Court Finds Homeowner Waived Right to Appraisal by Engaging in Extensive Litigation after Insurer Conceded Coverage

J.P. Gonzalez-Sirgo
Founder of J.P. Gonzalez-Sirgo, P.A.

Florida law affords homeowners with an alternate dispute resolution (ADR) process referred to as “appraisal” when the insurance policy contains an appraisal provision  The appraisal process can be sought by either the insurance carrier or the homeowner when the amount of loss is in dispute.  The appraisal process is designed to offer an efficient means of resolving insurance disputes where the sole issue is the value of the claim.  Sometimes insurance companies will oppose participation in the appraisal process based on the contention that the insured has “waived” his or her right to compel appraisal.  A recent decision from Florida’s 5th District Court of Appeals provides a primer on the actions of a policyholder that constitute a waiver of the appraisal process.

In Florida Insurance Guaranty v. Monaghan, after submitting a claim for sinkhole damage, the insured filed a motion to compel appraisal and stay litigation while the appraisal process was pending.  The insurance company opposed the motion contending that the insured waived the right to appraisal by engaging in litigation over a period of eleven months after the insurance company conceded coverage.  The insurer claimed that it admitted coverage in its answer to the complaint filed in the insured’s lawsuit.  The alleged admission of coverage provided by the Florida Insurance Guarantee Association (FIGA), after substituting into the litigation in the place of the original insurer, Homewise Preferred Insurance Company, was provided in its answer.  The answer provided as follows: “[FIGA] has agreed to pay Plaintiff’s covered claim for sinkhole loss pursuant to Fla. Stat. Section 631.54(3)(c)(2011).”  The answer further indicated that the insurer had not denied any portion of the claim.

Based on this language in the answer, the insurance company claimed that the right to appraisal arose on October 10, 2012, which was the date of the answer and preceded the request for appraisal by eleven months.  The insurer contended that the insured engaged in extensive litigation activity during the period between filing of the answer and the request to compel appraisal that included: (1) filing a motion to compel mediation; (2) participating in mediation; (3) submitting discovery requests; (4) submitting a case management statement; (5) appearing at the case management conference; and (6) reasserting their demand for a jury trial.  The court observed that at least two prior decisions by the court had found that comparable litigation activity over a period of time close to a year constituted a waiver of appraisal.  Based on the amount of time that passed and the amount of activity inconsistent with appraisal rights, the 5th DCA overruled the trial judge and found that the insured waived their right to compel appraisal.

This decision demonstrates how easy it is for a homeowner to forfeit important legal rights.  The best way to avoid this type of mistake is to obtain legal advice and representation from an experienced homeowner’s insurance claims dispute attorney.  

If your insurance carrier is refusing to comply with its contractual obligation, you are invited to contact our law firm to speak to an experienced Miami insurance claims attorney.  My law firm specializes in representing policyholders in claims disputes in Miami and throughout Florida. Click here to read about some of our case results.  The Law Firm of J.P. Gonzalez-Sirgo, P.A. offers free consultations and case evaluations. No Recovery, No Lawyer Fees. Call 305-461-1095 or Toll Free 1-866-71-CLAIM. 

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