24 Fla. L. Weekly Supp. 539a
Online Reference: FLWSUPP 2407MBOSInsurance — Appraisal — Action for breach of contract alleging that insurer accepted claim as compensable but failed to pay repair bill in full is dispute as to amount of loss, to which appraisal provision of policy is applicable, not coverage dispute — Prohibitive cost policy is not applicable to appraisal process — Case is stayed pending appraisal
CORNERSTONE NETWORK, INC. a/a/o Maureen Bossone, Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 5th Judicial Circuit in and for Sumter County. Case No. 2016-SC-38. July 21, 2016. Paul L. Militello, Judge. Counsel: Michael D. Cerasa, The Cerasa Law Firm, LLC, for Plaintiff. Coleman P. Hengesbach, Progressive PIP House Counsel, Tampa, for Defendant.
ORDER ON DEFENDANT’S AMENDED MOTIONTO DISMISS AND/OR STAY IN FAVOR OF APPRAISALAND MOTION FOR PROTECTIVE ORDER/EXTENSION OFTIME TO RESPOND TO DISCOVERY
THIS COURT having considered Defendant’s Amended Motion to Dismiss and/or Stay in Favor of Appraisal and Motion for Protective Order/Extension of Time to Respond to Discovery; Plaintiff’s Response to Defendant’s Motion to Stay and Motion to Enforce Appraisal; the arguments of counsel at the hearing held on July 18, 2016; and having reviewed the records of this case, finds as follows:
1. Plaintiff’s Complaint, which was filed with the Clerk on January 25, 2016, asserts one count of Breach of Contract. Plaintiff asserts Defendant, although accepting its claim as a compensable loss under the policy, failed to pay its bill in full.
2. In the Amended Motion to Dismiss and/or Stay in Favor of Appraisal and Motion for Protective Order/Extension of Time to Respond to Discovery, Defendant asserts this matter should be dismissed and/or stayed pending completion of the appraisal provision of the controlling policy. Defendant asserts that in accordance with the insurance policy, it cannot be sued unless there is full compliance with all the terms of the policy; which has not occurred. Defendant asserts Plaintiff failed to respond to its notification that it invoked the right to the appraisal provision as set forth in the policy, but filed the present action in violation of the policy.
3. In the Response to Defendant’s Motion to Stay and Motion to Enforce Appraisal, Plaintiff asserts Defendant did not engage in a meaningful way as to the amount of loss; the appraisal provision is unenforceable due to the Prohibitive Cost Doctrine; the dispute is not subject to the appraisal provision since the issue is coverage determination and not one of valuation; and appraisal is inapplicable since repairs have already been made and the insured’s damages have been liquidated.
4. The Court finds the dispute between the parties is purely a question as to the amount of loss, and as such, is subject to the appraisal provision. See Progressive American Insurance Company v. Collision Concepts of Delray, LLC, 23 Fla. L. Weekly Supp. 400a (Fla.15th Cir. Ct. September 28, 2015). The policy specifically provides for an appraisal process, of which Defendant duly noticed Plaintiff, and the Prohibitive Cost Doctrine is inapplicable.
Based on the foregoing, it is thereupon;
ORDERED AND ADJUDGED: That, the;
1. Defendant’s Amended Motion to Dismiss and/or Stay in Favor of Appraisal and Motion for Protective Order/Extension of Time to Respond to Discovery is GRANTED.
2. This case is STAYED for a period of sixty (60) days.
3. All discovery served or to be served is STAYED until the appraisal process is completed.
4. During the sixty (60) day period, the parties will complete the appraisal process.
5. The parties shall have thirty (30) days for the date of this Order to select an appraiser.
