25 Fla. L. Weekly Supp. 293a
Online Reference: FLWSUPP 2503GARIInsurance — Automobile — Appraisal — Motion to dismiss and/or abate and motion for protective order invoking appraisal provision of policy are denied — Appraisal is not appropriate where insured seeks to invalidate limits of liability provisions of policy and where damaged parts can be repaired or replaced
BROWARD INSURANCE RECOVERY CENTER, LLC., a/a/o Charlie Gari, Plaintiff, v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 16-009527 COWE 81. May 8, 2017. Jane D. Fishman, Judge. Counsel: Emilio R. Stillo and Andrew B. Davis-Henrichs, Emilio Stillo P.A., and Lawrence M. Kopelman, Lawrence M. Kopelman, P.A., for Plaintiff. Kyle Maxson, for Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISSPLAINTIFF’S AMENDED COMPLAINT AND/ORABATE AND MOTION FOR PROTECTIVE ORDER
THIS CAUSE came before the Court on April 25, 2017 for hearing on Defendant’s Motion to Dismiss Plaintiff’s Complaint and/or Abate and Motion for Protective Order, and the Court, having reviewed the motion and entire court file; having reviewed the relevant legal authorities; having heard argument of counsel; and having been sufficiently advised in the premises,
ORDERS AND ADJUDGES that the Motion to Dismiss is hereby DENIED. The Motion to Abate and Motion for Protective Order are hereby DENIED for the reasons set forth below.
Background: The Plaintiff seeks a decree as to several matters which include the interpretation and application of policy language.
The Defendant filed its Motion to Dismiss and/or Abate and Motion for Protective Order, purportedly invoking the appraisal provision of the policy and previously naming Auto Glass Inspection Services (“AGIS”) as its chosen appraiser.
It is undisputed the Allstate contract of insurance provides for appraisal to be used when there is a dispute as to the property damage with the following language:
Allstate will pay for direct and accidental loss to the insured auto or a non-owned auto not caused by collision.
Glass breakage, whether or not caused by collision, and collision with a bird or animal is covered.
Our limit of liability is the least of:
1. The actual cash value of the property or damaged part of the property at the time of the loss, which may include a deduction for depreciation; or
2. The cost to repair or replace the property or part to its physical condition at the time of loss using parts produced by or for the vehicle’s manufacturer, or parts from other sources, including, but not limited to, non-original equipment manufacturers, subject to applicable state laws and regulations; or
3. $500, if the loss is to a covered trailer not described on the Policy Declarations.
Right to Appraisal
Both you and we have a right to demand an appraisal of the loss. Each will appoint and pay a competent and disinterested appraiser and will equally share other appraisal expenses. The appraisers, or a judge of a court of record, will select an umpire to decide any differences. Each appraiser will state separately the actual cash value and the amount of loss. An award in writing by any two appraisers will determine the loss amount payable.
The Plaintiff opposes the Motion to dismiss on the grounds that the complaint states a cause of action for declaratory relief. The Plaintiff opposes the Motion to Abate on the grounds that policy interpretation issues are for the Court to decide, the policy does not concern a dispute concerning which the parties expressly agreed to appraise and that appraisal if invoked would violate the prohibitive cost doctrine.
The Plaintiff contends that the primary issue in this case is an insurance policy interpretation issue for the Court to determine. Particularly, it is argued that the policy ambiguously purports to limit the defendant’s liability to the “cost to repair or replace” the windshield without providing any guidance as to how the cost is to be determined. In other words, the plaintiff claims it is in doubt as to what the term “cost” means and the method used to make the appropriate valuation. Plaintiff further contends that appraisal was permitted to be invoked only when there was a dispute as to the actual cash value of the of the property or part as opposed to the cost to repair or replace the property or part since the appraisers are required to state separately the actual cash value and the amount of loss. When the insurer determines that the part can be repaired or replaced, the actual cash value of the property or damaged part of the property is no longer at issue and the only determination required is the cost to repair or replace the part which is not the subject of appraisal. The only valuation to be made is the cost to repair or replace the part or property. There is no language in the appraisal process to determine the cost to repair or replace the property or part since appraisal was never intended to apply to this scenario. The parties do not dispute that the windshield was replaced and that the actual cash value is not at issue.
Conclusions of Law:
Since the Plaintiff is in doubt as to its rights under the policy which seeks to limit the defendant’s liability to the “cost to repair or replace” the windshield, this creates a policy interpretation issue which falls within the sole jurisdiction of the trial court rather than the employment of the non-judicial remedy of the appraisal process. Atencio v. U.S. Sec. Ins. Co., 676 So.2d 489 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D1472a] (“Questions of policy interpretation and coverage are ordinarily for the court, rather than arbitrators or appraisers to decide.”); Broward Ins. Recovery Cntr., LLC (a/a/o Shane Bushman) v. Progressive Select Ins. Co., 24 Fla. L. Weekly Supp. 761a (Broward County Ct. Nov. 3, 2016)(Hon. Robert W. Lee)(“In the instant case, the operative issue is how the value of the loss should be determined, and making this determination is not within the purview of the appraisal process.”). Further, the policy language makes it clear that appraisal was not intended to apply where the cost to repair or replace is at issue as opposed to the actual cash value of the property or part since the appraisers are required by the policy to make a determination as to the actual cash value. Here, the only issue concerns the interpretation of the term “cost to repair”. Although the Court’s finding renders moot the issue of whether the invocation of an appraisal would violate the prohibitive cost doctrine, which renders appraisal or arbitration prohibitive costly where the cost to participate in the process effectively prohibits a party from participating since any recovery would create a loss for that party, it should be noted that the Plaintiff likely would have been required to spend more in the appraisal process than it claims is in dispute.
Defendant’s Motion to Dismiss is hereby DENIED. Defendant’s Motion to Abate and Motion for Protective Order are hereby DENIED. Defendant shall file an Answer and Affirmative Defense, if any, to this claim within 30 days of the date of this Order, as well any Affirmative Defenses if it chooses to do so.
