27 Fla. L. Weekly Supp. 682a
Online Reference: FLWSUPP 2708OCONInsurance — Automobile — Windshield repair — Appraisal — Trial court erred in denying motion to compel appraisal of claim for windshield repair on ground that request for appraisal was unclear or ineffective because it was accompanied by check for amount insurer deemed to be appropriate for services rendered — Motion to compel appraisal should have been granted where valid appraisal agreement exists, disagreement as to amount of reimbursement raises appraisable issue, and insurer did not waive appraisal rights by sending check for claim while invoking appraisal rights prior to litigation
PROGRESSIVE EXPRESS INS. CO., Petitioner, v. FRY ENTERPRISES, INC., d/b/a CORNERSTONE MOBILE GLASS, a/a/o Mike O’Connor, Respondent. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 16-CA-11255, Division G. L.T. Case No. 16-CC-19119. September 27, 2019. Counsel: Alexandra Valdes, Cole, Scott & Kissane, P.A., Miami, for Plaintiff. Timothy Patrick, Tampa, for Defendant.
[Lower court order at 25 Fla. L. Weekly Supp. 679a]ORDER GRANTING PETITION FORWRIT OF CERTIORARI
(MARTHA J. COOK, J.) THIS MATTER is before the Court on Petitioner’s Petition for Writ of Certiorari filed December 9, 2016. At issue is the county court’s denial of Petitioner’s motion to dismiss or abate to conduct appraisal. Recent authority indicates this court has jurisdiction to review this nonfinal order. Progressive Am. Ins. Co. v. SHL Enters., LLC, 264 So. 3d 1013 (Fla. 2d DCA 2018) [43 Fla. L. Weekly D2434a] and Progressive Select Ins. Co. v. Lloyd’s of Shelton Auto Glass, LLC, 264 So. 3d 1018 (Fla. 2d DCA 2018) [43 Fla. L. Weekly D2430a]. The basis for the county court’s denial of Progressive’s motion to compel appraisal appears to have been its conclusion that Progressive’s attempt to invoke the process was unclear or ineffective because it was accompanied by a check for the amount Progressive deemed appropriate for the services rendered. There is no meaningful distinction between a request for appraisal that is accompanied by payment and one where an amount is offered but is unaccompanied by payment. Because the policy allows either party to invoke appraisal to determine the amount of a covered loss, and because Progressive clearly and timely invoked appraisal despite also enclosing a check, the county court should have granted Progressive’s motion to compel appraisal. Accordingly, the order denying the motion must be quashed.
Sometime around March 4, 2016, Progressive’s insured Mike O’Connor sustained damage to his car’s windshield. On March 10, 2016, Cornerstone invoiced Progressive for the repair work. This was the first notice Progressive received of the loss. Progressive determined the amount of the loss and sent a check to Cornerstone. The amount paid was less than the invoice amount. Because the payment was less than the amount invoiced, Progressive included a letter invoking appraisal if Cornerstone or Progressive’s insured disputed the reimbursement amount. Rather than submit to appraisal, however, Cornerstone communicated its disagreement with the amount paid by filing the underlying lawsuit.
Thereafter, Progressive filed a motion to dismiss or, in the alternative to stay the lawsuit and compel appraisal. Documents filed in advance of the hearing argued whether Progressive had waived appraisal by acting in a manner that was inconsistent with the process, whether the prohibitive cost doctrine rendered the appraisal clause unenforceable, and whether the issue was one of coverage, which is not subject to appraisal, or the amount of loss, which is subject to appraisal. Although the order denying Progressive’s motion to compel appraisal did not clearly specify the reason for denying Progressive’s motion, the transcript of the hearing indicates that the judge concluded that Progressive’s letter invoking appraisal and its “partial” payment either nullified the appraisal request or rendered the appraisal request ambiguous. It also referenced the permissive nature of the policy’s appraisal clause.1 In the end the court found Progressive’s letter did not invoke the appraisal clause of the policy.2
The letter Progressive sent to Cornerstone and its insured acknowledged that it paid less than the claimed amount and further acknowledged that its insured or Cornerstone or both might dispute that payment. Anticipating this possibility, Progressive proactively requested appraisal. Its letter said in pertinent part:
In the event that you and/or the Shop disagree with the amount of the payment, please be advised that the Company immediately places you and the Shop on notice that it invokes its right to appraisal as set forth in the applicable policy. The policy provides in pertinent part. . .
The relevant policy language reads:
If we cannot agree with you on an amount of a loss, then we or you may demand an appraisal of the loss. Within thirty (30) days of any demand for an appraisal each party shall appoint a competent and impartial appraiser and shall notify the other party of the appraiser’s identity. The appraisers will determine the amount of loss.
The court denied relief, saying:
[I]n looking closer at this letter sent on May 9th considering the fact that it was sent with a partial payment, the invocation of appraisal is not clear because Progressive is stating, here’s a payment and if you disagree, then we invoke appraisal. But the appraisal clause from the policy states, if we cannot agree with you on the amount of loss, then we or you may demand an appraisal. So it’s permissive, and neither party has demanded an appraisal. Progressive says if you don’t like this, then we want an appraisal; but neither party demanded an appraisal. So based on that I’m going to deny the motion to compel the appraisal.
At issue is whether Progressive unambiguously invoked appraisal.
For appraisal to lie, there must be a valid, written agreement to submit all disputes as to amount of loss to appraisal. In addition, there must be an appraisable issue, and the right to appraisal must not have been waived. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005) [30 Fla. L. Weekly S115a] (arbitration context).3 If the right to appraisal exists, it is favored for the resolution of conflicts. Id. When the disagreement concerns the amount of loss, not coverage, it is for the appraisers to arrive at the amount to be paid. Johnson v. Nationwide Mut. Ins. Co., 828 So. 2d 1021, 1025 (Fla. 2002) [27 Fla. L. Weekly S779a].
Here, although permissive, a valid appraisal agreement exists. Under the terms of this agreement if appraisal is invoked by either party, the other party must then participate. Because it is the amount of reimbursement, and not whether there is coverage for the loss that is at issue, an appraisable issue exists. The only remaining question is whether Progressive’s conduct in these proceedings amounted to a waiver of its right to invoke appraisal.
Progressive invoked its appraisal right at the earliest possible opportunity in its letter to the insured and Cornerstone before the lawsuit was filed, and, after the lawsuit was filed by moving for dismissal or a stay to pursue appraisal. This conduct is consistent with its appraisal rights. Cf. U.S. Fire Ins. Co. v. Franko, 443 So. 2d 170, 172 (Fla. 1st DCA 1983) (motion to dismiss is equivalent to motion to compel [appraisal]). In fact, Cornerstone’s main argument is that Progressive should have done exactly what it did but without sending payment. Cornerstone advanced no legal authority for the assertion that issuing a reimbursement check for the claim while invoking appraisal defeats Progressive’s appraisal rights, and this court knows of no such authority.4 Florida law says there can be no basis for finding a waiver when appraisal is invoked at the start of litigation. Fla. Ins. Guar. Ass’n. v. Castilla, 18 So. 3d 703, 705 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2000a]. Invoking the process before litigation occurs, therefore, cannot be in conflict with the right. Motions to compel appraisal should be granted whenever the parties have agreed to appraisal, and the agreement is clear. Id. (internal citations omitted). Because no legal basis to deny appraisal has been shown, Progressive’s motion to compel should have been granted.
It is therefore ORDERED that the Petition is GRANTED and the order denying appraisal is QUASHED. The Clerk is directed to place a copy of this Order in County Court file 16-CC-19119.
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1The order does not suggest a legal effect of the permissiveness of the policy’s appraisal clause. Permissive appraisal clauses are valid, but, being permissive, they may not create a condition precedent to suit like mandatory clauses. Jerkins v. USF & G Specialty Ins. Co, 982 So.2d 15, 18 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D763a]. Cf. Opar v. Allstate Ins. Co., 751 So. 2d 758, 760 (Fla. 1st DCA 2000) [25 Fla. L. Weekly D545a] (appraisals are conditions precedent to suit), reversed on other grounds 828 So. 2d 1021. The permissive language of the policy’s appraisal clause does not affect validity of Progressive’s request for appraisal here.
2The transcript of the court’s ruling reads “. . .neither party demanded appraisal. So based on that I’m going to deny the motion to compel the appraisal.”
3Appraisal clauses are treated similarly to arbitration clauses for purposes of the standard of review on appeal from a trial court’s decision denying an insurer’s motion to compel appraisal. Fla. Ins. Guar. Ass’n. v. Castilla, 18 So. 3d 703, 704 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2000a].
4See e.g. Citizens Property Ins. Corp. v. Cuban-Hebrew Congregation of Miami, Inc., 5 So. 3d 709 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D333a], wherein the court discusses payments predating appraisal for the purposes of offsetting the award, not for negating the process. See also Allstate Ins. Co. v. Suarez, 833 So. 2d 762 (Fla. 2002) [27 Fla. L. Weekly S1028a]. Payment made before suit suggests that it is the amount of loss, rather than whether the loss is covered, that is at issue.
