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Florida Fifth DCA rules that defendant insurance company did not waive coverage defense by initiating appraisal process in first-party homeowner’s insurance dispute

On June 25, 2021, in Safepoint Insurance Company v. Hallet, No. 5D20-206, the Florida Fifth DCA reversed a summary judgment entered by the trial court in favor of the plaintiffs in a declaratory judgment action brought by the plaintiffsagainst the issuer of their homeowner’s insurance. The plaintiffs had filed their lawsuit seeking a completion of the appraisal process on their claim which had been terminated by the defendant after the plaintiff’s public adjuster did not appear for a scheduled examination, claiming that the plaintiffs had failed to comply with their contractual obligation to provide post-loss information. They also requested a declaration that they suffered a covered loss, that they had complied with their post-loss policy obligations, and that the defendant had waived its rights to collect post-loss information by initiating the appraisal process. Rather than simply entering an order compelling completion of the appraisal process, the trial court granted the plaintiff’s motion in totality and specifically found that that the defendant had waived the post-loss obligations contained within the policy by initiating the appraisal process. The Fifth DCA disagreed with this aspect of the trial court’s ruling, concluding that the policy did not condition the defendant’s ability to garner post-loss information on the state or existence of the appraisal process, and that the trial court therefore erred in determining that that the defendant had waived this coverage defense. The Fifth DCA noted the “tension” between the right to an appraisal and an insured’s obligation to provide post-loss information, and that when an appraisal is demanded an insurer may assert lack of coverage or violation of policy conditions—such as failure to cooperate—as a defense to the process, citing State Farm Fire & Cas. Co. v. Licea, 685 So. 2d 1285, 1288 (Fla. 1996). The Fifth DCA’s opinion noted the conduct of the insurer’s defense counsel, Curt Allen, in the events that precipitated the collapse of the appraisal process. The Court noted that Mr. Allen had behaved unprofessionally throughout the three examinations that preceded the public adjustor’s failure, had twice been criticized by the Second DCA for unprofessional behavior in other cases, and in February 2021 was reprimanded by the Florida Supreme Court for unprofessional questioning of witnesses and treatment of opposing counsel. The Fifth DCA stated: [w]e believe Allen’s conduct throughout this case warrants independent review, and we therefore refer this matter to The Florida Bar for further proceedings.”