Because a party cannot create causes of action not set forth in Florida Rules of Court, motion to compel appraisal denied because no Florida court has jurisdiction over petition to select an appraiser and policy cannot confer that jurisdiction.
On March 7, 2024, the Eleventh Circuit Court in Miami-Dade County, Florida, rendered a decision regarding a defendant insurer’s motion to compel appraisal. The court denied the defendant’s motion to compel appraisal, in part, because no Florida court has jurisdiction over a petition to select an appraiser and a policy cannot confer that jurisdiction.
Notably, the defendant filed a motion to dismiss the plaintiff’s amended complaint and to compel appraisal. In making its determination, the court noted that the plaintiff properly pleaded declaratory counts that go to the heart of the appraisal provision that remained in dispute. Therefore, the court opined that it is not proper to compel appraisal without first adjudicating those declaratory counts. See Progressive American Ins. Co. v. Dr. Car Glass, 327 So. 2d 447 (Fla. 3d DCA, 2021) [46 Fla. L. Weekly D2030c].
Further, the court noted that the second critical reason why the defendant’s motion to compel must be denied was because the appraisal process cannot be completed. Relying on State Farm Florida Ins. Co. v. Roof Pros Storm Division, Inc., 346 So. 3d 163 (Fla. 5th DCA 2022) [47 Fla. L. Weekly D 1426a], the court reasoned that the reason this process cannot be completed before suit is filed is that no court in Florida has jurisdiction over a petition to select a third appraiser and no insurance policy can confer that jurisdiction on this court. “Florida Statutes describe many different civil petitions that litigants may avail themselves of, but a petition to compel appraisal with a disinterested appraiser is not (yet) one of them. Nor is there a recognized common law cause of action for this kind of discrete claim.” Roof Pros, at 164, 165.
The appraisal clause for the policy at issue does not grant the court jurisdiction over selection of the appraiser, the precise relief requested within the defendant’s motion. The policy language at issue stated as follows:
If there is disagreement as to the cost of repair, replacement, or recalibration of glass, an appraisal will be used as the first step toward resolution. Appraisal will follow the rules and procedures as listed below:
a) The owner and we will each select a competent appraiser.
b) The two appraisers will select a third competent appraiser. If they are unable to agree on a third appraiser within 30 days, then either the owner or we may petition a court that has jurisdiction to select the third appraiser.
The trial court recognized the precedent established in State Farm Florida Ins. Co. v. Parrish, 312 So. 3d 145 (Fla. 2d DCA 2021), approved by Parrish v. State Farm Florida Ins. Co., 356 So. 3d 771 (Fla. 2023), which found that there cannot be a condition precedent in an insurance policy that cannot be legally completed.
In this decision, the Eleventh Circuit Court upholds that a party cannot create causes of action that are not set forth in the Florida Rules of Court.
Legal Update for Florida Coverage & Property Litigation – August 2024 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.