23 Fla. L. Weekly Supp. 318c

Online Reference: FLWSUPP 2304GEWEInsurance — Property — Appraisal — Waiver — Order granting motion to abate and compel appraisal is quashed — By actively participating in litigation for ten months before moving court to compel appraisal, insurer waived both right to compel appraisal and anti-waiver provision in policy requiring that waiver of right to appraisal must be in writing

GRAHAM’S CARPET CLEANING & RESTORATION a/a/o ALICE GEWERTZ, Petitioner, v. STATE FARM FLORIDA INSURANCE COMPANY, Respondent. Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County, Civil Division. Case No. 2013AP000055, Division AY. L.T. Case No. 2012CC006332. April 20, 2015. Appeal from the County Court in and for Palm Beach County, Judge Nancy Perez. Counsel: Earl I. Higgs, Higgs Law, P.A., Orlando, for Petitioner. Kara Berard Rockenbach, Lauren J. Smith, Methe & Rockenbach, P.A., West Palm Beach, for Respondent.

(PER CURIAM.) Petitioner, Graham’s Carpet Cleaning & Restoration (“GCC”), filed a Petition for Writ of Certiorari seeking review of the county court’s non-final order granting State Farm’s Motion to Abate Action and Compel Appraisal. The order does not explicitly specify whether it compels appraisal between State Farm and GCC or between State Farm and its insured, Alice Gewertz. However, this Court assumes the order compels appraisal between State Farm and GCC because a court cannot compel appraisal with a non-party. The Court finds that State Farm waived the right to appraisal by actively participating in litigation with GCC.

A waiver of a party’s right to seek appraisal occurs when the party seeking appraisal “actively participates in the lawsuit or engages in conduct inconsistent with the right to appraisal.” Florida Ins. Guar. v. Rodriguez, 153 So. 3d 301, 303 (Fla. 5th DCA 2014) [39 Fla. L. Weekly D2196b]; Raymond James Fin. Servs. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005) [30 Fla. L. Weekly S115a]. Whether a party waived its right to appraisal is “not solely about the length of time the case is pending or the number of filings the appraisal-seeking party made.” Rodriguez, 153 So. 3d at 300. Instead, the primary focus is on whether the appraisal-seeking party acted inconsistently with its right to appraisal. Id. (quoting Fla. Ins. Guar. Ass’n v. Branco, 148 So. 3d 488, 494 (Fla. 5th DCA 2014) [39 Fla. L. Weekly D2020a]).

Here, State Farm acknowledged that the insured had sustained a covered loss on June 1, 2012. Appraisal became appropriate at that time. Although State Farm sent a letter dated June 1, 2012 to Gewertz and GCC demanding appraisal, State Farm waited ten months before filing a Motion to Abate Action and Compel Appraisal. During the interim, State Farm (1) filed a Motion to Dismiss and a supporting memorandum of law; (2) an Answer and Affirmative Defenses; (3) sent a letter to Gewertz dated January 16, 2013 demanding appraisal; (4) sent a letter to GCC’s counsel dated January 16, 2013 informing GCC that State Farm had demanded appraisal with Gewertz; (5) filed a Proposal for Settlement; and (6) filed a Response to Plaintiff’s Request for Admissions. None of these filings requested the Court to abate the action and compel appraisal.

State Farm argues that waiver of its right to appraisal had to be in writing pursuant to a policy provision stating that a “waiver or change of any provision of this policy must be in writing by us to be valid.” State Farm’s position is contradicted by General Electric Capital v. Bio-Mass Tech, 136 So. 3d 698 (Fla. 2d DCA 2014) [39 Fla. L. Weekly D335a]. In General Electric, General Electric filed a complaint for replevin and breach of note and security agreement against Bio-Mass. Id. After actively participating in the litigation for two years, Bio-Mass filed a motion to stay the action and compel arbitration. Id. at 699-701. The trial court granted Bio-Mass’s motion, and General Electric appealed on the ground that Bio-Mass waived the right to arbitration by actively participating in the litigation. Id. at 701.

On appeal, Bio-Mass argued that pursuant to the anti-waiver provision¹ in the note and security agreement, “Bio-Mass’s conduct, i.e., its failure to exercise its right to arbitration, could not operate to waive that right to arbitration.” Id. at 702. The Second District Court of Appeal rejected Bio-Mass’s argument and found that the anti-waiver provision was not determinative and did not “operate as a complete bar to finding a waiver of the right to arbitration.” Id. at 703. Rather, the court considered the anti-waiver provision, which itself can be waived, as one factor in the waiver analysis. Id. Ultimately, the court determined that Bio-Mass’s participation in the litigation waived both its right to arbitration and the anti-waiver clause as it related to the right to arbitration. Id.

Like Bio-Mass in General Electric, State Farm argues that under the anti-waiver provision in the policy, its conduct — its ten-month delay in moving the court to compel appraisal — cannot waive its right to appraisal. However, the Court rejects State Farm’s argument that waiver of the right to appraisal must have been made in writing and finds that State Farm’s participation in the litigation waived both its right to compel appraisal and the anti-waiver clause as it related to the right to appraisal.

We therefore GRANT the Petition for Writ of Certiorari and QUASH the order granting State Farm’s Motion to Abate Action and Compel Appraisal.

State Farm’s Motion for Appellate Attorneys’ Fees and Costs is DENIED. GCC’s Request for Appellate Attorneys’ Fees and Costs is DENIED because GCC did not comply with Florida Rule of Appellate Procedure 9.400(b). GCC’s Motion to Strike State Farm’s Response in Opposition to GCC’s Request for Appellate Attorneys’ Fees is also DENIED. (BLANC, HAFELE, and TICKTIN, JJ., concur.)

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¹The anti-waiver provision provided as follows: “15. BINDING ARBITRATION AND EXPENSES. Any controversy or claim arising out of or relating to this Note and Security Agreement or the relationship resulting in or from this Loan Agreement (“Disputes”) will be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. . . . The failure of either party to exercise any rights granted hereunder will not operate as a waiver of those rights.”