25 Fla. L. Weekly Supp. 126b
Online Reference: FLWSUPP 2501KENNInsurance — Automobile — Windshield replacement — Motion to dismiss complaint for failure to name correct insurer is denied, and plaintiff repair shop is directed to amend complaint to name correct insurer — Because insurer confirmed coverage, notified repair shop that dispute is solely over amount of loss, and requested appraisal, action is stayed to allow parties to proceed through appraisal process
GLASS REPLACEMENTS, LLC, a/a/o Michael Kennedy, Plaintiff, vs. HARTFORD CASUALTY INSURANCE COMPANY, A Foreign Corporation, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 2016-SC-003474. March 7, 2017. Frederic M. Schott, Judge. Counsel: Sean M. Amorginos, Amorginos & Barrows, P.A., Maitland, for Plaintiff. Peter S. Nayrouz, Roig Lawyers, Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISS,OR ALTERNATIVELY STAY/ABATE TO ENFORCEAPPRAISAL CLAUSE, AND STRIKE CLAIM FORATTORNEY’S FEES AND DEFENDANT’S OBJECTIONSAND MOTION FOR PROTECTIVE ORDER REGARDINGPLAINTIFF’S DISCOVERY REQUESTS; REQUESTFOR DEPOSITION; AND REQUEST FOR EXTENSIONOF TIME TO RESPOND TO PLAINTIFF’SDISCOVERY REQUESTS
THIS CAUSE having come before this Court on the 20th day of February, 2017, upon Defendant’s Motion to Dismiss, or Alternatively Stay/Abate to Enforce Appraisal Clause, and Strike Claim for Attorney’s Fees and Defendant’s Objections and Motion for Protective Order Regarding Plaintiff’s Discovery Requests: Request for Deposition; and Request for Extension of Time to Respond to Plaintiff’s Discovery Requests and the Court having heard argument of counsel, having carefully reviewed the Court file, and being otherwise fully advised in the Premises, states as follows:Background
1. On August 23, 2016, the Plaintiff, as assignee of Michael Kennedy, the policy holder, filed a breach of contract action seeking comprehensive benefits from the Defendant, for the replacement of the windshield on Mr. Kennedy’s vehicle.
2. In response to Plaintiff’s Complaint, Defendant filed Defendant’s Motion to Dismiss, or Alternatively Stay/Abate to Enforce Appraisal Clause, and Strike Claim for Attorney’s Fees. Defendant also filed Objections and Motion for Protective Order Regarding Plaintiff’s Discovery Requests; Request for Deposition; and Request for Extension of Time to Respond to Plaintiff’s Discovery Requests.
3. Prior to the subject lawsuit being filed, Defendant had accepted coverage for the loss and issued payment pursuant to the terms and conditions of the subject policy issued to Mr. Michael Kennedy.
4. On June 27, 2016, Defendant invoked the appraisal provision of the policy issued to Mr. Kennedy by notifying Plaintiff in writing of the same.
5. On July 1, 2016, Defendant spoke with a representative from Plaintiff’s shop, advising that Defendant had accepted coverage but is disputing the amount of loss. Plaintiff’s representative disagreed as to Defendant’s amount of loss. Defendant attempted to invoke appraisal for a second time and Plaintiff’s representative refused to participate in the same.
6. On July 14, 2016, Defendant invoked, for the third time, the appraisal provision of the policy issued to Mr. Kennedy by notifying Plaintiff in writing of the same.ARGUMENTS OF COUNSEL
7. At the hearing, Defendant indicated that the case should be dismissed as Plaintiff did not name the correct entity that issued the policy of insurance to Mr. Kennedy as Defendant. The entity that issued the policy of insurance to Mr. Kennedy is Hartford Underwriters Insurance Company.1 The Court denies Defendant’s Motion to Dismiss on this point; however, Plaintiff shall amend the Complaint to properly name the Defendant as Hartford Underwriters Insurance Company.
8. In its Motion, Defendant argued that appraisal provisions are an effective and inexpensive way to resolve disputes over the amount of loss. Defendant also contended that, by the Defendant accepting coverage, the sole issue was the amount of loss whereby invoking the appraisal clause was appropriate.
9. Defendant’s policy, in relevant part, states “If we and you do not agree on the amount of loss, either may request an appraisal of the loss.”
10. Appraisal avoids the time and expense of a lawsuit. It avoids burdening our Courts with lawsuits over nominal amounts of money. Appraisal clauses are preferred, as they provide a mechanism for prompt resolution of claims and discourage the filing of needless lawsuits or litigation. First Floridian Auto & Home Ins. Co. v. Myrick, 969 So.2d 1121, 1125 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D2672a]; see also Nationwide Property and Casualty Insurance Company v. Bobinski, 776 So.2d 1047, 1049 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D368a].
11. The Court finds that by Defendant confirming coverage and, on multiple occasions, advising the Plaintiff that the dispute is solely over the amount of loss, appraisal is appropriate.
12. The Court is further persuaded by all the case law presented during Defendant’s argument and cited in Defendant’s Request to Take Judicial Notice, filed with the Court on November 18, 2016.
IT IS HEREBY ORDERED AND ADJUDGED:
1. Defendant’s Request for Judicial Notice, filed on November 18, 2016, is hereby GRANTED and the Court takes Judicial Notice of the authority cited in the Request.
2. Based on the unique facts of this case, Defendant’s Motion to Dismiss and/or Stay to Enforce Appraisal Clause and Motion for Protective Order/Extension of Time to Respond to Discovery are hereby GRANTED as to Defendant’s Request to Stay and proceed with an Appraisal.
3. Plaintiff’s Request to Conduct Discovery as it relates to any waiver of the right to appraisal is DENIED.
4. Defendant’s request to Dismiss the instant action is DENIED and Plaintiff SHALL amend its Complaint to reflect Hartford Underwriters Insurance Company as the Defendant.
5. The instant action shall be STAYED and the parties are to proceed through the appraisal process as set forth in the policy of insurance.
__________________
1Certified copy of the insurance policy issued to Mr. Michael Kennedy was filed with the Court on October 13, 2016.
