39 Fla. L. Weekly D2575a
to insurer’s contention that trial court should not have ordered appraisal
because the only dispute between parties was about the method of repair rather
than the amount of loss — Insureds did not waive appraisal by engaging in
litigation where coverage had initially been denied, and insureds demanded
appraisal less than a month after insurer acknowledged that insureds had
suffered a covered sinkhole loss — Trial court did not err in compelling
appraisal without an evidentiary hearing where underlying facts were
SILL, Appellees. 5th District. Case No. 5D13-3363. Opinion filed December 12,
2014. Non-Final Appeal from the Circuit Court for Hernando County, Richard
Tombrink, Jr., Judge. Counsel: Henry G. Gyden and Dorothy V. DiFiore, of Haas,
Lewis, DiFiore, P.A., Tampa, for Appellant. John M. Byrne, of Byrne Law Firm,
Tampa, for Appellees.
ON MOTION FOR REHEARING
and substitute this opinion in its stead.
participate in an appraisal in its sinkhole insurance dispute with Kenneth and
Kathryn Sill. FIGA contends that appraisal is inappropriate under the facts of
this case, the Sills waived their rights to appraisal, and the trial court
should have conducted an evidentiary hearing to determine whether an appraisable
issue existed. We affirm the order insofar as it compels appraisal.
Preferred Insurance Company. Their home sustained suspected sinkhole damage, but
HomeWise denied the claim. The Sills sued HomeWise in December 2010 for breach
of contract. HomeWise answered, denying that a sinkhole loss had occurred. In
December 2011, following HomeWise’s insolvency, the action was stayed when FIGA
was activated and assumed the Sills’ claim. In May 2012, the stay was lifted,
and FIGA was substituted as the defendant. In October 2012, the trial court
granted FIGA’s request for an additional stay pending the outcome of neutral
evaluation. The neutral evaluator concluded that sinkhole activity could not be
ruled out as a cause of the Sills’ loss, and recommended certain subsurface
repairs. On April 15, 2013, FIGA accepted coverage for the Sills’ loss by
letter. On May 13, the Sills wrote back, demanding appraisal. On July 30, the
Sills filed a motion to compel appraisal, which was granted.
appraisal because the only dispute between the parties was about the “method of
repair” rather than the “amount of loss.” In Florida Insurance Guaranty Ass’n
v. Branco, 148 So. 3d 488, 491-93 (Fla. 5th DCA 2014), we rejected virtually
identical arguments. We again reject these arguments.2
in extensive litigation from December 2010 to July 2013. We review this issue de
novo on the undisputed facts. Branco, 148 So. 3d at 493. Waiver of the
right to seek appraisal occurs when the party seeking appraisal actively
participates in a lawsuit or engages in conduct inconsistent with the right to
appraisal. See id. at 493 (citing Raymond James Fin. Servs.,
Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005)). As we explained in
the question of waiver of appraisal is not solely about the length
of time the case is pending or the number of filings the appraisal-seeking party
made. Instead, the primary focus is whether [the insureds] acted inconsistently
with their appraisal rights. Saldukas, 896 So. 2d at 711; see
Am. Capital Assur. Corp. v. Courtney Meadows Apartment, L.L.P., 36 So. 3d
704, 707 (Fla. 1st DCA 2010) (finding party did not waive right to appraisal as
party had not acted inconsistently with right from time of demand).
Unlike arbitration, “[a]ppraisal exists for a limited purpose-the
determination of ‘the amount of the loss.’ ” Citizens Prop. Ins. Corp. v.
Mango Hill #6 Condo. Ass’n, 117 So. 3d 1226, 1230 (Fla. 3d DCA 2013). Until
the insurer has a reasonable opportunity to investigate and adjust the claim,
there is no “disagreement” (for purposes of appraisal) regarding the value of
the property or the amount of loss to be appraised. Citizens Prop. Ins. Corp.
v. Galeria Villas Condo. Ass’n, 48 So. 3d 188, 191 (Fla. 3d DCA 2010)
(reversing prematurely-ordered appraisal). An insurer that denies coverage does
not need to seek appraisal before litigation because “[i]t would make no sense
to say that [the insurer] was required to request . . . appraisal on a loss it
had already refused to pay.” Gonzalez v. State Farm Fire & Cas. Co.,
805 So. 2d 814, 817 (Fla. 3d DCA 2000); see Chimerakis v. Sentry Ins.
Mut. Co., 804 So. 2d 476, 480 (Fla. 3d DCA 2001) (holding “an action to
compel appraisal does not accrue until the policy conditions precedent have been
performed or waived, and appraisal is then refused”). Absent contract language
to the contrary, we see no reason why the insured should not have the same
flexibility in cases when coverage is denied. But see Cypress Pointe
at Lake Orlando Condo. Ass’n v. Mt. Hawley Ins. Co., No.
6:10-cv-1459-Orl-36TBS, 2012 WL 6138993, at *2 (M.D. Fla. Nov. 19, 2012)
(finding insured acted inconsistently with appraisal right by pursuing
litigation for two years, though insurer consistently denied
agreed to comply with the neutral evaluator’s recommendations on April 15, 2013.
Because coverage had previously been denied, appraisal was not appropriate until
that time. Id. at 494 (determining appraisal not appropriate until
coverage conceded or determined). The Sills demanded appraisal less than a month
later and pursued no litigation activities in the interim. These undisputed
facts do not demonstrate waiver. See id. (finding no waiver
despite filing of discovery request).
without an evidentiary hearing. The issue of waiver may, at times, require a
hearing. See Doctors Assocs. v. Thomas, 898 So. 2d 159, 162 (Fla.
4th DCA 2005) (holding question of waiver reviewable for competent, substantial
evidence). However, when, as here, the underlying facts are undisputed, all that
remains is to apply the law to the facts, and no evidentiary hearing is
required. See Truly Nolen of Am., Inc. v. King Cole Condo. Ass’n,
143 So. 3d 1015, 1017 (Fla. 3d DCA 2014) (reviewing issue of waiver de novo
where facts undisputed); see also Bruce v. Reese, 431 F. App’x
805, 806 (11th Cir. 2011) (holding, in context of preliminary injunction, “[a]n
evidentiary hearing does not need to be held where the facts necessary to rule
on the motion are undisputed”).
We dismiss the appeal as to the remaining issues raised by FIGA as they are
outside our scope of review.
created by statute to provide a mechanism for payment of covered claims under
certain classes of insurance policies issued by insurers which have become
insolvent.” Fla. Ins. Guar. Ass’n v. Devon Neighborhood Ass’n, 67 So. 3d
187, 189 (Fla. 2011); see §§ 631.51, 631.55, Fla. Stat. (2011).
limits on its liability and having to directly pay the insureds in contravention
of section 631.54(3), Florida Statutes (2011). Our scope of review is limited to
determining whether the court erred in compelling appraisal. We have no
authority to decide whether the trial court applied the correct version of
section 631.54(3), Florida Statutes. See Fla. R. App. P. 9.130(3)(C)(iv)
(granting district court jurisdiction to review nonfinal order that determine
“entitlement of a party to . . . appraisal under an insurance policy”). However,
we note that the First District has recently addressed this issue. See
Fla. Ins. Guar. Ass’n v. Bernard, 140 So. 3d 1023 (Fla. 1st DCA 2014)
(collecting cases and holding that statutory definition of “covered claim” in
effect at time insurer is adjudicated insolvent determines scope of FIGA’s
liability under FIGA Act).
* * *