Opinion
No. 2D21-1715
02-25-2022
HERITAGE PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, v. VERANDA I AT HERITAGE LINKS ASSOCIATION, INC., Appellee.
David A. Noel and Kara Rockenbach Link of Link & Rockenbach, P.A., West Palm Beach; and Jeffrey A. Rubinton and Veronica Dossat of Rubinton & Associates, P.A., Tampa, for Appellant. Cary J. Goggin, Amanda C. Broadwell, and Jessica Rodriguez of Goede, Adamczyk, DeBoest & Cross, PLLC, Naples, for Appellee.
David A. Noel and Kara Rockenbach Link of Link & Rockenbach, P.A., West Palm Beach; and Jeffrey A. Rubinton and Veronica Dossat of Rubinton & Associates, P.A., Tampa, for Appellant.
Cary J. Goggin, Amanda C. Broadwell, and Jessica Rodriguez of Goede, Adamczyk, DeBoest & Cross, PLLC, Naples, for Appellee.
LUCAS, Judge.
Heritage Property & Casualty Insurance Company (Heritage) appeals an order compelling it to participate in an appraisal pursuant to its insurance policy with Veranda I at Heritage Links Association, Inc. (Veranda), a condominium association. Because Heritage had fully denied coverage for the supplemental claim at issue, we reverse the order requiring appraisal of the amount of loss.
In September of 2017, Veranda submitted a claim to Heritage, its property insurer, for damages sustained in the wake of Hurricane Irma. Veranda's first claim comprised solely of damages pertaining to the condominium and garage roofing within the association. In December 2017, Heritage determined that the roof damages were a covered claim under Veranda's policy.
A dispute arose concerning the extent of repairs that were needed to fix the roof damage. In March 2019, Veranda, now represented by a public adjuster, submitted a new estimate and sworn proof of loss. This new proof of loss sought an outright roof replacement. It also included a new claim to replace all the windows and doors of the condominium complex.
As we will explain later, this new claim falls within the insurance policy's definition of a "supplemental claim": "Supplemental claim or reopened claim means an additional claim for recovery from us for losses from the same hurricane or other windstorm which we have previously adjusted pursuant to the initial claim."
The dispute eventually became a lawsuit. On October 16, 2020, Veranda filed a complaint against Heritage alleging counts for breach of contract and declaratory relief. Veranda's complaint also requested the circuit court to compel the parties to participate in the appraisal process set forth in the insurance policy. The case proceeded with discovery. On April 13, 2021, Heritage sent correspondence to Veranda in which it agreed to issue payment for Veranda's roof replacement claim but "wholly den[ied]" coverage for the supplemental windows and door claim "in its entirety."
The policy's appraisal provision provides as follows:
If we and you disagree on the value of the property or the amount of loss, either may request:
....
2. An appraisal of the loss, in writing. 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.
This left the question of what to do with Veranda's request for appraisal. Over the course of two hearings, the circuit court considered the matter, and on May 12, 2021, entered an order stating that the case would proceed "on a dual-track basis" and compelled the parties to participate in an appraisal process. Heritage now appeals that order. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).
We review a trial court's order compelling appraisal de novo with respect to the application of law to facts; the trial court's factual findings we review for competent, substantial evidence. See Fla. Ins. Guar. Ass'n v. Hunnewell , 173 So. 3d 988, 991 (Fla. 2d DCA 2015) ; Barbato v. State Farm Fla. Ins. Co. , 319 So. 3d 96, 97 (Fla. 3d DCA 2021). Like the Third District, we have left it to trial courts to decide the order in which damages and coverage issues are ascertained vis-à-vis an appraisal process under an insurance policy. See Am. Cap. Assurance Corp. v. Leeward Bay at Tarpon Bay Condo. Ass'n , 306 So. 3d 1238, 1242 (Fla. 2d DCA 2020) (adopting Sunshine State Ins. Co. v. Rawlins , 34 So. 3d 753, 755 (Fla. 3d DCA 2010) ). But see Citizens Prop. Ins. Corp. v. Demetrescu , 137 So. 3d 500, 502 (Fla. 4th DCA 2014) ("[A]ppraisal is premature where there is a disputed issue of fact regarding coverage and where the trial court fails to ‘resolve this dispute of fact with competent evidence to support its determination of coverage.’ " (quoting Sunshine State Ins. Co. v. Corridori , 28 So. 3d 129, 131 (Fla. 4th DCA 2010) )). However, when an insurance company wholly denies a claim, the trial court cannot refer that claim to appraisal. See Johnson v. Nationwide Mut. Ins. Co. , 828 So. 2d 1021, 1022 (Fla. 2002) ("[C]ausation is a coverage question for the court when an insurer wholly denies that there is a covered loss and an amount-of-loss-question for the appraisal panel when an insurer admits that there is covered loss, the amount of which is disputed."); Merrick Pres. Condo. Ass'n v. Cypress Prop. & Cas. Ins. Co. , 315 So. 3d 45, 50 (Fla. 4th DCA 2021) ; Kendall Lakes Townhomes Devs., Inc. v. Agric. Excess & Surplus Lines Ins. Co. , 916 So. 2d 12, 15-16 (Fla. 3d DCA 2005) ; Arch Specialty Ins. Co. v. BP Inv. Partners, LLC , No. 6:18-cv-1149-Orl-78DCI, 2020 WL 5534279, at *2 (M.D. Fla. Mar. 11, 2020) ; 767 Bldg., LLC v. Allstate Ins. Co. , 10-60007-CIV, 2010 WL 1796564, at *2 (S.D. Fla. May 4, 2010). As our court summarized in another Hurricane Irma dispute, Villagio at Estero Condominium Ass'n v. American Capital Assurance Corp. , ––– So.3d ––––, 46 Fla. L. Weekly D879, D886, 2021 WL 1432160 (Fla. 2d DCA Apr. 16, 2021) :
The Florida Supreme Court accepted jurisdiction to consider Leeward Bay in American Capital Assurance Corp. v. Leeward Bay at Tarpon Bay Condo. Ass'n , No. SC20-1766, 2021 WL 416684 (Fla. Feb. 8, 2021).
It is undisputed that a coverage challenge "is exclusively a judicial question " rather than one for appraisal. But " ‘when the insurer admits that there is a covered loss,’ any dispute on the amount of loss is appropriate for appraisal."
(Citations omitted) (first quoting Johnson v. Nationwide Mut. Ins. Co. , 828 So. 2d 1021, 1025 (Fla. 2002) ; then quoting Cincinnati Ins. Co. v. Cannon Ranch Partners, Inc. , 162 So. 3d 140, 143 (Fla. 2d DCA 2014) ).
The only ripple the case at bar presents is the manner in which the claims were presented to the insurer—Heritage acceded to the initial claim for roof repairs but wholly denied Veranda's supplemental claim for damages to the windows and doors. Yet another Hurricane Irma insurance case resolves this ripple.
In American Coastal Insurance Co. v. Ironwood, Inc. , 330 So.3d 570, 571 (Fla. 2d DCA 2021), a condominium association made a property insurance claim for roof damages, which its insurer paid. More than a year later, the association sought coverage for damages to the condominiums' windows and doors. A dispute arose as to whether the subsequent request for damages to the windows and doors could be subject to appraisal because the insurer had not yet determined whether it would provide coverage for those damages. The circuit court nevertheless compelled appraisal as to the windows and doors.
In reversing that order, our court held:
[T]he court below erred in concluding that Ironwood's windows-and-doors claim is an aspect of the initial roof-damage claim rather than a supplemental claim....
Ironwood's insurance policy defines a supplemental claim as "any additional claim for recovery from [American Coastal] for losses from the same hurricane or windstorm which [American Coastal] [has] previously adjusted pursuant to the initial claim." Ironwood's windows-and-doors claim falls squarely within this definition.
Id. at 573 (second, third, and fourth alterations in original).
The facts and policy language at issue in Ironwood are virtually indistinguishable from the case at bar. Because Veranda's claim for windows and doors was a supplemental claim for coverage, Ironwood instructs that we must consider that claim separately from the initial roof claim that had been fully adjusted. And since Heritage wholly denied coverage for that supplemental claim, Johnson and its progeny precluded the trial court from referring it to appraisal.
In arguing for affirmance, Veranda suggests we should ignore the manner in which insurance coverage is typically reviewed and adjusted—that is, through "claims" made on policies—and instead look at "the overall loss as the determinative factor" for appraisal. As Veranda puts it, "The dispute lies in causation of whether damages arose from Hurricane Irma." That may be true. But Veranda submitted a separate "supplemental claim" (as that term is defined in the policy) for coverage for its windows and doors. Because what was presented was a separate, supplemental claim, Heritage could adjust it separately (as, indeed, it did).
Accordingly, we reverse the order compelling appraisal of the supplemental claim and remand for further proceedings.
Reversed and remanded.
ATKINSON and LABRIT, JJ., Concur.