Third District Court of Appeal
State of Florida
Opinion filed December 29, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1772
Lower Tribunal No. 20-14216
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Carl Redlhammer,
Appellant,
vs.
ASI Preferred Insurance Corp.,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Reemberto Diaz, Judge.
Mintz Truppman, P.A., and Mark J. Mintz and Timothy H. Crutchfield,
for appellant.
Berk, Merchant & Sims, PLC, and Patrick E. Betar and Evelyn M.
Merchant, for appellee.
Before SCALES, MILLER and BOKOR, JJ.
SCALES, J.
Appellant Carl Redlhammer, the plaintiff below, appeals the trial court’s
November 4, 2020 non-final order compelling the parties to participate in the
appraisal process outlined in Redlhammer’s property insurance policy with
the defendant below, appellee ASI Preferred Insurance Corporation (“ASI”).1
We reverse the challenged order because appraisal is premature.
When the interior of Redlhammer’s home suffered a covered water
loss, ASI adjusted and paid the losses. Redlhammer later submitted a
supplemental claim to ASI, seeking an additional payment for additional
repair costs associated with fixing the home’s broken main drain line, an item
that had not been addressed and adjusted previously by ASI. To support his
supplemental claim, Redlhammer provided ASI with his public adjuster’s
repair estimate that stated the interior floor of the dwelling needed to be
trenched to access the broken drain line.
After ASI’s field adjuster reinspected Redlhammer’s home, ASI
confirmed that the main drain line was cracked and in need of repair;
however, without the benefit of a competing repair estimate from its field
adjuster, American Leak Detection (“ALD”), ASI rejected the public adjuster’s
1 We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(iv).
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proposed method of repair (i.e., trenching the home’s interior flooring).2 It is
undisputed that ASI never obtained a competing repair estimate from ALD
or any other estimator.
On July 7, 2020, Redlhammer filed the instant first-party action against
ASI in the Miami-Dade County Circuit Court. The complaint sets forth claims
for declaratory relief, breach of contract and fraud in the inducement. All
claims arise from ASI’s alleged failure to adjust the supplemental claim
related to the damaged drain line. ASI then filed its motion to compel an
appraisal.3 After conducting a non-evidentiary hearing on ASI’s motion, the
trial court entered the challenged order compelling appraisal.
2ASI’s senior claims examiner sent the following e-mail to Redlhammer’s
public adjuster:
Good afternoon,
We are not in agreement with tranching [sic] the entire home to
repair the cracked drain line.
ALD has been requested to provide a comparative bid to properly
repair the drain line.
We have requested their report and once received will review
and respond.
3 The subject policy’s appraisal provision provides, in relevant part:
6. Appraisal. If you and we fail to agree on the amount of loss,
either may demand an appraisal of the loss. In this event, each
party will choose a competent appraiser within 20 days after
3
We reverse the challenged order because the record does not
demonstrate that the parties have the requisite “disagreement” informed by
reasonable competing estimates on the amount of this covered
supplemental claim. See State Farm Fla. Ins. Co. v. Hernandez,
172 So. 3d
473, 477 (Fla. 3d DCA 2015) (“The goal of alternative dispute resolution is
only furthered when the parties have each had a real opportunity to inspect
the damages and the receipts to come to a reasonable estimate of the
amount of the covered loss.”). In an unbroken line of cases, this Court has
held that appraisal is premature when one party has not provided a
meaningful exchange of information sufficient to substantiate the existence
of a genuine disagreement. See id.; People’s Tr. Ins. Co. v. Ortega,
306 So.
3d 280, 284 (Fla. 3d DCA 2020); Citizens Prop. Ins. Corp. v. Mango Hill
Condo. Ass’n 12 Inc.,
54 So. 3d 578, 581 (Fla. 3d DCA 2011); Citizens Prop.
Ins. Corp. v. Galeria Villas Condo. Ass’n, Inc.,
48 So. 3d 188, 191 (Fla. 3d
DCA 2010); U.S. Fid. & Guar. Co. v. Romay,
744 So. 2d 467, 470 (Fla. 3d
DCA 1999) (en banc).4
receiving a written request of the other. The two appraisers will
choose an umpire. . . . The appraisers will separately set the
amount of loss. If the appraisers submit a written report of an
agreement to us, the amount agreed upon will be the amount of
loss. If they fail to agree, they will submit their differences to the
umpire. A decision agreed to by any two will set the amount of
loss.
4
In Romay, this Court made it clear that similar appraisal clause
language “contemplated that the parties would engage in some meaningful
exchange of information sufficient for each party to arrive at a conclusion
before a disagreement could exist.”
744 So. 2d at 470. In so holding, this
Court relied upon the following from Couch on Insurance:
[T]he existence of a real difference in fact, arising out of an
honest effort to agree between the insured and the insurer, is
necessary to render operative a provision in a policy for
arbitration of differences. Furthermore, there must be an actual
and honest effort to reach an agreement between the parties, as
it is only then that the clause for arbitration becomes operative,
the remedies being successive. For example, a mere arbitrary
refusal to pay the amount demanded, and the offer of a less
amount, without any attempt upon the part of the insurer to
ascertain and estimate the amount of loss and damage, do not
constitute such a disagreement as is contemplated.
Id. (quoting 14 Couch on Insurance 2d § 50.56 (1982)) (emphasis added).
The example from Couch is what occurred here. Despite acknowledging that
the main drain line in Redlhammer’s home was cracked and in need of
4 In each of these cited cases, the insurer challenged an order compelling
appraisal, arguing that no informed disagreement existed, and appraisal was
therefore premature, because the insured had failed to comply with the
insurance policy’s post-loss obligations. We reject ASI’s contention that the
holding in these cases is applicable only to insureds. See Hernandez, 172
So. 3d at 476-77 (“The law in this district is clear and has been for nearly
twenty years: the party seeking appraisal must comply with all post-loss
obligations before the right to appraisal can be invoked under the contract.”)
(first emphasis added).
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repair, and without having obtained and shared with Redlhammer its own
repair estimate, ASI simply determined that Redlhammer’s adjuster was
wrong.
Without the benefit of ASI’s competing estimate – presumably one that
would be relied upon by ASI in the appraisal process – there is insufficient
record evidence that Redlhammer and ASI have an informed disagreement
on the amount of the loss related to the repair of the main drain line. We,
therefore, are compelled to reverse the challenged order compelling
appraisal.
Reversed and remanded for further proceedings consistent with this
opinion.
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