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Filing # E-Filed 06/08/2021 11:18:42 AM
IN THE CIRCUIT COURT, SEVENTH
JUDICIAL CIRCUIT IN AND FOR
VOLUSIA COUNTY, FLORIDA
BARNETT BUILDING LLC,
Plaintiff, CASE NO.: 2021 10611 CIDL
v.
SCOTTSDALE INSURANCE COMPANY,
Defendant.
PLAINTIFF'S MOTION TO STAY LITIGATION, FOR PROTECTIVE
ORDER AS TO DISCOVERY AND TO COMPEL APPRAISAL
AND MEMORANDUM OF LAW IN SUPPORT
COMES NOW, the Plaintiff, BARNETT BUILDING LLC, (hereinafter "Plaintiff'), by and
through the undersigned counsel, and hereby files the instant Motion to Stay Litigation, for Protective
Order as to Discovery and to Compel Appraisal, and in support thereof, states as follows:
Factual BackEround
1. This matter arises out of a dispute over the amount of loss in connection with
property damage to the Plaintiffs property located at 1260 Delton Blvd., Deltona, FL 32725
(hereinafter "Property").
2. BARNETT BUILDING LLC, (hereinafter "Defendant") insured the Property under
Policy No. CPS3288656 (hereinafter "Policy"). A copy of the Policy is attached as Exhibit "A".
3. On or about September 14, 2020, Defendant was notified that the Property sustained
property damage with a reported date of loss of wind and hailstorm (loss).
4. Defendant opened coverage on the claim.
5. Due to the disagreement over the amount of loss, Plaintiff demanded appraisal
pursuant to the terms and conditions of the Policy to resolve any dispute as to the amount of loss with
respect to the claim. A copy of the Appraisal Demand is attached hereto as Exhibit "B".
6. The subject policy of insurance provides as follows:
BUILDING AND PERSONAL PROPERTY COVERAGE
FORM - COMMERCIAL PROPERTY CP 00 10 06 07
***
E. Loss Conditions
The following conditions apply in addition to the Common
Policy Conditions and the Commercial Property Conditions
***
2. Appraisal. 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 stateseparately the
value of the property and amount of loss. If they fail to agree,
they will submit their differences to the umpire. A decision
agreed to by any two will be binding. Each party will:
a. Pay its chosen appraiser; and
b. Bear the other expenses of the appraisal and umpire
equally.
If there is an appraisal, we will still retain our right to deny the
claim.
***
Exhibit "A" — Policy (not attached, Plaintiff demanded copy and have not received.)
7. As more fully outlined in the Memorandum of Law below, the appraisal clause
contained in the Policy of Insurance is valid and enforceable.
8. Pursuant to the contract for insurance, Plaintiff is entitled to demandappraisal to
resolve any dispute as to the amount of loss claimed under the Policy.
WHEREFORE, Plaintiff respectfully requests this Court to stay proceedings, enter a
protective order as to all discovery, and compel Defendant to participate in appraisal pursuant to the
2
terms of the subject Policy of Insurance, and for any otherrelief this Court deems just and proper.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO STAYLITIGATION
AND DISCOVERY PENDING APPRAISAL
I. The Appraisal Provision is Valid and Enforceable
According to the Florida Supreme Court, appraisal clauses, which "require an assessmentof
the amount of a loss" and facilitate "determinations as to the cost of repair or replacement,"are
valid and enforceable. State Farm Fire & Cas. Co. v. Licea, 685 So. 2d 1285, 1288 (Fla. 1996).
In further explaining its prior decision in Licea, the Florida Supreme Court in Johnson v.
Nationwide MuL Ins. Co. stated:
Very simply, the Licea court was saying that when 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. In that circumstance, the appraisers
are to inspect the property and sort out how much is to be paid on account of a
covered peril. In doing so, they are to exclude payment for a causenot covered
such as normal wear and tear, dry rot, or various other designated, excluded causes.
Thus, in the Licea situation, if the homeowner's insurance policy provides coverage
for windstorm damage to the roof, but does not provide coverage for dryrot, the
appraisers are to inspect the roof and arrive at a fair value for the windstorm
damage, while excluding payment for the repairs required by preexisting dry rot.
828 So. 2d 1021, 1025 (Fla. 2002) (emphasis added).
It is axiomatic that the appraisal clause at issue in this matter is valid and enforceable:
"Because the insurance contract provided the appraisal process, which agreement is not in doubt,and
FIGA did not waive its right to an appraisal by participating in the lawsuit, the trial court erred in
denying FIGA' s motion to compel the appraisal." Fla. Ins. Guar. Ass'n v. Castilla, 18 So. 3d 703,
705 (Fla. 4th DCA 2009). "Motions to compel arbitration should be granted whenever the parties
have agreed to arbitration and the court entertains no doubts that such an agreement was made. For
these reasons we reverse the order denying the motion to compel appraisal, and remand for entry
of an order compelling appraisal." Preferred MuL Ins. Co. v. Martinez, 643 So. 2d 1101, 1003 (Fla.
3d DCA 1994) (citations omitted).2 "Accordingly, because the insurance contract provided for
3
appraisal, the insurer's demand for such was not untimely, and the insurer did not waive its right to
appraisal, the trial court erred in partially denying the motion to compel appraisal." Ain. Capital
Assur. Corp. v. Courtney Meadows Apt., L.L.P., 36 So. 3d 704, 707 (Fla. 1st DCA 2010). It should
be noted that Florida law favors appraisal as an alternative dispute resolution procedure, and disfavors
unnecessary litigation.
Defendant has admitted there is a covered loss, however, said amount of loss is in dispute
with amount of loss claimed by Plaintiff. The issues of scope of damage, amount of repairs, and type
of repairs, are all determined through the appraisal process. In Cincinnati Ins. Co. v. Cannon Ranch
Partners, Inc., 162 So. 3d 140 (Fla. 2d DCA 2014), where the insured argued that a dispute over the
method of repair was not an appraisable issue, the Second DCA disagreed and provided the following
explanation:
In Florida, "[a] challenge of [c]overage is exclusively a[j]udicial
question. "Midwest MuL Ins. Co. v. Santiesteban, 287 So.2d 665, 667
(Fla.1973). However, "when the insurer admits that there is a covered
loss," any dispute on the amount of loss suffered is appropriate for
appraisal. Johnson v. Nationwide MuL Ins. Co., 828So.2d 1021, 1025
(Fla.2002) (quoting Gonzalez v. State Farm Fire & Cas. Co., 805
So.2d 814, 816-17 (Fla. 3d DCA 2000)). Notably, in evaluating the
amount of loss, an appraiser is necessarily tasked with determining
both the extent of covered damage and the amount to be paid for
repairs. Id. Thus, the question of what repairs are needed to restore
a piece of covered property is a question relating to the amount
of "loss" and not coverage.Ipso facto, the scope of damage to a
property would necessarilydictate the amount and type of repairs
needed to return the property to its original state, and an estimate
on the value to bepaid for those repairs would depend on the repair
methods to be utilized. The method of repair required to return the
covered property to its original state is thus an integral part of the
appraisal, separate and apart from any coverage question. Because
there is nodispute between the parties that the cause of the damage to
CannonRanch's property is covered under the insurance policy, the
remaining dispute concerning the scope of the necessary repairs is not
exclusively a judicial decision. Instead, this dispute falls squarely
within the scope of the appraisal process-a function of the insurance
policy and not of the judicial system. Therefore,Cincinnati Insurance
acted within its rights when it demanded an appraisal, and the trial
court erred in denying the motion on this basis. Id. (emphasis added).
4
In the present case, the appraisal clause invoked by Plaintiff provides for appraisal when
there is a dispute as to the amount of the loss, a dispute which squarely falls within the appraisal
clause of the Policy
II. Conclusion
Florida law has consistently recognized appraisal as a valid and enforceable policyprovision.
In fact, appraisal is encouraged as a mechanism for the prompt resolution of claims as it avoids
needless litigation and was contracted for by the parties to the policy. Therefore, the instant lawsuit
warrants a stay and Defendant should be compelled to resolve the disputed amount of loss through
appraisal.
WHEREFORE, Plaintiff respectfully requests this Court to stay proceedings, enter a
protective order as to all discovery, and compel Defendant to participate in appraisal pursuant to the
terms of the subject Policy of Insurance, and for any other relief this Court deems just and proper.
CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 3.01 (g)
I HEREBY CERTIFY that pursuant to Local Rule 3.01(g) I personally conferred with counsel
for the Defendant regarding the relief sought in this motion in a good faith effort to resolvethe issues
raised in this motion. Counsel indicated no opposition to the relief requested by the instant Motion.
Dated: 8th day of June, 2021.
MICHAEL CIOCCHETTI, PLLC
/s/ Michael Ciocchetti
Michael Ciocchetti, FBN: 672645
Cynthia B. Beissel, FBN: 631582
Mark Alexander Williams, FBN: 1002674
125 North Ridgewood Avenue, Suite 100
Daytona Beach, FL 32114
Telephone: (386) 317-7777
Facsimile: (386) 845-0222
Primary Email: Efiling@floridainslaw.com
Secondary Email: Nidra@floridainslaw.com
Attorneys for Plaintiff
5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document was filed
electronically in the Florida Courts' E-Filing system, unless otherwise noted below on this 8th day of
June, 2021.
MICHAEL CIOCCHETTL PLLC
Is' Michael Ciocchetti
Michael Ciocchetti, FBN: 672645
6
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Filing # E-Filed 06/08/2021 11:18:42 AM IN THE CIRCUIT COURT, SEVENTH JUDICIAL CIRCUIT IN AND FOR VOLUSIA COUNTY, FLORIDA BARNETT BUILDING LLC, Plaintiff, CASE NO.: 2021 10611 CIDL v. SCOTTSDALE INSURANCE COMPANY, Defendant. PLAINTIFF'S MOTION TO STAY LITIGATION, FOR PROTECTIVE ORDER AS TO DISCOVERY AND TO COMPEL APPRAISAL AND MEMORANDUM OF LAW IN SUPPORT COMES NOW, the Plaintiff, BARNETT BUILDING LLC, (hereinafter "Plaintiff'), by and through the undersigned counsel, and hereby files the instant Motion to Stay Litigation, for Protective Order as to Discovery and to Compel Appraisal, and in support thereof, states as follows: Factual BackEround 1. This matter arises out of a dispute over the amount of loss in connection with property damage to the Plaintiffs property located at 1260 Delton Blvd., Deltona, FL 32725 (hereinafter "Property"). 2. BARNETT BUILDING LLC, (hereinafter "Defendant") insured the Property under Policy No. CPS3288656 (hereinafter "Policy"). A copy of the Policy is attached as Exhibit "A". 3. On or about September 14, 2020, Defendant was notified that the Property sustained property damage with a reported date of loss of wind and hailstorm (loss). 4. Defendant opened coverage on the claim. 5. Due to the disagreement over the amount of loss, Plaintiff demanded appraisal pursuant to the terms and conditions of the Policy to resolve any dispute as to the amount of loss with respect to the claim. A copy of the Appraisal Demand is attached hereto as Exhibit "B". 6. The subject policy of insurance provides as follows: BUILDING AND PERSONAL PROPERTY COVERAGE FORM - COMMERCIAL PROPERTY CP 00 10 06 07 *** E. Loss Conditions The following conditions apply in addition to the Common Policy Conditions and the Commercial Property Conditions *** 2. Appraisal. 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 stateseparately the value of the property and amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding. Each party will: a. Pay its chosen appraiser; and b. Bear the other expenses of the appraisal and umpire equally. If there is an appraisal, we will still retain our right to deny the claim. *** Exhibit "A" — Policy (not attached, Plaintiff demanded copy and have not received.) 7. As more fully outlined in the Memorandum of Law below, the appraisal clause contained in the Policy of Insurance is valid and enforceable. 8. Pursuant to the contract for insurance, Plaintiff is entitled to demandappraisal to resolve any dispute as to the amount of loss claimed under the Policy. WHEREFORE, Plaintiff respectfully requests this Court to stay proceedings, enter a protective order as to all discovery, and compel Defendant to participate in appraisal pursuant to the 2 terms of the subject Policy of Insurance, and for any otherrelief this Court deems just and proper. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO STAYLITIGATION AND DISCOVERY PENDING APPRAISAL I. The Appraisal Provision is Valid and Enforceable According to the Florida Supreme Court, appraisal clauses, which "require an assessmentof the amount of a loss" and facilitate "determinations as to the cost of repair or replacement,"are valid and enforceable. State Farm Fire & Cas. Co. v. Licea, 685 So. 2d 1285, 1288 (Fla. 1996). In further explaining its prior decision in Licea, the Florida Supreme Court in Johnson v. Nationwide MuL Ins. Co. stated: Very simply, the Licea court was saying that when 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. In that circumstance, the appraisers are to inspect the property and sort out how much is to be paid on account of a covered peril. In doing so, they are to exclude payment for a causenot covered such as normal wear and tear, dry rot, or various other designated, excluded causes. Thus, in the Licea situation, if the homeowner's insurance policy provides coverage for windstorm damage to the roof, but does not provide coverage for dryrot, the appraisers are to inspect the roof and arrive at a fair value for the windstorm damage, while excluding payment for the repairs required by preexisting dry rot. 828 So. 2d 1021, 1025 (Fla. 2002) (emphasis added). It is axiomatic that the appraisal clause at issue in this matter is valid and enforceable: "Because the insurance contract provided the appraisal process, which agreement is not in doubt,and FIGA did not waive its right to an appraisal by participating in the lawsuit, the trial court erred in denying FIGA' s motion to compel the appraisal." Fla. Ins. Guar. Ass'n v. Castilla, 18 So. 3d 703, 705 (Fla. 4th DCA 2009). "Motions to compel arbitration should be granted whenever the parties have agreed to arbitration and the court entertains no doubts that such an agreement was made. For these reasons we reverse the order denying the motion to compel appraisal, and remand for entry of an order compelling appraisal." Preferred MuL Ins. Co. v. Martinez, 643 So. 2d 1101, 1003 (Fla. 3d DCA 1994) (citations omitted).2 "Accordingly, because the insurance contract provided for 3 appraisal, the insurer's demand for such was not untimely, and the insurer did not waive its right to appraisal, the trial court erred in partially denying the motion to compel appraisal." Ain. Capital Assur. Corp. v. Courtney Meadows Apt., L.L.P., 36 So. 3d 704, 707 (Fla. 1st DCA 2010). It should be noted that Florida law favors appraisal as an alternative dispute resolution procedure, and disfavors unnecessary litigation. Defendant has admitted there is a covered loss, however, said amount of loss is in dispute with amount of loss claimed by Plaintiff. The issues of scope of damage, amount of repairs, and type of repairs, are all determined through the appraisal process. In Cincinnati Ins. Co. v. Cannon Ranch Partners, Inc., 162 So. 3d 140 (Fla. 2d DCA 2014), where the insured argued that a dispute over the method of repair was not an appraisable issue, the Second DCA disagreed and provided the following explanation: In Florida, "[a] challenge of [c]overage is exclusively a[j]udicial question. "Midwest MuL Ins. Co. v. Santiesteban, 287 So.2d 665, 667 (Fla.1973). However, "when the insurer admits that there is a covered loss," any dispute on the amount of loss suffered is appropriate for appraisal. Johnson v. Nationwide MuL Ins. Co., 828So.2d 1021, 1025 (Fla.2002) (quoting Gonzalez v. State Farm Fire & Cas. Co., 805 So.2d 814, 816-17 (Fla. 3d DCA 2000)). Notably, in evaluating the amount of loss, an appraiser is necessarily tasked with determining both the extent of covered damage and the amount to be paid for repairs. Id. Thus, the question of what repairs are needed to restore a piece of covered property is a question relating to the amount of "loss" and not coverage.Ipso facto, the scope of damage to a property would necessarilydictate the amount and type of repairs needed to return the property to its original state, and an estimate on the value to bepaid for those repairs would depend on the repair methods to be utilized. The method of repair required to return the covered property to its original state is thus an integral part of the appraisal, separate and apart from any coverage question. Because there is nodispute between the parties that the cause of the damage to CannonRanch's property is covered under the insurance policy, the remaining dispute concerning the scope of the necessary repairs is not exclusively a judicial decision. Instead, this dispute falls squarely within the scope of the appraisal process-a function of the insurance policy and not of the judicial system. Therefore,Cincinnati Insurance acted within its rights when it demanded an appraisal, and the trial court erred in denying the motion on this basis. Id. (emphasis added). 4 In the present case, the appraisal clause invoked by Plaintiff provides for appraisal when there is a dispute as to the amount of the loss, a dispute which squarely falls within the appraisal clause of the Policy II. Conclusion Florida law has consistently recognized appraisal as a valid and enforceable policyprovision. In fact, appraisal is encouraged as a mechanism for the prompt resolution of claims as it avoids needless litigation and was contracted for by the parties to the policy. Therefore, the instant lawsuit warrants a stay and Defendant should be compelled to resolve the disputed amount of loss through appraisal. WHEREFORE, Plaintiff respectfully requests this Court to stay proceedings, enter a protective order as to all discovery, and compel Defendant to participate in appraisal pursuant to the terms of the subject Policy of Insurance, and for any other relief this Court deems just and proper. CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 3.01 (g) I HEREBY CERTIFY that pursuant to Local Rule 3.01(g) I personally conferred with counsel for the Defendant regarding the relief sought in this motion in a good faith effort to resolvethe issues raised in this motion. Counsel indicated no opposition to the relief requested by the instant Motion. Dated: 8th day of June, 2021. MICHAEL CIOCCHETTI, PLLC /s/ Michael Ciocchetti Michael Ciocchetti, FBN: 672645 Cynthia B. Beissel, FBN: 631582 Mark Alexander Williams, FBN: 1002674 125 North Ridgewood Avenue, Suite 100 Daytona Beach, FL 32114 Telephone: (386) 317-7777 Facsimile: (386) 845-0222 Primary Email: Efiling@floridainslaw.com Secondary Email: Nidra@floridainslaw.com Attorneys for Plaintiff 5 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document was filed electronically in the Florida Courts' E-Filing system, unless otherwise noted below on this 8th day of June, 2021. MICHAEL CIOCCHETTL PLLC Is' Michael Ciocchetti Michael Ciocchetti, FBN: 672645 6