27 Fla. L. Weekly Supp. 1042b
Online Reference: FLWSUPP 2712KARLInsurance — Automobile — Appraisal — Prohibitive cost doctrine — Where plaintiff contests insurer’s motion to compel appraisal of claim on grounds of prohibitive cost doctrine, evidentiary hearing is required on plaintiff’s ability to pay appraisal fees and costs, expected cost differential between appraisal and litigation, and whether cost differential is so substantial as to deter bringing claims
HILLSBOROUGH INSURANCE RECOVERY CENTER, LLC, a/a/o Kimberly Karl, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 19-CC-030459, Division H. February 5, 2020. James S. Moody, Judge. Counsel: Kevin W. Richardson, Emilio R. Stillo, and Andrew B. Davis-Henrichs, Stillo & Richardson, P.A., Davie, for Plaintiff. Chad Guzzo, Progressive PIP House Counsel, Tampa, for Defendant.
ORDER
THIS CAUSE came before the Court on November 19, 2019, on 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, and the Court, having reviewed the relevant legal authorities, and having heard argument of counsel, hereby finds as follows:
1. Defendant’s Motion to Dismiss, or Alternatively, Defendant’s Motion to Abate or Stay and Motion to Compel Appraisal, is DENIED without prejudice.
2. Plaintiff’s Motion for Evidentiary Hearing is GRANTED.
3. Defendant has filed its Motion to Dismiss, or Alternatively, Defendant’s Motion to Abate or Stay and Motion to Compel Appraisal. Plaintiff has contested the Defendant’s Motion by raising several legal arguments in response thereto, including the Prohibitive Cost Doctrine. Additionally, Plaintiff has filed its Motion for Evidentiary Hearing. The Prohibitive Cost Doctrine stems from Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79 (2000), which recognizes that the costs of arbitration can be prohibitive and render an agreement unenforceable by denying a plaintiff access to the forum. The applicability of the Prohibitive Cost Doctrine must be made on a case by case basis and requires an evidentiary showing of individualized prohibitive expense. Zephyr Haven Health & Rehab Center, Inc. v. Hardin, 122 So. 3d 916 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D2070a] (citing Bradford v. Rockwell Semiconductor Systems, Inc., 238 F. 3d 549 (4th Cir. 2001)); FI-Tampa, LLC v. Kelly- Hall, 135 So. 3d 563, 567 (Fla. 2d DCA 2014) [39 Fla. L. Weekly D748a].
4. In so much as Plaintiff argued in its Motion that it is entitled to an Evidentiary Hearing, the parties are hereby directed to set an evidentiary hearing on the issue of the application of the Prohibitive Cost Doctrine. Per Zephyr Haven Health & Rehab Center, the Evidentiary Hearing shall focus on Plaintiff’s ability to pay the appraisal fees and costs, the expected cost differential between appraisal and litigation in court, and whether the cost differential is so substantial as to deter the bringing of claims. Id. at 922 (citing Bradford, 238 F. 3d at 556); see also FI-Tampa, LLC, 135 So. 3d at 567.
5. The parties and their counsel shall be permitted to conduct discovery limited to the issues pertaining to the issue of appraisal, including but not limited to Plaintiff’s defenses to enforceability of the instant appraisal agreement.
6. The parties will be permitted to perpetuate discovery deposition testimony of witnesses at Plaintiff’s upcoming Evidentiary Hearing regardless of the witnesses’ availability under the Florida Rules of Evidence and/or Florida Rules of Civil Procedure.
