43
Fla. L. Weekly D200aTop of Form
Fla. L. Weekly D200aTop of Form
Insurance
— Homeowners — Sinkhole claim — Bad faith — An insured is not required to
wait until the appraisal process is completed before filing a civil remedy
notice — The filing of a civil remedy notice before the appraisal process is
complete and damages are determined does not render the CRN a legal nullity,
thereby precluding a bad faith claim
— Homeowners — Sinkhole claim — Bad faith — An insured is not required to
wait until the appraisal process is completed before filing a civil remedy
notice — The filing of a civil remedy notice before the appraisal process is
complete and damages are determined does not render the CRN a legal nullity,
thereby precluding a bad faith claim
PHILLIP LANDERS, Appellant, v. STATE
FARM FLORIDA INSURANCE COMPANY, Appellee. 5th District. Case No. 5D15-4032.
Opinion filed January 19, 2018. Appeal from the Circuit Court for Seminole
County, Jessica J. Recksiedler, Judge. Counsel: George A. Vaka and Nancy A. Lauten,
of Vaka Law Group, PL, Tampa, and Kelly L. Kubiak, of Merlin Law Group, Tampa,
for Appellant. Matthew J. Lavisky, Anthony J. Russo and Lee Craig, of Butler
Weihmuller Katz Craig LLP, for Appellee.
FARM FLORIDA INSURANCE COMPANY, Appellee. 5th District. Case No. 5D15-4032.
Opinion filed January 19, 2018. Appeal from the Circuit Court for Seminole
County, Jessica J. Recksiedler, Judge. Counsel: George A. Vaka and Nancy A. Lauten,
of Vaka Law Group, PL, Tampa, and Kelly L. Kubiak, of Merlin Law Group, Tampa,
for Appellant. Matthew J. Lavisky, Anthony J. Russo and Lee Craig, of Butler
Weihmuller Katz Craig LLP, for Appellee.
ON MOTION
FOR REHEARING
FOR REHEARING
(COHEN, C.J.) Upon consideration of
Appellee State Farm Florida Insurance Company’s Motion for Rehearing, we grant
the motion, withdraw our prior opinion, and substitute this one in its place.
Appellee State Farm Florida Insurance Company’s Motion for Rehearing, we grant
the motion, withdraw our prior opinion, and substitute this one in its place.
In this appeal, we consider whether,
when an insurance contract provides for an appraisal process, an insured must
wait until that process is completed before filing a civil remedy notice
pursuant to section 624.155, Florida Statutes (2008). Because we find no such
limitation in the statute or relevant case law, we reverse.
when an insurance contract provides for an appraisal process, an insured must
wait until that process is completed before filing a civil remedy notice
pursuant to section 624.155, Florida Statutes (2008). Because we find no such
limitation in the statute or relevant case law, we reverse.
In 2009, Phillip Landers’s home
sustained a loss from suspected sinkhole activity. He submitted a claim to his
insurer, State Farm Florida Insurance Company (“State Farm”).1 State Farm hired SDII Global Corporation
(“SDII”) to conduct a subsidence investigation. SDII verified that sinkhole
activity was the cause of the damage, and State Farm admitted coverage. SDll
initially concluded that 975 cubic yards of grout needed to be injected into
forty-nine holes around the home’s perimeter. SDII did not recommend
underpinning. After considering the report of a neutral evaluator from the
Department of Financial Services pursuant to section 627.7074, Florida Statutes
(2008), SDII amended its report to require an additional fifteen grout
injection points.
sustained a loss from suspected sinkhole activity. He submitted a claim to his
insurer, State Farm Florida Insurance Company (“State Farm”).1 State Farm hired SDII Global Corporation
(“SDII”) to conduct a subsidence investigation. SDII verified that sinkhole
activity was the cause of the damage, and State Farm admitted coverage. SDll
initially concluded that 975 cubic yards of grout needed to be injected into
forty-nine holes around the home’s perimeter. SDII did not recommend
underpinning. After considering the report of a neutral evaluator from the
Department of Financial Services pursuant to section 627.7074, Florida Statutes
(2008), SDII amended its report to require an additional fifteen grout
injection points.
Landers obtained an independent
opinion from Biller Reinhart Structural Group (“Reinhart”). In Reinhart’s
opinion, proper stabilization required underpinning.2 State Farm provided Reinhart’s report
for review by the neutral evaluator. The neutral evaluator concluded that
underpinning was unwarranted. While State Farm demanded appraisal under the
policy to resolve the parties’ disagreement over the amount of the loss,3 Landers agreed, pursuant to the terms
of the insurance contract, to proceed with SDll’s recommended repair plan,
despite his belief that the repairs were inadequate. State Farm placed its
appraisal demand on hold while the stabilization repairs were made. Further
appraisal would be required to address cosmetic repairs to the home.
opinion from Biller Reinhart Structural Group (“Reinhart”). In Reinhart’s
opinion, proper stabilization required underpinning.2 State Farm provided Reinhart’s report
for review by the neutral evaluator. The neutral evaluator concluded that
underpinning was unwarranted. While State Farm demanded appraisal under the
policy to resolve the parties’ disagreement over the amount of the loss,3 Landers agreed, pursuant to the terms
of the insurance contract, to proceed with SDll’s recommended repair plan,
despite his belief that the repairs were inadequate. State Farm placed its
appraisal demand on hold while the stabilization repairs were made. Further
appraisal would be required to address cosmetic repairs to the home.
After the repairs were completed in
September 2011, State Farm reiterated its request for appraisal of the cosmetic
damage to the home. The home continued to experience damage after repairs were
completed. As a result, Landers hired Sonny Gulati, a geotechnical engineer, to
examine the property. In January 2012, while Gulati’s report was pending,
Landers filed a civil remedy notice (“CRN”), alleging, among other things,
claim delay, failure to promptly and properly investigate the claim, failure to
adjust the loss, and the failure to tender policy limits. Landers contended
that the repairs were completed pursuant to State Farm’s expert’s
recommendation, yet his home remained unlivable. Landers demanded the immediate
tender of “the policy limits for dwelling . . . of $1,026,500.00 minus any
prior payments that have been made to the insured . . . so that [Landers] may
adequately complete the repairs [he] has started to [his] home.” In response,
State Farm requested that all issues be submitted to appraisal.
September 2011, State Farm reiterated its request for appraisal of the cosmetic
damage to the home. The home continued to experience damage after repairs were
completed. As a result, Landers hired Sonny Gulati, a geotechnical engineer, to
examine the property. In January 2012, while Gulati’s report was pending,
Landers filed a civil remedy notice (“CRN”), alleging, among other things,
claim delay, failure to promptly and properly investigate the claim, failure to
adjust the loss, and the failure to tender policy limits. Landers contended
that the repairs were completed pursuant to State Farm’s expert’s
recommendation, yet his home remained unlivable. Landers demanded the immediate
tender of “the policy limits for dwelling . . . of $1,026,500.00 minus any
prior payments that have been made to the insured . . . so that [Landers] may
adequately complete the repairs [he] has started to [his] home.” In response,
State Farm requested that all issues be submitted to appraisal.
In March 2012, Landers brought suit
against State Farm for breach of contract. In that suit, State Farm sought to
compel appraisal, which Landers opposed. The circuit court compelled appraisal,
and Landers appealed from that order. This Court affirmed. Landers v. State
Farm Fla. Ins. Co., 149 So. 3d 33 (Fla. 5th DCA 2014). In July 2014, the
appraisal panel determined that the amount of loss exceeded the policy limits.
State Farm tendered the policy limits in August 2014, without any deduction for
the amounts previously paid.
against State Farm for breach of contract. In that suit, State Farm sought to
compel appraisal, which Landers opposed. The circuit court compelled appraisal,
and Landers appealed from that order. This Court affirmed. Landers v. State
Farm Fla. Ins. Co., 149 So. 3d 33 (Fla. 5th DCA 2014). In July 2014, the
appraisal panel determined that the amount of loss exceeded the policy limits.
State Farm tendered the policy limits in August 2014, without any deduction for
the amounts previously paid.
Landers then brought the underlying
first-party bad-faith suit against State Farm, alleging ten purported
violations of sections 624.155(1)(b)(1) and 626.9541(1)(i), Florida Statutes
(2008), including allegations of claim delay and low-balling. Landers contended
that his damages always exceeded the policy limits and that State Farm acted in
bad faith by delaying payment of the policy limits until after appraisal.
first-party bad-faith suit against State Farm, alleging ten purported
violations of sections 624.155(1)(b)(1) and 626.9541(1)(i), Florida Statutes
(2008), including allegations of claim delay and low-balling. Landers contended
that his damages always exceeded the policy limits and that State Farm acted in
bad faith by delaying payment of the policy limits until after appraisal.
State Farm moved for summary
judgment. State Farm asserted that when Landers filed the CRN, “there was no
contractual amount due and no damages owed under the contract” because a
condition precedent to payment — determining the amount of loss through
appraisal — had not been fulfilled. Therefore, the CRN was not valid and
Landers had no claim. The trial court granted summary judgment, but the order
granting summary judgment contained no explanation, findings of fact, or
conclusions of law.4 This appeal followed.
judgment. State Farm asserted that when Landers filed the CRN, “there was no
contractual amount due and no damages owed under the contract” because a
condition precedent to payment — determining the amount of loss through
appraisal — had not been fulfilled. Therefore, the CRN was not valid and
Landers had no claim. The trial court granted summary judgment, but the order
granting summary judgment contained no explanation, findings of fact, or
conclusions of law.4 This appeal followed.
This Court reviews orders granting
summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, 760
So. 2d 126, 130 (Fla. 2000). The issue presented on appeal is primarily a
question of law: whether the insurer’s demand for appraisal tolls the filing of
a CRN until the amount of the appraisal has been established. State Farm
asserts the CRN was void because Landers’s claim was not yet ripe.5
summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, 760
So. 2d 126, 130 (Fla. 2000). The issue presented on appeal is primarily a
question of law: whether the insurer’s demand for appraisal tolls the filing of
a CRN until the amount of the appraisal has been established. State Farm
asserts the CRN was void because Landers’s claim was not yet ripe.5
Bad-faith claims are governed by
section 624.155, Florida Statutes (2008). Section 624.155(1) provides that:
section 624.155, Florida Statutes (2008). Section 624.155(1) provides that:
(1) Any
person may bring a civil action against an insurer when such person is damaged:
person may bring a civil action against an insurer when such person is damaged:
. . . .
(b) By the
commission of any of the following acts by the insurer:
commission of any of the following acts by the insurer:
1. Not
attempting in good faith to settle claims when, under all the circumstances, it
could and should have done so, had it acted fairly and honestly toward its
insured and with due regard for her or his interests . . . .
attempting in good faith to settle claims when, under all the circumstances, it
could and should have done so, had it acted fairly and honestly toward its
insured and with due regard for her or his interests . . . .
§ 624.155(1)(b)1., Fla. Stat.
As a condition precedent to bringing
such an action, Florida’s Department of Financial Services and the insurer must
be given sixty days’ written notice of the claim. See id. §
624.155(3)(a). The CRN must set forth the specific statutory provision the
insurer allegedly violated, the facts giving rise to the violation, the
relevant policy language, and a statement that the notice is given to perfect
the right to pursue the civil remedy authorized by the statute. Id. §
624.155(3)(b). During the sixty-day period, the insurer has an opportunity to
cure the alleged violation — no action will lie if, within those sixty days, “the
damages are paid or the circumstances giving rise to the violation are
corrected.”6 See id. § 624.155(3)(d).
such an action, Florida’s Department of Financial Services and the insurer must
be given sixty days’ written notice of the claim. See id. §
624.155(3)(a). The CRN must set forth the specific statutory provision the
insurer allegedly violated, the facts giving rise to the violation, the
relevant policy language, and a statement that the notice is given to perfect
the right to pursue the civil remedy authorized by the statute. Id. §
624.155(3)(b). During the sixty-day period, the insurer has an opportunity to
cure the alleged violation — no action will lie if, within those sixty days, “the
damages are paid or the circumstances giving rise to the violation are
corrected.”6 See id. § 624.155(3)(d).
There are three prerequisites to
filing a statutory bad-faith claim: (1) determination of the insurer’s
liability for coverage; (2) determination of the extent of the insured’s
damages; and (3) the required notice must be filed under section 624.155(3)(a).
See Cammarata v. State Farm Fla. Ins. Co., 152 So. 3d 606, 612 (Fla. 4th
DCA 2014). The settlement of a sinkhole claim via the appraisal process is
sufficient to satisfy the first two requirements. See id. (finding that
appraisal award was “ ‘favorable resolution’ of an action for insurance
benefits, so that [the insured] . . . satisfied the necessary prerequisite to
filing a bad faith claim” (alteration in original) (quoting Trafalgar at
Greenacres, Ltd. v. Zurich Am. Ins. Co., 100 So. 3d 1155, 1158 (Fla. 4th DCA
2012))).7
filing a statutory bad-faith claim: (1) determination of the insurer’s
liability for coverage; (2) determination of the extent of the insured’s
damages; and (3) the required notice must be filed under section 624.155(3)(a).
See Cammarata v. State Farm Fla. Ins. Co., 152 So. 3d 606, 612 (Fla. 4th
DCA 2014). The settlement of a sinkhole claim via the appraisal process is
sufficient to satisfy the first two requirements. See id. (finding that
appraisal award was “ ‘favorable resolution’ of an action for insurance
benefits, so that [the insured] . . . satisfied the necessary prerequisite to
filing a bad faith claim” (alteration in original) (quoting Trafalgar at
Greenacres, Ltd. v. Zurich Am. Ins. Co., 100 So. 3d 1155, 1158 (Fla. 4th DCA
2012))).7
State Farm argues that the CRN is
not effective until all of the contractual preconditions to suit are met and
there has been a final determination of coverage and the amount owed. The plain
language of section 624.155(3)(d) provides no time limitation for when a CRN
may be filed and does not require a final determination of coverage and damages
before it is filed. The statute simply states that “no action shall lie” if the
bad-faith allegation is corrected or the damages are paid within sixty days of
the insurer receiving the notice.
not effective until all of the contractual preconditions to suit are met and
there has been a final determination of coverage and the amount owed. The plain
language of section 624.155(3)(d) provides no time limitation for when a CRN
may be filed and does not require a final determination of coverage and damages
before it is filed. The statute simply states that “no action shall lie” if the
bad-faith allegation is corrected or the damages are paid within sixty days of
the insurer receiving the notice.
This case is controlled by Vest
v. Travelers Insurance Co., 753 So. 2d 1270, 1272 (Fla. 2000). In Vest,
the Florida Supreme Court expressly noted that under section 624.155, “there is
no statutory requirement which prevents the insured from sending the statutory
notice before there is a determination of liability or damages. Nor is the
insurer’s appropriate response to that notice dependant on such a
determination.” 753 So. 2d at 1275. Vest clarifies that the purpose of
the CRN is to facilitate and encourage good-faith efforts to timely settle
claims before litigation, not to vindicate continuing efforts to delay. Filing
a CRN before the appraisal process is complete and damages are determined does
not render the CRN a legal nullity, precluding Landers’s bad-faith claim.8
v. Travelers Insurance Co., 753 So. 2d 1270, 1272 (Fla. 2000). In Vest,
the Florida Supreme Court expressly noted that under section 624.155, “there is
no statutory requirement which prevents the insured from sending the statutory
notice before there is a determination of liability or damages. Nor is the
insurer’s appropriate response to that notice dependant on such a
determination.” 753 So. 2d at 1275. Vest clarifies that the purpose of
the CRN is to facilitate and encourage good-faith efforts to timely settle
claims before litigation, not to vindicate continuing efforts to delay. Filing
a CRN before the appraisal process is complete and damages are determined does
not render the CRN a legal nullity, precluding Landers’s bad-faith claim.8
Preventing an insured from filing a
CRN before coverage and liability have been conclusively established would
frustrate the purpose of the statute by further delaying the time necessary to
assess and pay out claims and discouraging insurers from taking timely,
independent action on claims. Accordingly, we find that pursuant to the plain
language of section 624.155(1)(d), the fact that the appraisal process is
ongoing does not render a CRN filed during that process a legal nullity. Once
the appraisal process is complete, and a legally sufficient CRN had previously
been provided, the conditions precedent to filing a statutory bad-faith claim
are met. Cf. Cammarata, 152 So. 3d at 612.
CRN before coverage and liability have been conclusively established would
frustrate the purpose of the statute by further delaying the time necessary to
assess and pay out claims and discouraging insurers from taking timely,
independent action on claims. Accordingly, we find that pursuant to the plain
language of section 624.155(1)(d), the fact that the appraisal process is
ongoing does not render a CRN filed during that process a legal nullity. Once
the appraisal process is complete, and a legally sufficient CRN had previously
been provided, the conditions precedent to filing a statutory bad-faith claim
are met. Cf. Cammarata, 152 So. 3d at 612.
In this case, Landers filed his CRN
before the appraisal process was complete. State Farm did not cure the alleged
violation within the sixty-day window in section 624.155(3)(d). Landers’s
position is that had State Farm properly investigated his claim, it would have
known that the subsurface repair plan was inadequate. Whether State Farm
actually acted in bad faith in resolving his claim presents a question of fact
that remains to be resolved. Yet, nothing in the statute or case law precludes
the filing of a CRN while a demand for appraisal is outstanding. We reverse the
order granting summary judgment and remand for further proceedings.
before the appraisal process was complete. State Farm did not cure the alleged
violation within the sixty-day window in section 624.155(3)(d). Landers’s
position is that had State Farm properly investigated his claim, it would have
known that the subsurface repair plan was inadequate. Whether State Farm
actually acted in bad faith in resolving his claim presents a question of fact
that remains to be resolved. Yet, nothing in the statute or case law precludes
the filing of a CRN while a demand for appraisal is outstanding. We reverse the
order granting summary judgment and remand for further proceedings.
REVERSED and REMANDED. (NICHOLS, D.,
Associate Judge, concurs, and concurs specially with opinion. BERGER, J.,
concurs in part and dissents in part, with opinion.)
Associate Judge, concurs, and concurs specially with opinion. BERGER, J.,
concurs in part and dissents in part, with opinion.)
__________________
1Landers’s
policy provided coverage in excess of $1,000,000.
policy provided coverage in excess of $1,000,000.
2The
neutral evaluator’s cost of remediation was estimated at approximately
$350,000. Reinhart’s cost of remediation was closer to $1,000,000.
neutral evaluator’s cost of remediation was estimated at approximately
$350,000. Reinhart’s cost of remediation was closer to $1,000,000.
3The
appraisal clause of the insurance policy stated:
appraisal clause of the insurance policy stated:
If you and we fail to agree on the amount of loss, either
one can demand that the amount of the loss be set by appraisal. If either makes
a written demand for appraisal, each shall select a competent, disinterested
appraiser. Each shall notify the other of the appraiser’s identity within 20
days of receipt of the written demand. The two appraisers shall then select a
competent, impartial umpire. . . . The appraisers shall then set the amount of
the loss. If the appraisers fail to agree within a reasonable time, they shall
submit their differences to the umpire. Written agreement signed by any two of
these three shall set the amount of the loss.
one can demand that the amount of the loss be set by appraisal. If either makes
a written demand for appraisal, each shall select a competent, disinterested
appraiser. Each shall notify the other of the appraiser’s identity within 20
days of receipt of the written demand. The two appraisers shall then select a
competent, impartial umpire. . . . The appraisers shall then set the amount of
the loss. If the appraisers fail to agree within a reasonable time, they shall
submit their differences to the umpire. Written agreement signed by any two of
these three shall set the amount of the loss.
4The only
reasoning provided by the court was at the summary judgment hearing, where the
court appears to have adopted State Farm’s theory that the CRN was void because
it was filed before the appraisal was complete.
reasoning provided by the court was at the summary judgment hearing, where the
court appears to have adopted State Farm’s theory that the CRN was void because
it was filed before the appraisal was complete.
5State Farm
argues alternatively that the CRN was invalid because it failed to comply with
the bad-faith statute. Because we cannot determine whether the court ruled on
this basis, we decline to address this issue for the first time on appeal. It
also is not clear whether the trial court determined if State Farm’s handling
of the claim constituted bad faith. Statutory bad-faith claims generally
involve fact-intensive disputes that are resolved under a “totality of the
circumstances” standard. State Farm Mut. Auto. Ins. Co. v. LaForet, 658
So. 2d 55, 62-63 (Fla. 1995); Menchise v. Liberty Mut. Ins. Co., 932 So.
2d 1130, 1133 (Fla. 2d DCA 2006). It is the rare case where “the facts . . .
allow a court to rule on a bad faith claim as a matter of law at summary
judgment.” Kearney v. Auto-Owners Ins. Co., 664 F. Supp. 2d 1234, 1243
(M.D. Fla. 2009). Therefore, both of these issues may be addressed on remand.
argues alternatively that the CRN was invalid because it failed to comply with
the bad-faith statute. Because we cannot determine whether the court ruled on
this basis, we decline to address this issue for the first time on appeal. It
also is not clear whether the trial court determined if State Farm’s handling
of the claim constituted bad faith. Statutory bad-faith claims generally
involve fact-intensive disputes that are resolved under a “totality of the
circumstances” standard. State Farm Mut. Auto. Ins. Co. v. LaForet, 658
So. 2d 55, 62-63 (Fla. 1995); Menchise v. Liberty Mut. Ins. Co., 932 So.
2d 1130, 1133 (Fla. 2d DCA 2006). It is the rare case where “the facts . . .
allow a court to rule on a bad faith claim as a matter of law at summary
judgment.” Kearney v. Auto-Owners Ins. Co., 664 F. Supp. 2d 1234, 1243
(M.D. Fla. 2009). Therefore, both of these issues may be addressed on remand.
6In Talat
Enterprises, Inc. v. Aetna Casualty & Surety Co., 753 So. 2d 1278, 1284
(Fla. 2000), the Florida Supreme Court explained that, “in creating this
statutory remedy for bad-faith actions, the Legislature provided this sixty day
window as a last opportunity for insurers to comply with their claim-handling
obligations when a good-faith decision by the insurer would indicate that
contractual benefits are owed.” Furthermore, “[t]he purpose of the civil remedy
notice is to give the insurer one last chance to settle a claim with its
insured and avoid unnecessary bad faith litigation — not to give the insured a
right of action to proceed against the insurer even after the insured’s claim
has been paid or resolved.” Lane v. Westfield Ins. Co., 862 So. 2d 774,
779 (Fla. 5th DCA 2003).
Enterprises, Inc. v. Aetna Casualty & Surety Co., 753 So. 2d 1278, 1284
(Fla. 2000), the Florida Supreme Court explained that, “in creating this
statutory remedy for bad-faith actions, the Legislature provided this sixty day
window as a last opportunity for insurers to comply with their claim-handling
obligations when a good-faith decision by the insurer would indicate that
contractual benefits are owed.” Furthermore, “[t]he purpose of the civil remedy
notice is to give the insurer one last chance to settle a claim with its
insured and avoid unnecessary bad faith litigation — not to give the insured a
right of action to proceed against the insurer even after the insured’s claim
has been paid or resolved.” Lane v. Westfield Ins. Co., 862 So. 2d 774,
779 (Fla. 5th DCA 2003).
In Talat, the insured
obtained an appraisal award that was paid in full before the insured ever filed
a CRN. 753 So. 2d at 1283. Accordingly, the insured did not have a statutory
bad-faith claim in that case because the insurer remedied the claim before the
expiration of the sixty-day period following the CRN. Talat did not
address and does not stand for the proposition that a CRN filed after appraisal
has been demanded is a legal nullity as State Farm argues.
obtained an appraisal award that was paid in full before the insured ever filed
a CRN. 753 So. 2d at 1283. Accordingly, the insured did not have a statutory
bad-faith claim in that case because the insurer remedied the claim before the
expiration of the sixty-day period following the CRN. Talat did not
address and does not stand for the proposition that a CRN filed after appraisal
has been demanded is a legal nullity as State Farm argues.
7The trial
court correctly relied on Cammarata for the proposition that a bad-faith
claim is not ripe until the appraisal process is complete. However, a finding
that an action is not ripe does not mean that the CRN was not appropriately
filed.
court correctly relied on Cammarata for the proposition that a bad-faith
claim is not ripe until the appraisal process is complete. However, a finding
that an action is not ripe does not mean that the CRN was not appropriately
filed.
8Federal
courts that have addressed this issue likewise have reached the merits of
bad-faith claims, even when the CRN was filed after the invocation of
appraisal. See Fox Haven of Foxfire Condo. IV Ass’n v. Nationwide Mut. Fire
Ins. Co., No. 2:13-CV-399-FTM-29CM, 2015 WL 667935, at *1 (M.D. Fla. Feb.
17, 2015) (denying insurer’s motion for summary judgment as facts did not
demonstrate that insurer acted in good faith as a matter of law; insured
demanded appraisal and then filed CRN while the appraisal process was ongoing);
see also 316, Inc. v. Maryland Cas. Co., 625 F. Supp. 2d 1187, 1193
(N.D. Fla. 2008).
courts that have addressed this issue likewise have reached the merits of
bad-faith claims, even when the CRN was filed after the invocation of
appraisal. See Fox Haven of Foxfire Condo. IV Ass’n v. Nationwide Mut. Fire
Ins. Co., No. 2:13-CV-399-FTM-29CM, 2015 WL 667935, at *1 (M.D. Fla. Feb.
17, 2015) (denying insurer’s motion for summary judgment as facts did not
demonstrate that insurer acted in good faith as a matter of law; insured
demanded appraisal and then filed CRN while the appraisal process was ongoing);
see also 316, Inc. v. Maryland Cas. Co., 625 F. Supp. 2d 1187, 1193
(N.D. Fla. 2008).
__________________
(NICHOLS, D., Associate Judge,
concurring specially, with opinion.) I concur with the opinion of the Court and
write to specifically address the “Loss Payment” provision of the insurance
contract.
concurring specially, with opinion.) I concur with the opinion of the Court and
write to specifically address the “Loss Payment” provision of the insurance
contract.
It is undisputed that there is a
provision in the insurance contract that provides in the event of a
disagreement:
provision in the insurance contract that provides in the event of a
disagreement:
[l]oss
will be payable: . . . 60 days after [insurer] receive[s] [insured’s] proof of
loss and:
will be payable: . . . 60 days after [insurer] receive[s] [insured’s] proof of
loss and:
(1) there
is an entry of a final judgment; or
is an entry of a final judgment; or
(2) there
is a filing on an appraisal award with us.
is a filing on an appraisal award with us.
As stated by the majority, bad-faith
claims are governed by section 624.155, Florida Statutes. Although State Farm paid
the claim within sixty days of the appraisal award, section 624.155(b)(1)
specifically provides:
claims are governed by section 624.155, Florida Statutes. Although State Farm paid
the claim within sixty days of the appraisal award, section 624.155(b)(1)
specifically provides:
(1) Any
person may bring a civil action against an insurer when such person is damaged:
person may bring a civil action against an insurer when such person is damaged:
. . . .
(b) By the
commission of any of the following acts by the insurer:
commission of any of the following acts by the insurer:
1. Not
attempting in good faith to settle claims when, under all the circumstances, it
could and should have done so, had it acted fairly and honestly toward its
insured and with due regard for her or his interests . . . .
attempting in good faith to settle claims when, under all the circumstances, it
could and should have done so, had it acted fairly and honestly toward its
insured and with due regard for her or his interests . . . .
§ 624.155(1)(b)1., Fla. Stat.
(2008).
(2008).
State Farm argues that because it
paid the claim within sixty days of the completion of the appraisal process as
set forth in the insurance contract, it is immune from the application of
section 624.155. No language in the statute or the contract prohibited Landers
from filing a civil remedy notice under the circumstances of this case.
paid the claim within sixty days of the completion of the appraisal process as
set forth in the insurance contract, it is immune from the application of
section 624.155. No language in the statute or the contract prohibited Landers
from filing a civil remedy notice under the circumstances of this case.
State Farm’s position implies that
an insurer could cause delays, or otherwise act in bad faith, so long as
payment was made within the sixty-day time period of the appraisal award with
impunity. State Farm’s position would render the bad-faith statute meaningless.
an insurer could cause delays, or otherwise act in bad faith, so long as
payment was made within the sixty-day time period of the appraisal award with
impunity. State Farm’s position would render the bad-faith statute meaningless.
No opinion is expressed on the
merits of Lander’s bad-faith cause of action. As the majority aptly concludes,
“[w]hether State Farm actually acted in bad faith in resolving the claim
presents a question of fact that remains to be resolved.”
merits of Lander’s bad-faith cause of action. As the majority aptly concludes,
“[w]hether State Farm actually acted in bad faith in resolving the claim
presents a question of fact that remains to be resolved.”
__________________
(BERGER, J., concurring in part and
dissenting in part, with opinion.) I agree with the majority that nothing
precludes the filing of a CRN while a demand for appraisal is outstanding.
However, because I also agree with the trial court that no bad faith claim can
be maintained under the facts of this case, I would affirm the order granting
summary judgment. Accordingly, in all other respects, I dissent.
dissenting in part, with opinion.) I agree with the majority that nothing
precludes the filing of a CRN while a demand for appraisal is outstanding.
However, because I also agree with the trial court that no bad faith claim can
be maintained under the facts of this case, I would affirm the order granting
summary judgment. Accordingly, in all other respects, I dissent.
* * *