19 Fla. L. Weekly Supp. 695a
Online Reference: FLWSUPP 1909ZUNIInsurance — Property — Appraisal — Error to require assignee of insured to participate in appraisal where insurer failed to give assignee notice of its right to participate in mediation — Insurer bears burden of proving notice was given; insured does not bear burden to show lack of notice
ELR RESTORATION, INC. a/a/o JOSE ZUNIGA, Appellants, vs. COOPERATIVA DE SEGUROS MULTIPLES DE PUERTO RICO, INC., Appellee. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 11-54-AP. T.C. Case No. 10-CC-4408-20-S. May 9, 2012. Appeal from the County Court of Seminole County. Honorable Donald L. Marblestone, Judge. Counsel: Earl L. Higgs, Cohen Battisti, Winter Park, for Appellant. Lisa Bernardini, for Appellee.
(DICKEY, Judge.) ELR Restoration, Inc. appeals the order abating the action against appellee in favor of appraisal and staying the lower court action. The basis of the appeal is that no notice was given to ELR of its right to participate in mediation pursuant to Section 627.7015, Florida Statutes, and that pursuant to subsection 7 of that statute that failure prevents it as an assignee of the insured from being forced to participate in appraisal. As the hearing on appellee’s Motion to Dismiss or Abate in Favor of Appraisal no evidence was presented to the court that any notice of the right to mediation was given by the insurance company.
The appellee raises two issues. One is that nothing in the statute requires the insurance company to show that it offered the appraisal but rather the burden of proof that no notice was given on the insured. This position is rejected because the insurance company is the moving party as to the issue of appraisal and it is therefore its obligation to show notice was given when the issue is raised. As its other attempt to avoid its obligation under the statute the appellee cites Shaw v. State Farm Fire and Casualty Company, 37 So. 3d 329 (Fla. 5th DCA 2010) [34 Fla. L. Weekly D2189a], where the court held that an assignee of the right to payments of no fault benefits is not bound by an insurance contract requirement of an examination under oath (EUO) clause because the assignee is not liable for performance of any duty under a contract because it is not a party to the contract unless it has become a party by subsequent agreement. Appellee’s problem here is that the right of mediation is not a contract requirement but rather a requirement of law and all parties are therefore on notice that regardless of the contents of the insurance contract that a mediation offer is required by the insurance company prior to asking the court to require the other party to participate in the appraisal process against its will.
The order requiring the appellee to participate in appraisal is reversed and the appellant’s Motion for Attorney’s Fees and Costs is granted, and this matter is remanded to the trial court for further proceedings in accordance herewith including the determination of appellant’s reasonable attorney’s fees.
REVERSED AND REMANDED.
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