26 Fla. L. Weekly Supp. 829a
Online Reference: FLWSUPP 2610PARRInsurance — Property — Appraisal — Impartial appraiser — Where insured disclosed to insurer that he had agreement with his designated appraiser to serve as public adjuster on claim, insurance policy’s appraisal provision requiring parties to select disinterested appraiser is satisfied and disqualification of appraiser is not appropriate
STATE FARM FLORIDA INSURANCE COMPANY, Petitioner, v. JON D. PARRISH, Respondent. Circuit Court, 20th Judicial Circuit in and for Collier County. Civil Action. Case No. 2018-CA-001198. December 14, 2018. Frederick Hardt, Judge. Counsel: Lynn S. Alfano, Robert A. Kingsford and Kristen McMullen, Alfano Kingsford, P.A., Maitland, for Plaintiff. Justin M. Thomas, Gregory L. Evans, and Mark A. Boyle, Boyle & Leonard, P.A., Fort Myers; Theodore A. Corless and Mary Catherine Lamoureux, Corless Barfield Trial Group, Tampa, for Respondent.
ORDER ON PETITIONER’S, STATE FARM FLORIDAINSURANCE COMPANY, PETITION TO COMPELAPPRAISAL WITH A DISINTERESTED APPRAISER
THIS MATTER coming before this Court on November 5, 2018 on Petitioner’s, STATE FARM FLORIDA INSURANCE COMPANY, (hereinafter “State Farm”), Petition to Compel Appraisal With a Disinterested Appraiser, and the Court having heard argument of counsel, and being otherwise fully advised in the premises, it is thereupon determined as follows:
FINDINGS OF FACT
1. State Farm issued a policy of insurance bearing policy number 59-BQ-L268-9 (“Policy”) to Jon D. Parrish (“Parrish” or “Insured”) to insure property and contents located at 5780 Spanish Oaks Lane, Naples, Florida 34119-1156 which was in force from September 17, 2016 to September 17, 2017.
2. On or about November 3, 2017, Parrish made a claim with State Farm for damages occurring on September 10, 2017, which State Farm assigned claim number 59-1941-W39.
3. Parrish entered into an arrangement with Keys Claim Consultants, Inc. (“KCC”) to serve as his public adjuster on a claim involving damages to his property dated October 23, 2017. State Farm was duly provided a copy of Jon D. Parrish’s agreement with KCC.
4. The Policy provides the following provision regarding the appraisal process:
SECTION 1 — CONDITIONS***
4. Appraisal. If you and we fail to agree on the amount of loss, either party can demand that the amount of the loss be set by appraisal. A demand for appraisal must be in writing. You must comply with Your Duties After Loss before making a demand.
Each party will select a qualified, disinterested appraiser and notify the other of the appraiser’s identity within 20 days of receipt of the written demand. Each party shall be responsible for the compensation of their selected appraiser. The two appraisers shall then select a qualified, disinterested umpire. If the two appraisers are unable to agree upon an umpire within 15 days, you or we can ask a judge of a court of record in the state where the residence premises is located to select an umpire. Reasonable expenses of the appraisal and the reasonable compensation of the umpire shall be paid equally by you and us.
The appraisers shall then set the amount of the loss. The amount of the loss is determined by the actual cash value, market value or replacement cost of the loss according to the applicable Loss Settlement provision. If a dispute exists regarding the extent of the damages or whether any part of the loss is covered by the policy, the appraisers will itemize the damages according to the scope of the loss specified by each party. If the appraisers submit a written report of an agreement to us, the amount agreed upon shall be the amount of the loss. If the appraisers fail to agree within 30 days, unless the time is extended by mutual agreement, they shall submit their differences to the umpire. Written agreement signed by any two of these three shall set the amount of the loss.
Appraisal is only available to determine the actual cash value, market value or replacement cost of the loss, and has no effect on matters of coverage. Appraisal is a non-judicial proceeding and neither party will be awarded attorney fees or be subject to an entry of judgment in a court. We do not waive any of our rights by submitting to an appraisal.
5. Parrish, on January 8, 2018, through a letter sent via email and U.S. mail to State Farm, invoked the appraisal provision in the Policy and nominated George Keys of KCC as Parrish’s qualified and disinterested appraiser. Accompanying the appraisal demand was a Sworn Proof of Loss from the insured, provided at the request of State Farm and in accord with the terms of the Policy.
6. State Farm’s representative, together with Bobby Sims of KCC, inspected the insured property on January 29, 2018; at that time, State Farm agreed to provide revised estimates for the loss and necessary repairs.
7. On February 10, 2018, State Farm sent a letter to KCC containing the revised estimates, which differed from those submitted by KCC on Parrish’s behalf; thus, as of that date, State Farm and Parrish had an identifiable and unequivocal disagreement as to the stated amount of the loss and those benefits due to Mr. Parrish under the Policy.
8. State Farm, on April 2, 2018, acknowledged the appraisal provision in the policy and named Bob Davis of Davis Claims Management as State Farm’s appraiser, and, in addition, requested the Insured’s designation of his qualified and disinterested appraiser within twenty (20) days.
9. The Insured thereafter appointed George W. Keys of KCC as his qualified and disinterested appraiser for purposes of setting the Amount of the Stated Loss in accordance with the Policy’s appraisal provision.
CONCLUSIONS OF LAW
1. This Court finds Brickell Harbour Condominium Association, Inc. vs. Hamilton Specialty Insurance Company, Case Number: 3D17-2761, 2018 WL 4904927 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D2321a], is persuasive and is the closest legal and factual authority to follow.
2. In Brickell Harbour the Court, in considering the holdings pronounced in Rios v. Tri-State Insurance Company, 714 So.2d 547 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D1522b], and Galvis v. Allstate Insurance Company, 721 So.2d 421 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D2594a], determined that resolution of questions concerning the “partiality” or “interest” of a nominated appraiser in the context of a property insurance policy’s appraisal provision was principally one of disclosure, finding that disclosure of an agreement militated against later disqualification.
3. Brickell Harbour, in line with the Rios and Galvis decisions, holds very clearly that disclosure of the financial arrangement between an insured and his or her designated appraiser satisfies the requirements of the insurance policy’s “appraisal provision”, and thus, upon such notice disqualification is not appropriate. Parrish, through KCC, disclosed to State Farm the very nature of the existing arrangement between Parrish and KCC. Consequently, this Court finds that because Parrish’s prior engagement was fully disclosed, George Keys is disinterested and can serve as Parrish’s qualified and disinterested appraiser with respect to the appraisal of the instant claim.
4. This Court finds that State Farm’s arguments against Parrish’s nominated appraiser, who is qualified and disinterested under Rios and Galvis to be unpersuasive and inconsistent with the holding in Brickell Harbour finding that such argument is vitiated by the appointment of an umpire pursuant to the terms of the Policy.
5. Further, this Court rejects State Farm’s request that this Court extend the specific holding in Florida Insurance Guaranty Association v. Branco, 148 So.3d 488 (Florida 5th DCA 2014) [39 Fla. L. Weekly D2020a] to apply to the relationship of an insured and a licensed public adjuster serving as a qualified disinterested appraiser. The holding in Branco was predicated on the existence of a confidential, attorney-client relationship. The Court finds no such relationship present between Parrish and KCC in this instance which would permit the application of the holding in Branco. Further, State Farm has failed to demonstrate a valid legal reason to preclude KCC from serving as a qualified and disinterested appraiser for Parrish.
Based on the foregoing Findings of Fact and Conclusions of Law it is hereby ORDERED AND ADJUDGED as follows:
a. The Petition to Compel Appraisal with Disinterested Appraiser is hereby denied.
b. The Petition to Compel Appraisal with Disinterested Appraiser is hereby dismissed in its entirety.
c. The appraisal process invoked by Respondent proceed with Mr. George Keys of Keys Claims Consultants serving as Petitioner’s nominated appraiser shall proceed in accordance with the Policy’s “appraisal provision”.
d. Petitioner will be responsible for the fees and costs incurred by Respondent in in the course of representing his interests in this matter, with this Court specifically reserving jurisdiction for the purpose of awarding fees and costs to the Respondent in accordance with Florida law.
