26 Fla. L. Weekly Supp. 977b
Online Reference: FLWSUPP 2612LANDInsurance — Property — Appraisal — Insurer’s motion to stay and compel appraisal is granted — No merit to argument that appraisal provision of policy does not apply to assignee of insured — Nothing in policy prevents insurer from demanding appraisal for work that has already been performed and invoiced
INFINITY EMS INC, a/a/o Kenia Landa, Plaintiff, v. CITIZENS PROPERTY INS CORP, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 2017-006955-CC-23. Section ND 06. October 5, 2018. Ramiro C. Areces, Judge. Counsel: Jay M. Arnesen, Arnesen Webb, PA, Boca Raton, for Plaintiff. James Suarez, Stone, Glass & Connolly, LLP, Palmetto Bay, for Defendant.
ORDER GRANTING MOTION TO STAYAND COMPEL APPRAISAL
THIS MATTER having come before the Court on Defendant’s Motion to Stay and Compel Appraisal, and this Court, having read the Motion, heard the argument of counsel on October 1, 2018, and being otherwise fully advised in the premises, it is hereby, ORDERED AND ADJUDGED:
Defendant’s Motion is GRANTED.
“It is well-established that a court cannot rewrite the clear and unambiguous terms of a voluntary contract. Instead, the plain meaning of the actual language used by the parties control?” Pol v. Pol, 705 So. 2d 51, 53 (Fla. 3d DCA 1997) [23 Fla. L. Weekly D75a] (internal quotation marks omitted). In this case, the policy clearly, and plainly, provides that Defendant is entitled to demand an appraisal of a loss. Specifically, the policy reads, in part,
2. Appraisal.
Appraisal is an alternate dispute resolution method to address and resolve disagreement regarding the amount of the covered loss.
a. If you and we fail to agree on the amount of the loss, either party may demand an appraisal of the loss. If you or we demand appraisal, the demand for appraisal must be in writing and shall include an estimate of the amount of any dispute that results from the covered cause of loss.
The estimate shall include a description of each item of damaged property in dispute as a result of the covered loss, along with the extent of damage and the estimated amount to repair or replace each item.
Policy at 19. The policy further precludes any action against the insurer unless there has been full compliance with the terms of the policy. See Policy at 20.
Plaintiff contends it is not subject to the appraisal provision because (1) the provision only applies to the insured (not to the assignee), and (2) the appraisal provision concerns itself with estimates for work to be performed (as opposed to invoices for work that has already been performed). Defendant’s arguments are without merit.
First, an assignee steps into the shoes of the assignor. See Prescription Partners LLC v. State, Dept. of Fin. Services, 109 So. 3d 1218 (Fla. 5th DCA 2013) [38 Fla. L. Weekly D715a] (“the common law speaks in a loud and consistent voice: An assignee stands in the shoes of his assignor.”) (emphasis in original) (internal quotation marks omitted). An assignee cannot pick and choose among the provisions it wants recognized — keeping those that allow the assignee to sue for benefits, and discarding those that impose requirements it finds inconvenient or detrimental to its claim Shreve Land Co., Inc. v. J&D Financial Corp., 421 So. 2d 722, 724 (Fla. 3d DCA 1982) (“The law is well settled that an assignee succeeds to his assignor’s rights under the assignment of a contract and takes it with all the burdens to which it is subject in the hands of the assignor.”).
Second, Plaintiff misreads the appraisal provision in the policy. Nothing in the policy prevents the insurer from demanding an appraisal after there has been an assignment of benefits for services provided. Defendant made one or more demands for an appraisal under the policy. Plaintiff has not argued that Defendant’s written demand(s) for an appraisal are in any way deficient. Accordingly, this matter will be stayed pending an appraisal in accordance with the terms of the policy. Irrespective of the stay, a status conference will be held in approximately 90 days to ascertain whether an appraisal has already occurred, and/or to enter any other orders necessary to enforce the instant order.