28 Fla. L. Weekly Supp. 411a
Online Reference: FLWSUPP 2805PECO
Insurance — Automobile — Windshield replacement — Appraisal — Clear and unambiguous policy provision that provides simple and informal appraisal process for windshield replacement and was not waived by insurer is enforceable against assignee of insured — Prohibitive cost doctrine — Appraisal process is not invalid under prohibitive cost doctrine where process is not prohibitively costly and it has not been shown that any statutory right would not be vindicated by going through process — Motion to compel appraisal is granted
BROWARD INS RECOVERY CENTER (LLC) a/a/o Antonio Pecorelli, Plaintiff, v. PROGRESSIVE AMERICAN INS. CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2018-026441-SP-23, Section ND01. March 9, 2020. Myriam Lehr, Judge. Counsel: Emilio Stillo, Emilio Stillo, P.A., Davie; and Joseph Dawson, Law Offices of Joseph R. Dawson, P.A., Fort Lauderdale, for Plaintiff. Daniel Montgomery, Cole, Scott & Kissane, PA., Jacksonville, for Defendant.
ORDER ON DEFENDANT’S MOTIONTO DISMISS OR ALTERNATIVELY MOTIONTO STAY AND COMPEL APPRAISAL AND DENYINGPLAINTIFF’S MOTION FOR EVIDENTIARY HEARING
THIS CAUSE having come before the Court on December 5, 2019 on Defendant’s Motion To Dismiss Or Alternatively Motion To Stay And 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, and law the Court GRANTS Defendant’s Motion to Dismiss or Alternatively Motion to Stay and Compel Appraisal in part 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, Plaintiff has failed to demonstrate a statutory right that would not be vindicated by going through appraisal, instead simply arguing that Plaintiff would be entitled to an ancillary right to attorney’s fees pursuant to Florida Statute 627.428 should it prevail in litigation. While Attorney’s fees are a substantive right, the right to attorney’s fees is not a statutory cause of action as required for the invocation of the prohibitive cost doctrine, but a right derived upon judgment in favor of the Plaintiff. Green Tree, at 90.
Additionally, 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 Complaint and espoused by Plaintiff at the hearing in opposition of appraisal. Plaintiff’s claims that it is entitled to discovery regarding the policy’s limitations of liability provision or that this is a coverage dispute regarding the limits of liability provision are without merit. The appraisal provision of the policy is not subject to the limits of liability provisions of the policy. Once Defendant invoked appraisal, Plaintiff was required to comply with appraisal, as it was the agreed to mechanism for resolution of disputes regarding the value of loss. See State Farm Fire & Cas. Co. v. Middleton, 648 So. 2d 1200, 1202 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D99b].
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); United Community Insurance Company v. Lewis, 642 So. 2d 59 (Fla. 3d DCA 1994).
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.
