Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Steven A. Ochsner
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

September 19, 2019 by Jennifer Kennedy

Insurance — Homeowners — Appraisal — Insurer agreeing that a portion of claim was covered while also asserting that amount of loss did not exceed the deductible and that balance of claimed loss constituted pre-existing damage — Trial court erred in denying insurer’s motion to compel appraisal because insurer did not wholly deny coverage

44 Fla. L. Weekly D2304a

Insurance — Homeowners — Appraisal — Insurer agreeing that a portion of claim was covered while also asserting that amount of loss did not exceed the deductible and that balance of claimed loss constituted pre-existing damage — Trial court erred in denying insurer’s motion to compel appraisal because insurer did not wholly deny coverage

UNDERWRITERS AT LLOYD’S, LONDON, ICAT SYNDICATE 4242, Appellant, v. JOHN SORGENFREI AND DEANA SORGENFREI, Appellees. 5th District. Case No. 5D18-3002. Opinion filed September 13, 2019. Nonfinal Appeal from the Circuit Court for Brevard County, Jeffrey Mahl, Judge. Counsel: Micheala D. Scheihing, of Southeast Law Group, P.A., Daytona Beach, for Appellant. Matthew G. Struble and Christine D. Skubala, of Struble, P.A., Ft. Lauderdale, for Appellees.

(PER CURIAM.) Underwriters at Lloyd’s, London, (the Insurer) appeals the trial court’s nonfinal order denying its motion to compel appraisal. Because the Insurer did not wholly deny coverage for the loss, we reverse and remand for the trial court to enter an order compelling appraisal.

John Sorgenfrei and Deana Sorgenfrei (the Homeowners) insured their home with the Insurer. While the policy was in force, the home sustained damage as a result of Hurricane Irma, and the Homeowners claimed benefits under the policy. The Insurer admitted coverage under the policy but asserted that the loss did not exceed the named storm deductible and declined to make any payments on the claim.

The Homeowners subsequently sued the Insurer, alleging a breach of the insurance policy. In the answer, the Insurer again admitted coverage, but noted that the loss did not meet the required deductible. Additionally, the Insurer asserted the affirmative defense of pre-existing damage. The Insurer also filed a motion to compel appraisal, asserting its entitlement to an appraisal because the dispute involved the proper amount of loss under the policy. After a hearing, the court denied the motion to compel appraisal, and this appeal timely followed.

On appeal, the Insurer argues that the trial court erred in denying the motion to compel appraisal because it did not wholly deny coverage of the claim. Based on our de novo review, see People’s Tr. Ins. Co. v. Garcia, 263 So. 3d 231, 233 (Fla. 3d DCA 2019) (citing Mora v. Abraham Chevrolet-Tampa, Inc., 913 So. 2d 32, 33-34 (Fla. 2d DCA 2005)), we agree.

In Johnson v. Nationwide Mutual Insurance Co., 828 So. 2d 1021, 1022 (Fla. 2002), the Florida Supreme Court held that when an insurer does not wholly deny coverage, a disagreement between the parties as to causation presents an amount-of-loss issue to be determined, under the contract, by appraisal.

Here, the Homeowners filed a single claim under the policy, and the Insurer agreed that a portion of the claim was covered — while also asserting that the amount of loss did not exceed the deductible and that the balance of the claimed loss constituted pre-existing damage. As such, the Insurer did not wholly deny coverage. See First Protective Ins. Co. v. Colucciello, 44 Fla. L. Weekly D1810, D1810 (Fla. 5th DCA July 12, 2019); Garcia, 263 So. 3d at 236-38. Thus, the trial court erred in refusing to compel an appraisal.1

Accordingly, we reverse the trial court’s order and remand with directions to compel an appraisal.

REVERSED and REMANDED for further proceedings. (ORFINGER, EISNAUGLE, and GROSSHANS, JJ., concur.)

__________________

1We reject, without discussion, the Homeowners’ tipsy coachman argument that the Insurer waived its right to appraisal.

* * *

Filed Under: Articles

Primary Sidebar

Recent Posts

  • Insurance — Homeowners — Attorney’s fees — Trial court erred in awarding attorney’s fees and costs in favor of insureds where filing of lawsuit was not a necessary catalyst to resolve dispute — Where insurer admitted coverage for damage to interior of home, but denied coverage for damage to roof, the dispute over cause of loss to roof was an amount of loss issue for appraisers, not a coverage issue for court — Where insurer demanded appraisal prior to filing of lawsuit by insured, and indicated that it would repair any damage awarded in appraisal, the filing of lawsuit was not a necessary catalyst to resolve dispute over roof damage
  • Insurance — Commercial liability — Exclusions — Assault and battery — Insurer had no duty to defend insured in action alleging injury arising out of assault and battery on insured’s premises where policy contained endorsement excluding coverage for injury arising out of or resulting from assault or battery
  • Insurance — Homeowners — Appraisal — Assignees — No error in finding that appraisal provision of insured’s homeowner’s policy applied to insured’s assignee and granting insurer’s motion to compel appraisal — Policy did not classify appraisal as a duty of the insured — Assignee received an assignment that entitled it to receipt of payment from insurer, and concomitant with that right was its duty to comply with the conditions of the contract that afforded it payment
  • Insurance — Homeowners — Water damage — Post-loss obligations — Sworn proof of loss — Trial court erred in entering summary judgment in favor of insurer after finding that insureds had forfeited their policy coverage for failure to provide a sworn proof of loss — Policy did not eliminate duty of insured to provide sworn proof of loss where insurer opted to repair — However, because insureds complied to some extent with policy requirements, and policy required insurer to prove it was prejudiced by insureds’ failure to provide sworn proof of loss, material issues of fact remain
  • Insurance — Homeowners — Watercraft exclusion — No error in determining that watercraft exclusion in the insureds’ homeowners’ insurance policy precluded coverage for injuries sustained by a third party in a boating accident that occurred when the insured son, who had permission to use the boat from the insured father, allowed another third party to pilot the boat while intoxicated — The only applicable exception to the watercraft exclusion unambiguously states that the watercraft exclusion does not apply if the outboard engine or motor is not owned by an insured, and the boat and engine in this case were owned by the insured father — Severability clause, which provides that the policy “applies separately to each insured,” did not render watercraft exclusion ambiguous — Exceptions to the watercraft exclusion are not dependent on the insured who seeks coverage, but on the nature of the watercraft at issue

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2021 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982