8 Fla. L. Weekly Supp. 40a
Insurance — Homeowners — Insured contending that damage to home is attributable to blasting in neighboring vicinity or other causes falling within coverage afforded under all risk policy — Motion to compel appraisal as to cause of loss is denied, as cause of loss is not issue subject to appraisal — Motion to compel appraisal as to amount of loss is granted
STATE FARM FIRE & CASUALTY COMPANY, Petitioner, vs. JOSEPH G. BASIL, Respondent. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 00-013199 (09). October 16, 2000. Robert Lance Andrews, Judge.
ORDER
THIS CAUSE came before the Court on Petitioner’s Motion to Dismiss Counterclaim and to Compel Appraisal. The Court having considered the same, having heard argument of counsel and being otherwise duly advised in premises finds and decides as follows:
This action arises from a property insurance claim submitted by Respondent/Counter-Petitioner, under his homeowner’s “all risk” policy. The Respondent/Counter-Petitioner alleges that the damage is attributable to blasting in the neighboring vicinity, or other causes falling within the coverage afforded under his policy. The Petitioner, State Farm filed a petition to appoint an umpire to preside over an appraisal proceeding, which State Farm asserts is their right under the policy because there is a disagreement as to the amount of loss. Respondent/Counter-Petitioner answered the petition and filed a counterclaim, asserting causes of action for breach of contract, declaratory relief, and alternatively, for appointment of an umpire if appraisal is found to be appropriate. The Respondent/Counter-Petitioner submits that there is no disagreement as to the amount of loss, rather State Farm determined that the claim was not a covered peril and thus valued the amount of loss at zero dollars.
State Farm has now moved to dismiss the counterclaim and compel appraisal, contending that appraisal is appropriate to determine the amount of the loss and the cause of the loss. This Court disagrees. A dispute as to cause of loss, as with all challenges to coverage, is exclusively a judicial question. State Farm Fire & Casualty Company, Inc. v. Licea, 685 So.2d 1285 (Fla. 1996);see also Midwest Mutual Insurance Co. v. Santiesteban, 287 So.2d 665 (Fla. 1975); J.J.F. of Palm Beach v. State Farm Fire & Casualty Co., 634 So.2d 1089 (Fla. 4th DCA 1994); Opar v. Allstate Insurance Company, 751 So.2d 758 (Fla. 1st DCA 2000).
Accordingly it is hereby,
ORDERED AND ADJUDGED that Petitioner’s motion be and the same is hereby granted in part and denied in part as follows:
(1) Petitioner’s motion to compel appraisal is denied as to the cause of loss. Cause of loss is not an issue subject to appraisal.
(2) Petitioner’s motion to compel appraisal is granted as to the amount of loss.
(3) Petitioner’s motion to dismiss counterclaim is denied. The case shall proceed to determine cause of loss and coverage prior to appraisal of the amount of loss.
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