XXVII Claims and Settlement Practices
action” within meaning of statute. 217XXVII(B) Claim Procedures
Affirmed. 217k3255 k. Waiver and estoppel.
Most Cited Cases
West Headnotes
Appraisal process contained in condominium
[1] Insurance 217 3333 association's property insurance policy was a
“precondition to legal action” within meaning of
217 Insurance statute relieving an insured of the obligation to par-
217XXVII Claims and Settlement Practices ticipate in such a process if the insurer fails to
217XXVII(B) Claim Procedures provide notice of the right to participate in presuit
217XXVII(B)8 Mediation mediation, and thus statute applied to condominium
217k3333 k. In general. Most Cited association's lawsuit against insurance guaranty as-
Cases sociation, which took over insolvent insurer's oblig-

Page 2
26 So.3d 610, 34 Fla. L. Weekly D2481
(Cite as: 26 So.3d 610)
ations under the policy; insurance guaranty associ- time. Shadow Wood did not file a sworn proof of
ation sought a stay of the lawsuit based on policy loss or execute a release as a prerequisite to pay-
language requiring an insured to comply with ment.
policy conditions in order to “bring a legal action”
against the insurer. West's F.S.A. § 627.7015(2, 7). In March, 2008, Shadow Wood retained a law-
yer to pursue further payments under the Southern
*611 Philip E. Ward, Jeffrey T. Kuntz, Roland E. Family policy. In April, 2008, Shadow Wood filed
Schwartz, and Evan D. Appell of GrayRobinson, an action against FIGA for breach of the policy.
P.A., Fort Lauderdale, and John A. Kirst, Jr. of One of FIGA's 39 affirmative defenses claimed that
GrayRobinson, P.A., Orlando, for appellant. “FIGA has demanded [an] Appraisal and this action
should be stayed until the Appraisal process is com-
Mitchell B. Haller and Keith J. Lambdin of Katz- pleted.” FIGA's first demand for an appraisal came
man Garfinkel Rosenbaum, LLP, Maitland, for ap- after its answer and affirmative defenses were filed.
pellee. On June 19, 2008, FIGA filed a motion to compel
the appraisal process and to stay the action until it
GROSS, C.J. was completed. FIGA did not “wholly dispute cov-
Florida Insurance Guaranty Association, Inc. erage,” only the “amount of covered loss.” The trial
(“FIGA”) timely appeals a non-final order denying court denied FIGA's motion on January 21, 2009.
its request to compel an appraisal under an insur-
This case turns on the applicability of section
ance policy. We affirm, holding that the insolvent
627.7015, Florida Statutes (2005), to the terms of
insurance company, FIGA's predecessor, failed to FN1
the Southern Family policy. Section E.2. of the
comply with the notice requirement of section
Coverage Part of the policy applies this statutory
627.7015(2), Florida Statutes (2005), so that the in-
appraisal “condition”:
sured was not required to submit to the loss ap-
praisal process. FN1. We agree with FIGA that its request
for an appraisal for the first time in the af-
On October 15, 2005, Southern Family Insur-
firmative defense did not amount to a
ance Company issued an insurance policy to Shad-
waiver of its right to an appraisal. See Fla.
ow Wood Condominium Association that included
Ins. Guar. Ass'n v. Castilla, 18 So.3d 703,
coverage for hurricane*612 damage. On October
705 (Fla. 4th DCA 2009); Wilson v. Feder-
24, 2005, Hurricane Wilma struck South Florida
ated Nat'l Ins. Co., 969 So.2d 1133 (Fla.
and Shadow Wood sustained damage to covered
2d DCA 2007).
property. Shadow Wood timely submitted a claim
for the damages to Southern Family. 2. Appraisal
In 2006, Southern Family became insolvent, If we and you disagree on the value of the prop-
thus triggering FIGA's obligation to provide a erty or the amount of the loss, either may make
mechanism for the payment of covered claims. See written demand for an appraisal of the loss. In
§§ 631.50-.70, Fla. Stat. (2005) (the “Florida Insur- this event, each party will select a competent and
ance Guaranty Association Act”). At the time of its impartial appraiser. The two appraisers will select
insolvency, Southern Family failed to make any an umpire. If they cannot agree, either may re-
payments to Shadow Wood for covered losses. In quest that selection be made by a judge of a court
March, 2007, FIGA paid $308,690.43 to Shadow having jurisdiction. The appraisers will state sep-
Wood; this payment was based on FIGA's own de- arately the value of the property and amount of
termination of the value of the damages at that loss. If they fail to agree, they will submit their

Page 3
26 So.3d 610, 34 Fla. L. Weekly D2481
(Cite as: 26 So.3d 610)
differences to the umpire. A decision agreed to the section 627.7015(2) notice requirement, then
by any two will be binding. Each party will: the insured shall not be required to submit to or
participate in any contractual loss appraisal pro-
a. Pay its chosen appraiser; and cess of the property loss damage as a precondi-
tion to legal action for breach of contract against
b. Bear the other expenses of the appraisal and
the insurer for its failure to pay the policyholder's
umpire equally.
claims covered by the policy.
If there is an appraisal, we will still retain our
§ 627.7015(7), Fla. Stat. (2005). The purpose
right to deny the claim.
of the statute was to use the mediation process to
A separate section of “Commercial Property Con- encourage an inexpensive and speedy resolution of
ditions” states that “[n]o one may bring a legal insurance claims “prior to commencing the apprais-
action against [the insurer] under this Coverage al process, or commencing litigation.” §
Part unless: 1. There has been full compliance 627.7015(1), Fla. Stat. (2005). Because the statute
with all of the terms of this Coverage Part[.]” applies to consumer related claims-to claims arising
out of “homeowner's and commercial residential in-
Two things are notable. The appraisal is not surance policies”-the statute requires the insurer to
binding and the policy places the additional ex- notify the consumer of the availability of the medi-
pense of the appraisal process upon the insured as a ation.
condition of filing a lawsuit.
[2] Southern Family did not give the section
[1] It was this imposition of additional costs on 627.7015 notice at the time Shadow Wood filed its
an insured that the legislature sought to address in claim shortly after Hurricane Wilma. FIGA is
section 627.7015. Subsection (1) sets forth the pur- bound by Southern Family's failure to give the sec-
pose of the statute: tion 627.7015 notice, so that section 627.7015(7)
FN2
applies. Under section 631.57(1)(b), Florida
*613 There is a particular need for an informal, Statutes (2005), FIGA is “deemed the insurer to the
nonthreatening forum for helping parties who extent of its obligation on the covered claims, and,
elect this procedure to resolve their claims dis- to such extent, shall have all rights, duties, de-
putes because most homeowner's and commercial fenses, and obligations of the insolvent insurer as if
residential insurance policies obligate insureds the insurer had not become insolvent.” Reading
to participate in a potentially expensive and time- section 631.57(1)(b) together with section 627.7015
consuming adversarial appraisal process prior to , it does not appear that the legislature intended to
litigation. The procedure set forth in this section excuse FIGA from the notice requirement. This
is designed to bring the parties together for a me- makes sense, because, in cases where an insurer's
diated claims settlement conference without any insolvency brings FIGA into the picture, there will
of the trappings or drawbacks of an adversarial typically have been a substantial delay since the in-
process. sured experienced a loss, so that elimination of a
non-binding appraisal process as a “precondition to
§ 627.7015(1), Fla. Stat. (2005) (emphasis ad-
legal action” would avoid further cost and delay. §
ded). Subsection 627.7015(2) requires the insurer to
627.7015(7), Fla. Stat. (2005).
“notify all first-party claimants of their right to par-
ticipate in the mediation program under” section FN2. We also note that FIGA failed to give
627.7015 “[a]t the time a first-party claim within the section 627.7015 notice when it took
the scope of this section is filed.” § 627.7015(2), over the claim from Southern Family. We
Fla. Stat. (2005). If an insurer fails to comply with do not therefore decide whether such a no-

Page 4
26 So.3d 610, 34 Fla. L. Weekly D2481
(Cite as: 26 So.3d 610)
tice would have complied with the statute. Affirmed.
FIGA attempts to avoid the application of sec- DAMOORGIAN and GERBER, JJ., concur.
tion 627.7015 by citing to a line of cases where
courts have refused to hold FIGA liable for the mis- Fla.App. 4 Dist.,2009.
deeds of a defunct insurer, beyond those arising out Florida Ins. Guar. Ass'n, Inc. v. Shadow Wood
of an insurance policy. Thus, in Williams v. Florida Condominium Ass'n
Insurance Guaranty Association, Inc., 549 So.2d 26 So.3d 610, 34 Fla. L. Weekly D2481
253, 254 (Fla. 5th DCA 1989), the fifth district re-
END OF DOCUMENT
fused to hold FIGA responsible for the negligence
of an insurance agent for failing to advise the in-
sured to obtain a different policy than the one actu-
ally issued. Williams is inapplicable here, since the
application of section 627.7015 does not impose li-
ability on FIGA, beyond the coverage of the policy,
*614 for the misconduct of Southern Family. See
Fernandez v. Fla. Ins. Guar. Ass'n, Inc., 383 So.2d
974, 975 (Fla. 3d DCA 1980) (observing that the le-
gislature, in creating FIGA, “was careful to restrict
its potential liability ... concerning its vicarious re-
sponsibility for the acts of the companies it suc-
ceeds”). Rather, the statute sets up a procedural
mechanism affecting access to the court system.
[3] Finally, we reject FIGA's contention that

the appraisal process here is not a “precondition to
legal action” within the meaning of subsection
627.7015(7). FIGA requested a stay in the circuit
court. The basis for the stay is the policy language
that requires an insured to comply with policy con-
ditions to “bring a legal action” against the insurer.
FIGA sought to stay the case until the contractual
loss appraisal process was completed. In the circuit
court, FIGA thus treated the appraisal requirement
as a “precondition to legal action,” which meant
that the action could not continue until the precon-
dition was satisfied. See also Fla. Ins. Guar. Ass'n,
Inc. v. Devon Neighborhood Ass'n, Inc., --- So.3d -
--- (Fla. 4th DCA 2009).
Because FIGA is bound by Southern Family's

failure to notify Shadow Wood of the availability of
mediation, we hold that Shadow Wood was not re-
quired to submit to the loss appraisal process
sought by FIGA.

Page 1
497 So.2d 285, 11 Fla. L. Weekly 2163
(Cite as: 497 So.2d 285)
clause of policy, providing that if insurer and in-

sured did not agree on the amount of loss, either
District Court of Appeal of Florida, could demand an appraisal of the loss and in such
Third District. an event each party would select a competent ap-
praiser, and if the appraisers did not agree the mat-
Murray WEISS, Appellant,
ter would be submitted to umpire, so that appraisal
v.
clause became inoperative and was waived as a
The INSURANCE COMPANY OF the STATE OF
matter of law, and thus, insured was not required to
PENNSYLVANIA and American International Ad-
comply with policy provision for appraisal of dam-
justment Company, Inc., Appellees.
ages prior to bringing action against insurer.
No. 86-225.
*285 Barbara North Burton, Miami Shores, and
Oct. 14, 1986.
Carolyn A. Smith, Coral Gables, for appellant.
Rehearing Denied Nov. 26, 1986.
Richard A. Sherman, Fort Lauderdale, for ap-
Insured brought action against insurer for in-
pellees.
surer's refusal to pay large portion of bill for repair
of insured's automobile. The Circuit Court, Dade
County, Phillip W. Knight, J., dismissed action Before SCHWARTZ, C.J., and HUBBART and
without prejudice and insured appealed. The Dis- JORGENSON, JJ.
trict Court of Appeal, Schwartz, C.J., held that by
exercising its right to repair vehicle as authorized
SCHWARTZ, Chief Judge.
by policy, insurer rendered it impossible to comply
After authorizing the repair of Weiss's vehicle,
with appraisal clause of policy, so that appraisal
his automobile carrier, the Insurance Company of
clause became inoperative and was waived as a
the State of Pennsylvania (ICP), refused to pay for
matter of law, allowing insured to bring action
a large portion of the bill on the ground that it rep-
against insurer without complying with policy pro-
resented damages caused by “wear and tear” which
vision for appraisal of damages.
was excluded from collision coverage. Weiss then
Reversed and remanded. sued ICP and its adjuster, American International
Adjustment Company, to recover under the policy,
West Headnotes for fraud and deceit, and for alleged violations of
the Deceptive and Unfair Trade Practices Act, §
Insurance 217 3255 501.204(1), et seq., Fla.Stat. This appeal *286 is
FN1
from an order dismissing the action without
217 Insurance
prejudice because the plaintiff had not complied
with the policy provision for the appraisal of dam-
217XXVII(B) Claim Procedures FN2
ages as previously ordered upon the defend-
ants' motion. See U.S. Fire Ins. Co. v. Franko, 443
217k3255 k. Waiver and Estoppel.
So.2d 170 (Fla. 1st DCA 1983).
Most Cited Cases
(Formerly 217k576(1)) FN1. See infra note 5.
By exercising its right to repair vehicle as au-
thorized by automobile policy, insurer rendered it FN2. Appraisal.
impossible for insured to comply with appraisal

Page 2
497 So.2d 285, 11 Fla. L. Weekly 2163
(Cite as: 497 So.2d 285)
If we and you do not agree on the policy and then asserts that the insurer
amount of loss, either may demand an waived its reliance on that provision by
appraisal of the loss. In this event, each failing to timely raise it, see King v.
party will select a competent appraiser. Thompson & McKinnon, Auchincloss
The two appraisers will select an umpire. Kohlmeyer, Inc., 352 So.2d 1235 (Fla. 4th
The appraisers will state separately the DCA 1977); the appellees vigorously con-
actual cash value and the amount of loss. tend that their supposed insistence on ar-
If they fail to agree, they will submit bitration did not come too late. See Gra-
their differences to the umpire. A de- ham Contracting, Inc. v. Flagler County,
cision agreed to by any two will be bind- 444 So.2d 971 (Fla. 5th DCA 1983), pet.
ing. Each party will: for review denied, 451 So.2d 848
(Fla.1984). In fact, however, there is no ar-
1. Pay its chosen appraiser; and bitration clause in the collision portion of
the policy; the only such provision, which
2. Bear the expenses of the appraisal and
is quoted and relied upon in the appellees'
umpire equally.
brief, applies to uninsured motorist cover-
We reverse on the ground that, by exercising age and thus has nothing to do with this
its right to repair the vehicle as authorized by the case. Accordingly, an examination of the
FN3 record shows clearly that the parties at no
policy, the insurer rendered it impossible to
comply with the appraisal clause. Hence, that provi- time asserted below and the trial judge at
sion became inoperative and was waived as a mat- no time determined that there was any
FN4 right to arbitration. See 31 Fla.Jur.2d In-
ter of law. Gage v. Connecticut Fire Ins. Co.,
34 Okla. 744, 127 P. 407 (1912); Providence Wash- surance § 891 (1981) (“Although the term
ington Ins. Co. v. Wolf, 168 Ind. 690, 80 N.E. 26 ‘appraisal,’ or ‘appraisement,’ and the term
(1907); 14 Couch on Insurance 2d § 50:119 (rev. ‘arbitration’ are generally used inter-
ed. 1982); see Home Indemnity Co. v. Bush, 20 Ar- changeably or in a loose sense in insurance
iz.App. 355, 513 P.2d 145, 148-49 (1973); Pruden- policies and cases, there is a distinction
tial Ins. Co. v. Bidwell, 103 Ind.App. 386, 8 N.E.2d between a limited agreement for appraisal
123 (1937); Wynkoop v. Niagara Fire Ins. Co., 91 of the amount of the loss and a general
N.Y. 478 (1883). agreement to submit to arbitration.”)
FN3. The policy provides: “We may pay For this reason, the order under review is re-
FN5
for loss in money or repair or replace the versed and the cause remanded for trial.
damaged or stolen property.”
FN5. It should be noted that, as the trial
FN4. Our consideration of this appeal has court itself recognized in providing for an
been severely handicapped by the fact that abatement of the action pending appraisal
the parties, none of whom are now repres- only as to the “claim ... for damage to
ented by trial counsel, have unaccountably plaintiff's vehicle” and that “all other as-
devoted almost all their appellate energies pects” of the case were to remain pending,
to arguing the propriety of a ruling which the appraisal clause could have no effect
was never made on an issue which was, for on the separate fraud and FDUTPA claims.
good reason, never raised below. Weiss Those counts should therefore not have
claims that the trial court ordered compli- been dismissed in any event. (The plain in-
ance with an arbitration clause in the consistency between the prior order and

Page 3
497 So.2d 285, 11 Fla. L. Weekly 2163
(Cite as: 497 So.2d 285)
the dismissal of the entire action was ap-

parently not called to the attention of the
trial court.)
Weiss v. Insurance Co. of State of Pa.
497 So.2d 285, 11 Fla. L. Weekly 2163
END OF DOCUMENT

Page 1
36 So.3d 704, 35 Fla. L. Weekly D802
(Cite as: 36 So.3d 704)
provide its notice of intentions regarding manner in

which claim will be evaluated after insurer receives
District Court of Appeal of Florida, sworn proof of loss did not apply to insurer's right
First District. to request appraisal of damaged property; there was
AMERICAN CAPITAL ASSURANCE CORP., no language in policy that required appraisal to be
Appellant/Cross-Appellee, invoked, if at all, within any set time from receiv-
v. ing or waiving sworn proof of loss.
COURTNEY MEADOWS APARTMENT, L.L.P.,
a Florida Corporation, Appellee/Cross-Appellant. [2] Insurance 217 3255
No. 1D09-2940. 217 Insurance

April 7, 2010. 217XXVII Claims and Settlement Practices
Rehearing Denied June 2, 2010. 217XXVII(B) Claim Procedures
Background: Insured brought action against prop- 217k3255 k. Waiver and estoppel.
erty insurer, seeking declaratory relief and alleging Most Cited Cases
numerous breaches of contract. Following a hear- Property insurer did not waive its right of ap-
ing, the Circuit Court, Duval County, Hugh A. praisal regarding damaged property; insurer had not
Carithers, J., granted in part and denied in part in- acted inconsistently with that right from the time of
surer's motion to compel appraisal. Insurer filed in- demand.
terlocutory appeal, and insured cross-appealed.
Holdings: The District Court of Appeal, Roberts,
J., held that: 217 Insurance
(1) 30-day time limit to provide notice of intentions 217XXVII Claims and Settlement Practices
regarding manner in which claim will be evaluated 217XXVII(B) Claim Procedures
did not apply to insurer's right to request appraisal, 217XXVII(B)6 Appraisal
and 217k3252 Compelling Appraisal
(2) granting of motion to compel appraisal of items 217k3253 k. In general. Most Cited
that had not yet been adjusted was premature. Cases
Trial court's granting of property insurer's mo-
Reversed and remanded. tion to compel appraisal of items that had not yet
been adjusted was premature in insured's action that
West Headnotes
sought declaratory relief and alleged numerous
[1] Insurance 217 3254 breaches of contract; without adjustment, it was im-
possible to know whether parties disputed amount
217 Insurance of loss to warrant appraisal.
217XXVII(B) Claim Procedures *704 Guy E. Burnette, Jr. and A. Dean Johnson of
217XXVII(B)6 Appraisal Guy E. Burnette, Jr., P.A., Tallahassee, for Appel-
217k3252 Compelling Appraisal lant/Cross-Appellee.
217k3254 k. Demand. Most Cited
Diane H. Tutt, of Diane H. Tutt, P.A.; P. Campbell
Cases
Ford of Ford, Miller & Wainer, P.A., Jacksonville
Thirty-day time limit for property insurer to
Beach, for Appellee/Cross-Appellant.

Page 2
36 So.3d 704, 35 Fla. L. Weekly D802
(Cite as: 36 So.3d 704)
ROBERTS, J. days after we receive the sworn proof of loss.

In this interlocutory appeal, the appellant,
American Capital Assurance Corporation (the in- ***
surer), and the appellee, Courtney Meadows Apart-
g. We will pay for covered loss or damage within
ment, L.L.P. (the insured), both challenge the trial
30 days after we receive the sworn proof of loss,
court's non-final order denying in part and granting
if you have complied with all of the terms of this
in part the insurer's motion to compel appraisal.
Coverage Part and:
The insurer raises two issues on appeal, only one of
which merits discussion. Specifically, the insurer (1) We have reached agreement with you on
argues the trial court erred in denying a portion of the amount of loss; or
its motion to compel appraisal because its demand
was untimely. The insured argues on cross-appeal (2) An appraisal award has been made.
that the trial court erred in granting appraisal of
*705 four items that had not been adjusted. We On June 1, 2008, a microburst hail storm
agree with both parties and reverse and remand. caused damage to the complex, after which the in-
sured filed a claim. In July 2008, the parties met to
The dispute underlying this appeal began when discuss the extent of damage to the complex. The
the insurer issued a policy of insurance to the in- insurer believed a majority of the complex's dam-
sured covering the Courtney Meadows apartment aged roofs could be repaired, but the insured be-
complex (the complex). The policy contained the lieved the same needed replacing. On October 3,
following provisions relevant to this appeal. Re- 2008, the insurer sent the insured a final estimate,
garding appraisal, section E.2. of the policy which indicated that only the office roof needed to
provided, in part: be replaced and that the remaining roofs in the
complex could be repaired. The final estimate also
If we and you disagree on the value of the prop- included other items of loss and estimated the total
erty or the amount of loss, either may make writ- amount of damage at $168,285.98. On October 22,
ten demand for an appraisal of the loss. 2008, the insurer tendered a check to the insured for
said amount and asked the insured to file a sworn
Regarding loss payment, section E.4. of the
proof of loss. The accompanying correspondence
policy provided:
also stated that if the parties were unable to resolve
a. In the event of loss or damage covered by this
the dispute the insurer may wish to proceed with
Coverage Form, at our option, we will either:
appraisal.
(1) Pay the value of lost or damaged property;
In a November 11, 2008, correspondence from
(2) Pay the cost of repairing or replacing the its attorney, the insured completely rejected the in-
lost or damaged property ... [;] surer's check as a gross under-evaluation of the
claim and refused to provide the sworn proof of
(3) Take all or any part of the property at an loss. The insured noted it was in agreement with the
agreed or appraised value; or portion of the final estimate regarding the following
items of loss: heat, vent, and air conditioning; win-
(4) Repair, rebuild or replace the property with dow reglazing; and painting the gazebo. The in-
other property of like kind and quality ... [.] sured also informed the insurer of additional items
of loss that were not included in the final estimate,
***
specifically: the trash compactor area, interior
c. We will give notice of our intentions within 30 building work, the garage fascia, and pillar damage.

Page 3
36 So.3d 704, 35 Fla. L. Weekly D802
(Cite as: 36 So.3d 704)
FN1
to compel appraisal of the additional items of loss
in the insured's November 11, 2008, correspond-
FN1. These items of loss are the subject of ence (the trash compactor area, the garage fascia,
the insured's cross-appeal. pillar damage, and interior apartment damage).
In a November 18, 2008, letter to the insured, [1] The underlying insurance policy does not
the insurer demanded appraisal. On December 23, set forth a time limit for demanding appraisal. The
2008, the insured filed a complaint, which was sub- policy's appraisal language is optional in that either
sequently amended,*706 seeking declaratory relief party “may” demand appraisal and makes no men-
and alleging numerous breaches of contract. The in- tion of a time limit in which to do so. The portion
surer in turn moved to dismiss and/or abate the ac- of the policy that mandates a 30-day time limit for
tion and to compel appraisal, arguing that it had the insurer to provide its “notice of intentions”
properly invoked the appraisal process under the refers to the manner in which the claim will be
terms of the policy. evaluated. In other words, within 30 days of receiv-
ing the sworn proof of loss, the insurer will either:
A hearing was held on the insurer's motion.
(1) pay the value of lost or damaged property; (2)
The insured argued that the insurer's pre-suit and
pay the cost of repairing or replacing the lost or
post-suit conduct demonstrated a waiver of the ap-
damaged property; (3) take all or any part of the
praisal clause of the policy and that, under the
property at an agreed or appraised value; or (4) re-
terms of the policy, the insurer's invocation of ap-
pair, rebuild, or replace the property with other
praisal was untimely. The trial court agreed that the
property of like kind and quality. There is no indic-
appraisal demand was untimely, finding that, when
ation that this provision extends to the time in
an insurer admits liability and coverage for loss,
which the insurer must demand appraisal.
formal proof of loss is waived and the time in
which the insurer is required to demand appraisal The trial court's reliance on the aforementioned
under the terms of the policy begins to run from its cases to support its position is equally misplaced. In
admittance of liability and coverage. The trial court the cited cases, the policies either mandated ap-
cited Bear v. New Jersey Insurance Co., 138 Fla. praisal or mandated a specific time in which to seek
298, 189 So. 252 (1939); American Bankers Insur- appraisal. For example, the policy language in
ance Co. of Florida v. Terry, 277 So.2d 563 (Fla. Bear, stated:
3d DCA 1973); Cincinnati Insurance Co. v.
Palmer, 297 So.2d 96 (Fla. 4th DCA 1974); and In the event of disagreement as to the amount of
Llerena v. Lumbermens Mutual Casualty Co., 379 loss the same shall, as above provided, be ascer-
So.2d 166 (Fla. 3d DCA 1980), to support its rul- tained by competent and disinterested appraisers
ing. The trial court found that, by sending the final ... the loss shall not become payable until 60 days
estimate and subsequently tendering the after the notice, ascertainment, estimate and satis-
$168,285.98 check, the insurer admitted liability factory proof of loss herein required to have been
and thus waived its right to sworn proof of loss on received by this company, including an award by
October 3, 2008. The trial court further found sec- appraisers when appraisal has been required.
tions E.4.a.(3) and E.4.c. of the policy required the
insurer to notify the insured of its intention to seek (Emphasis added.) Bear, 189 So. at 253. The
appraisal within 30 days after this date, such that Bear court specifically found that the insurer had
the insurer's November 18, 2008, demand for ap- 60 days from the waiver of *707 proof of loss to
praisal was untimely. Accordingly, the trial court demand appraisal. Id. at 299, 189 So. 252. In Terry,
denied the motion to compel appraisal of the items the policy language is not quoted, but the court re-
included the final estimate, but granted the motion ferred to a 60-day time limit in which to demand ar-

Page 4
36 So.3d 704, 35 Fla. L. Weekly D802
(Cite as: 36 So.3d 704)
bitration. Terry, 277 So.2d at 564. Likewise, in REVERSED and REMANDED to the trial
Llerena, the policy provided that either the insurer court to compel appraisal of the items of loss in the
or the insured may demand an appraisal within 60 insurer's motion that are appropriately in dispute.
days following the filing of proof of loss. Llerena,
379 So.2d at 167. The court went on to find the de- WOLF and VAN NORTWICK, JJ., concur.
mand for appraisal was untimely as it was outside
the 60-day time limit. Id. at 167-68. The court
American Capital Assur. Corp. v. Courtney Mead-
stated:
ows Apartment, L.L.P.
The law is well established that when an insurer
36 So.3d 704, 35 Fla. L. Weekly D802
admits liability in an unagreed amount, formal
proof of loss is thereby waived and the time in END OF DOCUMENT
which the insurer is required to demand appraisal
under the terms of the subject policy begins to
run from the time the insurer admits liability.
(Emphasis added.) Id. at 167.
[2] The instant case is distinguishable because

there is no language in the policy that requires ap-
praisal to be invoked, if at all, within any set time
from receiving or waiving the sworn proof of loss.
Thus, under the terms of the instant policy, the in-
surer's demand for appraisal was not untimely. Fur-
thermore, the insurer has not waived its right to ap-
praisal as it has not acted inconsistently with that
right from the time of demand. See Gonzalez v.
State Farm Fire & Cas. Co., 805 So.2d 814, 817
(Fla. 3d DCA 2000).
[3] Accordingly, because the insurance contract

provided for appraisal, the insurer's demand for
such was not untimely, and the insurer did not
waive its right to appraisal, the trial court erred in
partially denying the motion to compel appraisal.
See Preferred Mut. Ins. Co. v. Martinez, 643 So.2d
1101, 1102 (Fla. 3d DCA 1994); Fla. Ins. Guar.
Ass'n, Inc. v. Castilla, 18 So.3d 703, 705 (Fla. 4th
DCA 2009). Furthermore, granting appraisal of the
items of loss in the insured's cross-appeal was pre-
mature as those items had yet to be adjusted.
Without adjustment, it is impossible to know
whether the parties disputed the amount of loss to
warrant appraisal. See United States Fidelity &
Guar. Co. v. Romay, 744 So.2d 467, 469-70 (Fla.
3d DCA 1999).

Page 1
48 So.3d 188, 35 Fla. L. Weekly D2586
(Cite as: 48 So.3d 188)
307AII Depositions and Discovery

307AII(E) Production of Documents and
District Court of Appeal of Florida, Things and Entry on Land
Third District. 307AII(E)3 Particular Documents or
CITIZENS PROPERTY INSURANCE CORPORA- Things
TION, Appellant, 307Ak375 k. Business and financial
v. records and reports. Most Cited Cases
GALERIA VILLAS CONDOMINIUM ASSOCI- Insurer that was sued by insured condominium
ATION, INC., Appellee. association for an appraisal of hurricane damage
and other relief was entitled to request various con-
No. 3D10-807.
dominium documents as part of its investigation of
Nov. 24, 2010.
the claim, including the condominium declaration
Background: Insured condominium association and bylaws and contracts for property management
brought action against insurer seeking an appraisal services, despite contention that the requests were
of its claim for hurricane damage and other relief. overbroad and irrelevant to the insurance claim;
The Circuit Court, Miami-Dade County, Israel documents could contain information relevant to
Reyes, J., ordered an appraisal. Insurer appealed. capital improvements affecting the damaged prop-
erty, maintenance expenses, and prior damage or
Holdings: The District Court of Appeal, Salter, J., repairs, and documents might identify individuals
held that: with pertinent knowledge.
(1) insurer was entitled to request various con-
dominium documents from insured; [2] Insurance 217 3172
(2) insured was required to allow access to the con-
217 Insurance
dominium to insurer's loss consultant; and
(3) insured was not entitled to an appraisal until
after it satisfied its obligations to provide insurer
217XXVII(B)2 Notice and Proof of Loss
with documents and access.
217k3172 k. Inspection of property.
Reversed and remanded. Most Cited Cases
Insured condominium association that filed
West Headnotes claim for hurricane damage was required to allow
access to the condominium to insurer's loss consult-
[1] Insurance 217 3173 ant, and could not demand that insurer send an ad-
juster instead; policy obligated insured to allow in-
217 Insurance
surer to inspect the property as often as may be
reasonably required.
217XXVII(B)2 Notice and Proof of Loss [3] Insurance 217 3247
217k3173 k. Documents, records and
information in general. Most Cited Cases 217 Insurance
Pretrial Procedure 307A 375 217XXVII(B) Claim Procedures
307A Pretrial Procedure
217k3247 k. In general. Most Cited

Page 2
48 So.3d 188, 35 Fla. L. Weekly D2586
(Cite as: 48 So.3d 188)
Cases reasonable rights of access to, and inspection of, the

Insured condominium association was not en- property damage detailed in Galeria's claim.
titled to an appraisal of its claim for hurricane dam-
age until after it satisfied its obligations to provide The issue presented to the trial court was
insurer with various condominium documents re- whether Galeria's demand for appraisal was prema-
quested by insurer, and to provide insurer's loss ture because of Galeria's alleged failure to comply
consultant with access to the damaged property; no with certain policy conditions and post-loss duties.
disagreement regarding the value of the property or See U.S. Fid. & Guar. Co. v. Romay, 744 So.2d 467
the amount of loss could arise until insurer had a (Fla. 3d DCA 1999). Citizens also argues that the
reasonable opportunity to investigate and adjust the order compelling appraisal should have contained
claim. an explicit reservation of jurisdiction over various
coverage issues.
Hurricane, Claim, Correspondence, and Lawsuit
217 Insurance The pleadings, affidavits, and legal arguments
FN1
217XXVII Claims and Settlement Practices *190 presented to the trial court included the
217XXVII(B) Claim Procedures following pertinent facts. Galeria obtained and paid
217XXVII(B)6 Appraisal for a homeowners' insurance policy issued by Cit-
217k3247 k. In general. Most Cited izens that was in force when the Galeria condomin-
Cases ium complex was damaged by Hurricane Wilma in
Only when there is a real difference in fact, October 2005. Galeria submitted a sworn proof of
arising out of an actual and honest effort to reach an loss that was investigated by a Citizens adjuster.
agreement between the insured and the insurer, is Citizens' estimate of damages did not exceed the
an appraisal warranted. deductible for the property, and therefore Citizens
made no payment to Galeria. Citizens did not dis-
*189 Hinshaw & Culbertson, and Maureen G. pute that a covered loss had occurred. This first
Pearcy and Paul R. Wallace, Miami, for appellant. round of administering the claim was completed by
some time in 2006.
Alvarez & Alvarez-Zane, and Amado Alan Alvarez,
for appellee. FN1. Neither Citizens nor Galeria offered
the testimony of any witness during the
Before SUAREZ, ROTHENBERG, and SALTER, hearing on the cross-motions regarding ap-
JJ. praisal, nor did either party request the
court to set an evidentiary hearing on the
motions.
SALTER, J.
Citizens Property Insurance Corporation ap- Thereafter, Galeria retained a public adjuster,
FN2
peals a circuit court order granting a motion by the Preferred Claim Solutions, Inc., and Preferred
insured, Galeria Villas Condominium Association, prepared detailed construction cost estimates
Inc., to compel appraisal pursuant to an insurance broken out by building, line item, quantities, and
policy. We reverse the order compelling appraisal unit costs. Contractor's overhead and profit and
(which has been stayed during the pendency of this sales tax were also itemized for each of the 16
appeal) and remand to require Galeria to establish buildings, and a separate total for all of the repairs
that it has (a) provided certain records requested by was included. The total estimate for repairs for the
Citizens as it considered Galeria's claim and (b) October 24, 2005, windstorm loss was
provided Citizens' adjuster or “loss consultant” $1,886,054.86. These detailed cost estimates, all

Page 3
48 So.3d 188, 35 Fla. L. Weekly D2586
(Cite as: 48 So.3d 188)
FN3
dated April 8, 2009, were provided to Citizens with ation documents to Citizens as requested nine
an initial demand for appraisal in May 2009. months before the hearing. Galeria argued,*191 and
the trial court apparently agreed, that these requests
FN2. Galeria retained a different public ad- were overbroad, ambiguous, and not relevant to the
juster in 2007, but Preferred replaced that adjustment of the insurance claim.
firm in 2008.
FN3. “Declarations of Condominium; Con-
In a letter of May 28, 2009, Citizens acknow- dominium Bylaws, and any and all minutes
ledged receipt of the Preferred repair estimates, re- of Association Board meetings for the last
served various rights, and requested a final, signed seven (7) years; Contracts for property
and sworn proof of loss as well as copies of 13 cat- management services between Galeria Vil-
egories of documents. Galeria provided the signed las Condo Association and any property
and sworn proof of loss in July 2009. On August management company for the last seven
10, 2009, Citizens acknowledged receipt of the (7) years.”
proof of loss but claimed there were inconsistencies
with the earlier estimates prepared by Preferred. Analysis
Citizens also renewed its request for the 13 categor- [1] While Citizens' requests may seem broad,
ies of documents identified in its May 28 letter and the types of documents that were not provided by
complained that Citizens' loss consultant “has not Galeria may (and typically do) contain information
been provided an opportunity to inspect this prop- bearing directly on the claim and the respective ob-
erty since the initial inspection in 2005.” ligations of the insurer, the insured, and the
homeowners living within the insured units. The
Four days later, Galeria filed its lawsuit against declaration and bylaws normally define a con-
Citizens alleging breach of the insurance policy, in- dominium association's insurance and maintenance
cluding Citizens' failure to comply with the apprais- obligations vis-à-vis a unit occupant. The associ-
al clause in the policy. A month later, Galeria filed ation board and membership meeting minutes may
a motion to compel appraisal and Citizens moved to disclose, for example, (1) decisions to undertake
strike that motion. Galeria filed affidavits and cop- capital improvements affecting the damaged prop-
ies of many of the documents that had been reques- erty, (2) expenses incurred in maintaining or repair-
ted by Citizens. One of the affidavits acknow- ing a roof or other common elements, and (3) the
ledged, however, that Galeria had denied Citizens' nature and dates of prior damage or repairs. Prop-
request to allow its “loss consultant” to re-inspect erty management contracts are important for the
the damaged buildings: same reason. All such records may identify indi-
viduals with pertinent knowledge so that they can
On or about August 10, 2009, the insurance com-
be contacted during the investigation of the claim.
pany requested for a Loss Consultant to re-
And these records were and are required to be kept
inspect the Properties. We advised Citizens that
by Galeria as a matter of Florida law. See §
we had no objection to the re-inspection;
718.111(12), Fla. Stat. (2009).
however, we would re-inspect the Properties with
an adjuster from Citizens not a Loss Consultant [2] Nor may an insured refuse access to the
to determine coverage. damaged properties to an insurer's “loss consult-
ant,” insisting instead that the insurer send in an
In addition, in discovery responses in the law-
“adjuster.” The post-loss duty in section E.3.a.(6)
suit and during the hearing on the motions in Febru-
of the policy obligated Galeria to, “[a]s often as
ary 2010, Galeria acknowledged that it had not
may be reasonably required, permit [Citizens] to in-
provided certain categories of condominium associ-
spect the property proving the loss or damage.” Cit-

Page 4
48 So.3d 188, 35 Fla. L. Weekly D2586
(Cite as: 48 So.3d 188)
izens acts through employees and agents, and an in- court determines that a demand for appraisal is ripe,
sured ordinarily recognizes that the sooner the in- the court has the discretion to control the order*192
surer's representative (irrespective of title) is al- in which an appraisal and coverage determinations
lowed to inspect the areas of claimed damage, the proceed. Sunshine State Ins. Co. v. Rawlins, 34
FN7
sooner the claim will be adjusted, appraised, or oth- So.3d 753, 754-55 (Fla. 3d DCA 2010). That
erwise brought to resolution. Finally, and as we ob- holding does not require an interlocutory order for
served in Romay, “[t]hese obligations are not un- appraisal to explicitly reserve jurisdiction to de-
FN4
duly burdensome or arbitrary.” termine legal questions regarding the policy terms
after the appraisal has been completed.
FN4. Romay, 744 So.2d at 471.
FN7. Rawlins reviewed the procedural
[3][4] Until these conditions are met and the in- question as addressed in cases involving
surer has a reasonable opportunity to investigate insurance policy arbitration provisions, ul-
and adjust the claim, there is no “disagreement” timately determining that the same rule of
(for purposes of the appraisal provision in the discretion should apply to the order in
policy) regarding the value of the property or the which appraisal and coverage issues pro-
amount of loss. Only when there is a “real differ- ceed.
ence in fact, arising out of an actual and honest ef-
fort to reach an agreement between the insured and The order compelling appraisal is reversed and
FN5
the insurer,” is an appraisal warranted. We remanded for further proceedings.
therefore reverse the order compelling appraisal
and remand for what we anticipate will be complete Fla.App. 3 Dist.,2010.
and immediate cooperation by Galeria in affording Citizens Property Ins. Corp. v. Galeria Villas Con-
access to the property and the remaining records, dominium Ass'n, Inc.
and a prompt response to the claim by Citizens after 48 So.3d 188, 35 Fla. L. Weekly D2586
FN6
its prompt investigation.
END OF DOCUMENT
FN5. Id. at 470 (quoting 14 Couch on In-
surance 2d § 50:56 (1982)). Although the
quoted language refers to the prerequisites
for arbitration, in Romay this Court found
that description equally applicable to the
standard appraisal clause.
FN6. The emphasis on prompt action after

remand, as opposed to petulance or foot-
dragging, is directed to both parties. Insur-
ance claims are not like fine wines; they do
not become better with time.
Citizens also argued that the appraisal order

was in error because it failed to reserve jurisdiction
on any coverage issues. Although this issue is moot
because of our determination that the order compel-
ling appraisal was premature, this court has previ-
ously addressed Citizens' argument. Once the trial

Page 1
46 So.3d 177, 35 Fla. L. Weekly D2369
(Cite as: 46 So.3d 177)
insurer was still investigating the claim when in-

sured filed suit, and did not intentionally relinquish
District Court of Appeal of Florida, its right to deny coverage.
Fourth District.
CITIZENS PROPERTY INSURANCE CORPORA- [2] Estoppel 156 52.10(2)
TION, Appellant,
v. 156 Estoppel
MICHIGAN CONDOMINIUM ASSOCIATION, 156III Equitable Estoppel
Appellee. 156III(A) Nature and Essentials in General
156k52.10 Waiver Distinguished
No. 4D10-1794. 156k52.10(2) k. Nature and elements
Oct. 27, 2010. of waiver. Most Cited Cases
Background: Insured brought action against prop- Estoppel 156 52.10(3)

erty insurer seeking, among other things, an ap-
praisal of its damages. The Seventeenth Judicial 156 Estoppel
Circuit Court, Broward County, John J. Murphy, III 156III Equitable Estoppel
, and Marc H. Gold, JJ., granted insured's motion to 156III(A) Nature and Essentials in General
compel an appraisal. Insurer appealed. 156k52.10 Waiver Distinguished
156k52.10(3) k. Implied waiver and
Holdings: The District Court of Appeal, Gerber, J., conduct constituting waiver. Most Cited Cases
held that: “Waiver” is the intentional or voluntary relin-
(1) insurer's failure to deny coverage before insured quishment of a known right or conduct which war-
filed suit did not constitute a waiver of the right to rants an inference of the relinquishment of a known
deny coverage, and right.
(2) trial court could not order an appraisal before
resolving the underlying dispute as to coverage. [3] Insurance 217 3247
Reversed. 217 Insurance

West Headnotes 217XXVII(B) Claim Procedures
[1] Insurance 217 3110(2) 217k3247 k. In general. Most Cited
Cases
217 Insurance
Trial court could not order an appraisal of in-
217XXVI Estoppel and Waiver of Insurer's De-
sured's property damage before resolving the under-
fenses
lying dispute as to coverage of the claim; a finding
217k3105 Claims Process and Settlement
of liability necessarily preceded any determination
217k3110 Denial or Disclaimer of Liabil-
of damages.
ity on Policy
217k3110(2) k. Failure, delay, or inad- *177 Scot E. Samis of Abbey, Adams, Byelick,
equacy. Most Cited Cases Kiernan, Mueller, Marone & Samis, L.L.P., Saint
Property insurer's failure to deny coverage be- Petersburg, for appellant.
fore insured filed suit seeking an appraisal did not
constitute a waiver of the right to deny coverage; Mary K. Fortson and Kelly L. Kubiak of Merlin

Page 2
46 So.3d 177, 35 Fla. L. Weekly D2369
(Cite as: 46 So.3d 177)
Law Group, P.A., Tampa, for appellee. We respectfully disagree with Rawlins' recog-
nition of a dual-track approach. We appreciate the
third district's rationale that the dual-track approach
GERBER, J.
may save “ ‘judicial resources which might other-
An insurer appeals from a circuit court order
wise be required in resolving the factual and legal
granting the insured's motion to compel an apprais-
issues involved in the [coverage issue] by a relat-
al before the court resolved*178 the parties' under-
ively swift and informal decision by the appraisers
lying coverage dispute. The insurer argues that the
as to the amount of the loss.’ ” Id. (citation omit-
order conflicts with our holding that a trial court
ted). However, we believe that “[a] finding of liab-
“must resolve all underlying coverage disputes pri-
ility necessarily precedes a determination of dam-
or to ordering an appraisal.” Sunshine State Ins. Co.
ages.” Engle v. Liggett Group, Inc., 945 So.2d
v. Corridori, 28 So.3d 129, 131 (Fla. 4th DCA
1246, 1262-63 (Fla.2006). We certify conflict with
2010). We agree and reverse.
Rawlins.
The insured argues that Corridori is distin-
Reversed.
guishable because there, the insurer denied cover-
age before the insured filed suit, whereas here the MAY and DAMOORGIAN, JJ., concur.
insurer denied coverage after the insured filed suit.
According to the insured, the insurer's failure to Fla.App. 4 Dist.,2010.
deny coverage before the insured filed suit consti- Citizens Property Ins. Corp. v. Michigan Con-
tutes a waiver of the insurer's right to deny cover- dominium Ass'n
age. 46 So.3d 177, 35 Fla. L. Weekly D2369
[1][2] We disagree with the insured's argument. END OF DOCUMENT

“ ‘Waiver is the intentional or voluntary relinquish-
ment of a known right or conduct which warrants
an inference of the relinquishment of a known
right.’ ” Aberdeen Golf & Country Club v. Bliss
Constr., Inc., 932 So.2d 235, 244 (Fla. 4th DCA
2005) (citation omitted). We see nothing in the re-
cord which suggests that the insurer intentionally,
voluntarily, or inferentially relinquished its right to
deny coverage. Rather, the insurer still was invest-
igating the claim at the time the insured filed suit.
[3] The insured also argues that we should al-

low the appraisal to go forward while preserving
the insurer's right to contest coverage. In support,
the insured relies on Sunshine State Ins. Co. v.
Rawlins, 34 So.3d 753 (Fla. 3d DCA 2010), in
which the third district held that a circuit court did
not abuse its discretion in allowing an appraisal to
go forward on a “dual track” basis while preserving
the insurer's right to contest coverage as a matter of
law. Id. at 755.

Page 1
--- So.3d ----, 2011 WL 1775731 (Fla.App. 4 Dist.)
(Cite as: 2011 WL 1775731 (Fla.App. 4 Dist.))
eral
Only the Westlaw citation is currently available. 219k39(2.35) k. Insurance Matters.
Most Cited Cases
NOTICE: THIS OPINION HAS NOT BEEN RE-
Insured who brought action against property in-
LEASED FOR PUBLICATION IN THE PER-
surer seeking additional benefits for hurricane dam-
MANENT LAW REPORTS. UNTIL RELEASED,
age to his home, and who obtained a final appraisal
IT IS SUBJECT TO REVISION OR WITHDRAW-
award entitling him to an additional payment, was
AL.
not entitled to prejudgment interest on the amount
paid pursuant to the appraisal award; insurer did not
District Court of Appeal of Florida, initially deny coverage of insured's claim, and in-
Fourth District. surer paid the appraisal award within 60 days after
Eugene GREEN, Appellant, it was filed, as required by the insurance contract.
v.
CITIZENS PROPERTY INSURANCE CORPORA-
Appeal from the Circuit Court for the Fifteenth Ju-
TION, Appellee.
dicial Circuit, Palm Beach County; Jack S. Cox,
No. 4D09–4021. Judge; L.T. Case No. 502007CA019711XXXXMB
May 11, 2011. NA.Nancy W. Gregoire of Kirschbaum, Birnbaum,
Lippman & Gregoire, PLLC, Fort Lauderdale, and
Background: Insured brought action against prop- Joshua A. Blacksten of Stabinski & Funt, P.A.,
erty insurer, seeking additional benefits for hur- West Palm Beach, for appellant.
ricane damage to his home. The parties participated
in the appraisal process, and a final appraisal award Kara Berard Rockenbach and Kristi L. Bergmann
was entered. After insurer paid the award, insurer of Methe & Rockenbach, P.A., West Palm Beach,
moved for prejudgment interest on the amount paid. for appellee.
The Fifteenth Judicial Circuit Court, Palm Beach
County, Jack S. Cox, J., denied the motion. Insured DAMOORGIAN, J.
appealed. *1 Eugene Green appeals the trial court's order
denying his motion for entitlement to prejudgment
Holding: The District Court of Appeal, Damoorgi-
interest and motion for rehearing. We affirm, find-
an, J., held that insured was not entitled to prejudg-
ing no error in the trial court's ruling that prejudg-
ment interest on the amount paid pursuant to the ap-
ment interest is allowed for actions from the date
praisal award.
the debt is due under the contract.
Affirmed.
Green, insured by Citizens Property Insurance
West Headnotes
Corporation (“Citizens”), filed a claim after his
Interest 219 39(2.35) home was damaged by Hurricane Frances in 2004.
Citizens appointed an adjuster and paid the estim-
219 Interest ated damages as found by the adjuster. Claiming
219III Time and Computation the payment was insufficient, Green and Citizens
219k39 Time from Which Interest Runs in engaged in mediation pursuant to their contract. As
General a result of the mediation, Citizens paid Green addi-
219k39(2.5) Prejudgment Interest in Gen- tional monies but less than the amount he sought.
Green then filed a civil action claiming that Cit-

Page 2
--- So.3d ----, 2011 WL 1775731 (Fla.App. 4 Dist.)
(Cite as: 2011 WL 1775731 (Fla.App. 4 Dist.))
izens denied him coverage and refused to pay the award within sixty days of the filing of the award,
remaining sums due under the policy. The court as required by the terms of the insurance contract,
stayed the underlying suit and ordered Citizens to Green was not entitled to prejudgment interest.
participate in the appraisal process. Ultimately, a fi-
nal appraisal award was entered. Pursuant to the *2 Affirmed.
loss payment provision of the parties' insurance
MAY and LEVINE, JJ., concur.
contract, Citizens was required to make payment
within sixty days after the filing of an appraisal Fla.App. 4 Dist.,2011.
award. Citizens paid Green the amount of the ap- Green v. Citizens Property Ins. Corp.
praisal award within sixty days of the filing of the --- So.3d ----, 2011 WL 1775731 (Fla.App. 4 Dist.)
award. Thereafter, Green filed a motion for pre-
judgment interest on the funds paid. The motion END OF DOCUMENT
was denied.
On appeal, Green argues that once Citizens un-

derpaid his claim on the two occasions preceding
the appraisal award, it waived the policy provision
allowing for deferred payment on the claim.
Moreover, once that provision was waived, the
claim became due from the date of loss and interest
would be due from that date. N. Point Ins. Co. v.
Tomas, 16 So.3d 977, 978–79 (Fla. 3d DCA 2009)
(“Once the insurer denies coverage, it is deemed to
have waived the policy provision for deferred pay-
ment and, should it pay, becomes responsible for
prejudgment interest from the date of loss.”).
We have recently held that ‘ “[i]t is the terms

of a contract for insurance which determine the date
from which the coverage payment is due, as well as
when interest is due on the amounts payable.’ “ El-
lie's 50's Diner, Inc., v. Citizens Prop. Ins. Corp.,
54 So.3d 1081, 1082 (Fla. 4th DCA 2011) (quoting
Citizens Prop. Ins. Corp. v. Mallett, 7 So.3d 552,
556 (Fla. 1st DCA 2009)). In Ellie's, as in the in-
stant case, Citizens timely paid the claim pursuant
to the appraisal process after first having paid the
insured an amount less than what was awarded. Id.
Green contends that we should be guided by the
Third District's holding in Tomas. We disagree be-
cause, unlike the instant case, in Tomas, the insurer
initially denied coverage, although it ultimately re-
versed its position and proceeded with the appraisal
process. That is not what occurred in this case.
Inasmuch as Citizens satisfied the appraisal

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834 So.2d 395, 28 Fla. L. Weekly D256

addressed merits of purchasers' case and which did

25T Alternative Dispute Resolution 25T Alternative Dispute Resolution

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In the instant case, Frier filed an answer, an af-

SHARP, W. and SAWAYA, JJ., concur.

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25T Alternative Dispute Resolution

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Cases Robert E. O'Quinn, Jr., and Susannah D. Morrison

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motion seeking to compel arbitration. Jalis Constr.,

AFFIRMED IN PART; REVERSED IN PART;

JOANOS and PADOVANO, JJ., CONCUR.

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courts instead of proceeding by arbitration as

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

[5] Contracts 95 303(1) of the American Arbitration Association is to de-

[6] Contracts 95 303(4) Section 682.03, Florida Statutes, provides in

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© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

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sumer signed the form agreement which included

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217XXVII Claims and Settlement Practices

West Headnotes Before LEVY and GREEN, JJ., and BARKDULL,

217 Insurance PER CURIAM.

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Fireman's Fund argues that its failure to timely

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respondence sent to insured one month after filing

Reversed and remanded.

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Esposito, 937 So.2d 199 (Fla. 4th DCA 2006)

Reversed and remanded.

NORTHCUTT, C.J., and KELLY, J., Concur.

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The cases relied on by the homeowners are

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provide its notice of intentions regarding manner in

No. 1D09-2940. 217 Insurance

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ROBERTS, J. days after we receive the sworn proof of loss.

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(Emphasis added.) Id. at 167.

[2] The instant case is distinguishable because

[3] Accordingly, because the insurance contract

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The purpose of statute governing the presuit

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