Court Finds Waiver of Appraisal Rights When Request Made Only 7 Weeks Prior to Trial Date

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

There are a range of remedies available to resolve a homeowner’s insurance dispute in Florida.  Since the availability of these remedies and venues depends on the facts and circumstances, homeowners should carefully review and analyze their policy terms.  If you are a Florida homeowner, your homeowner’s policy typically includes a provision for appraisal.  Under Florida law, the extent of the loss is a proper subject of appraisal, but the question of coverage is solely within the purview of judges.  A recent decision from the Florida 2nd District Court of Appeals provides insight on what constitutes the scope of issues that can be the subject of appraisal and the types of conduct by the insured that constitutes a waiver.

In Florida Ins. Guaranty Assoc, v. Lustre, the policyholders pursued a sinkhole damage claim.  The insurer retained BCI, an engineering firm, to conduct an inspection and perform testing.  BCI produced a report indicating that the property damage was related to several causes which included sinkhole activity.  The insurer notified the policyholders that the BCI report had been submitted to three contracting firms for bids to stabilize the residence.  The insurer also contacted another company for cosmetic repairs.  The insurer subsequently tendered payment to the policyholders for the actual cash value of the property damage based on an estimate by one of the contractors, Paul Davis Restoration.

The policyholders obtained a report from Florida Testing and Environmental, Inc. (FTE) that disagreed to some extent with the appropriate approach to remediating the sinkhole damage.  The law firm for the homeowners sent a letter to the insurer indicating the insurance carrier tender any payment that the insurer contended was still due and owing.  The letter also informed the insurer that the homeowners would proceed under the assumption that the insurer did not believe any additional money was due unless a response was received.  The property owners also sent a subsequent letter confirming that it was the insurer’s position that payment for stabilization repairs was not due because no contract had been executed for such repairs.  A proposal from a contractor with an estimate was included.  The letter also stated that the policyholders looked forward to receiving the first thirty percent draw.

The insurer eventually filed a notice indicating that the case was at issue and demanding the case be set for jury trial.  The policyholders filed an amended complaint which again asserted their demand for a jury trial.  The policyholders did not file their motion to compel appraisal until approximately three weeks prior to a scheduled pretrial conference.  The insurer contended that the actions of the insured were inconsistent with appraisal and constituted a waiver of the right to compel appraisal.

The 2nd District Court of Appeals for Florida sided with the insurer in concluding that the policyholders’ litigation activities constituted a waiver of appraisal.  The court noted that a waiver occurs when a party pursuing appraisal engages in conduct that is inconsistent with the right of appraisal.  The court observed that despite a lack of dispute regarding the question of coverage, the policyholders did not file a motion to compel appraisal until immediately prior to the pretrial hearing when both parties were already fully engaged in final trial preparations.  The homeowners also had been actively litigating their claim for almost three years which included two separate requests to set the case for trial according to the appellate court.  The judges emphasized that the insureds’ motion to compel appraisal was only submitted six weeks prior to the scheduled jury trial.

While appraisal can provide a beneficial tool for homeowners, this case demonstrates that this right can be waived.  If you have questions about homeowner’s insurance claims or the appraisal process, you are invited to contact our law firm to speak to an experienced Florida insurance claims attorney.  My law firm represents policyholders in claims disputes in Miami and throughout Florida. The Law Firm of J.P. Gonzalez-Sirgo, P.A. offers free consultations and case evaluations. No Recovery, No Lawyer Fees. Call 305-461-1095or Toll Free 1-866-71-CLAIM.

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