40 Fla. L. Weekly D2595bTop of Form
Insurance
— Trial court erred in entering summary judgment in favor of insured in
insured’s breach of contract action against insurer where there was a question
as to whether insurer knew that insured disputed the amount of loss, and
therefore a genuine issue of material fact as to whether insured was forced to
file suit — Insurer’s voluntary payment of appraisal award did not constitute
an automatic confession of judgment — Insurer’s payment of appraisal award is
a confession of judgment only if the insured was forced to file the lawsuit to
resolve the claim — Discovery — Trial court also erred by granting insured’s
motion for protective order against insurer’s request for production of
documents
— Trial court erred in entering summary judgment in favor of insured in
insured’s breach of contract action against insurer where there was a question
as to whether insurer knew that insured disputed the amount of loss, and
therefore a genuine issue of material fact as to whether insured was forced to
file suit — Insurer’s voluntary payment of appraisal award did not constitute
an automatic confession of judgment — Insurer’s payment of appraisal award is
a confession of judgment only if the insured was forced to file the lawsuit to
resolve the claim — Discovery — Trial court also erred by granting insured’s
motion for protective order against insurer’s request for production of
documents
STATE FARM FLORIDA INSURANCE COMPANY, Appellant, v. LIME BAY
CONDOMINIUM, INC., Appellee. 4th District. Case No. 4D13-4802. November 18,
2015. Appeal from the Circuit Court for the Seventeenth Judicial Circuit;
Thomas Lynch, IV, Judge; L.T. Case No. 07-005044 CACE (05). Counsel: Elizabeth
K. Russo of Russo Appellate Firm, P.A., Miami, and Green, Ackerman & Frost,
P.A., Boca Raton, for appellant. Michael O. Colgan of Katzman Garfinkel,
Maitland, for appellee.
CONDOMINIUM, INC., Appellee. 4th District. Case No. 4D13-4802. November 18,
2015. Appeal from the Circuit Court for the Seventeenth Judicial Circuit;
Thomas Lynch, IV, Judge; L.T. Case No. 07-005044 CACE (05). Counsel: Elizabeth
K. Russo of Russo Appellate Firm, P.A., Miami, and Green, Ackerman & Frost,
P.A., Boca Raton, for appellant. Michael O. Colgan of Katzman Garfinkel,
Maitland, for appellee.
(BOORAS, TED, Associate Judge.) State Farm Florida Insurance
Company (“State Farm”) appeals the final summary judgment entered in favor of
Lime Bay Condominium, Inc. (“Lime Bay”) in this breach of contract action. We
reverse because a genuine issue of material fact remains as to whether Lime Bay
was forced to file the breach of contract suit.
Company (“State Farm”) appeals the final summary judgment entered in favor of
Lime Bay Condominium, Inc. (“Lime Bay”) in this breach of contract action. We
reverse because a genuine issue of material fact remains as to whether Lime Bay
was forced to file the breach of contract suit.
In October 2005, as a result of Hurricane Wilma, Lime Bay’s
condominiums sustained roof damage and Lime Bay filed a claim with State Farm.
During the loss adjustment process, Lime Bay obtained a proposal to replace all
the condominium buildings’ roofs for approximately $1.5 million. However, Lime
Bay never provided State Farm with any evidence that the roofs needed to be
replaced, only an estimate for replacement. After several inspections, State
Farm determined that the roofs in question needed to be repaired, not replaced.
In September 2006, after making adjustments for the policy deductible, State
Farm paid Lime Bay $6,940.46 for the roof repairs.
condominiums sustained roof damage and Lime Bay filed a claim with State Farm.
During the loss adjustment process, Lime Bay obtained a proposal to replace all
the condominium buildings’ roofs for approximately $1.5 million. However, Lime
Bay never provided State Farm with any evidence that the roofs needed to be
replaced, only an estimate for replacement. After several inspections, State
Farm determined that the roofs in question needed to be repaired, not replaced.
In September 2006, after making adjustments for the policy deductible, State
Farm paid Lime Bay $6,940.46 for the roof repairs.
On February 9, 2007, Lime Bay filed a Civil Remedy Notice
alerting State Farm that it intended to file suit. State Farm responded with a
demand for an appraisal pursuant to the appraisal provision in the insurance
contract. Lime Bay responded that it would not participate in the appraisal
process until State Farm provided proof of compliance with the mediation
notification requirements of section 627.7015(2), Florida Statutes (2012).
Section 627.7015(7) provides that the insured is not required to participate in
the appraisal process until the insurer complies with subsection (2). On March
7, 2007, Lime Bay filed a breach of contract action against State Farm without
first participating in the appraisal process.
alerting State Farm that it intended to file suit. State Farm responded with a
demand for an appraisal pursuant to the appraisal provision in the insurance
contract. Lime Bay responded that it would not participate in the appraisal
process until State Farm provided proof of compliance with the mediation
notification requirements of section 627.7015(2), Florida Statutes (2012).
Section 627.7015(7) provides that the insured is not required to participate in
the appraisal process until the insurer complies with subsection (2). On March
7, 2007, Lime Bay filed a breach of contract action against State Farm without
first participating in the appraisal process.
On State Farm’s motion, the trial court ordered the case
abated pending the completion of appraisal. The appraiser issued an award in
the amount of approximately $1.1 million, before deductible. After applying
deductibles and the previous payment, State Farm paid Lime Bay $608,141.41.
abated pending the completion of appraisal. The appraiser issued an award in
the amount of approximately $1.1 million, before deductible. After applying
deductibles and the previous payment, State Farm paid Lime Bay $608,141.41.
Lime Bay filed a motion to confirm the appraisal award and a
motion for final judgment and attorney’s fees. Lime Bay argued that State
Farm’s payment of the appraisal award after Lime Bay filed suit was a
confession of judgment. State Farm filed a motion for summary judgment. State
Farm argued that Lime Bay was not entitled to a confirmation of the appraisal
award, because the claim had been fully resolved through the parties’
contractual appraisal process and State Farm had paid the appraisal award.
Therefore, State Farm did not breach the contract.
motion for final judgment and attorney’s fees. Lime Bay argued that State
Farm’s payment of the appraisal award after Lime Bay filed suit was a
confession of judgment. State Farm filed a motion for summary judgment. State
Farm argued that Lime Bay was not entitled to a confirmation of the appraisal
award, because the claim had been fully resolved through the parties’
contractual appraisal process and State Farm had paid the appraisal award.
Therefore, State Farm did not breach the contract.
The trial court denied State Farm’s motion and granted Lime
Bay’s motion. The court found that State Farm failed to prove that it complied
with the mediation notification requirements of section 627.7015 and that State
Farm’s voluntary payment after Lime Bay filed suit was a confession of judgment
as a matter of law.
Bay’s motion. The court found that State Farm failed to prove that it complied
with the mediation notification requirements of section 627.7015 and that State
Farm’s voluntary payment after Lime Bay filed suit was a confession of judgment
as a matter of law.
The standard of review for an order granting summary
judgment is de novo. Jaffer v. Chase Home Fin., LLC, 155 So. 3d
1199, 1201 (Fla. 4th DCA 2015). “An appellate court must examine the record in
the light most favorable to the non-moving party.” Wolf v. Sam’s E., Inc.,
132 So. 3d 305, 307 (Fla. 4th DCA 2014). Summary judgment should be entered
only when there is no genuine issue of material fact. Jaffer, 155 So. 3d
at 1201.
judgment is de novo. Jaffer v. Chase Home Fin., LLC, 155 So. 3d
1199, 1201 (Fla. 4th DCA 2015). “An appellate court must examine the record in
the light most favorable to the non-moving party.” Wolf v. Sam’s E., Inc.,
132 So. 3d 305, 307 (Fla. 4th DCA 2014). Summary judgment should be entered
only when there is no genuine issue of material fact. Jaffer, 155 So. 3d
at 1201.
To the extent that the trial court’s ruling is based on the
interpretation of a contract, the interpretation is a question of law that an
appellate court will review de novo. Thomas v. Vision I Homeowners Ass’n.,
981 So. 2d 1, 2 (Fla. 4th DCA 2007).
interpretation of a contract, the interpretation is a question of law that an
appellate court will review de novo. Thomas v. Vision I Homeowners Ass’n.,
981 So. 2d 1, 2 (Fla. 4th DCA 2007).
In this case, the trial court made a finding that State
Farm’s voluntary payment of the appraisal award after suit was filed was a
confession of judgment as a matter of law. However, when the insured utilizes
the confession of judgment doctrine, the underlying issue is not when the
insurer paid the claims, but if the insured was forced to litigate in order to
get the insurer to pay the claim. See Clifton v. United Cas. Ins. Co. of Am.,
31 So. 3d 826, 829 (Fla. 2d DCA 2010) (“[T]he confession of judgment rule will
operate only to penalize an insurance company for wrongfully causing its
insured to resort to litigation in order to resolve a conflict with its insurer
when it was within the company’s power to resolve it.”); State Farm Fla.
Ins. Co. v. Lorenzo, 969 So. 2d 393, 398 (Fla. 5th DCA 2007) (“[C]ourts
generally do not apply the [confession of judgment] doctrine where the insureds
were not forced to sue to receive benefits; applying the doctrine would
encourage unnecessary litigation by rewarding a race to the courthouse for
attorney’s fees even where the insurer was complying with its obligations under
the policy.”) (citing Basik Exps. & Imps., Inc. v. Preferred Nat’l. Ins.
Co., 911 So. 2d 291, 294 (Fla. 4th DCA 2005)).
Farm’s voluntary payment of the appraisal award after suit was filed was a
confession of judgment as a matter of law. However, when the insured utilizes
the confession of judgment doctrine, the underlying issue is not when the
insurer paid the claims, but if the insured was forced to litigate in order to
get the insurer to pay the claim. See Clifton v. United Cas. Ins. Co. of Am.,
31 So. 3d 826, 829 (Fla. 2d DCA 2010) (“[T]he confession of judgment rule will
operate only to penalize an insurance company for wrongfully causing its
insured to resort to litigation in order to resolve a conflict with its insurer
when it was within the company’s power to resolve it.”); State Farm Fla.
Ins. Co. v. Lorenzo, 969 So. 2d 393, 398 (Fla. 5th DCA 2007) (“[C]ourts
generally do not apply the [confession of judgment] doctrine where the insureds
were not forced to sue to receive benefits; applying the doctrine would
encourage unnecessary litigation by rewarding a race to the courthouse for
attorney’s fees even where the insurer was complying with its obligations under
the policy.”) (citing Basik Exps. & Imps., Inc. v. Preferred Nat’l. Ins.
Co., 911 So. 2d 291, 294 (Fla. 4th DCA 2005)).
Similarly, when an insured moves for attorney’s fees, the
underlying issue is whether the suit was filed for a legitimate purpose, and
whether the filing acted as a necessary catalyst to resolve the dispute and
force the insurer to satisfy its obligations under the insurance contract. See
Lewis v. Universal Prop. & Cas. Ins. Co., 13 So. 3d 1079, 1082 (Fla.
4th DCA 2009) (“Florida’s cases have uniformly held that a section 627.428
attorney’s fee award may be appropriate where, following some dispute as to the
amount owed by the insurer, the insured files suit and, thereafter, the insurer
invokes its right to an appraisal and, as a consequence of the appraisal, the
insured recovers substantial additional sums.”); Travelers Indem. Ins Co. of
Ill. v. Meadows MRI, LLP, 900 So. 2d 676 (Fla. 4th DCA 2005) (finding that
the insured was entitled to attorney’s fees because it had to hire counsel and
eventually resort to formal legal action to resolve the claim); Goff v.
State Farm Fla. Ins. Co., 999 So. 2d 684, 688 (Fla. 2d DCA 2008) (holding
that the insureds were entitled to section 627.428 attorney’s fees because
their lawsuit forced State Farm to request an appraisal and to pay significant
additional amounts). However, the timing of the request for appraisal is not
determinative of the insured’s right to fees. Lewis, 13 So. 3d at 1082.
underlying issue is whether the suit was filed for a legitimate purpose, and
whether the filing acted as a necessary catalyst to resolve the dispute and
force the insurer to satisfy its obligations under the insurance contract. See
Lewis v. Universal Prop. & Cas. Ins. Co., 13 So. 3d 1079, 1082 (Fla.
4th DCA 2009) (“Florida’s cases have uniformly held that a section 627.428
attorney’s fee award may be appropriate where, following some dispute as to the
amount owed by the insurer, the insured files suit and, thereafter, the insurer
invokes its right to an appraisal and, as a consequence of the appraisal, the
insured recovers substantial additional sums.”); Travelers Indem. Ins Co. of
Ill. v. Meadows MRI, LLP, 900 So. 2d 676 (Fla. 4th DCA 2005) (finding that
the insured was entitled to attorney’s fees because it had to hire counsel and
eventually resort to formal legal action to resolve the claim); Goff v.
State Farm Fla. Ins. Co., 999 So. 2d 684, 688 (Fla. 2d DCA 2008) (holding
that the insureds were entitled to section 627.428 attorney’s fees because
their lawsuit forced State Farm to request an appraisal and to pay significant
additional amounts). However, the timing of the request for appraisal is not
determinative of the insured’s right to fees. Lewis, 13 So. 3d at 1082.
On appeal, State Farm argues that Lime Bay breached the
insurance contract by filing suit after State Farm invoked the appraisal
provision of the contract policy. The appraisal provision states in pertinent
part:
insurance contract by filing suit after State Farm invoked the appraisal
provision of the contract policy. The appraisal provision states in pertinent
part:
SECTION
I
I
CONDITIONS
4.
Appraisal. If we and you disagree on the value of the property or the
amount of loss, either may make written demand for an appraisal of the loss. In
this event, each party will select a competent and impartial appraiser. Each
will notify the other of the selected appraiser’s identity with 20 days after
receipt of the written demand for appraisal.
Appraisal. If we and you disagree on the value of the property or the
amount of loss, either may make written demand for an appraisal of the loss. In
this event, each party will select a competent and impartial appraiser. Each
will notify the other of the selected appraiser’s identity with 20 days after
receipt of the written demand for appraisal.
. .
. .
. .
6.
Legal Action Against Us. No one may bring legal action
against us under this insurance unless:
Legal Action Against Us. No one may bring legal action
against us under this insurance unless:
a.
there has been full compliance with all of the terms of this insurance . . . .
there has been full compliance with all of the terms of this insurance . . . .
State Farm argues that the appraisal provision and the
section explaining the prerequisites for legal action should be interpreted
together. Specifically, once State Farm made a written demand for an appraisal,
Lime Bay was required to participate in the appraisal process before filing
suit. We disagree with this interpretation of the contract. The contract does
not clearly require the parties to complete appraisal as a condition precedent
to filing suit.
section explaining the prerequisites for legal action should be interpreted
together. Specifically, once State Farm made a written demand for an appraisal,
Lime Bay was required to participate in the appraisal process before filing
suit. We disagree with this interpretation of the contract. The contract does
not clearly require the parties to complete appraisal as a condition precedent
to filing suit.
In the trial court and on appeal, Lime Bay argues that it
was not required to participate in the appraisal process because State Farm
failed to prove that it notified Lime Bay of its right to mediate. As
previously noted, subsection 627.7015(7) states that the insured is not
required to participate in any contractual appraisal process unless the insurer
complies with subsection 627.7015(2) and notifies the insured of its right to
mediation. When State Farm invoked its right to appraisal, Lime Bay requested
proof of State Farm’s compliance with section 627.7015’s, mediation
notification requirements. State Farm filed an affidavit stating that it
complied with subsection 627.7015(2)’s requirements by notifying Lime Bay of
its right to mediate the claim in two different letters in March and May of
2006.
was not required to participate in the appraisal process because State Farm
failed to prove that it notified Lime Bay of its right to mediate. As
previously noted, subsection 627.7015(7) states that the insured is not
required to participate in any contractual appraisal process unless the insurer
complies with subsection 627.7015(2) and notifies the insured of its right to
mediation. When State Farm invoked its right to appraisal, Lime Bay requested
proof of State Farm’s compliance with section 627.7015’s, mediation
notification requirements. State Farm filed an affidavit stating that it
complied with subsection 627.7015(2)’s requirements by notifying Lime Bay of
its right to mediate the claim in two different letters in March and May of
2006.
Lime Bay argues that the notice of mediation contained in
these letters was untimely because subsection 627.7015(2) states that the
insurer shall notify the claimants of their right to participate in the
mediation program, “[a]t the time a first-party claim within the scope of the
section is filed.” Since State Farm’s notice of the right to mediate was not
sent until March 2006, five months after Lime Bay filed its claim, Lime Bay argues
that State Farm did not prove that it fully complied with subsection
627.7015(2). We agree. Despite the March and May 2006 letters, notifying Lime
Bay of its right to mediate any dispute, State Farm did not fully comply with
section 627.7015(2). State Farm failed to prove that it provided Lime Bay with
notification of its right to mediate, at the time Lime Bay filed its claim.
these letters was untimely because subsection 627.7015(2) states that the
insurer shall notify the claimants of their right to participate in the
mediation program, “[a]t the time a first-party claim within the scope of the
section is filed.” Since State Farm’s notice of the right to mediate was not
sent until March 2006, five months after Lime Bay filed its claim, Lime Bay argues
that State Farm did not prove that it fully complied with subsection
627.7015(2). We agree. Despite the March and May 2006 letters, notifying Lime
Bay of its right to mediate any dispute, State Farm did not fully comply with
section 627.7015(2). State Farm failed to prove that it provided Lime Bay with
notification of its right to mediate, at the time Lime Bay filed its claim.
Along with finding that State Farm did not comply with
section 627.7015(2), the trial court found that State Farm’s voluntary payment
of the appraisal award was a confession of judgment. We disagree. Based on the
case law, an insurer’s payment of appraisal award is only a confession of
judgment only if the insured was forced to file the lawsuit to resolve the
claim. See Lorenzo, 969 So. 2d at 398; Clifton, 31 So. 3d at 829.
section 627.7015(2), the trial court found that State Farm’s voluntary payment
of the appraisal award was a confession of judgment. We disagree. Based on the
case law, an insurer’s payment of appraisal award is only a confession of
judgment only if the insured was forced to file the lawsuit to resolve the
claim. See Lorenzo, 969 So. 2d at 398; Clifton, 31 So. 3d at 829.
In Clifton, the Second District held that there was a
genuine issue of material fact as to whether the insured was forced to file
suit. 31 So. 3d at 831. The court explained that the insured generally will be
unable to show that he or she was forced to file suit, if the insurer was not
on notice that the claim or payment was disputed. Id. In that case, the
insured submitted an affidavit asserting that he repeatedly told the insurer
that he was dissatisfied with the claim and the insurer ignored his request for
further payment. The insurer asserted without supporting evidence that it was
wholly unaware of any dispute with the insured until suit was filed.
genuine issue of material fact as to whether the insured was forced to file
suit. 31 So. 3d at 831. The court explained that the insured generally will be
unable to show that he or she was forced to file suit, if the insurer was not
on notice that the claim or payment was disputed. Id. In that case, the
insured submitted an affidavit asserting that he repeatedly told the insurer
that he was dissatisfied with the claim and the insurer ignored his request for
further payment. The insurer asserted without supporting evidence that it was
wholly unaware of any dispute with the insured until suit was filed.
In Travelers, this court found that, after twenty-two
months without resolution of the claim, the insured was forced to resort to the
formal legal process. 900 So. 2d at 678-79. Travelers took five months to issue
payment based on its own estimates. Id. at 677. There still existed a
significant difference between the two parties’ estimates. After twenty-two
months without a resolution of the claim, Travelers demanded that the dispute
be resolved pursuant to the appraisal provision of the insurance policy. Before
the appraisal process began, the insured sent Travelers a letter inquiring
about the procedures of the appraisal process and about attorney’s fees. The
insured stated that it would file suit for declaratory judgment if Travelers
did not provide a prompt response. When Travelers did not respond to the
inquiry, the insured filed suit. At the time the insured filed suit, the
parties had already begun the appraisal process.
months without resolution of the claim, the insured was forced to resort to the
formal legal process. 900 So. 2d at 678-79. Travelers took five months to issue
payment based on its own estimates. Id. at 677. There still existed a
significant difference between the two parties’ estimates. After twenty-two
months without a resolution of the claim, Travelers demanded that the dispute
be resolved pursuant to the appraisal provision of the insurance policy. Before
the appraisal process began, the insured sent Travelers a letter inquiring
about the procedures of the appraisal process and about attorney’s fees. The
insured stated that it would file suit for declaratory judgment if Travelers
did not provide a prompt response. When Travelers did not respond to the
inquiry, the insured filed suit. At the time the insured filed suit, the
parties had already begun the appraisal process.
The appraisal resulted in Travelers owing the insured a
significant balance, which Travelers paid. Id. at 677. The insured filed
a motion to confirm the appraisal award and for entry of judgment thereon. The
insured also filed a motion for attorney’s fees. The trial court granted both
motions. Id. at 678. Travelers appealed the award of attorney’s fees. Id.
at 676. This court found that the insured’s involvement of the formal judicial
system was not unnecessary. Id. at 678. The insured had to hire counsel
throughout the appraisal process. Moreover, Travelers’ participation in the
appraisal was most likely affected by the insured’s representation by counsel
and the threat of a pending suit. Id. at 679.
significant balance, which Travelers paid. Id. at 677. The insured filed
a motion to confirm the appraisal award and for entry of judgment thereon. The
insured also filed a motion for attorney’s fees. The trial court granted both
motions. Id. at 678. Travelers appealed the award of attorney’s fees. Id.
at 676. This court found that the insured’s involvement of the formal judicial
system was not unnecessary. Id. at 678. The insured had to hire counsel
throughout the appraisal process. Moreover, Travelers’ participation in the
appraisal was most likely affected by the insured’s representation by counsel
and the threat of a pending suit. Id. at 679.
Here, Lime Bay argues that State Farm’s failure to resolve
the claim for eighteen months before Lime Bay filed suit was a breach of
contract. State Farm argues that it properly followed the claims process. The
estimates attached to the March, May, and September 2006 State Farm letters
suggest that State Farm conducted multiple estimates during that time period.
In the May 2006 letter, State Farm’s adjuster, Andy Beale, also referenced a
December 2005 estimate. State Farm submitted an affidavit from another
adjuster, Ana Carrillo, asserting that it was unaware that Lime Bay disagreed
with State Farm’s estimate of the loss until Lime Bay filed the Civil Remedy
Notice. Ms. Carrillo admitted that Lime Bay submitted an estimate for $1.5
million roof replacement, but claimed Lime Bay did not provide any proof that
the roof needed to be replaced instead of repaired.
the claim for eighteen months before Lime Bay filed suit was a breach of
contract. State Farm argues that it properly followed the claims process. The
estimates attached to the March, May, and September 2006 State Farm letters
suggest that State Farm conducted multiple estimates during that time period.
In the May 2006 letter, State Farm’s adjuster, Andy Beale, also referenced a
December 2005 estimate. State Farm submitted an affidavit from another
adjuster, Ana Carrillo, asserting that it was unaware that Lime Bay disagreed
with State Farm’s estimate of the loss until Lime Bay filed the Civil Remedy
Notice. Ms. Carrillo admitted that Lime Bay submitted an estimate for $1.5
million roof replacement, but claimed Lime Bay did not provide any proof that
the roof needed to be replaced instead of repaired.
Based on the record, it is unclear whether State Farm’s
multiple estimates were at the insistence of the Lime Bay representatives, who
disputed the amount of loss. Because there was a question as to whether State
Farm knew that Lime Bay disputed the amount of loss, we find that there is a
genuine issue of material fact as to whether Lime Bay was forced to file suit.
multiple estimates were at the insistence of the Lime Bay representatives, who
disputed the amount of loss. Because there was a question as to whether State
Farm knew that Lime Bay disputed the amount of loss, we find that there is a
genuine issue of material fact as to whether Lime Bay was forced to file suit.
Since we are remanding this case for evidentiary findings,
we must address the trial court’s protective order entered against State Farm’s
discovery requests. The ruling on a motion for protective order is reviewed for
abuse of discretion. See Katzman v. Rediron Fabrication, Inc., 76 So. 3d
1060, 1065 (Fla. 4th DCA 2011). Pursuant to Florida Rule of Civil Procedure
1.280(c) and upon a motion by a party “from whom discovery is sought, and for
good cause shown, the court in which the action is pending may make any order
to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense that justice requires . . . .”
we must address the trial court’s protective order entered against State Farm’s
discovery requests. The ruling on a motion for protective order is reviewed for
abuse of discretion. See Katzman v. Rediron Fabrication, Inc., 76 So. 3d
1060, 1065 (Fla. 4th DCA 2011). Pursuant to Florida Rule of Civil Procedure
1.280(c) and upon a motion by a party “from whom discovery is sought, and for
good cause shown, the court in which the action is pending may make any order
to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense that justice requires . . . .”
We hold that the trial court erred by granting Lime Bay’s
motion for protective order against State Farm’s request for production of
documents. As previously discussed, State Farm’s voluntary payment of the
appraisal award was not an automatic confession of judgment. The issue was
whether Lime Bay was forced to file suit to resolve the dispute with State
Farm. It appears that the court granted Lime Bay’s motion for protective order
on the grounds that State Farm’s payment of the appraisal award was
automatically a confession of judgment, entitling Lime Bay to a judgment as a
matter of law. In its first request for production, State Farm requested, among
other things, a copy of the communication between Lime Bay and any public
adjuster or contractor hired by Lime Bay. This information was relevant to the
issue of whether Lime Bay continued to dispute State Farm’s estimate and was
forced to file suit to resolve the claim.
motion for protective order against State Farm’s request for production of
documents. As previously discussed, State Farm’s voluntary payment of the
appraisal award was not an automatic confession of judgment. The issue was
whether Lime Bay was forced to file suit to resolve the dispute with State
Farm. It appears that the court granted Lime Bay’s motion for protective order
on the grounds that State Farm’s payment of the appraisal award was
automatically a confession of judgment, entitling Lime Bay to a judgment as a
matter of law. In its first request for production, State Farm requested, among
other things, a copy of the communication between Lime Bay and any public
adjuster or contractor hired by Lime Bay. This information was relevant to the
issue of whether Lime Bay continued to dispute State Farm’s estimate and was
forced to file suit to resolve the claim.
In sum, because there is a genuine issue of fact as to
whether Lime Bay was forced to file suit, we reverse and remand for further
proceedings.
whether Lime Bay was forced to file suit, we reverse and remand for further
proceedings.
Reversed and Remanded. (CIKLIN, C.J., and CONNER,
J., concur.)
J., concur.)
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