27 Fla. L. Weekly Supp. 489b
Online Reference: FLWSUPP 2705FERNInsurance — Automobile — Windshield replacement — Appraisal — Motion to abate and compel appraisal of cost of windshield replacement is granted where appraisal clause is clear and unambiguous and provides simple informal appraisal process, issues are appropriate for appraisal, and insurer has not waived right to appraisal — Appraisal does not violate prohibitive cost doctrine
BROWARD INSURANCE RECOVERY CENTER, LLC a/a/o Napoleao Fernandez, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2018-5160-SP23 (ND01), Civil Division. July 3, 2019. Myriam Lehr, Judge. Counsel: Kenneth J. Dorchak, Davie; and Emilio Stillo, Davie, for Plaintiff. Jessica W. Pfeffer and Antonio Roldan, Progressive PIP House Counsel, Fort Lauderdale, for Defendant.
ORDERGRANTING DEFENDANT’S MOTION TO ABATE OR STAYAND MOTION TO COMPEL APPRAISAL AND DENYINGPLAINTIFF’S MOTION FOR EVIDENTIARY HEARING
This matter having come before the Court on May 20, 2019, upon Defendant’s Motion to Dismiss, or alternatively, Defendant’s Motion to Abate or Stay and Motion to Compel Appraisal, and Plaintiff’s Motion for Evidentiary Hearing. Upon review of the pleadings, argument of counsel and being otherwise fully advised in the premises, the Court rules as follows:
Pursuant to the facts, policy, law and caselaw, the Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint, or Alternatively, Defendant’s Motion to Abate or Stay and Motion to Compel Appraisal and DENIES Plaintiff’s Motion for Evidentiary Hearing.
This Court has considered the three necessary factors when ruling on a motion to compel appraisal: (1) whether a valid written agreement to appraisal exists; (2) whether an appraisal issue exists; and (3) whether the right to appraisal was waived. Heller v. Blue Aerospace, LLC 112 So.3d 635 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D930a].
The Court finds there is a valid and enforceable contractual agreement for appraisal. In Florida, appraisal clauses are enforceable unless the clause violates statutory law or public policy. See The Cincinnati Insurance Company v. Cannon Ranch Partners Inc. 162 So. 3d 140, 143 (Fla. 2d DCA 2014) [40 Fla. L. Weekly D78a].
Upon a review of the appraisal language at issue, this Court finds that such language is clear, and unambiguous and provides a simple and informal appraisal process, which if followed, would provide both parties a fair and efficient means of determining the reasonable costs of replacing a windshield. The Court determines that the subject appraisal is not invalid as prohibitively costly in violation of the Prohibitive Cost Doctrine. Plaintiff argues that the Court is bound by Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79 (2000) which Plaintiff contends would invalidate the subject appraisal provision as argued. In Green Tree, the Supreme Court acknowledged that an arbitration clause could be rendered unenforceable where the existence of substantial arbitration costs would otherwise prohibit a litigant from effectively vindicating his or her federal statutory rights. However Federal arbitration is far more expensive and time consuming than the appraisal process provided in the subject Policy. Accordingly, this Court finds that an evidentiary hearing is unnecessary and denies Plaintiff’s request for an evidentiary hearing.
The Court further finds the issues at hand are appropriate for appraisal and Defendant has not waived its right to appraisal. Progressive did not engage in conduct inconsistent with its rights of appraisal.
The Court is not persuaded by the other arguments asserted by Plaintiff in its Amended Complaint and/or espoused by Plaintiff at the hearing in opposition of appraisal.
Based on the foregoing, the Court finds compliance with the subject policy’s appraisal provision is a mandatory condition precedent to the filing and maintaining of the subject lawsuit. See U.S. Fire Ins. Co. v. Franko, 443 So.2d 170. 172 (Fla. 1st DCA 1983) (once an appraisal clause is properly invoked appraisal becomes a condition precedent to right of an insured to maintain an action on the policy).
IT IS THEREFORE
ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion for Evidentiary Hearing is hereby DENIED;
2. Defendant’s Motion to Abate and Motion to Compel Appraisal is hereby GRANTED;
3. Within ten (10) days of this Order, Plaintiff must provide Progressive with the name, address, email address, and phone number of its selected appraiser;
4. The appraisal process shall occur within forty-five (45) days of this Order;
5. If the appraisal award is in excess of the benefits already paid; Progressive shall send payment for the additional amounts within twenty (20) days of the appraisal award;
This matter is hereby abated until the parties comply with the appraisal provision set forth in the subject policy.
