27 Fla. L. Weekly Supp. 270a

Online Reference: FLWSUPP 2703CITIInsurance — Homeowners — Appraisal — Specific performance — Jurisdiction — Amount in controversy below $15,000 — Circuit court has jurisdiction over insurer’s action seeking specific performance of appraisal clause where, although amount in controversy does not exceed $15,000, section 26.012(2)(c) grants circuit courts subject matter jurisdiction in all cases in equity and contains no amount in controversy threshold — Circuit court may not abdicate its jurisdiction by transferring case to county court — Court rejects argument that a dispute over reasonableness of amount charged for completed mitigation services is not a “disagreement regarding the amount of covered loss” for purposes of appraisal provision — Dispute is clearly over the amount of loss and within scope of appraisal provision regardless of whether loss had already been mitigated and “invoiced,” or was to be repaired in future and “estimated” — Appraisal provision is not ambiguous — Waiver — Insurer’s right to appraisal was not waived by filing lawsuit seeking appraisal as the filing of the lawsuit was obviously not inconsistent with the right of appraisal itself — Insurer did not waive right to appraisal by failing to comply with section 627.7015(2) where insurer advised policyholder of the right to participate in mediation program — Current version of section 627.7015(2) imposes no requirement that insurer notify an assignee — Appraisal provision is not unconscionable merely because, given the costs of appraisal, assignee would allegedly recover far less for its services than it could have reasonably anticipated when it entered into contract with insureds

CITIZENS PROPERTY INSURANCE CORPORATION, Plaintiff(s) v. ALL INSURANCE RESTORATION SERVICES INC., Defendant(s). Circuit Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2018-034667-CA-01, Section CA22. April 23, 2019. Michael A. Hanzman, Judge. Counsel: Ursula C. Cogswell, Deerfield Beach; and Eric J. Knuth, Vernis & Bowling of Miami, P.A., North Miami, for Plaintiff. Christopher Zacarias, Miami; Lazaro Vazquez, Miami; and Eduardo Gomez, Coral Gables, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION TOSTAY AND COMPEL APPRAISAL

I. INTRODUCTION

Plaintiff, Citizens Property Insurance Corporation (“Citizens”), filed this action seeking specific performance of the appraisal clause contained within a homeowner’s policy issued to its insured, Filiberto Hernandez (“Hernandez”). The Defendant, All Insurance Restoration Services, Inc. (“All Insurance”), was retained by Hernandez to “dry out [his] property” after a reported water loss, pursuant to the terms of the policy imposing upon the insured a duty to “[t]ake reasonable emergency measures that are necessary to protect the covered property from further damage,” and providing coverage “for the reasonable costs incurred . . .” in doing so. Policy, § IB.5.a, and F.2.a. As consideration for these mitigation services, Hernandez assigned to All Insurance his right to recover from Citizens the cost of the repairs.¹ Pursuant to that assignment All Insurance invoiced Citizens $4,559.57. Citizens, however, “determined that the value of the reasonable and necessary mitigation services [provided by All Insurance] was $1,347.80,” Complaint, ¶ 13, and demanded “appraisal in accordance with policy’s appraisal clause.” See July 3, 2018 correspondence. That clause provides:

2. Appraisal

Appraisal is an alternative 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 loss, either may demand an appraisal of the loss. If you or we demand appraisal, the demand must be in writing and shall include an estimate of the amount of any dispute that results from the covered cause of loss.

Policy, pp. 21-22. All Insurance never responded to Citizens’ appraisal demand, impelling Citizens to file this action, which again seeks specific performance of the contract and, in particular, the appraisal provision. Complaint, ¶ 1. Citizens requests that the “Court enter a judgment for specific performance requiring Defendants to name an appraiser and otherwise comply with the appraisal provision of the insurance contract . . .” and “an award of costs.” Complaint, p. 6.

On January 7, 2019 Citizens filed its “Motion to Stay and Compel Appraisal,” arguing that the appraisal clause “is a mandatory condition of the policy,” and that this condition — like all conditions of the contract — is binding on All Insurance, an admitted assignee. See, e.g., Certified Priority Restoration v. State Farm Florida Ins. Co., 191 So. 3d 961 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D1133a]; State Farm Florida Ins. Co. v. Unlimited Restoration Specialists, Inc., 84 So. 3d 390 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D712b]; Cone Constructors, Inc. v. Drummond Cmty. Bank, 754 So. 2d 779 (Fla. 1st DCA 2000) [25 Fla. L. Weekly D691c]; United Cmty. Ins. Co. v. Lewis, 642 So. 2d 59 (Fla. 3d DCA 1994). All Insurance does not take issue with these general principles. But it claims that a dispute over the reasonableness of an amount charged for completed mitigation services “does not involve a dispute as to the ‘amount of loss.’ ” See Defendant’s Answer and Affirmative Defenses, ¶ 24. It also insists that: (a) Citizens waived its right to appraisal by filing suit and by failing to comply with Florida Statute § 627.7015(2); and (b) appraisal should be denied because the cost is disproportionally high relative to the amount in controversy. All Insurance also maintains that this Court lacks subject matter jurisdiction because that amount in controversy [$3,000.00 vs. $1,347.80] is “less than $15,000.00.”² Id. p. 4.

When the parties appeared for oral argument on Citizen’s Motion to Stay and Compel Appraisal, the Court first advised them that “someone’s going to have to explain to me . . . . why I have jurisdiction over this case, as it involves, at most, a $4,000.00 restoration bill, . . . and a request to compel appraisal to determine whether that $4,000.00 bill was reasonable.” TR. p. 3. Citizens counsel then represented that the Court had “concurrent jurisdiction” with the county court because his client was seeking the equitable remedy of “specific performance.” Id. pp. 4-5. All Insurance’s counsel disagreed, and objected “to this Court’s exercising its jurisdiction when the amount at issue is less than $1,300.00.” Id. p. 7. The Court then ordered the parties to submit jurisdictional briefs addressing: (a) whether it had concurrent subject matter jurisdiction; and (b) if so, whether it was “obligated to exercise it or . . . can transfer the case to county court.” Id. p. 10.

The parties have filed their jurisdictional briefs and the Court is now in a position to adjudicate its subject matter jurisdiction (or lack thereof), and address Citizens’ Motion to Stay and Compel Appraisal, which also has been fully briefed and was argued on the merits on April 22, 2019.

II. SUBJECT MATTER JURISDICTION

Florida Statute § 26.102(2)(c) grants circuit courts subject matter jurisdiction in “all cases in equity.” Id. The provision has no amount in controversy threshold. Florida Statute § 34.01(4) also grants county courts jurisdiction over “all matters in equity involved in any case within the jurisdictional amount of the county court, except as otherwise restricted by the State Constitution or the laws of Florida.” Id. No party has suggested that the State Constitution or any law has circumscribed county court jurisdiction in this type of case. So reading these statutes as plainly written, circuit and county courts possess concurrent jurisdiction over all matters in equity involving less than $15,000.00. See Alexdex Corp. v. Nachon Enterprises, Inc., 641 So. 2d 858, 862 (Fla. 1994) (where — after examining these statutory grants of jurisdiction — our Supreme Court held “that the legislature intended to provide concurrent equity jurisdiction in circuit and county courts, except that equity cases filed in county courts must fall within the county court’s monetary jurisdiction, as set by statute”). See also, Mitchell v. Beach Club of Hallandale Condo. Ass’n, Inc., 17 So. 3d 1265 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D1935a]; Johnson v. Am. First Fed., Inc., 133 So. 3d 559 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D316a].

Notwithstanding Alexdex — which is a proverbial “red cow”³ — All Insurance first insists that because it “is challenging Citizens’ demand for appraisal as being unenforceable and unconscionable,” this Court is necessarily “without subject matter jurisdiction.” Jurisdictional Response, p. 1. That is obviously not so, as the Court’s jurisdiction (or lack thereof) is not dependent upon the merits (or lack thereof) of a plaintiff’s equitable claim. Nor does it matter — for purposes of subject matter jurisdiction — that equitable relief may not be warranted because the plaintiff has “an adequate remedy at law” — another point argued by All Insurance. Finally, All Insurance cites a number of cases involving claims for declaratory relief, and holding that circuit courts lack subject matter jurisdiction over such claims if the amount in controversy does not exceed $15,000.00. See, e.g., Federated Nat. Ins. Co. v. Restoration 1 of S. Florida, LLC, 152 So. 3d 1292 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D152b]; United Auto. Ins. Co. v. Kendall S. Med. Ctr., 54 So. 3d 543 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D142b]. This precedent does no more than apply our declaratory judgment statute as plainly written:

The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed.

§ 86.011, Fla. Stat. (2019). This specific statute therefore controls jurisdiction over actions for declaratory relief — a claim not present here.⁴ And these decisions obviously do not restrict our Supreme Court’s holding in Alexdex. See, e.g., State v. Hayes, 333 So. 2d 51 (Fla. 4th DCA 1976) (“[t]he District Courts of Appeal are required to follow Supreme Court decisions”).

The bottom line is that Florida Statute § 26.102(2)(c) — as plainly and unambiguously written — grants this Court concurrent jurisdiction over Citizens’ equitable claim for specific performance of the appraisal clause even though the amount in controversy does not exceed $15,000.00. See, e.g., Parkway Baptist Church, Inc. v. Guideone Elite Ins. Co., 10-23965-CV, 2011 WL 13099891 (S.D. Fla. Sept. 21, 2011) (recognizing that “Plaintiff’s request to compel appraisal is seeking specific performance of the contract”). And the Court may not abdicate that jurisdiction by transferring the case to county court. See, e.g., Recanzone v. May Co., 712 So. 2d 474 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1598b] (“[b]ecause the circuit and county courts have concurrent jurisdiction over such actions when equitable relief is sought, qualified only in that, if brought in county court, such actions must fall within the $15,000 monetary jurisdictional amount, the trial court erred in refusing to exercise jurisdiction over a matter which clearly was within its jurisdiction”). See also Coral Springs Tower Club II Condo. Ass’n, Inc. v. Dizefalo, 667 So. 2d 966 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D433b]; Puroclean of N. Broward, Inc. v. Stanley, 83 So. 3d 733 (Fla. 3d DCA 2012).

III. CITIZENS MOTION TO STAY AND COMPEL APPRAISAL

Having concluded that it has subject matter jurisdiction, the Court next turns to Citizen’s Motion to Stay and Compel Appraisal.

As an initial matter, and as both parties recognize, our appellate courts treat appraisal clauses in insurance policies similar to arbitration clauses in general. See, e.g., Preferred Mut. Ins. Co. v. Martinez, 643 So. 2d 1101 (Fla. 3d DCA 1994). And it is by now firmly settled that these types of alternative dispute resolution provisions are valid, enforceable, and highly favored. See, e.g., State Farm Fire & Cas. Co. v. Middleton, 648 So. 2d 1200 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D99b] (remanding case for enforcement of appraisal provision, and emphasizing that “[t]he underlying reason for our conclusion is the general, even overwhelming, preference in Florida for the resolution of conflicts through any extra-judicial means, especially arbitration, for which the parties have themselves contracted”); Citizens Prop. Ins. Corp. v. River Manor Condo. Ass’n, Inc., 125 So. 3d 846 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D820a] (“[b]ecause appraisal clauses, such as the one agreed upon here, provide a mechanism for the prompt resolution of claims and discourage the filing of needless lawsuits, they are now commonplace in casualty insurance policies, and favored by courts”); Federated Nat. Ins. Co. v. Esposito, 937 So. 2d 199, 201 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2220a] (citing the “laudable goal of the appraisal process-to resolve disputes without litigation-and the potential to evade that goal by resort to the court system, we hold that there is no need to confirm an appraisal award in circumstances such as those presented here”). For these reasons, appraisal clauses contained within insurance policies are routinely enforced, and have been for over a century. See, e.g., S. Home Ins. Co. v. Faulkner, 49 So. 542 (Fla. 1909); Am. Capital Assur. Corp. v. Courtney Meadows Apartment, L.L.P., 36 So. 3d 704 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D802a]; First Protective Ins. Co. v. Schneider Family P’ship, 104 So. 3d 1115 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D2631c]; Cincinnati Ins. Co. v. Cannon Ranch Partners, Inc., 162 So. 3d 140 (Fla. 2d DCA 2014) [40 Fla. L. Weekly D78a].

Against this sea of precedent, All Insurance raises a potpourri of defenses to Citizens’ appraisal demand. The Court will now address each.

A. The Scope of the Appraisal Provision

First, All Insurance insists that this dispute over the reasonableness of its invoice is not a “disagreement regarding the amount of the covered loss,” and is thus outside the reach of the appraisal provision. In support of this argument All Insurance relies upon three county court decisions. See Graham Carpet Clean and Rest., LLC a/a/o Vacarro v. Citizens Property Insurance Co., Case No. 2013-CC-001806 (May 25, 2018); Rest. 1 of South Florida, LLC v. Geovera Spec. Ins. Co., 22 Fla. L. Weekly Supp. 373c (11th Jud. Cir. August 21, 2014), affirmed per curiam; Wise Guys Rest. LLC, a/a/o Campos v. Castle Key Indem. Co., 2018-01984 (Sept. 19, 2018). These courts have concluded that for purposes of an appraisal provision a meaningful distinction exists between a dispute over the “reasonableness” of an invoice for repairs already made, and one over the “reasonableness” of an estimate for repairs to be made in the future, and have found persuasive the argument that “[a]ppraisal only applies to disputes regarding the amount of damages or loss, not to the reasonableness of the cost of emergency responses.” Response, p. 9. Other county (and circuit) courts have disagreed. So does this Court.

The phrase “disagreement regarding the amount of covered loss” is not as confining as All Insurance suggests. The water damage All Insurance was retained to mitigate was clearly a “loss” for purposes of the policy or would not be covered at all. So if the insured (or here its assignee) claims that the reasonable cost of repairing that “loss” was $4559.00, and the carrier claims the reasonable cost of repairing that “loss” was $1,347.80 (as Citizens does), the parties obviously have a “disagreement regarding the amount of the covered loss,” regardless of whether that “loss” has already been mitigated and “invoiced,” or is to be repaired in the future and “estimated.” It makes no difference, as the policy tasks appraisers with determining the amount necessary and reasonable to repair a covered loss. If the damage is already repaired, any “dispute” over the “amount of loss” obviously centers upon the “reasonableness” of the amount charged. If the repairs have not yet been made, the “dispute” over the “amount of loss” centers upon the “reasonableness” of an estimate of what it will cost to make the repairs in the future. Either way, the “dispute” is clearly over the “amount of the covered loss” and therefore within the scope of the appraisal provision. Simply put, if the “amount of loss” was — as Citizens says — only $1,347.80, an invoice for $4,559.00 is unreasonable, whereas if the “amount of loss” was $4,559.00 (or close) — as All Insurance says — the invoice for that amount is reasonable. The same analysis applies to an estimate for future work. In both instances the “amount of loss” will dictate whether the “invoice” or “estimate” is reasonable.

In an effort to create a material distinction where one does not exist, All Insurance insists that the appraisal provision is ambiguous and — as a result — must be construed “in favor of the insured, and strickly against the defendant who prepared the policy.” Response, p. 8, citing Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29 (Fla. 2000) [25 Fla. L. Weekly S211a]. This is so — according to All Insurance — because the language used (i.e., “amount of loss”) is “susceptible to more than one reasonable interpretation.” Id. All Insurance also says that the appraisal clause does not attach here because the policy must be read as a whole, see Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So. 2d 938 (Fla. 1979), and the provision of the policy related to “Reasonable Emergency Measures” makes “no mention of appraisal.” Response, p. 9. The Court again disagrees.

It is no doubt true that when an ambiguity in an insurance policy exists, the carrier — as the writer of the contract — “is bound by the language of the policy, which is to be construed liberally in favor of the insured and strictly against the insurer.” Washington Nat. Ins. Corp. v. Ruderman, 117 So. 3d 943 (Fla. 2013) [38 Fla. L. Weekly S511a]. This principle is routinely applied in circumstances where one reasonable construction results in coverage (or the absence of an exclusion) and another reasonable construction results in a lack of coverage (or triggers an exclusion). See, e.g., Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528 (Fla. 2005) [30 Fla. L. Weekly S633a]. In this scenario one reasonable construction clearly favors the insured, and the other clearly favors the insurer. And when a true ambiguity exists regarding a provision that dictates coverage or the applicability of an exclusion, “the policy must be liberally construed in favor of coverage . . . .” Ruderman, supra 949-950.

For the reasons discussed earlier, there is nothing ambiguous about the appraisal provision at issue and — in particular — the phrase “disagreement regarding the amount of the covered loss.” Again, whether the parties disagree on the reasonableness of an invoice for work already performed, or on the reasonableness of an estimate for work to be performed in the future, the disagreement is over “the amount of the loss,” and the “amount of loss” will dictate whether the invoice for work already performed (or the estimate for the work to be performed) is reasonable. Moreover, the claimed ambiguity here is not one over coverage or an exclusion, and any interpretative decision (assuming one had to be made) would not cut in favor of either the insured or insurer. The issue here is only whether an appraisal panel or jury will decide the reasonableness of All Insurance’s invoice. Some insurers might prefer a jury and others — like Citizens in this case — an appraisal panel. Conversely, some insureds (or assignees) might prefer an appraisal panel and others — like All Insurance here — a jury. But the dueling interpretations All Insurance posits are neutral, as neither categorically favors either the insurer or insured.⁵

Finally, it makes no difference that the policy provisions dealing with reasonable emergency measures make no mention of the appraisal provision. The policy indemnifies against many potential losses, and the appraisal provision is a stand-alone contract term untethered to any particular species. It is implicated whenever there is a disagreement on the “amount of a loss,” regardless of whether that “loss” comes in the form of emergency repairs, necessary future repairs, physical damage, loss of use, etc. Every provision of the policy addressing a type of covered loss need not specifically incorporate (or even mention) the appraisal provision.

B. Waiver by Filing Suit

All Insurance next claims that Citizens waived its right to appraisal by filing this lawsuit demanding appraisal. This argument need not detain the Court long, as Citizens’ filing of this case seeking to compel an appraisal is obviously not an action inconsistent with the right to appraisal itself. Raymond James Fin. Services, Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005) [30 Fla. L. Weekly S115a] (“[t]he essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right”); Truly Nolen of Am., Inc. v. King Cole Condo. Ass’n, Inc., 143 So. 3d 1015 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D1535a] (party did not waive right to arbitration by filing a motion to transfer venue and compel arbitration).

C. Unconscionability

All Insurance also claims that given the cost likely to be incurred, the appraisal clause is unenforceable and “illusory because All Insurance will recover far less for its services than what it could have reasonably anticipated when it entered into the contract.” Response, p. 12. The Court disagrees and finds nothing unconscionable about the garden variety (and ubiquitous) appraisal provision contained in this policy. See FI-Tampa, LLC v. Kelly-Hall, 135 So. 3d 563 (Fla. 2d DCA 2014) [39 Fla. L. Weekly D748a]; Zephyr Haven Health & Rehab Ctr., Inc. v. Hardin ex rel. Hardin, 122 So. 3d 916 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D2070a]. Furthermore, nothing obligated All Insurance to accept — as consideration for its services — an assignment of the insured’s rights under the policy and the concomitant obligation to submit any disagreement over the “amount of loss” to appraisal. See, e.g Shreve Land Co., Inc. v. J & D Fin. Corp., 421 So. 2d 722, 724 (Fla. 3d DCA 1982) (“. . . 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”). Rather, All Insurance could have simply required payment for its services from the insured, and can still do so now if it chooses.

D. Failure to Comply with Florida Statute § 627.7015

Finally, All Insurance claims that Citizens waived its right to appraisal by failing to comply with Florida Statute § 627.7015(2), which provides:

At the time a first-party claim within the scope of this section is filed by the policyholder, the insurer shall notify the policyholder of its right to participate in the mediation program under this section. The department shall prepare a consumer information pamphlet for distribution to persons participating in mediation.

Id. Assuming, arguendo, that All Insurance even has standing to complain about Citizens’ alleged lack of compliance with this statute, this provision could not be clearer. It requires that “the policyholder” be notified of “its right to participate in” a mediation program “[a]t the time a first-party claim” is filed. It is undisputed that Citizens’ policyholder — Hernandez — was in fact advised of that right shortly after he filed his claim and — unlike a prior version of this statute — the current version of § 627.7015(2) imposes no requirement that a carrier advise an assignee — such as All Insurance — of any right to mediate. Compare, §627.7015(2), Fla. Stat. (2005) (mandating that insurer notify “all first-party claimants” of their right to participate in the mediation program). This legislative change was intended to limit the notification requirement “to policyholders and insurers,” and prevent others “who are involved in a claim and are assigned benefits of the claim by the policyholder (i.e., All Insurance) from requesting mediation . . . .” See FL. H. R. Ins. & Banking Subcommittee, H.B. 1101, Staff Analysis (Jan. 27, 2012). See, e.g., Hill v. State, 143 So. 3d 981, 986 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D1464b] (“[i]t is a well-established presumption that the legislature intends to change the law when it amends a statute”).

The amendment to § 627.7015(2) makes it abundantly clear that contrary to All Insurance’s reading, this statute does not require that insurers provide assignees any notice whatsoever. Nor does the statute require that an insurer notify the policyholder of its right to mediate each time a dispute arises either with that policyholder or an assignee. The statute — as plainly written — requires that the policyholder be notified of its rights under the mediation program once — and once only; “at the time a . . . claim . . . is filed.” That was undeniably done here, and this Court is not at liberty to engraft onto the statute requirements beyond those imposed by the legislature.⁶ See, e.g., Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (a “statute must be given its plain and obvious meaning”); Daniels v. Florida Dept. of Health, 898 So. 2d 61, 64 (Fla. 2005) [30 Fla. L. Weekly S143a] (“[w]hen the statute is clear and unambiguous, . . . ‘courts have no occasion to resort to rules of construction — they must read the statute as written, . . .’ ”); Golf Channel v. Jenkins, 752 So. 2d 561 (Fla. 2000) [25 Fla. L. Weekly S31a] (“[i]t is a fundamental principle of statutory construction that where a statute is plain and unambiguous there is no occasion for judicial interpretation”).

IV. CONCLUSION

Citizens’ policy contains an appraisal clause that is valid, enforceable and binding on All Insurance, as assignee. There is nothing ambiguous about that run-of-the-mill provision, and a dispute over the reasonableness of an invoice for mitigation work performed falls comfortably within its mandate. Citizen’s Motion to Stay and Compel Appraisal is therefore GRANTED.

__________________

¹All Insurance, however, did not release Hernandez from his obligation to pay this invoice and nothing precludes it from seeking payment from him.

²The cap on coverage for emergency repairs is $3,000.00. Thus, the amount in dispute here is $1,652.20.

³A “red cow” is a term used to describe a case directly on point, a commanding precedent. See Corn v. City of Lauderdale Lakes, 997 F.2d 1369 (11th Cir. 1993).

⁴In order to try and fall within the reach of this precedent, All Insurance points out that it has brought a counterclaim seeking declaratory relief. Jurisdictional Response, p. 14. That is irrelevant, as the issue is whether the Court has subject matter jurisdiction over Citizens claim for specific performance, not whether it would have subject matter jurisdiction over All Insurance’s counterclaim, standing alone. And if the Court has subject matter jurisdiction over a plaintiff’s claim, it may exercise jurisdiction over any counterclaim, regardless of whether it would have such jurisdiction independently. See Gordon v. Goodrich, 347 So. 2d 715 (Fla. 3d DCA 1977) (“a counterclaim will not be dismissed for failure to meet the jurisdictional amount of the circuit court, as long as the original claim upon which the counterclaim is based exceeds the jurisdictional amount of said court”).

⁵This begs the question of what this $1,700.00 dispute is really about — the answer to which is attorney’s fees. All Insurance wants a jury because if it persuades it that the amount due (i.e., the amount of the covered loss) is greater than that paid by Citizens its attorneys are entitled to fees. See § 627.428, Fla. Stat. (2019). But when an insurer admits coverage — as Citizens did here — and merely insists on its right to employ the contracted for appraisal process, fees are not recoverable. See, e.g., Hill v. State Farm Florida Ins. Co., 35 So. 3d 956 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D1041a]; Federated Nat. Ins. Co. v. Esposito, 937 So. 2d 199 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2220a]; Velez v. USAA Casualty Ins. Co., 24 Fla. L. Weekly Supp. 335a (11th Jud. Cir. July 20, 2016) (Hanzman, J). That is what this dispute is about. It is not that insureds categorically prefer juries to appraisal panels.

⁶Compare Kennedy v. First Protective Ins. Co., 44 Fla. L. Weekly D649a (Fla. 3d DCA Mar. 6, 2019) (carrier waived appraisal rights by demanding appraisal “before” providing “written statutory notice to [the insured] of their right to mediate, as mandated by Section 627.7015”).