Escolar Documentos
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FIRST DISTRICT
STATE OF FLORIDA
Appellant,
Appellee.
__________________________________/
_____________________________________________________________
Appeal of Non-Final Order from the Circuit Court (Hugh A. Carithers, J.)
of the Fourth Judicial Circuit in and for Duval County, Florida
_____________________________________________________________
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TABLE OF CONTENTS
Page
Table of Citations………………………………………………………..…………4
Argument…….........................................................................................................11
ISSUES
Conclusion……………………………………………………………………….25
Certificate of Service…………………………………………………………….26
Certificate of Compliance………………………………………………………..27
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TABLE OF CITATIONS
Page
Allstate Ins. Co. v. Suarez,
833 So. 2d 762 (Fla. 2002)…………………………………………………20
Edney v. State,
3 So. 3d 1281 (Fla. 1st DCA 2009)…………………………………………17
USF&G v. Romay,
744 So. 2d 467 (Fla. 3d DCA 1999)…………………….………….….11, 21
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Wickham v. Famco Servs., Inc.,
350 So. 2d 1159 (Fla. 2d DCA 1977)……………………………………24
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STATEMENT OF CASE AND OF THE FACTS
There are a few key facts that warrant emphasis in this brief in addition to
the statements of facts in the Initial Brief and the Answer Brief/Cross-appeal.
Aside from these facts, American Capital Assurance Corp. (“American Capital”)
language:
E. Loss Conditions
The following conditions apply in addition to the Common
Policy Conditions and the Commercial Property Conditions.
....
2. Appraisal
If we and you disagree on the value of the property or the
amount of loss, either may make written demand for an
appraisal of the loss. In this event, each party will select a
competent and impartial appraiser. The two appraisers
will select an umpire. If they cannot agree, either may
request that selection be made by a judge of a court
having jurisdiction. The appraisers will state separately
the value of the property and amount of loss. If they fail
to agree, they will submit their differences to the umpire.
A decision agreed to by any two will be binding. Each
party will:
a. Pay its chosen appraiser; and
b. Bear the other expenses of the appraisal and
umpire equally.
If there is an appraisal, we will still retain our right to
deny the claim.
accordance with the terms of the policy, because there was a dispute as to the cost
of the claim. (Appellee Appx. L). American Capital attached a check payable to
Courtney Meadows sent a letter to American Capital, dated November 11, 2008,
stating that it did not accept the $168,285.98 check and would not complete the
sworn proof of loss. (Appellee Appx. M). Thereafter, in a letter dated November
18, 2008, American Capital indicated that it did not1 agree with Courtney
O).
Appx. C). American Capital filed a motion to dismiss or abate the action and to
compel appraisal based upon its November 18, 2008, demand. (Appellant Appx.
F). The trial court denied the motion with regard to the damages listed in
Gildenmeister’s estimate, finding that American Capital waived the sworn proof of
loss and appraisal. (Appellant Appx. A). However, the trial court also found that
American Capital was entitled to appraisal to determine the cost to fix the heat,
vents, and air conditioning units, to glaze the windows, and to paint the gazebo,
Appx. A).
1
As previously explained in the initial brief, this correspondence contained a typo
in that it stated American Capital agreed with the damages submitted by Courtney
Meadows. The correspondence should have stated, “do not agree.”
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SUMMARY OF THE ARGUMENT
American Capital did not waive its right to a sworn proof of loss. There is no
time limit specified under the policy within which American Capital was required
American Capital also did not waive its right to appraisal. The plain
language of the policy sets forth no time limit for American Capital to invoke
appraisal. Florida law also imposes no time limits for invoking appraisal when the
policy is silent as to any such time limit. Courts have routinely approved of
American Capital’s conduct in this case does not support a finding that it
waived appraisal under a tipsy coachmen theory. American Capital invoked its
right to appraisal without unnecessary delay and before suit was filed. Any failure
to provide Courtney Meadows with requested information pre-suit did not waive
If this Court holds that American Capital waived appraisal, the decision
dispute resolution over formal litigation. Further, a finding of waiver would mean
that every insurer that pays a claim that is later disputed as to amount would have
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Courtney Meadow’s argument on cross-appeal illustrates an inconsistency
within the trial court’s order. The trial court order should, at the least, be clarified
cost to fix the heat, vents, and air conditioning, to glaze the windows, and to paint
the gazebo.
ARGUMENT
courts are required to “consider the plain language of the policy at the time of the
loss.” See Fla. Windstorm Underwriting v. Gajwani, 934 So. 2d 501, 506 (Fla. 3d
DCA 2005). The language of the policy in this case did not set forth a time limit
within which American Capital was required to demand a sworn proof of loss from
Courtney Meadows.
require insureds to submit proofs of loss to lock the insured into a final position
regarding alleged damages. See, e.g., USF&G v. Romay, 744 So. 2d 467, 469-70
(Fla. 3d DCA 1999) (en banc). As such, proofs of loss are generally requested only
after both sides have had the opportunity to investigate the extent of the covered
In this case, contrary to the trial court’s holding, American Capital did not
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waive its right to have Courtney Meadows submit a sworn proof of loss. In fact,
a letter dated October 22, 2008. American Capital requested this proof of loss
discrepancy existed between each party’s proposed value of the claim. Courtney
Meadows wrongfully refused to complete this even though the language of the
policy required it to fill out a proof of loss within sixty days of American Capital’s
request as a duty in the event of a loss. There is nothing in the policy language that
suggests that American Capital waives its right to a sworn proof of loss by
admitting that a claim is covered under the policy. Therefore, the trial court erred
in finding that American Capital waived its right to a sworn proof of loss.
with the plain language of the policy. Siegle v. Progressive Consumers Ins. Co.,
819 So. 2d 732, 735 (Fla. 2002). Accordingly, “[w]hen an insurance contract is not
The policy language in this case merely says that where there is a
disagreement as to the value of the loss, either side may invoke its right to
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appraisal in writing. There is no reference to a time period within which such right
must be invoked. Moreover, under the policy, the sworn proof of loss has no effect
on the parties’ rights to invoke appraisal under the policy. As such, even if
American Capital had waived its right to the sworn proof of loss, such did not
Despite the operative language in the policy, the trial court cited several
cases in support of its finding that American Capital was untimely in its attempt to
invoke appraisal. These cases are each distinguishable from the instant case,
however. Each of the policies that were interpreted in these cases set forth a
specific deadline for the insurer to pay the claim or invoke appraisal following
For example, in Bear v. New Jersey Insurance Co., 189 So. 252 (Fla. 1939),
the terms of the policy required the insurer to pay the claim or demand appraisal
within sixty days from the receipt of the formal proof of loss. The court held that
the insurer’s admission of liability “in some unagreed amount” acted to waive the
Insurance Co. of Florida v. Terry, 277 So. 2d 563, 564 (Fla. 3d DCA 1973), the
policy at issue contained a sixty-day time limit within which to choose to proceed
with arbitration. See also, Cincinnati Ins. Co. v. Palmer, 297 So. 2d 96 (Fla. 4th
DCA 1974) (construing a policy that required payment within sixty days of
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submission of a sworn proof of loss); Llerena v. Lumbermans Mut. Casualty Co.,
379 So. 2d 166, 167 (Fla. 3d DCA 1980) (interpreting a policy that requires, within
sixty days of the filing of the proof of loss, either party to demand appraisal).
policy that requires appraisal to be invoked, if at all, within any set time from
receiving or waiving the sworn proof of loss. Despite the clearly differentiating
language of the policy in the instant case from the policies in the cases the trial
court cited, the trial court stated in its order, “Where an insurer admits liability and
coverage for the loss, even in an unagreed amount, formal proof of loss is waived
and the time in which the insurer is required to demand appraisal under the terms
of the policy begins to run.” However, in the policy at issue, it cannot be stressed
enough that there is NO TIME LIMT specified within which the parties must
The thirty-day time limits mentioned in the policy apply only with regard to
the time for informing the insured of the method for paying the loss after receiving
a sworn proof of loss and the time for payment of the award after an agreement or
g. We will pay for covered loss or damage within thirty days after we
receive the sworn proof of loss, if you have complied with all of the
terms of this Coverage Part and:
(1) We have reached agreement with you on the amount of
loss; or
(2) An appraisal award has been made.
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Accordingly, in the instant case, there was no trigger of any thirty-day time limit
for payment, even if American Capital waived its right to a sworn proof of loss.
The parties did not reach an agreement as to the amount of loss, and there was no
appraisal award made. Therefore, nothing triggered the thirty-day time limit under
the policy within which American Capital was required to pay the claim. The trial
time limit from some waiver of a sworn proof of loss as being a limitation on
In its order, the trial court repeatedly referenced the policy language of
Subsection (3) applies in the case of insured property or equipment that may be
covered loss, for an agreed upon or appraised value, as an option for a method of
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payment. Subsection E4(a)(3) has nothing to do with the prior provision explaining
the process for invoking appraisal in section E2.2 Therefore, the trial court erred
There is no time limitation under the law for invoking appraisal when a time
limit is not set forth in the insurance policy. In fact, appraisal may be invoked even
after an insured files suit. See e.g., First Floridian Auto & Home Ins. Co. v.
Myrick, 969 So. 2d 1121 (Fla. 2d DCA 2007); Citizens Prop. Ins. Corp. v. Cuban-
Hebrew Congregation of Miami, Inc., 5 So. 3d 709, 710 (Fla. 3d DCA 2009); Gray
Mart, Inc. v. Fireman’s Fund Ins. Co., 703 So. 2d 1170, 1171 (Fla. 3d DCA 1998).
Appraisal is appropriate when the insurer admits that there is a covered loss but
there is a dispute as to the amount of damage. See Johnson v. Nationwide Mut. Ins.
For example, in Scottsdale Insurance Co. v. Desalvo, 666 So. 2d 944, 945-
46 (Fla. 1st DCA 1995), the insured filed suit over a dispute as to the value of the
covered loss, and the insurer moved the trial court to stay the action and submit the
issue to appraisal in accordance with the policy provisions. The trial court denied
2
It should be noted that Americian Capital adhered to the terms of this policy by
sending Courtney Meadows a check for $168,285.98 based on Gildenmeister’s
estimate in accordance with payment option E4(a)(2) of the policy.
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the motion. Id. On appeal, this Court reversed and remanded with directions to
compel appraisal in accordance with the terms of the policy. Id. at 947.
Here, unlike the insurers in the above cases, American Capital invoked its
right to appraisal in writing pursuant to the terms of the policy before Courtney
Meadows even filed suit. Even if American Capital had attempted to invoke this
right after suit was filed, however, the above cases illustrate that such an attempt
Court should reverse and remand for the parties to submit the loss in question to
American Capital waived appraisal by its pre-suit conduct through its investigation
of the claim and dispute with Courtney Meadows over the extent of damages. The
most recent Florida case interpreting waiver of appraisal through a party’s conduct
is Gray Mart, Inc., 703 So. 2d 1170 (Fla. 3d DCA 1998). In Gray Mart, the court
determined that the insurer waived its right to appraisal by actively litigating the
case for fourteen months and demanding appraisal only one month prior to the
3
See, e.g., Edney v. State, 3 So. 3d 1281, 1284 (Fla. 1st DCA 2009) (explaining
that the trial court may be affirmed if it reached the right result for the wrong
reason under “tipsy coachman” rule).
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scheduled date of trial. Id. at 1171, 1173. The Gray Mart court noted, “the right to
appraisal remedy.” Id. at 1172. The court further held that a showing of prejudice
Donald & Co. Sec. Inc. v. Mid-Fla. Cmty. Servs., Inc., 620 So. 2d 192 (Fla. 2d
DCA 1993), and Finn v. Prudential-Bache Sec., Inc., 523 So. 2d 617 (Fla. 4th DCA
appraisal prior to Courtney Meadows even filing suit. Unlike the insurer in Gray
Mart, American Capital never actively litigated the matter with Courtney Meadows
before invoking appraisal. Further, Courtney Meadows would not have been
that time, it had not yet filed suit and had not been forced to proceed through
litigation. Therefore, under the Gray Mart standard governing waiver of appraisal
proceedings through a party’s conduct, American Capital’s actions did not amount
to a waiver and are not a basis for affirming the trial court’s decision under a tipsy
coachman theory.
the loss somehow waived American Capital’s right to appraisal is without legal
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support. There is no case that has held that a party’s failure to provide information
right to appraisal under the policy. Accordingly, the Court should find that
American Capital did not waive its right to appraisal based on its pre-suit conduct.
accomplishes the full intent of the parties, provides meaning to the provisions, and
avoids an absurd result. See American Employers' Ins. Co. v. Taylor, 476 So. 2d
281, 283-84 (Fla. 1st DCA 1985). Accordingly, insurance policy provisions
Rubber Manufacturing Co. v. World Tire Corp., 396 So. 2d 728, 729 (Fla. 5th
DCA 1981); see also Gen. Star Indem. Co. v. West Fla. Village Inn, Inc., 874 So.
2d 26, 29-30 (Fla. 2d DCA 2004) (explaining that contracts for insurance should be
interpretation must be abandoned and one more consistent with reason and
probability adopted.” Travelers Indem. Co. v. Milgen Dev., Inc., 297 So. 2d 845,
v. Suarez, 833 So. 2d 762, 763 (Fla. 2002), the supreme court upheld the Third
District’s decision that the umpire in an appraisal proceeding was not required to
apply the Florida Arbitration Code. This case clarified that appraisals and
arbitrations are distinct proceedings and that appraisals are not required to be
conducted pursuant to statutes governing arbitrations. See id. However, Suarez did
not hold that all the cases dealing with appraisal that reference statutory provisions
governing arbitration were wrongly decided. See generally, id. In fact, since
Suarez, courts have recognized that rules governing arbitration can still be looked
proceedings.
Mutual Casualty Co., 423 So. 2d 908 (Fla. 1982), for guidance in interpreting an
Citizens court recognized that while the Florida Arbitration Code is no longer
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Id. at 712. Similarly, in Three Palms Pointe v. State Farm Fire & Casualty Co., 250
F. Supp. 2d 1357, 1361-62 (M.D. Fla. 2003), which also post-dates Suarez, the
court recognized that under Florida law, it was proper to use the Florida
undisputed that public policy and an interest in judicial economy favors the use of
alternative dispute resolution, such as appraisal. See, e.g., Gainesville Health Care
Center, Inc. v. Weston, 857 So. 2d 278, 289 (Fla. 1st DCA 2003); Desalvo, 666 So.
2d at 946-47; U.S. Fire Ins. Co. v. Franko, 443 So. 2d 170, 171-72 (Fla. 1st DCA
resolution proceedings under the terms of the policy become operative. See
American Capital was made aware that there would be no agreement as to the
value of the covered loss and that is should seek appraisal. Courtney Meadows
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2008. In response, American Capital invoked its right to appraisal, in writing, in a
letter to Courtney Meadows dated November 18, 2008. American Capital did not
American Capital made every attempt to resolve this dispute without litigation. As
soon as American Capital was informed that the parties’ had vastly differing
positions regarding the value of the covered loss, it invoked its right to appraisal.
additional damages and attorney fees, even though American Capital was
voluntarily submitting to appraisal and would promptly honor any appraisal award.
American Capital has made repeated unsuccessful attempts to stay the court
proceedings so that this claim could be resolved through appraisal, consistent with
If this Court upholds the trial court’s determination that American Capital
waived appraisal by voluntarily paying Courtney Meadows for its loss when there
was no time period in the policy within which to invoke appraisal, it would lead to
absurd results. Such a holding would mean that any time the insured admitted
coverage or voluntarily paid the insured for a loss that was later disputed in
amount, it would waive appraisal. This position is not only disfavored under the
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possible in lieu of formal court proceedings. Accordingly, this Court should find
that American Capital is entitled to appraisal under the terms of the policy and
Gildenmeister’s estimated costs to repair several items: $25,783.54 for the heat,
vent, and air conditioning; $1,306.85 for window glazing and repair; and $873.82
for painting the gazebo. In its cross-appeal, Courtney Meadows argues that
American Capital should have paid it these sums and that the trial court erred in
In its final order, the trial court appeared to make inconsistent findings. In
the body of the order, the trial court indicated that American Capital is entitled to
appraisal to determine the cost to repair the damage to the heat, vents, and air
conditioning units, to glaze the windows, and to paint the gazebo. However, in the
conclusion of the order, the trial court stated that it denied American Capital’s
motion to compel appraisal with regard to all of the Gildenmeister’s estimates that
conditioning, to glaze the windows, and to paint. As such, it is unclear what the
J. Sourini Painting, Inc. v. Johnson Paints, Inc., 809 So. 2d 95, 98 (Fla. 2d DCA
2002); Wickham v. Famco Servs., Inc., 350 So. 2d 1159, 1161 (Fla. 2d DCA
1977). In J. Sourini, the court reversed the judgment and order and remanded for a
new trial on all issues because “the trial court’s findings [were] contradictory and
Chance Harvesting Co., 489 So. 2d 195, 196 (Fla. 1st DCA 1986), this Court
reversed and remanded an order containing inconsistent findings for the trial court
Likewise, in this case, the trial court’s final order should be reversed because
these damages. The matter should be remanded for the trial court to clarify its
conclusion.
claims that the $1,306.85 was to be for window reglazing only, while
Gildenmeister’s estimate lists such as the cost for window glazing and repair.
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Similarly, Courtney Meadows stated that the $873.82 was for repainting the
gazebo, whereas Gildenmeister lists that sum for painting in general. In light of
appraisal along with the rest of the damages estimated in Gildenmeister’s report.
CONCLUSION
the trial court’s order denying appraisal with regard to the damages listed in
Gildenmeister’s estimate.
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CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I have served a copy of the above and
foregoing document on P. Campbell Ford, Esq., Ford, Miller & Wainer, P.A., 1835
N. Third Street, Jacksonville, FL 32250 and Diane H. Tutt, Esq., Diane H. Tutt,
P.A., P.O. Box 292436, Davie, FL 33329-2436, by placing the same in the U.S.
Mail, properly addressed and First Class postage prepaid this the 8th day of
September, 2009.
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CERTIFICATE OF COMPLIANCE
I, the undersigned, hereby certify that Appellant’s Reply Brief complies with
the font requirements of Florida Rule of Appellate Procedure 9.210(a)-(b).
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