Third District Court of Appeal
State of Florida
Opinion filed December 9, 2020.
Not final until disposition of timely filed motion for rehearing.
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No. 3D18-1952
Lower Tribunal No. 18-2084
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Express Damage Restoration, LLC, etc.,
Appellant,
vs.
First Community Insurance Company,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Daryl E. Trawick,
Judge.
The Diener Firm, P.A., and Erik D. Diener (Plantation), for appellant.
Traub Lieberman Straus & Shrewsberry LLP., and Scot E. Samis and C. Ryan
Jones (St. Petersburg), for appellee.
Before EMAS, C.J., and SCALES and LOBREE, JJ.
LOBREE, J.
Express Damage Restoration, LLC (the “assignee”) appeals from the trial
court’s order dismissing its operative complaint against First Community Insurance
Company (the “insurer”), charging error to the court’s failure to render a final
declaratory judgment in lieu of dismissal. We agree and reverse.
Factual and Procedural Background
The assignee contracted with the property owners of a commercial building
to provide water mitigation services and conduct emergency repairs after water
damage suffered in 2017. Upon the assignee’s submission of invoices to the insurer,
totaling $45,924.67, the latter accepted coverage but declined to pay in full, instead
paying $11,234.31 and seeking appraisal as to the difference.
The assignee filed suit, initially under a breach of contract theory and,
subsequently, seeking declaratory judgment. The assignee demanded a declaration
that its invoices for work performed were not subject to appraisal, since they should
not be interpreted as part of the “amount of loss,” as provided by the policy, relying
in part on Weiss v. Insurance Co. of Pennsylvania,
497 So. 2d 285 (Fla. 3d DCA
1986), and Delisfort v. Progressive Express Insurance Co.,
785 So. 2d 734 (Fla. 4th
DCA 2001), overruled on other grounds by Allstate Insurance Co. v. Suarez,
833
So. 2d 762 (Fla. 2002). Additionally, the assignee sought a declaration that by
failing to name the assignee as payee on any and all coverage checks issued in
conjunction with the subject loss, the insurer breached the assignment.
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The insurer moved to dismiss and alternatively to compel appraisal. It argued
dismissal on the basis that a provision in the policy, prohibiting any “legal action
against [it]” “unless . . . [t]here has been full compliance with all of the terms of this
Insurance [Policy],” made the suit unripe, since appraisal was required and the
assignee had refused it. Additionally, it argued that charges for water mitigation
services were subject to dispute and appraisal should be compelled. The assignee
filed a response in opposition that alternatively sought summary judgment in its
favor on the main issue and attempted to schedule this motion to be heard along with
the insurer’s motion to dismiss. The insurer moved to strike the notice of hearing
and alternatively to continue any hearing on the assignee’s motion.
At the hearing on the insurer’s motion to dismiss, the trial court refused to
consider the assignee’s motion for summary judgment, although the insurer
welcomed a ruling on it, arguing that the record evidence required its denial. The
insurer primarily argued that, given the policy’s language requiring the assignee’s
total compliance before bringing an action, as well as the policy’s clear language
requiring assignee’s charges to be subject to appraisal as subsumed within the
“amount of loss,” suit was “premature and must be dismissed [for] the appraisal . . .
process [to] continue. . . .” The assignee responded that the phrase “amount of loss”
was not defined in the policy and was subject to opposing interpretations.
Ultimately, the trial court rejected the assignee’s reading of the policy, finding: “the
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‘amount of loss’ as the term is used in the appraisal provision includes the amount
incurred performing water mitigation. As a result, the appraisal provision applies.”
Although the insurer had asked the trial court to temporarily “dismiss the case, send
it to appraisal, and then, if there are coverage issues later . . . that would be something
the parties would have to address,” the trial court instead dismissed the complaint,
reserving jurisdiction only to determine attorney’s fees.
Standard of Review
We review de novo an order dismissing a declaratory judgment count for
failure to state a cause of action. People’s Tr. Ins. Co. v. Franco, 45 Fla. L. Weekly
D879 (Fla. 3d DCA Apr. 15, 2020) (quoting Romo v. Amedex Ins. Co.,
930 So. 2d
643, 647 (Fla. 3d DCA 2006)). Such review is mandated because “the trial court
rules on that motion as a matter of law.” Ribaya v. Bd. of Trs. of City of Pension
Fund for Firefighters & Police Officers in City of Tampa,
162 So. 3d 348, 352 (Fla.
2d DCA 2015). Although the parties correctly note that such orders may also be
reviewed for abuse of discretion, that is only when, pursuant to its gatekeeping
functions, the trial court “dismiss[es] an action that technically states a cause of
action when the circumstances do not justify using legal resources to try the factual
issue and resolve the legal questions.”
Id. at 353.
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Analysis
The assignee’s only argument on appeal is that the trial court erred in
dismissing the complaint “without entering a declaratory judgment addressing
whether the policy contains an agreement to appraise an incurred expense,” and
without entering a declaratory judgment regarding whether the insurer breached the
assignment by paying benefits assigned to the assignee to the insured and waived
any right to appraisal. This line of argument charges error to the trial court in
reaching the merits of the suit instead of merely addressing the question of whether
a cause of action was stated. However, the assignee also argues that it never waived
its right to obtain a ruling on its summary judgment motion and that the trial court
erred by dismissing the action instead of addressing its merits.
“A motion to dismiss a complaint for declaratory judgment is not a motion
on the merits. Rather, it is a motion only to determine whether the plaintiff is entitled
to a declaration of rights, not to whether it is entitled to a declaration in its favor.”
Romo,
930 So. 2d at 648 (quoting Royal Selections, Inc. v. Fla. Dep’t of Revenue,
687 So. 2d 893, 894 (Fla. 4th DCA 1997)). Upon review, the record shows that the
assignee’s complaint stated a cause of action for declaratory relief as to whether
charge for its services fell under the category of “amount of loss” and was subject to
appraisal. “This is an issue based upon construction of the policy language,” which
“does not fall within the provision for appraisals.” Delisfort,
785 So. 2d at 735.
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In granting the insurer’s motion to dismiss, to the extent that the trial court
decided the very question of construction that was the subject of the declaratory
action, the assignee is correct that the court procedurally erred in failing to deny the
motion pursuant to Royal,
687 So. 2d at 894 (holding that, “[i]n determining that the
appellant did not state a cause of action, the trial court actually construed the various
ordinances and administrative rules [at issue],” which “is the very question sought
to be answered in the declaratory action,” and that “the trial court cannot dispose of
it on a motion to dismiss”); see also Travelers Ins. Co. v. Emery,
579 So. 798, 799
(Fla. 1st DCA 1991) (reversing final judgment denying declaratory relief and
remanding for trial court to determine coverage issue requiring construction of
insurance policy).
The insurer argues that the result reached by the trial court can be alternatively
affirmed, since, as the Royal court explained, it would have been “appropriate to
resolve this [type of] case on a motion for summary judgment or judgment on the
pleadings.”
687 So. 2d at 894. It observes that, had the trial court accepted the
assignee’s invitation to rule on its motion for summary judgment, the trial court
could have denied it and found in favor of the insurer instead, since the amount due
to the assignee for its mitigation services is encompassed by the “amount of loss”
and is subject to appraisal. Cf. State Farm Fla. Ins. Co. v. Unlimited Restoration
Specialists, Inc.,
84 So. 3d 390, 393-94 (Fla. 5th DCA 2012) (quashing order
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denying motion to dismiss and alternatively compel appraisal in suit by assignee
against insurer for failure to pay mitigation invoices, where trial court erroneously
found that appraisal clause did not apply because insurer’s acts waived its
application by participating in mediation process).
Even if correct, 1 the insurer cannot profit from changing its position below,
where it opposed in writing and at the hearing any consideration of the assignee’s
motion as violative of Florida Rule of Civil Procedure 1.510(c). See S. Fla. Coastal
Elec., Inc. v. Treasures on Bay II Condo Ass’n,
89 So. 3d 264, 269 (Fla. 3d DCA
2012) (party may not take inconsistent positions in separate judicial proceedings and
thus cause prejudice to its adversary). We do not find the error to be harmless under
these circumstances.
Accordingly, we reverse and remand for further proceedings in conformity
with this opinion.
1
We express no view on the merits of the assignee’s construction of the policy
generally or the phrase “amount of loss” in particular.
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