American Capital Assurance Corporation v. Courtney Meadows Apartment, L.L.P. (1D09-2940) - Initial Brief

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT
STATE OF FLORIDA
AMERICAN CAPITAL ASSURANCE

CORP., a Florida Corporation,
Appellant,
vs. DCA Case No.: 1D09-2940

Lower Tribunal Case No.:
COURTNEY MEADOWS 2008-CA-16821
APARTMENTS, LLP,
A Florida Corporation,
Appellee.
__________________________________/
_____________________________________________________________
INITIAL BRIEF OF APPELLANT

AMERICAN CAPITAL ASSURANCE CORP.
_____________________________________________________________
Appeal of Non-Final Order from the Circuit Court (Hugh A. Carithers, J.)
of the Fourth Judicial Circuit in and for Duval County, Florida
_____________________________________________________________
GUY E. BURNETTE, JR., ESQ.

Florida Bar No. 236578
A. DEAN JOHNSON, ESQ.
GUY E. BURNETTE, JR., P.A.

3020 N. Shannon Lakes Drive
Tallahassee, Florida 32309
Telephone: (850) 668-7900
Facsimile: (850) 668-7972
Counsel for Appellant
Found at:
i The Florida Legal Blog
www.floridalegalblog.org
I. TABLE OF CONTENTS
Page
I. Table of Contents ………………………………………… -i-
II. Table of Citations ………………………………………… -ii-
III. Statement of the Case and of the Facts ................................. 1
IV. Summary of Argument .......................................................... 9
V. Standard of Review ............................................................... 13
VI. Argument .............................................................................. 14
ISSUES
I. THE TRIAL COURT ERRED BY FAILING TO

APPLY THE CORRECT LAW WHEN EVALUATING
THE MOTION TO COMPEL APPRAISAL.………… 14
II. THE TRIAL COURT ERRED BY FAILING TO

EVALUATE WAIVER BY THE CORRECT
STANDARD …………………………………………. 19
A. Appellant’s Offer Did Not Waive Its Right To

Demand Appraisal ……………………………………. 20
B. The Right To Demand Appraisal Has No

Time Frame …………………………………………... 22
C. The 30-Day Notice Of Intent Language Does

Not Impact The Time Within Which To
Demand Appraisal …………………………………….. 23
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Table of Contents (cont.)
Page
III. THE TRIAL COURT ERRED IN CONFUSING
TIMELINESS OF A DEMAND FOR APPRAISAL
WITH WAIVER BY INCONSISTENT ACTS ………. 25
A. Delay In Requesting Appraisal Is Not Waiver …. 26
B. Sworn Proofs Of Loss Do Not Impact The Right

To Demand Appraisal ……………………………… 27
IV. STARE DECISIS REQUIRES REVERSAL OF THE

TRIAL COURT…………..………………………..… 28
A. Factually Similar Scenarios Result in Compelling

Appraisal …………………………………………... 30
B. Alleged Breach Of Contract Is Not Waiver …….. 34
C. The cases of Bear, Terry, Llerena and Cincinnati

Are Not Controlling ……………………………….. 35
VII. Conclusion ........................................................................... 46
VIII. Certificate of Service ............................................................ 47
IX. Certificate of Typeface Compliance ..................................... 47
Found at:
ii The Florida Legal Blog
II. TABLE OF CITATIONS
Cases Cited Page(s)
Aetna Cas. & Sur. Co. v. CK&K Enters., Inc., …………………… 37

528 So. 2d 561 (Fla. 1st DCA 1988)
Alderman v. City of Jacksonville, ………………………………... 25, 27

902 So. 2d 885 (Fla. 1st DCA 2005)
Allstate Ins. Co. v. Suarez, …………………………………………. passim

833 So. 2d 762 (Fla. 2002)
Am. Bankers Ins. Co. of Fla. v. Terry, ……….……………………. passim

277 So. 2d 563 (Fla. 3d DCA 1973)
ARI Mut. Ins. Co. v. Hogen, ………………………………………. 26

734 So. 2d 574 (Fla. 3d DCA 1999)
Bear v. N.J. Ins. Co., ……….………….……………………………. passim

189 So. 252 (Fla. 1939)
Benedict v. Pensacola Motor Sales, Inc., ……………………………. 13, 15

846 So. 2d 1238 (Fla. 1st DCA 2003)
Cincinnati Ins. Co. v. Palmer, ………………………………………. passim

297 So. 2d 96 (Fla. 4th DCA 1974)
City of Crystal River v. United Bhd. of Carpenters, ……………….. 26

884 So. 2d 440 (Fla. 5th DCA 2004)
Columbia Cas. Co. v. S. Flapjacks, Inc., ……………………..……. 36, 37

868 F.2d 1217 (11th Cir. 1989)
Cuisick v. City of Neptune Beach, …………………………………. 29

765 So. 2d 175 (Fla. 1st DCA 2000)
Dixon v. City of Jacksonville, ………………………………………. 13

774 So. 2d 763 (Fla. 1st DCA 2000)
Found at:
iii The Florida Legal Blog
Cases Cited Page(s)
Doctors Assocs., Inc. v. Thomas, …………………………………… 15

898 So. 2d 159 (Fla. 4th DCA 2005)
English & Am. Ins. Co. v. Swain Groves, Inc., …………………….. 37

218 So. 2d 453 (Fla. 4th DCA 1969)
Fla. Farm Bureau Cas. Ins. Co. v. Sheaffer, ………………………… passim

687 So. 2d 1331 (Fla. 1st DCA 1997),
overruled on other grounds
Allstate Ins. Co. v. Suarez, 833 So. 2d 762 (Fla. 2002)
Fla. Gaming Corp. v. Affiliated FM Ins. Co., ……………………… 37, 40

502 So. 2d 1257 (S.D. Fla. 2007)
Fla. Title Loans, Inc. v. Christie, …………………………………… 13

770 So. 2d 750 (Fla. 1st DCA 2000)
Forman v. Fla. Land Holding Corp., ……………………………….. 29

102 So. 2d 596 (Fla. 1958)
Gellman v. Cincinnati Ins. Co., ……………………………………… 25

602 F. Supp. 2d 705 (W.D.N.C. 2009)
Gissendanner v. Manchester Ins. Co., ……………………………… 22, 23

307 So. 2d 876 (Fla. 3d DCA 1975)
Goff v. State Farm Ins. Co., ………………………………………… 35

999 So. 2d 684 (Fla. 2d DCA 2008)
Gonzalez v. State Farm Fire & Cas. Co., …………………………… 22, 32, 44
805 So. 2d 814 (Fla. 3d DCA 2000)
Graham Contracting, Inc. v. Flagler County, ……………………….. 23

444 So. 2d 971 (Fla. 5th DCA 1983)
Howsam v. Dean Witter Reynolds, ..................................................... 26

537 U.S. 79 (2002)
Found at:
iv The Florida Legal Blog
Cases Cited Page(s)
Hypower, Inc. v. DOT, ……………………………………………… 23

839 So. 2d 856 (Fla. 1st DCA 2003)
Johnson v. Nationwide Mut. Ins. Co., ……………………………… 31, 44

828 So. 2d 1021 (Fla. 2002)
Kaplan v. Kimball Hill Homes Fla., Inc., …………………………… 14

915 So. 2d 755 (Fla. 2d DCA 2005)
Lapidus v. Arlen Beach Condo. Ass’n, Inc., ………………………… 18, 45

394 So. 2d 1102 (Fla. 3d DCA 1981)
Llerena v. Lumberman’s Mut. Cas. Co., ………..…………………… passim

379 So. 2d 166 (Fla. 3d DCA 1980)
Miller Constr. Co., Inc. v. First Baptist Church of Live Oak, Inc., ….. 21
396 So. 2d 281 (Fla. 1st DCA 1981)
Nationwide Mut. Ins. Co. v. Johnson, ……………………………….. 35

774 So. 2d 779 (Fla. 2d DCA 2000),
quashed on other grounds
828 So. 2d 1021 (Fla. 2002)
O’Keefe Architects, Inc. v. CED Constr. Partners, Ltd., …………….. 14, 25

944 So. 2d 181 (Fla. 2006)
Pando v. United States,………………………………………………… 36, 38, 40

1998 U.S. Dist. LEXIS 11941(S.D. Fla. June 29, 1998)
Pardo v. State, …………………………………………………………. 29

596 So. 2d 665 (Fla. 1992)
Phillips v. Gen. Acc. Ins. Co. of Am., ………………………………… 14

685 So. 2d 27 (Fla. 3d DCA 1996)
Piercy v. Sch. Bd. of Washington County, ……………………………14, 19, 25, 26

576 So. 2d 806 (Fla. 1st DCA 1991)
Found at:
v The Florida Legal Blog
Cases Cited Page(s)
Post Tensioned Eng’g Corp. v. Fairway Plaza Assocs., …............…… 34

412 So. 2d 871 (Fla. 3d DCA 1982)
Preferred Mut. Ins. Co. v. Martinez, …………………………………. 21, 35

643 So. 2d 1101 (Fla. 3d DCA 1994)
Pub. Health Trust of Dade County v. M.R. Harrison Constr. Corp., .. 26

415 So. 2d 756 (Fla. 3d DCA 1982)
Putnam County Sch. Bd. v. Debose, ………………………………… 29

667 So. 2d 447 (Fla. 1st DCA 1996)
Royal Caribbean Cruises, Ltd. v. Universal Employment Agency,……. 15

664 So.2d 1107 (Fla. 3d DCA 1996)
Scottsdale Ins. Co. v. Desalvo, ………………………………………… 33, 44

666 So. 2d 944 (Fla. 1st DCA 1995)
Southgate Gardens Condo. Ass’n v. Aspen Specialty Ins. Co., ………… 38

2008 U.S. Dist. LEXIS 42635 (S.D. Fla. May 29, 2008)
SR Int’l Bus. Ins. Co., Ltd. v. World Trade Center Props., LLC, ……… 24
2003 U.S. Dist. LEXIS 3881 (S.D.N.Y. Mar. 18, 2003)
Stanfill v. State, ………………………………………………………… 29

384 So. 2d 141 (Fla. 1980)
State v. Dwyer, …………………………………………………………. 29

332 So. 2d 333 (Fla. 1976)
State v. Lott, ……………………………………………………………. 29

286 So. 2d 565 (Fla. 1973)
State Farm Fire & Cas. Co. v. Middleton, ……………………………… 35

648 So. 2d 1200 (Fla. 3d DCA 1995)
Found at:
vi The Florida Legal Blog
Cases Cited Page(s)
Terra Indus. v. Commonwealth Ins. Co. of Am., ………………………24, 25, 40

981 F. Supp. 581 (N.D. Iowa 1997)
The Hillier Group, Inc. v. Torcon, Inc., ………………………………… 15, 27

932 So. 2d 449 (Fla. 2d DCA 2006)
U.S. Fid. & Guar. Co. v. Romay, ……………………………………… 28

744 So. 2d 467 (Fla. 3d DCA 1999)
U.S. Fire Ins. Co. v. Franko, …………………………………………… passim

443 So. 2d 170 (Fla. 1st DCA 1983)
Weiman v. McHaffie, ………………………………………………….. 29

470 So. 2d 682 (Fla. 1985)
Wilson v. Federated Nat’l Ins. Co., …………………………………… 35

969 So. 2d 1133 (Fla. 2d DCA 2007)
Zager Plumbing, Inc. v. JPI Nat’l Constr., Inc., ……………………… 15

785 So. 2d 660 (Fla. 3d DCA 2001)
Ziegler v. Knuck, ……………………………………………………… 19

419 So. 2d 818 (Fla. 3d DCA 1982)
Statutes Cited Page(s)
§ 95.11, Florida Statutes ………………………………………………. 32
Found at:
vii The Florida Legal Blog
III. STATEMENT OF THE CASE AND OF THE FACTS
Preliminary Statement
References to the Appendix shall be (App. ___),

(App. __, p. __) or (App. __, Ex. __).
Appellant issued a policy of insurance to Appellee covering the
Courtney Meadows apartment complex, which consists of 13 residential
buildings and 21 garage buildings. (App. C, Ex. A). The insurance policy
contained an appraisal provision at paragraph E.2. of Form CP 00 10 10 00,
which provides as follows:
If we and you disagree on the value of the property or

the amount of loss, either may make written demand
for an appraisal of the loss. 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 an 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.
(App. C, Ex. A). This form is separately indexed at Appendix B for ease of
reference.
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On June 1, 2008, a microburst hail storm caused damages to
Appellee’s apartment complex. (App. C, p. 2); (App. N, p. 1). Shortly after
notification by Appellee of the claim, William Kull, Senior Claims
Representative for Appellant, accepted that there was coverage for the
damages and on June 9, 2008, assigned the evaluation of the damages to an
independent insurance adjuster, Jeremy Gildenmeister. (App. K, pp. 17, 20,
24) (App. N, p.1).
During the month of June 2008, Mr. Gildenmeister visited the
apartment complex on several occasions, meeting with various personnel
employed by Appellee to investigate and evaluate the damages to the
property. (App. K, pp. 30, 33). Mr. Gildenmeister’s preliminary opinion
regarding the roof damage was that possibly 4 of the 34 roofs might be in
need of replacement. (App. L, pp. 109).
On July 3, 2008, in response to a telephone call from Appellee’s
property manager stating that Appellee’s roofing contractor (Reliable
Roofing) believed that all 34 roofs needed to be replaced, Mr. Kull sent
Appellee an email, confirming a meeting with Reliable Roofing on July 22,
2008, and advising Appellee that if there was a dispute, Appellant might hire
an engineer to evaluate the situation. (App. N, p.2, Ex. A).
On July 22, 2008, Mr. Kull and Mr. Gildenmeister met with Reliable
Roofing employees and discussed the damages to the roof systems, but could
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not come to a consensus regarding the roof damage. Mr. Kull made
approximately $30,000 in interim payments on damages pursuant to invoices
provided by Appellee for repairs and costs which Appellee had already paid.
(App. N, p. 2) (App. K, p. 29).
On July 23, 2008, Appellant hired Haag Engineering to independently
evaluate Appellee’s roof damage. (App. N, pp. 2-3). On September 23,
2008, Haag submitted its completed evaluation. (App. N, p. 3).
On October 3, 2008, Appellant forwarded to counsel for Appellee an
estimate prepared by Mr. Gildenmeister based upon the Haag report for what
Appellant believed to be the entire loss claimed by Appellee. (App. K, p. 82,
Ex. 4). On October 22, 2008, Appellant tendered to Appellee a check for
$168,285.98, the precise amount in the October 3, 2008 estimate,
representing Appellant’s determination of the amount of loss. Appellant
requested Appellee to provide sworn proofs of loss if it disputed this amount.
(App. N, p. 3, Ex. B) (App. O, p. 1, Ex. A).
On November 11, 2008, Appellee “completely rejected” Appellant’s
tender, refused to provide the sworn proofs of loss, identified damages that
were allegedly missed by Appellant, identified additional damages which it
was presenting for the first time, and made a counter-offer to Appellant for its
other damages unrelated to the roof claims. (App. O, p. 2, Ex. B). One week
later, on November 18, 2008, Appellant acknowledged the dispute in
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damages and invoked appraisal pursuant to the terms of the policy, infra, in
order to establish the actual amount of loss, and named its appraiser. (App.
O, p. 2-3, Ex. C).
By correspondence dated December 29, 2008, counsel for Appellee
provided Appellant with a copy of the Complaint it had filed six (6) days
earlier on December 23, 2008 and advised Appellant that it was “not
interested” in participating in the appraisal process set forth under the policy.
(App. O, p.3, Ex. D).
Procedural History
On December 23, 2008, Appellee filed its Complaint (App. C) alleging
counts for breach of contract and declaratory judgment, and propounded its
First Set of Interrogatories and First Request to Produce which are not
included in the appendix.
On January 14, 2009, Appellant filed a Notice of Appearance. (App.
D).
On January 15, 2009, Appellee filed an Amended Complaint still
alleging counts for breach of contract and declaratory judgment. (App. E).
On January 29, 2009, Appellant filed its Motion to Dismiss and/or
Abate Action and To Compel Appraisal based upon the Appellant's
November 18, 2008 demand for appraisal. (App. F).
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On February 5, 2009, Appellant filed a Motion for Protective Order
and for Extension of Time to Respond to Discovery based upon the pendency
of its Motion to Dismiss and to preserve its demand for appraisal. (App. G).
On March 4, 2009, Appellee filed its 20-page Response to Defendant’s
Motion for Protective Order and Motion for Extension of Time to Respond to
Discovery, alleging inter alia that Appellant had waived its right to refuse to
produce witnesses and respond to discovery, Appellant was estopped from
refusing to provide discovery and witnesses, and Appellant had already
“participated in discovery.” (App. H).
On March 9, 2009, the trial court denied Appellant's Motion for
Protective Order, and required Appellant to respond to discovery and
participate in depositions with the limitation that Appellant’s conduct
(including initiating and responding to discovery) occurring after February 6,
2009, “shall not be used against [Appellant] or otherwise prejudice
[Appellant] with respect to [Appellant’s] right to claim that an appraisal is the
proper procedure under the subject contract of insurance.” (App. I).
Appellant noticed its Motion to Dismiss and/or Abate Action and to
Compel Appraisal for hearing to occur on May 14, 2009. (App. J).
Thereafter, Appellee took the depositions of Bill Kull, the Senior
Claims Representative for Appellant (App. K), and Jeremy Gildenmeister,
the independent adjuster hired by Appellant (App. L). On April 24, 2009,
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Appellee also filed a Motion for Partial Summary Judgment (App. M) along
with supporting affidavits (which are not included in the appendix) for
damages it alleged were undisputed and due, as well as the deposition
transcripts of Mr. Kull and Mr. Gildenmeister. (App. K and L).
In support of its Motion to Dismiss, Appellant filed the affidavit of Mr.
Kull (App. N) on April 30, 2009, a supplemental affidavit of Mr. Kull (App.
O) and affidavit of Mr. Gildenmeister (App. P) on May 7, 2009.
Appellee filed affidavits of employees of Appellee and other
individuals which are irrelevant to this analysis and are not included in the
Appendix.
On May 13, 2009, Appellant filed its Memorandum in Support of its
Motion to Dismiss (App. Q) and Appellee filed its Memorandum of Law in
Opposition (App. R).
On May 14, 2009, a hearing on Appellant's Motion to Dismiss was
held and transcribed. (App. S). At the hearing, Appellee provided the trial
court with numerous exhibits and copies of the affidavits and documents
discussed at the depositions. The trial court orally ruled that the insurance
contract required the Appellant to demand appraisal within 30 days of its
provision of the October 3, 2008 estimate and that it had waived its right to
demand appraisal as to those damages by failing to do so timely. (App. S, p.
33). The trial court also found that Appellant’s submission of the October 3,
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2008 estimate waived its right to request a sworn proof of loss from
Appellee. (App. S, p. 29-30). The trial court further found that under the
insurance policy, Appellant then had 30 days from the date it “waived” its
right to request a sworn proof of loss to demand appraisal, which expired on
November 2, 2008. (App. S, pp. 28, 29-30). As Appellant’s demand for
appraisal was made on November 18, 2008, the trial court found that it was
“untimely” and therefore appraisal was waived for those damages. (App. S,
p. 28). The trial court found that for damages presented by Appellee in its
November 11, 2008 correspondence, Appellant had timely demanded
appraisal. (App. S, p. 33).
On May 21, 2009, Appellant filed its Motion for Reconsideration.
(App. T).
On June 1, 2009, the trial court entered its order partially denying and
partially granting Appellant’s Motion to Compel, reserving jurisdiction to
determine coverage issues regarding a table and computers, requiring
mediation, as well as directing Appellant to answer the Amended Complaint.
(App. A). The order specifically found that policy sections E4a(3) and E4c
provided that Appellant had 30 days from October 3, 2008 within which to
demand appraisal. (App. A, p. 5). The order also found that by providing
Appellee with the estimate on October 3, 2008, and the subsequent tender on
October 22, 2008, of the $168,285.98 check representing what Appellant
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believed to be the total amount of Appellee’s claimed damages, Appellant
“admitted liability and coverage for all items addressed or listed in Mr.
Gildenmeister’s complete estimate and waived sworn proofs of loss.” (App.
A, pp. 4-5). The order further held that Appellant “failed to timely assert its
right to demand appraisal as to all items addressed or listed in Mr.
Gildenmeister’s estimate provided to Courtney Meadows on October 3,
2008.” (App. A, p. 5). The order solely relied upon the cases of American
Bankers Ins. Co. of Fla. v. Terry, 277 So. 2d 563 (Fla. 3d DCA 1973),
Llerena v. Lumberman’s Mutual Casualty Co., 379 So. 2d 166 (Fla. 3d DCA
1980), Bear v. New Jersey Ins. Co., 189 So. 252 (Fla. 1939) and Cincinnati
Ins. Co. v. Palmer, 297 So. 2d 96 (Fla. 4th DCA 1974). (App. A, pp. 3-4).
On June 5, 2009, Appellant timely filed its Notice of Appeal with this
Court. (App. U).
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IV. SUMMARY OF THE ARGUMENT
This appeal involves a typical dispute between an insured and an
insurer as to the amount of loss. Appellant accepted that there was coverage
for damages that were properly claimed and payable. Appellant conducted an
extensive investigation, made a tender which was rejected, and then
demanded appraisal of the claim under the policy in light of the dispute as to
damages. Five weeks later, Appellee filed suit and refused to participate in
the appraisal process. Appellant’s first response to Appellee’s lawsuit was its
Motion to Compel Appraisal, alleging its presuit written demand should be
honored. The trial court, however, found that Appellant had waived its right
to appraisal as to all damages included in its October 3, 2008 estimate and
offer.
The trial court erred in ruling that Appellant had waived its right to
demand appraisal. The trial court failed to apply the correct law when
evaluating a motion to compel appraisal/arbitration, disregarded binding
precedent from this Court and the Florida Supreme Court, and failed to
resolve all doubts in favor of arbitration and appraisal. When faced with
Appellant’s Motion to Compel Appraisal, the trial court should have confined
its inquiry to (1) whether a valid arbitration/appraisal clause existed, (2)
whether an arbitrable/appraisable issue existed, and (3) whether the Appellant

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waived its right to demand appraisal. This Court has defined waiver in the
context of demands for appraisal and arbitration as when a party manifests an
acceptance of the judicial forum. Other courts have clarified that only
initiation or defense of a lawsuit regarding arbitrable issues constitutes
waiver of a right to arbitrate. No such waiver occurred in this instance.
The trial court further erred in finding Appellant’s settlement
negotiations and October 22, 2008 good faith offer (which was rejected by
Appellee) equated to Appellant’s waiver of the right to demand appraisal,
contrary to this Court’s opinion in U.S. Fire Ins. Co. v. Franko and despite
the fact both parties still disputed the amount of loss. The trial court
disregarded this Court’s holding that when an insurer accepts coverage, the
extent of repair of a roof is not a coverage issue, but an amount of loss issue,
and whether an insured is entitled to be paid on a claim and if so, the amount
to which the insured is entitled, is a question reserved for the arbitrator.
The trial court erred by confusing timeliness of a demand for appraisal
with the active participation in and acquiescence to the judicial forum
constituting waiver. This Court has expressly held that when the facts of the
case suggest only delay, a waiver analysis is improper, and that questions of
timeliness are to be decided by an arbitrator, not a trial court.
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The trial court erred in applying anomalous and distinguishable cases
while ignoring recent and directly on-point case authorities. The four cases
cited by Appellee and accepted as controlling by the trial court are
distinguishable on their facts. Case law holds that the instant appraisal
provision is optional for the parties, has no time frame within which a
demand must be made, and must be honored if demanded properly. The
policy language in the cases of Bear, Terry, and Llerena is significantly
dissimilar in that appraisal was mandatory if there was a dispute (Bear and
Terry) or it provided a 60-day contractual time frame within which appraisal
must be demanded (Llerena).
The trial court erred in finding that the post-loss obligations under the
policy affected the right to demand appraisal. Under the policy, Appellant
could request Appellee to submit sworn proofs of loss as to its claimed
damages. The 30-day requirement that the Appellant advise Appellee of its
intentions after receipt of a sworn proof of loss referenced the four options as
to how the claim was going to be evaluated, i.e., (1) pay the value of the
property, (2) pay the cost to repair or replace the property, (3) take all or any
part of the property at an agreed or appraised value, or (4) repair, rebuild, or
replace the property with like kind and quality property. Contrary to the trial
court’s holding, the provision did not require the appraisal process to be
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demanded within that 30 day period nor was any time limit imposed for
invoking the appraisal provision of the policy.
The trial court failed to apply the correct law and its rulings are not
supported by the evidence. Neither the Appellee nor the trial court
mentioned, acknowledged, or distinguished any of the cases cited in
Appellant’s Motion, Memorandum in Support, or Motion for
Reconsideration. Appellant rightfully demanded appraisal presuit, and again
asserted its right to appraisal as its initial response to Appellee’s lawsuit. The
parties agreed there was a valid appraisal agreement and that there was an
appraisable issue. Appellant never acquiesced to the court’s jurisdiction.
The trial court should have compelled the entire matter to appraisal pursuant
to applicable case law. Appellant requests that this Court reverse that portion
of the order which denied Appellant’s Motion to Compel Appraisal, remand
the matter back to the trial court with directions to compel all issues
regarding the amount of loss be submitted to appraisal.
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V. STANDARD OF REVIEW
This is an appeal of an order denying Appellant’s Motion to Dismiss
and/or Abate and to Compel Appraisal. Appraisal provisions in insurance
policies are construed in the same manner as arbitration provisions. See U.S.
Fire Ins. Co. v. Franko, 443 So. 2d 170, 171-72 (Fla. 1st DCA 1983); Fla.
Farm Bureau Cas. Ins. Co. v. Sheaffer, 687 So. 2d 1331, 1332 (Fla. 1st DCA
1997). This Court recently held, “This court reviews de novo a trial court’s
ruling on a motion to compel arbitration.” Benedict v. Pensacola Motor
Sales, Inc., 846 So. 2d 1238, 1240 (Fla. 1st DCA 2003) (citing Florida Title
Loans, Inc. v. Christie, 770 So. 2d 750, 751 (Fla. 1st DCA 2000)). Under a de
novo standard of review, this Court is “presented with a question which is
purely one of law, and [this Court is] not constrained by more deferential
standards from substituting [its] judgment for that of the lower tribunal.”
Dixon v. City of Jacksonville, 774 So. 2d 763, 765 (Fla. 1st DCA 2000).
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VI. ARGUMENT
I. THE TRIAL COURT ERRED BY FAILING TO APPLY THE

CORRECT LAW WHEN EVALUATING THE MOTION TO
COMPEL APPRAISAL.
The trial court below erred when it evaluated Appellant’s Motion to
Compel using the incorrect law and found that Appellant had waived its right
to demand appraisal as to the damages claimed by Appellee and contained
within the October 3, 2008 estimate.
Courts construe appraisal provisions in insurance policies in the same
manner as arbitration provisions. See U.S. Fire Ins. Co. v. Franko, 443 So.
2d 170 (Fla. 1st DCA 1983); Fla. Farm Bureau Cas. Ins. Co. v. Sheaffer, 687
So. 2d 1331, 1332 (Fla. 1st DCA 1997). Thus, opinions addressing arbitration
clauses are applicable to situations regarding appraisal.
When faced with a motion to compel appraisal, a trial court must
confine its inquiry to three succinct issues: (1) whether a valid written
agreement exists containing an arbitration/appraisal clause; (2) whether an
arbitrable issue exists; and (3) whether the right to arbitrate has been waived.
See O’Keefe Architects, Inc. v. CED Constr. Partners, Ltd., 944 So. 2d 181,
185 (Fla. 2006) (emphasis added); see also Piercy v. Sch. Bd. of Washington
County, 576 So. 2d 806, 807 (Fla. 1st DCA 1991); Phillips v. Gen. Acc. Ins.
Co. of Am., 685 So. 2d 27, 29 (Fla. 3d DCA 1996); Kaplan v. Kimball Hill
Homes Fla., Inc., 915 So. 2d 755, 758 n.1 (Fla. 2d DCA 2005). Although the
trial court stated at the hearing on Appellant’s Motion to Compel that it had
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read Appellant’s motion and supporting memo, (App. S, pp. 3-4) and
appeared initially to consider these issues, it failed to apply the preference
that “[a]ll questions about waivers of arbitration [and appraisal] should be
construed in favor of arbitration [and appraisal] rather than against it.” The
Hillier Group, Inc. v. Torcon, Inc., 932 So. 2d 449, 456 (Fla. 2d DCA
2006)(quoting Doctors Assocs., Inc. v. Thomas, 898 So. 2d 159, 162 (Fla. 4th
DCA 2005)). Regarding that preference, this Court recently stated:
Arbitration clauses are to be given the "broadest

possible interpretation to accomplish the salutory
purpose of resolving controversies out of court." Royal
Caribbean Cruises, Ltd. v. Universal Employment
Agency, 664 So.2d 1107, 1108 (Fla. 3d DCA 1996).
When parties contractually agree to arbitrate, a court
must give effect to that agreement, and all arbitrable
issues must be resolved through arbitration unless
arbitration has been waived. All questions regarding
waiver of arbitration should be construed in favor of
arbitration. See Zager Plumbing, Inc. v. JPI Nat’l
Constr., Inc., 785 So. 2d 660, 662 (Fla. 3d DCA 2001).
Benedict v. Pensacola Motor Sales, Inc., 846 So. 2d 1238, 1240 (Fla. 1st DCA
2003); see also U.S. Fire Ins. Co. v. Franko, 443 So. 2d 170, 171-72 (Fla. 1st
DCA 1983).
The first two issues the trial court was to address were uncontested.
The parties never disputed that a valid agreement existed containing the
arbitration/appraisal provision. Paragraph six of Appellee’s Amended
Complaint alleges that Appellee obtained the commercial property insurance
policy which is attached to the original Complaint. (App. E, p. 2) (App. C,

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Ex. A). Paragraph 23 of the Amended Complaint alleges that Appellant
“failed to demand an appraisal, which is to be done when the parties disagree
on the amount of loss (See Section E. Loss Conditions of contract), despite
acknowledging a dispute on the amount of loss on July 22, 2008.” (App. E,
p. 4). Thus, Appellee’s allegations admitted that a valid agreement existed
which contained the appraisal provision.
Regarding the second issue of whether an arbitrable issue exists,
paragraph 18 of Appellee’s Amended Complaint alleges that “A dispute
arose at that meeting as to the amount of loss,” and reiterates the same at
paragraph 23. (App. E, pp. 3-4). Thus, as appraisal requires a dispute as to the
“amount of loss,” an arbitrable issue exists.
This matter clearly involves a disagreement on the amount of the loss.
During his deposition and in his affidavits, Bill Kull, Appellant’s Senior
Claims Representative, testified that coverage for the damages, including the
roof, has never been denied, just the extent and the amount of the loss needed
to be evaluated. (App. N, p. 4). He confirmed that one of the disputes
between the parties is the extent of roof that needs to be repaired or replaced.
(App. O, p. 2). Thus, the amount of loss to the roof was an appraisable issue.
This Court has held that the determination of the extent of a roof repair
(as in the instant case) is not a coverage dispute, such as would be within the
purview of the Court and not the appraisal panel, but rather is precisely the
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type of dispute intended to be resolved in the appraisal process. See Fla. Farm
Bureau Cas. Ins. Co. v. Sheaffer, 687 1331, 1334 (Fla. 1st DCA 1997),
overruled on other grounds Allstate Ins. Co. v. Suarez, 833 762 (Fla. 2002).
In Sheaffer, in response to the insured’s assertion that replacement of the roof
was a coverage question, the insurer argued that because it conceded that the
insurance policy covers the damage to the insured’s home and it would be
bound by the appraisers' determination that replacement of the entire roof was
required, there is no coverage dispute between the parties, but simply a
dispute regarding the amount of the loss. 687 So. 2d at 1332. This Court
agreed with the insurer that the dispute “concerns only the amount of loss.”
Id. at 1334. Whether the insured is entitled under the facts to be paid on a
claim and if so, the precise amount to which the insured is entitled, is a
question reserved for the appraiser. Id. The identical position is made by the
Appellant here, that coverage is present for the roof damage, but that the
dispute is as to the amount of loss. As such, arbitrable issues appropriate for
resolution by the appraisal process exist.
Additionally, Mr. Kull clarified a typographical error in his November
18, 2008 letter where he inadvertently omitted the word “not” before the
word “agree” such that the sentence should have read: “We have reviewed
the various estimates submitted [in your November 11, 2008 letter] and do
not agree with what has been submitted by your office as to the amount of
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loss sustained at the Courtney Meadows complex.” (App. O, p. 3). The trial
court acknowledged the typographical error and that its clarification is
consistent with Appellant’s demand for appraisal contained within the same
correspondence. (App. S, pp. 39-41). Thus, the other claimed damage items
in Appellee’s November 11, 2008 correspondence are disputed and therefore
arbitrable issues appropriate for submission to appraisal. The trial court
properly compelled the majority of the November 11, 2008 damages to
appraisal.
Once appraisal provisions have been properly invoked, further
proceedings should be conducted in accord with the appraisal provisions in
the insurance contract and not by litigation. See Allstate Ins. Co. v. Suarez,
833 So. 2d 762, 765 (Fla. 2002). Courts should grant motions to compel
arbitration (appraisal) because “permitting parties to litigate a dispute in court
instead of proceeding to arbitration, if there is a right of arbitration,
constitutes a departure from the essential requirements of law which cannot
be remedied by appeal.” U.S. Fire Ins. Co. v. Franko, 443 So. 2d 170, 172
(Fla. 1st DCA 1983) (citing Lapidus v. Arlen Beach Condo. Ass’n, Inc., 394
So. 2d 1102 (Fla. 3d DCA 1981)). The trial court below has so erred.
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II. THE TRIAL COURT ERRED BY FAILING TO EVALUATE WAIVER
BY THE CORRECT STANDARD
Regarding the third issue of waiver, the trial court failed to apply the
correct authorities regarding what constitutes waiver when the court is faced
with a motion to compel appraisal. In the context of evaluation of a motion
to compel arbitration, this Court has held “If a party has manifested an
acceptance of the judicial forum, a court could reasonably conclude that the
party waived any right he or she may have had to arbitration.” Piercy v. Sch.
Bd. of Washington County, 576 So. 2d 806, 808 (Fla. 1st DCA 1991)
(emphasis added). Moreover, “[o]nly defense of a lawsuit on the issues
subject to arbitration may constitute a waiver.” Ziegler v. Knuck, 419 So. 2d
818, 820 (Fla. 3d DCA 1982) (citation omitted).
In this matter, Appellant has engaged in none of the above referenced
acts. Appellant invoked the appraisal provision in its demand on November
18, 2008. (App. N, Ex. D). In response to Appellee’s suit, on January 29,
2009, Appellant filed its Motion to Dismiss and/or Abate Action and Compel
Appraisal based upon the insurance policy and its November 18, 2008
demand. (App. F). On February 5, 2009, Appellant filed its Motion for
Protective Order and Motion for Extension of Time to Respond to Discovery
based upon the potential of waiving its right to compel appraisal if it engaged
in either written discovery or participated in depositions in this matter. (App.
G). On March 9, 2009, this Court entered an Order providing that “any
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conduct, including but not limited to initiating or responding to discovery,
after February 6, 2009…shall not be used against Appellant or otherwise
prejudice Appellant with respect to Appellant’s right to claim that an
appraisal is the proper procedure under the subject contract of insurance.”
(App. I). Appellant propounded no discovery, took no depositions, did not
file an answer or counterclaim, and has sought no affirmative relief from the
trial court other than compelling this matter to appraisal. Appellant has not
acquiesced to the judicial forum or engaged in the litigation process, except
to the extent necessary to secure its right to have this dispute regarding the
amount of loss heard in an appraisal proceeding. All of Appellant’s actions
were singularly consistent with its position that this matter should be
submitted to appraisal and not litigation. Thus, there has been no waiver and
the trial court’s finding of waiver is against well-established case law directly
on point.
A. Appellant’s Offer Did Not Waive Its Right To Demand Appraisal
The trial court erred in accepting the argument that the Appellant
waived its right to demand appraisal by making an offer in the amount of the
final estimate. This ruling is without factual or legal support. In U.S. Fire
Ins. v. Franko, 443 So. 2d 170, 172 (Fla. 1st DCA 1983), this Court addressed
this exact situation and held:

Found at:
Further, petitioner's failure to immediately demand
arbitration upon discovery that there was a large
disparity between petitioner's appraisal and
respondents' appraisal does not constitute waiver of
the right to arbitration. At that time, petitioner made a
settlement offer to respondents for the amount of the
low appraisal. Arms length negotiations between
parties often begin with widely disparate dollar
amounts being promoted by each side. Petitioner's
settlement offer was, perhaps, merely a first step in
attempting to resolve the dispute amicably and
without any formal proceedings. This type of conduct
is not inconsistent with the right to arbitration.
Miller Construction Company, Inc. v. First Baptist
Church of Live Oak, Inc., 396 So. 2d 281 (Fla. 1st
DCA 1981). (emphasis added).
See also Preferred Mut. Ins. Co. v. Martinez, 643 So. 2d 1101, 1102 (Fla. 3d
DCA 1994) (holding failure to request appraisal during lengthy negotiations
was not waiver). In this matter, on October 22, 2008, Appellant made
Appellee an offer by tender of the total amount of loss (App. N, Ex. B); on
November 11, 2008, Appellee rejected the offer, made a counter-offer, and
submitted invoices, proposals, and estimates of new additional damages, as
well as other damages it believed were not adjusted (App. N, Ex. C) (App. O,
Ex. B); on November 18, 2008, Appellant demanded appraisal (App. N, Ex.
D). These are clearly settlement negotiations and nothing more. Contrary to
the trial court’s ruling, Franko dictates that Appellant’s settlement
negotiations are not actions “inconsistent with the right to arbitration.”
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B. The Right To Demand Appraisal Has No Time Frame
The trial court failed to apply binding precedent finding that the
contractual right to demand appraisal has no time frame. The trial court
expressly found that Appellant “did not demand appraisal until November 18,
2008, beyond the thirty (30) days provided for under [sections E4a(3) and
E4c of] the contract.” (App. A, p. 5). The appraisal provision provides “If
we and you disagree on the value of property or the amount of loss, either
may make written demand for an appraisal of the loss.” (emphasis added).
(App. B, p. 8). This is an optional demand. It is not mandated to occur if
there is a dispute. It is available if a party so desires to invoke the process.
There is no time limitation listed therein. This language has been interpreted
to mean that there is no time limit to demand appraisal. Gonzalez v. State
Farm Fire & Cas. Ins. Co., 805 So. 2d 814, 817 (Fla. 3d DCA 2000)(in
construing a similar appraisal provision, the court held: “This policy allows
appraisal if it is requested…. Nothing in the insurance policy or the law
mandates presuit appraisal.”) Thus, the trial court erred when it found that
there was a time limit for demanding appraisal under the instant policy.
To the extent there is any timeframe for a demand for appraisal or
arbitration, courts have held that the five year statute of limitation applies to
actions based on written contracts, including a demand for arbitration. See
Gissendanner v. Manchester Ins. Co., 307 So. 2d 876, 877 (Fla. 3d DCA
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1975) (holding arbitration demand made 2 years after accident timely under
§95.11, Fla. Stat.); see also Hypower, Inc. v. DOT, 839 So. 2d 856, 857 (Fla.
1st DCA 2003)(approving of Gissendanner). One court has held that when a
contract required a demand for arbitration be made “within a reasonable time
after the claim, dispute or other matter in question has arisen,” a four month
delay is not unreasonable as a matter of law. See Graham Contracting, Inc. v.
Flagler County, 444 So. 2d 971, 972 (Fla. 5th DCA 1983). In this matter,
Appellant’s demand for appraisal was made five months 17 days after the
hailstorm, 35 days before Appellee filed suit, 27 days after tendering its good
faith offer, and only 7 days after receiving Appellee’s rejection and counter-
offer. Thus, under any interpretation of the case law, Appellant’s demand
was timely made. The trial court thus erred in finding waiver upon that basis.
C. The 30-Day Notice Of Intent Language Does Not Impact The Time
Within Which To Demand Appraisal
The trial court erred in finding sections E4a(3) and E4c of the policy
dictated that Appellant had 30 days after October 3, 2008 (the date which the
trial court improperly determined that Appellant waived its right to request
sworn proofs of loss) within which to demand appraisal. (App. S, pp. 28, 29-
30). The policy’s Loss Payment section, paragraph E.4.c., provides: “We
will give notice of our intentions within 30 days after we receive the sworn
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proof of loss.” (App. B, p. 9). The “intentions” refer to the four options
listed at paragraph 4.a.(1) – (4), which provides:
a. In the event of loss or damage covered by this Coverage

Form, at our option, we will either:
(1) Pay the value of lost or damaged property;
(2) Pay the cost of repairing or replacing the lost or
damaged property, subject to b. below;
(3) Take all or any part of the property at an agreed or
appraised value; or
(4) Repair, rebuild, or replace the property with other
property of like kind and quality, subject to b.
below.
(App. B, pp. 8-9). Rejecting the identical argument advanced by the
Appellee that this provision required an insurer to demand appraisal within
30 days of receipt of a sworn proof of loss, one court held:
[C]onstruing the policy as a whole, and giving the

words used their ordinary, not technical meaning to
achieve a practical and fair interpretation, the court
readily concludes that this provision sets no time
limit on when an appraisal must be demanded.
Instead, it sets a deadline on when the [insurance
company is] required to give notice of intent to take
the property or to rebuild or replace it, at an agreed or
appraised value. This provision does not even
reasonably suggest that the appraisal must be
demanded or completed prior to the companies’
exercise of this option to take the property or rebuild
or replace it. The provision simply does not provide
any thirty-day deadline from the proof of loss for an
appraisal demand.
Terra Indus., Inc. v. Commonwealth Ins. Co. of Am., 981 F. Supp. 581, 596
(N.D. Iowa 1997); see also SR Int’l Bus. Ins. Co., Ltd. v. World Trade Center
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Props., LLC, 2003 U.S. Dist. LEXIS 3881, at *4 (S.D.N.Y. Mar. 18,
2003)(approving Terra). Thus, the trial court erred in finding that paragraphs
E4a(3) and E.4.c required Appellant to demand appraisal within 30 days.
(App. A, p. 5). Notwithstanding, Appellant made its intent known as both
parties proceeded with the claim as one for repair or replacement --Appellant
paid invoices properly presented to it for replacement and repair of damages
during its investigation. Accordingly, Appellee was aware of Appellant’s
intent notwithstanding Appellee’s refusal to provide a sworn proof of loss as
requested by Appellant and this notice requirement was satisfied. See
Gellman v. Cincinnati Ins. Co., 602 F. Supp. 2d 705, 710 (W.D.N.C. 2009).
III. THE TRIAL COURT ERRED WHEN IT CONFUSED TIMELINESS

OF A DEMAND FOR APPRAISAL WITH WAIVER BY INCONSISTENT
ACTS
The trial court erred in confusing timeliness with waiver. The trial
court expressly held that Appellant “failed to timely assert its right to demand
appraisal as to all items addressed or listed in Mr. Gildenmeister’s estimate
provided to Courtney Meadows on October 3, 2008.” (App. A, p. 5). Thus,
the trial court’s order was based on the timeliness of the demand.
Timeliness is an issue for the arbitrator, not the trial court. See
O’Keefe Architects, Inc. v. CED Constr. Partners, Ltd., 944 So. 2d 181, 186-
87 (Fla. 2006); see also Alderman v. City of Jacksonville, 902 So. 2d 885,
887 (Fla. 1st DCA 2005); Piercy v. Sch. Bd. of Washington County, 576 So.
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2d 806, 807 (Fla. 1st DCA 1991); City of Crystal River, Fla. v. United Bhd. of
Carpenters, 884 So. 2d 440, 440-41 (Fla. 5th DCA 2004); Howsam v. Dean
Witter Reynolds, 537 U.S. 79, 85 (2002). This Court defined waiver as
when “a party has manifested an acceptance of the judicial forum.” Piercy,
576 So. 2d at 808 (emphasis added). Additionally, “[o]nly defense of a
lawsuit on the issues subject to arbitration may constitute a waiver.” Ziegler
v. Knuck, 419 So. 2d 818, 820 (Fla. 3d DCA 1982) (citation omitted). The
trial court did not employ this Court’s waiver analysis, but instead improperly
based its finding upon what it considered the untimeliness of the Appellant’s
demand (App. A, p. 5), a determination for the arbitrator, not the court.
A. Delay In Requesting Appraisal Is Not Waiver
The trial court erred in disregarding cases cited by Appellant holding
that a delay in requesting appraisal is not waiver.
In concert with this Court’s opinion in Piercy, the Third DCA held
“Delay in demanding arbitration, unaccompanied by action in court, is not a
repudiation of the right to arbitrate so as to make the issue of delay one for a
court to decide.” ARI Mut. Ins. Co. v. Hogen, 734 So. 2d 574, 575 (Fla. 3d
DCA 1999)(quoting Public Health Trust of Dade County v. M.R. Harrison
Constr. Corp., 415 So. 2d 756, 758 (Fla. 3d DCA 1982)) (emphasis added).
“Mere delay creating untimeliness is distinct from the active participation
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that creates waiver.” The Hillier Group, Inc. v. Torcon, Inc., 932 So. 2d 449,
456 (Fla. 2d DCA 2006) (emphasis added); see also Alderman v. City of
Jacksonville, 902 So. 2d 885, 887 (Fla. 1st DCA 2005). In this matter, there
was no active participation by Appellant which could have resulted in waiver.
The waiver analysis employed by the trial court bore no resemblance to
the waiver analysis required under Piercy and Ziegler, and interpreted by
numerous cases thereafter. Thus, the trial court erred in determining
Appellant’s demand for appraisal was untimely under the subject policy.
B. Sworn Proofs Of Loss Do Not Impact The Right To Demand Appraisal
The trial court improperly found Appellant’s request for sworn proofs
of loss triggered any time period within which Appellant was required to
demand appraisal. (App. A, pp. 3-5) (App. S, p. 44). As stated above, there
is no such time period in this policy to demand appraisal. The section of the
policy allowing for sworn proofs of loss is unrelated to the appraisal
provision. Within the “Duties In The Event Of Loss Or Damage” section, at
paragraph E.3.a.(7), it provides the insured “must see that the following are
done in the event of loss or damage to Covered Property: (7) Send us a
signed, sworn proof of loss containing the information we request to
investigate the claim. You must do this within 60 days after our request. We
will supply you with the necessary forms.” (App. B, p. 8). There is no time
frame within which the insurer must request the sworn proof of loss.
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Further, sworn proofs of loss are available to assist the insurer in
adjusting the claim so it does not have to rely solely on the insured’s bare
statements. Their use is not mandated by the policy in any event. Even
where an insurer has paid for part of a loss on a property damage claim, and
the insured then disputes the amount of loss, the insurer has the right to
request, and the insured has the obligation to complete, sworn proofs of loss
as part of the insured’s post-loss obligations. See U.S. Fid. & Guar. Co. v.
Romay, 744 So. 2d 467 (Fla. 3d DCA 1999). The Romay court stated:
“These obligations are not unduly burdensome or arbitrary and constitute
assurance that the insurer will be provided with adequate information on
which to base its conclusion.” Id. at 471. Thus, sworn proofs of loss have no
impact on the Appellant’s right to demand an appraisal under this policy.
The trial court misapplied and misconstrued the policy as well as failed to
consider, apply, or distinguish any of the cited cases and binding authorities.
IV. STARE DECISIS REQUIRES REVERSAL OF THE TRIAL COURT
The trial court erred by not following controlling precedents of this
Court and the Florida Supreme Court. If it had evaluated the matter correctly
under the proper case law, no waiver would have been found and Appellant’s
Motion to Dismiss and to Compel would have been granted.
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It is well established that a trial court is bound by the decisions of the
Florida Supreme Court just as the district courts of appeal follow controlling
precedents by the Florida Supreme Court. See State v. Dwyer, 332 So. 2d
333, 335 (Fla. 1976)(quoting State v. Lott, 286 So. 2d 565 (Fla. 1973)); see
also Putnam County Sch. Bd. v. Debose, 667 So. 2d 447, 447 (Fla. 1st DCA
1996) (holding “Under the doctrine of stare decisis, lower courts are bound to
adhere to the rulings of higher courts when considering similar issues even
though the lower court might believe the law should be otherwise.” (citing
Dwyer)). The doctrine of stare decisis which “applies a rule of law
established in an earlier case only to a later case that involves a factual
situation similar to that in the former,” suggests that same result should occur
here. Cuisick v. City of Neptune Beach, 765 So. 2d 175, 177 (Fla. 1st DCA
2000)(citing Forman v. Fla. Land Holding Corp., 102 So. 2d 596 (Fla.
1958)). As aptly stated by the Florida Supreme Court, “the decisions of the
district courts of appeal represent the law of Florida unless and until they are
overruled by this Court. Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980).
Thus, in the absence of interdistrict conflict, district court decisions bind all
Florida trial courts. Weiman v. McHaffie, 470 So. 2d 682, 684 (Fla. 1985).”
Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992). As such, the trial court erred
when it failed to adhere to rulings of the higher courts when considering
similar issues.
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In its Memorandum in Support, Appellant provided the trial court with
many of the pertinent authorities, the analysis dictated by these authorities,
and the case law addressing these same factual circumstances and results.
(App. Q). At the hearing, counsel for the Appellant attempted to direct the
trial court back to its Memorandum, but the trial court severely limited
counsel for Appellant’s participation. (App. S, pp. 16, 30, 49, 50, 51). As a
result of the inability to present proper argument at the hearing, Appellant
filed its Motion for Reconsideration, raising the points and arguments herein
prior to the trial court entering any written order on the disposition of
Appellant’s motion. (App. T). Notwithstanding, the trial court’s order fails
to mention, acknowledge, distinguish, or apply any of the cases cited by
Appellant. (App. S). Instead, it relies upon four cases (American Bankers
Ins. Co. of Fla. v. Terry, 277 So. 2d 563 (Fla. 3d DCA 1973), Llerena v.
Lumberman’s Mutual Casualty Co., 379 So. 2d 166 (Fla. 3d DCA 1980),
Bear v. New Jersey Ins. Co., 189 So. 252 (Fla. 1939) and Cincinnati Ins. Co.
v. Palmer, 297 So. 2d 96 (Fla. 4th DCA 1974)), which are discussed and
distinguished below. (App. S, pp. 3, 4).
A. Factually Similar Scenarios Result in Compelling Appraisal
The trial court failed to follow the results in factually similar cases
from binding and on point precedents. In the instant matter, Appellant
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accepted coverage, a disagreement on the amount of the loss occurred,
Appellant tendered payment for what it believed was the amount of loss,
Appellee rejected the tender and submitted additional damages, Appellant
demanded appraisal, and then Appellee filed suit. The instant appraisal
clause located at paragraph E.2. provides:
If we and you disagree on the value of the property or

the amount of loss, either may make written demand
for an appraisal of the loss. 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 an umpire. A decision agreed to by
any two will be binding. Each party will:
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.
(App. B, p. 8).
In Johnson v. Nationwide Mut. Ins. Co., 828 So. 2d 1021, 1025 (Fla.
2002), the Florida Supreme Court was faced with a virtually identically
worded appraisal clause--the only difference being the instant clause adds
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language referring to disagreements as to the “value of the property.”1
Interpreting this appraisal clause, the Florida Supreme Court adopted Judge
Cope’s analysis in Gonzalez v. State Farm Fire & Casualty Co., 805 So. 2d
814, 816-17 (Fla. 3d DCA 2000):
[W]hen the insurer admits that there is a covered loss, but

there is a disagreement on the amount of loss, it is for the
appraisers to arrive at the amount to be paid.
Thus, even when the insurer admits there is a covered loss (as here) but there
is a disagreement as to the amount of loss (as here), it is for the appraisers to
arrive at the amount to be paid (which is precisely what Appellant requested
here). The same result should occur.
In Florida Farm Bureau Cas. Ins. Co. v. Sheaffer, 687 So. 2d 1331,
1334 (Fla. 1st DCA 1997), overruled on other grounds Allstate Ins. Co. v.
Suarez, 833 762 (Fla. 2002), the insurer conceded that the roof damage was a
covered claim and the only dispute was the scope of the required repair and
1
The Johnson appraisal clause provided as follows:
If we and you disagree on the amount of loss, either may make written
demand for an appraisal of the loss. 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 amount of
loss. If they fail to agree, they will submit their differences to an umpire. A
decision agreed to by any two will be binding. Each party will:
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.
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amount of the loss. The insurer further conceded that if the appraisers found
that the entire roof needed to be replaced, the insurer would be bound by that
decision to the policy limits. Id. at 1334. Under those circumstances, this
Court remanded the matter to appraisal upon the insurer’s motion to dismiss
and compel appraisal. This is the same situation presented here and therefore
the same result should be reached.
In Scottsdale Ins. Co. v. Desalvo, 666 So. 2d 944 (Fla. 1st DCA 1995),
this Court interpreted an appraisal provision identical to the instant
provision.2 The Desalvo insured sustained a significant loss as the result of a
fire and filed a sworn proof of loss, claiming $563,000.00, the limit of
coverage under the policy. The insurer accepted coverage; however, it
concluded that the insured's loss was only $405,402.08, which sum it paid to
the insured. When the parties were unable to resolve their disagreement over
the additional sum claimed by the insured, the insured filed suit. In response,
2
The Desalvo appraisal provision provided:
If we and you disagree on the value of the property or the amount of loss,
either may make written demand for an appraisal of the loss. 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:
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.
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the insurer filed a motion requesting the trial court to stay the action, and to
compel the parties to submit to appraisal the amount of the loss, pursuant to
the policy. The trial court denied the motion, ruling that the appraisal clause
lacked mutuality and therefore was unenforceable. This Court, however,
reversed and remanded with directions that the trial court compel appraisal,
and stay the action pending the outcome of that appraisal. The instant
scenario mirrors those same facts and should dictate the same result.
Accordingly, the trial court erred when it failed to consider, apply or
distinguish these strikingly similar cases, which would dictate granting the
motion to compel appraisal in this matter.
B. Alleged Breach Of Contract Is Not Waiver
Appellee’s argument below that waiver must be found based on its
allegation that Appellant breached its contract also fails. Applicable case law
holds that an alleged breach of contract is not considered waiver.
Even where a party alleges the insurer breached its contract, that does
not amount to waiver of the right to demand appraisal. Post Tensioned Eng’g
Corp. v. Fairway Plaza Assocs., 412 So. 2d 871, 874 (Fla. 3d DCA 1982).
Further, many cases hold where an insured files suit based upon nearly
identical appraisal clauses alleging breach of contract and/or declaratory
judgment, the insurer’s motion to compel appraisal should be granted. See,
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e.g., Goff v. State Farm Ins. Co., 999 So. 2d 684 (Fla. 2d DCA 2008); Wilson
v. Federated Nat’l Ins. Co., 969 So. 2d 1133 (Fla. 2d DCA 2007); Nationwide
Mut. Ins. Co. v. Johnson, 774 So. 2d 779 (Fla. 2d DCA 2000) quashed on
other grounds 828 So. 2d 1021 (Fla. 2002); Fla. Farm Bureau Cas. Ins. Co. v.
Sheaffer, 687 So. 2d 1331 (Fla. 1st DCA 1997) overruled on other grounds
Allstate Ins. Co. v. Suarez, 833 So. 2d 762 (Fla. 2002); State Farm Fire &
Cas. Co. v. Middleton, 648 So. 2d 1200 (Fla. 3d DCA 1995); Preferred Mut.
Ins. Co. v. Martinez, 643 So. 2d 1101 (Fla. 3d DCA 1994). This matter is not
distinguishable from these cases and thus the same result should occur.
C. The cases of Bear, Terry, Llerena, and Cincinnati Are Not Controlling
In finding that the Appellant had waived its right to demand appraisal
as to the damages included in the October 3, 2008 estimate, the trial court
relied heavily on the cases of American Bankers Ins. Co. of Fla. v. Terry, 277
So. 2d 563 (Fla. 3d DCA 1973), Llerena v. Lumberman’s Mutual Casualty
Co., 379 So. 2d 166 (Fla. 3d DCA 1980), Bear v. New Jersey Ins. Co., 189
So. 252 (Fla. 1939), and Cincinnati Ins. Co. v. Palmer, 297 So. 2d 96 (Fla. 4th
DCA 1974), which were argued by Appellee. (App. A, p. 3-4). A closer
Found at:
review of these cases, however, evidences they are factually dissimilar,
distinguishable, limited in their applications, and not controlling.3
i. Bear v. New Jersey Ins. Co.
In Bear, specific policy language dictated that case’s outcome and was
significantly different than the instant policy provision. The terms of the
Bear policy expressly provided:
In the event of disagreement as to the amount of loss the

same shall, as above provided, be ascertained by competent
and disinterested appraisers . . . the loss shall not become
payable until sixty days after the notice, ascertainment,
estimate and satisfactory proof of loss herein required have
been received by this company, including an award by
appraisers when appraisal has been required.
189 So. at 253 (emphasis added). Thus, by its own terms, appraisal was
mandatory if there was a disagreement as to the amount of loss.
Additionally, the loss became payable sixty days after “ascertainment” which
could include completion of the investigation.
The Bear policy language is not present in the instant policy. The
instant appraisal provision provides, in pertinent part: “If we and you
disagree on the value of the property or the amount of loss, either may make
written demand for an appraisal of the loss.” (emphasis added). (App. B, p.
3
See Pando v. United States, 1998 U.S. Dist. LEXIS 11941(S.D. Fla. June
29, 1998), and Columbia Casualty Co. v. S. Flapjacks, Inc., 868 F.2d 1217,
1221-22 (11th Cir. 1989), for additional discussion of limitations and
distinctions from the instant appraisal clause.
Found at:
8). Unlike the mandatory language in Bear, demanding appraisal is one of
many options available to the Appellant.
Other than in the Llerena, Terry, and Cincinnati decisions, Bear has
only been cited four times: in an opinion supporting a finding of waiver of a
sworn proof of loss, but not addressing appraisal, in English & Am. Ins. Co.
v. Swain Groves, Inc., 218 So. 2d 453, 457 (Fla. 4th DCA 1969); in a per
curiam affirmance without opinion in Aetna Cas. & Surety Co. v. CK&K
Enters., Inc., 528 So. 2d 561 (Fla. 1st DCA 1988); distinguished in Columbia
Cas. Co. v. Southern Flapjacks, Inc., 868 F.2d 1217, 1221 (11th Cir. 1989);
and simply cited as part of an argument not addressed by the court in Florida
Gaming Corp. v. Affiliated FM Ins. Co., 502 So. 2d 1257, 1265 (S.D. Fla.
2007). Thus, it is very limited in its application.
ii. American Bankers Ins. Co. of Fla. v. Terry
The second case of American Bankers Ins. Co. of Fla. v. Terry, 277 So.
2d 563 (Fla. 3d DCA 1973), is likewise distinguishable from the instant facts.
The Terry court held that the motorcycle insurance company “did not invoke
timely the arbitration clause of the policy in its letter of January 11, 1972, the
clause providing for a sixty (60) day period which we conclude began to run
as of November 1, 1971.” Id. at 564. The policy language is not quoted;
however, the court found the Bear opinion controlling. Thus, the Terry policy
Found at:
language must have mirrored the Bear policy language, which is significantly
different than the language of the policy at issue, as stated above. Therefore,
both Bear and Terry would be distinguishable on that point alone.
Additionally, Terry dealt with insurance for a stolen motorcycle, a
much simpler loss to evaluate and adjust than the instant property
insurance matter. Furthermore, the execution of the sworn statement in
Terry was an action by the insured, not the insurer, and therefore had
nothing to do with the Court’s determination of when the appraisal
demand period under the Terry policy began to run. The court discussed
the existence of the sworn statement in the context of the insurer’s attempt
to characterize it as a proof of loss, an argument that has not been
advanced by any party in the instant suit. Appellant asserts that Terry is
distinguishable and not controlling.
In addition to being cited in Llerena and Cincinnati, Terry has been
cited only two other times: it was distinguished by Pando v. United
States, 1998 U.S. Dist. LEXIS 11941 (S.D. Fla. June 29, 1998); and
distinguished in Southgate Gardens Condo. Ass’n v. Aspen Specialty Ins.
Co., 2008 U.S. Dist. LEXIS 42635 (S.D. Fla. May 29, 2008). Thus, Terry
is also very limited in its application.
Found at:
iii. Llerena v. Lumbermens Mut. Cas. Co.
The third case improperly relied upon by the Appellee and accepted by
the trial court is Llerena v. Lumbermens Mutual Casualty Co., 379 So. 2d
166 (Fla. 3d DCA 1980). In Llerena, the automobile policy provided “Within
60 days following the filing of proof of loss either the insurer or the insured
may demand an appraisal be made of the damages to the insured’s vehicle.”
Id. at 167 (emphasis added). No such time limitation exists in the language
of the instant policy. To the extent the trial court construed Llerena as
determining the date upon which any time period to demand appraisal should
run (which Appellant disputes), the beginning date should have been October
22, 2008, when the settlement offer check was tendered to Appellee, not
October 3, 2008 when the estimate was provided without payment. The
Llerena court construed and applied its earlier 1973 Terry opinion, as well as
the 1939 Florida Supreme Court opinion in Bear, in holding: “The
submission of the first settlement offer on February 15, 1978, along with its
draft for $ 2,397.70 constituted an admission of liability on the part of
Lumbermens. At that juncture Lumbermens waived the requirement of any
formal proof of loss and the time in which it was required to demand
appraisal under the policy (60 days) began to run.” Id. at 167. (emphasis
added). Thus, the time at which the 60 days (in that case) began to run was
the date of the first submission of their settlement offer “along with its draft.”
Found at:
In this matter, the first time that Appellee had Appellant’s estimate and draft
was October 22, 2008. Arguendo, if the alleged 30 day period within which
to demand appraisal (which there is none) began on October 22, 2008, it
would have expired on November 21, 2008. As Appellant demanded
appraisal on November 18, 2008, it is within the Llerena time frame.
Llerena is the most recent opinion by the Third District which
construed, applied, and clarified its previous decision in Terry. Llerena has
never been cited by another Florida state court; but, as stated supra, has been
distinguished by an Iowa federal district court in Terra Industries v.
Commonwealth Ins. Co. of America, 981 F. Supp. 581, 597 (N.D. Iowa
1997); distinguished by Pando v. United States, 1998 U.S. Dist. LEXIS
11941 (S.D. Fla. June 29, 1998); and simply cited as part of an argument not
addressed by the court in Florida Gaming Corp. v. Affiliated FM Ins. Co.,
502 So. 2d 1257, 1265 (S.D. Fla. 2007). Thus, Llerena is even more limited
in its application than the others.
Accordingly, Bear, Terry, and Llerena, are factually dissimilar and
distinguishable on the policy language itself. Therefore, these cases do not
control the instant matter, nor do they lead to a conclusion that Appellant
waived its right to demand appraisal under the instant policy.
Found at:
iv. Cincinnati Ins. Co. v. Palmer
Similarly, the trial court’s reliance upon Cincinnati Ins. Co. v.
Palmer, 297 So. 2d 96 (Fla. 4th DCA 1974) is misplaced. The trial court
accepted Appellee’s argument that Cincinnati holds that an insurer’s
acceptance of coverage equated to acceptance of liability such that Bear
and Terry trigger a time frame within which appraisal must be demanded.
(App. A, p. 4-5). As shown above, Bear, Terry, and Llerena have no
application given the dissimilar language. Further, Cincinnati addressed
waiver of formal proofs of loss, not the right to demand appraisal. Id. at
98. Thus, the trial court misapplied this case to the instant facts.
At its core, Cincinnati is an attorney’s fee case which predates
Llerena by 6 years, and unlike holdings of this Court, is not binding or
controlling precedent on the trial court. Cincinnati has often been cited
for the proposition of determining the date of awarding prejudgment
interest, as well as the confession of judgment doctrine. Since being
published, however, no Florida state court has cited it for Appellee’s
suggested proposition that admitting coverage is admitting liability.
Dissimilar to the instant facts, the Cincinnati court found that by
mid-August 1971, the adjuster was satisfied that the loss was covered
under the policy, no other applicable insurance applied, “and that the
balance due the SBA on the loan and mortgage was $56,000.” Id. at 97.
Found at:
Thus, the insurer agreed to an amount certain at that time. Under those
facts, the Fourth District found “by the middle of August, 1971, the
insurer had admitted its liability for the loss, at least as to the interest of
the mortgagee. As such, this constituted a waiver of the requirement of a
formal proof of loss.” Id. at 98. (emphasis added). The Cincinnati
opinion never addressed any demands for appraisal. Further, the court
stated that the Cincinnati policy, unlike the instant policy, “required
payment sixty days after proof of loss.” Id. Additionally, the opinion did
not identify any other conditions required to be satisfied prior to payment.
The instant policy, at section E.4.g., does provide additional
conditions to payment, as follows:
g. We will pay for covered loss or damage within

30 days after we receive the sworn proof of
loss, if you have complied with all of the terms
of this Coverage Part and:
(1) We have reached an agreement with you
on the amount of loss; or
(2) An appraisal award has been made.
(italics and bold emphasis added). (App. B, pp. 8-9). Here, Appellee has not
alleged (nor could it allege) there has been an agreement between the parties
as to the amount of loss, nor that an appraisal award had been made.
Appellee’s Complaint, Amended Complaint, exhibits attached thereto, (App.
C, Ex. G, H, I) as well as their counsel’s letter of December 29, 2008 (App.
Found at:
O, p.3, Ex. D) show that Appellee has not complied with all terms of the
coverage part. Thus, no payment deadline has been triggered.
Moreover, contrary to Appellee’s arguments below, the loss payment
language does not require payment of any undisputed portion of the claim by
the insurer that the insured believes is ready for payment. Notwithstanding,
Appellant has made a tender of payment on all undisputed items that it agreed
to on October 22, 2008, only 19 days from the date of the estimate completed
by Mr. Gildenmeister, which would satisfy any 30 day period which would
arguably, but does not, apply. Appellee refused this tender, refused to
provide sworn proofs of loss, and refused to participate in the appraisal
process. Thus, based on the foregoing, the Cincinnati case is distinguishable
on its facts and not controlling in this matter.
Significantly, the absence of citation of approval to these four cases by
the multitude of other opinions published by the Florida Supreme Court and
multiple District Courts of Appeal when addressing motions to compel
arbitration or appraisal in almost 30 years since those cases were decided
supports Appellant’s argument that they are not applicable in this factual
situation. When faced with insurers admitting coverage, submitting
settlement offers, making partial payments to the insured, and even to the
extent of not demanding appraisal until filing a motion in the trial court after
the insured files a complaint, the right to demand appraisal has been
Found at:
uniformly upheld and no waiver has been found. See, e.g., Johnson v.
Nationwide Mut. Ins. Co., 828 So. 2d 1021 (Fla. 2002); Gonzalez v. State
Farm Fire & Cas. Co., 805 So. 2d 814 (Fla. 3d DCA 2000); Fla. Farm Bureau
Cas. Ins. Co. v. Sheaffer, 687 So. 2d 1331, 1334 (Fla. 1st DCA 1997),
overruled on other grounds Allstate Ins. Co. v. Suarez, 833 So. 2d 762 (Fla.
2002); Scottsdale Ins. Co. v. Desalvo, 666 So. 2d 944 (Fla. 1st DCA 1995);
U.S. Fire Ins. v. Franko, 443 So. 2d 170, 172 (Fla. 1st DCA 1983).
In this matter, it is undisputed that the parties contractually provided
that in the event they could not agree as to the amount of a loss, they would
submit the dispute to appraisal if requested by either party. It is undisputed
that they have a disagreement as to the amount of loss. Appellant has
requested and properly invoked the appraisal provisions. Appellant has not
waived its right to demand appraisal in this matter. As such, this litigation
should be dismissed or stayed/abated pending the appraisal process.
Appellee’s participation in the appraisal process is a condition precedent to
the Appellee’s bringing of this suit, which has not been met. To allow this
matter to be litigated in court is not only error, but constitutes a departure
from the essential requirements of law. The trial court, through its order and
as expressly stated at the hearing, is requiring Appellant to litigate this
dispute as to the amount in court. (App. A, pp. 5, 7) (App. S, p. 44).
Accordingly, in addition to being error as shown above, the trial court’s order
Found at:
clearly constitutes a departure from the essential requirements of law, which
cannot be remedied on appeal. See U.S. Fire Ins. Co. v. Franko, 443 So. 2d
170, 172 (Fla. 1st DCA 1983) (citing Lapidus v. Arlen Beach Condo. Ass’n,
Inc., 394 So. 2d 1102 (Fla. 3d DCA 1981)). Therefore, the trial court’s order
should be reversed and vacated.
Found at:
VII. CONCLUSION
Based on the foregoing authorities and argument, Appellant
respectfully requests that this Honorable Court reverse and vacate the trial
court’s June 1, 2009 Order to the extent that it finds Appellant waived
appraisal as to those damages contained within the October 3, 2008 estimate,
remand the same to the trial court with directions to compel those damages be
submitted to appraisal, compel Appellee to participate in the appraisal
process as contractually agreed to by the parties and as properly invoked by
the Appellant, and to dismiss Appellee’s Amended Complaint, retaining
jurisdiction only to determine the coverage issue regarding the alleged
personal property (the table and computers), and for any further relief this
Court deems necessary and/or proper under the circumstances.
DATED this ___th day of June 2009.
Respectfully Submitted,
GUY E. BURNETTE, JR. P.A.
__________________________
GUY E. BURNETTE, JR., ESQ.
A. DEAN JOHNSON, ESQ.
3020 N. Shannon Lakes Drive
Tallahassee, Florida 32309
Telephone: (850) 668-7900
Facsimile: (850) 668-7972
Attorneys for Appellant
Found at:
VIII. CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been forwarded
via U.S. Mail to P. Campbell Ford, Esq., Ford, Miller & Wainer, P.A., 1835
N. Third Street, Jacksonville Beach, FL 32250 this ____ day of June 2009.
______________________________
A. DEAN JOHNSON
IX. CERTIFICATE OF TYPEFACE COMPLIANCE
The undersigned hereby certifies that this brief is in Times New
Roman 14 point font in compliance with the font standards required by Rule
9.210, Florida Rules of Appellate Procedure, for computer-generated briefs.
_______________________________
A. DEAN JOHNSON
Found at:

American Capital Assurance Corporation v. Courtney Meadows Apartment, L.L.P. (1D09-2940) - Initial Brief

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American Capital Assurance Corporation v. Courtney Meadows Apartment, L.L.P. (1D09-2940) - Initial Brief

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IN THE DISTRICT COURT OF APPEAL

AMERICAN CAPITAL ASSURANCE

vs. DCA Case No.: 1D09-2940

INITIAL BRIEF OF APPELLANT

GUY E. BURNETTE, JR., ESQ.

GUY E. BURNETTE, JR., P.A.

I. Table of Contents ………………………………………… -i-

II. Table of Citations ………………………………………… -ii-

III. Statement of the Case and of the Facts ................................. 1

IV. Summary of Argument .......................................................... 9

V. Standard of Review ............................................................... 13

VI. Argument .............................................................................. 14

I. THE TRIAL COURT ERRED BY FAILING TO

II. THE TRIAL COURT ERRED BY FAILING TO

A. Appellant’s Offer Did Not Waive Its Right To

B. The Right To Demand Appraisal Has No

C. The 30-Day Notice Of Intent Language Does

A. Delay In Requesting Appraisal Is Not Waiver …. 26

B. Sworn Proofs Of Loss Do Not Impact The Right

IV. STARE DECISIS REQUIRES REVERSAL OF THE

A. Factually Similar Scenarios Result in Compelling

B. Alleged Breach Of Contract Is Not Waiver …….. 34

C. The cases of Bear, Terry, Llerena and Cincinnati

VII. Conclusion ........................................................................... 46

VIII. Certificate of Service ............................................................ 47

IX. Certificate of Typeface Compliance ..................................... 47

Cases Cited Page(s)

Aetna Cas. & Sur. Co. v. CK&K Enters., Inc., …………………… 37

Alderman v. City of Jacksonville, ………………………………... 25, 27

Allstate Ins. Co. v. Suarez, …………………………………………. passim

Am. Bankers Ins. Co. of Fla. v. Terry, ……….……………………. passim

ARI Mut. Ins. Co. v. Hogen, ………………………………………. 26

Bear v. N.J. Ins. Co., ……….………….……………………………. passim

Benedict v. Pensacola Motor Sales, Inc., ……………………………. 13, 15

Cincinnati Ins. Co. v. Palmer, ………………………………………. passim

City of Crystal River v. United Bhd. of Carpenters, ……………….. 26

Columbia Cas. Co. v. S. Flapjacks, Inc., ……………………..……. 36, 37

Cuisick v. City of Neptune Beach, …………………………………. 29

Dixon v. City of Jacksonville, ………………………………………. 13

Doctors Assocs., Inc. v. Thomas, …………………………………… 15

English & Am. Ins. Co. v. Swain Groves, Inc., …………………….. 37

Fla. Farm Bureau Cas. Ins. Co. v. Sheaffer, ………………………… passim

Fla. Gaming Corp. v. Affiliated FM Ins. Co., ……………………… 37, 40

Fla. Title Loans, Inc. v. Christie, …………………………………… 13

Forman v. Fla. Land Holding Corp., ……………………………….. 29

Gellman v. Cincinnati Ins. Co., ……………………………………… 25

Gissendanner v. Manchester Ins. Co., ……………………………… 22, 23

Goff v. State Farm Ins. Co., ………………………………………… 35

Graham Contracting, Inc. v. Flagler County, ……………………….. 23

Howsam v. Dean Witter Reynolds, ..................................................... 26

Hypower, Inc. v. DOT, ……………………………………………… 23

Johnson v. Nationwide Mut. Ins. Co., ……………………………… 31, 44

Kaplan v. Kimball Hill Homes Fla., Inc., …………………………… 14

Lapidus v. Arlen Beach Condo. Ass’n, Inc., ………………………… 18, 45

Llerena v. Lumberman’s Mut. Cas. Co., ………..…………………… passim

Nationwide Mut. Ins. Co. v. Johnson, ……………………………….. 35

O’Keefe Architects, Inc. v. CED Constr. Partners, Ltd., …………….. 14, 25

Pando v. United States,………………………………………………… 36, 38, 40

Pardo v. State, …………………………………………………………. 29

Phillips v. Gen. Acc. Ins. Co. of Am., ………………………………… 14

Piercy v. Sch. Bd. of Washington County, ……………………………14, 19, 25, 26

Post Tensioned Eng’g Corp. v. Fairway Plaza Assocs., …............…… 34

Preferred Mut. Ins. Co. v. Martinez, …………………………………. 21, 35

Pub. Health Trust of Dade County v. M.R. Harrison Constr. Corp., .. 26