Preview
Filing # 171269957 E-Filed 04/18/2023 04:03:30 PM
IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT
IN AND FOR ESCAMBIA COUNTY, FLORIDA
ANN L. GRADY,
Plaintiff,
Vv.
STATE FARM FLORIDA INSURANCE
COMPANY,
CASE NO: 2021-CA-000701
Defendant. DIVISION: J
DEFENDANT’S RESPONSE IN OPPOSITION AND MOTION TO STRIKE
PLAINTIFF’S MOTION FOR TRIAL
Defendant, STATE FARM FLORIDA INSURANCE COMPANY (hereinafter “State
Farm” or “Defendant”), by and through its undersigned counsel, hereby files its Response in
Opposition and Motion to Strike Plaintiffs Notice for Trial, and in support thereof states as
follows:
1 This is an action for homeowners’ insurance benefits brought by Plaintiff arising
from an insurance policy issued by Defendant.
2. Plaintiff filed the instant lawsuit on or about March 24, 2021.
3 The parties stayed litigation and underwent appraisal on December 2, 2021.
4 On April 14, 2022, Plaintiff filed its Motion to Set Aside and/or Vacate Appraisal
Award and Set a Speedy Trial, improperly requesting the entire appraisal award be thrown out and
to set the matter for trial based upon the exclusion of the HVAC from the appraisal award.
5 Defendant filed its Response in Opposition to Plaintiffs Motion to Set Aside and/or
Vacate Appraisal Award and Set a Speedy Trial, and Motion to Strike Aaron L. Harris’ Affidavit,
alleging that:
a. Appraisal was conducted in accordance with the terms and conditions of the
insurance policy, as bargained for and agreed upon by both parties.
Pursuant to Florida law, courts may not hear extrinsic evidence from the individual
appraisers, First Protective Ins. Co. v. Hess, 81 So. 3d 482, 485 (Fla. 1st DCA
2011), and courts may not attempt to substitute their judgment for that of the
arbitrator, Commc'ns Workers of Am. v. Indian River Cty. Sch. Bd., 888 So. 2d 96,
99 (Fla. 4th DCA 2004).
The purposeful inclusion, or exclusion, of certain items in the appraisal award by
the appraisers is permissible and enforceable.
6 On July 29, 2022, this Court heard the parties’ motions on Plaintiffs Motion to Set
Aside and/or Vacate Appraisal Award and Set a Speedy Trial. At the hearing, Plaintiffs counsel
argued the entire appraisal award should be vacated for the failure to appraise the HVAC system.
Defense counsel argued it was improper to disturb the appraisal award and that setting the case for
trial was inappropriate as the matter had been settled through appraisal.
7 After consideration of the parties’ arguments, this Court issued an order denying
Plaintiff's Motion to Set Aside and/or Vacate Appraisal Award and Set a Speedy Trial, with
qualification. The Order addressed the issue raised by Plaintiff of whether the HVAC system was
considered/evaluated during the appraisal process. Pursuant to this Court’s Order, “[i]f the HVAC
was inadvertently excluded, Plaintiff may pursue that claim in this case.” See Court’s Order
dated September 16, 2022, attached hereto as Exhibit A.
8 Since the issuance of the Order, Plaintiff never pursued this issue further to see if
the HVAC was inadvertently excluded.
9 After months of inactivity, Plaintiff filed its Notice for Trial on February 14, 2023,
requesting this case be set for trial on the issue of payment for the HVAC system. See Notice for
Trial, filed in the docket and attached hereto as Exhibit B.
10. Plaintiff has made no effort to comply with the Court order and investigate as to
whether the HVAC was inadvertently excluded during appraisal in order to move forward with the
claim.
11. As it has not been determined whether the HVAC was inadvertently excluded,
Plaintiffs motion to set the issue for trial must be stricken as it is improper and in contradiction to
this Court’s Order.
12. Defendant files this Response and Motion in good faith and not for the purpose of
delaying any proceedings. On April 14, 2023, the undersigned counsel inquired from Plaintiff's
counsel whether he objects to this Response and Motion. On April 17, 2023, Plaintiff's counsel
confirmed his objection. Therefore, Defendant has no other choice but to proceed with this
Response and Motion.
WHEREFORE, Defendant, STATE FARM FLORIDA INSURANCE COMPANY,
hereby requests this Court enter an Order denying Plaintiffs Notice for Trial, and for any other
relief this Court deems just and appropriate.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent to C. Phil
Hall, Esquire, Phil Hall, P.A., 4300 Bayou Blvd., Suite 32, Pensacola, Florida 32503 by electronic
mail to designated email addresses phil@askalawyerfirst.com ; Wkendall@askalawyerfirst.com ,
on April 18, 2023.
DUTTON LAW GROUP, PA
119 N, Palafox Street
Pensacola, FL 32502
Designated Email Service addresses:
service.mfa@duttonlawgroup.com
3
service.csd@duttonlawgroup.com
Phone: (850) 390-4040
/s/ Manuel F. Alvarez
MANUEL F, ALVAREZ, ESQUIRE
Florida Bar No: 81795
CHRISTOPHER S. DUTTON, ESQUIRE
Florida Bar No: 115714
#43821
DEFENSE COMPOSITE
EXHIBIT A
Filing # 157584814 E-Filed 09/16/2022 02:22:58 PM
IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT
IN AND FOR ESCAMBIA COUNTY, FLORIDA
ANN L. GRADY,
Plaintiff,
Vv.
STATE FARM FLORIDA INSURANCE
COMPANY,
CASE NO: 2021-CA-000701
Defendant. DIVISION: E
/
ORDER DENYING PLAINTIFF’S MOTION TO SET ASIDE AND/OR VACATE
APPRAISAL AWARD AND SET A SPEEDY TRIAL
THIS CAUSE, having come before the Court on July 29, 2022, on Plaintiff's Motion to
Set Aside and/or Vacate Appraisal Award and Set a Speedy Trial, and the Court having heard
argument and otherwise being fully advised in the premises, it is hereby ORDERED and
ADJUDGED that:
Plaintiffs Motion to Set Aside and/or Vacate Appraisal Award and Set a Speedy Trial is
DENIED with qualification. At the hearing, Plaintiff raised an issue about whether the HVAC
system was considered/evaluated during the appraisal process. If the HVAC was inadvertently
excluded, Plaintiff may pursue that claim in this case.
DONE and ORDERED in Chambers at Escambia County, Florida.
rn
ono ° 3/16/2022 13.0228 uDsiGML+ seem Tn05T CR BETO:
Honorable Jan Shackelford
Copies furnished to:
C. Phil Hall, Esquire
Christopher S. Dutton, Esquire
DEFENSE COMPOSITE
EXHIBIT B
Filing # 166764984 E-Filed 02/14/2023 12:47:11 PM
IN THE CIRCUIT COURT IN AND FOR ESCAMBIA COUNTY, FLORIDA
ANN L. GRADY,
Plaintiff,
V. Case No.: 2021 CA 000701
STATE FARM FLORIDA
INSURANCE COMPANY,
Defendant.
NOTICE FOR TRIAL
Plaintiff, Ann L. Grady, by and through the undersigned counsel, requests that this
case be set for trial pursuant to Florida Rules of Civil Procedure, Rule 1.440, and as
grounds therefore would state:
1. That this cause of action is at issue.
2. That jury trial has been requested.
3. That the trial is on the issue of payment for the HVAC system that is part of
the damages outline in the Complaint filed March 24, 2021.
4. That the trial of this cause shall take two (2) days inclusive of jury selection.
WHEREFORE, Plaintiffs respectfully request that this Court enter an order fixing a
date for trial at a time allowed by this Court’s docket.
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a copy of the foregoing has been furnished via the Florida
ePortal to Christopher S. Dutton, Esquire, and Sheridan K. Weissenborn, Esquire, Dutton
Law Group, 119 N Palafox Street, Pensacola, FL 32502 to
service.csd@duttonlawgroup.com and to service.skw@duttonlawgroup.com on this the
14" day of February, 2023.
/s C. Phil Hall
C. Phil Hall
Florida Bar No.: 621145
Phil Hall, P.A.
4300 Bayou Boulevard, Suite 32
Pensacola, FL 32503
Telephone: 850-760-2156
Fax: 850-270-7735
Primary: phil@askalawyerfirst.com
Secondary:
wkendall@askalawyerfirst.com
Attorney for Plaintiff
Preview
Filing # 171269957 E-Filed 04/18/2023 04:03:30 PM IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT IN AND FOR ESCAMBIA COUNTY, FLORIDA ANN L. GRADY, Plaintiff, Vv. STATE FARM FLORIDA INSURANCE COMPANY, CASE NO: 2021-CA-000701 Defendant. DIVISION: J DEFENDANT’S RESPONSE IN OPPOSITION AND MOTION TO STRIKE PLAINTIFF’S MOTION FOR TRIAL Defendant, STATE FARM FLORIDA INSURANCE COMPANY (hereinafter “State Farm” or “Defendant”), by and through its undersigned counsel, hereby files its Response in Opposition and Motion to Strike Plaintiffs Notice for Trial, and in support thereof states as follows: 1 This is an action for homeowners’ insurance benefits brought by Plaintiff arising from an insurance policy issued by Defendant. 2. Plaintiff filed the instant lawsuit on or about March 24, 2021. 3 The parties stayed litigation and underwent appraisal on December 2, 2021. 4 On April 14, 2022, Plaintiff filed its Motion to Set Aside and/or Vacate Appraisal Award and Set a Speedy Trial, improperly requesting the entire appraisal award be thrown out and to set the matter for trial based upon the exclusion of the HVAC from the appraisal award. 5 Defendant filed its Response in Opposition to Plaintiffs Motion to Set Aside and/or Vacate Appraisal Award and Set a Speedy Trial, and Motion to Strike Aaron L. Harris’ Affidavit, alleging that: a. Appraisal was conducted in accordance with the terms and conditions of the insurance policy, as bargained for and agreed upon by both parties. Pursuant to Florida law, courts may not hear extrinsic evidence from the individual appraisers, First Protective Ins. Co. v. Hess, 81 So. 3d 482, 485 (Fla. 1st DCA 2011), and courts may not attempt to substitute their judgment for that of the arbitrator, Commc'ns Workers of Am. v. Indian River Cty. Sch. Bd., 888 So. 2d 96, 99 (Fla. 4th DCA 2004). The purposeful inclusion, or exclusion, of certain items in the appraisal award by the appraisers is permissible and enforceable. 6 On July 29, 2022, this Court heard the parties’ motions on Plaintiffs Motion to Set Aside and/or Vacate Appraisal Award and Set a Speedy Trial. At the hearing, Plaintiffs counsel argued the entire appraisal award should be vacated for the failure to appraise the HVAC system. Defense counsel argued it was improper to disturb the appraisal award and that setting the case for trial was inappropriate as the matter had been settled through appraisal. 7 After consideration of the parties’ arguments, this Court issued an order denying Plaintiff's Motion to Set Aside and/or Vacate Appraisal Award and Set a Speedy Trial, with qualification. The Order addressed the issue raised by Plaintiff of whether the HVAC system was considered/evaluated during the appraisal process. Pursuant to this Court’s Order, “[i]f the HVAC was inadvertently excluded, Plaintiff may pursue that claim in this case.” See Court’s Order dated September 16, 2022, attached hereto as Exhibit A. 8 Since the issuance of the Order, Plaintiff never pursued this issue further to see if the HVAC was inadvertently excluded. 9 After months of inactivity, Plaintiff filed its Notice for Trial on February 14, 2023, requesting this case be set for trial on the issue of payment for the HVAC system. See Notice for Trial, filed in the docket and attached hereto as Exhibit B. 10. Plaintiff has made no effort to comply with the Court order and investigate as to whether the HVAC was inadvertently excluded during appraisal in order to move forward with the claim. 11. As it has not been determined whether the HVAC was inadvertently excluded, Plaintiffs motion to set the issue for trial must be stricken as it is improper and in contradiction to this Court’s Order. 12. Defendant files this Response and Motion in good faith and not for the purpose of delaying any proceedings. On April 14, 2023, the undersigned counsel inquired from Plaintiff's counsel whether he objects to this Response and Motion. On April 17, 2023, Plaintiff's counsel confirmed his objection. Therefore, Defendant has no other choice but to proceed with this Response and Motion. WHEREFORE, Defendant, STATE FARM FLORIDA INSURANCE COMPANY, hereby requests this Court enter an Order denying Plaintiffs Notice for Trial, and for any other relief this Court deems just and appropriate. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent to C. Phil Hall, Esquire, Phil Hall, P.A., 4300 Bayou Blvd., Suite 32, Pensacola, Florida 32503 by electronic mail to designated email addresses phil@askalawyerfirst.com ; Wkendall@askalawyerfirst.com , on April 18, 2023. DUTTON LAW GROUP, PA 119 N, Palafox Street Pensacola, FL 32502 Designated Email Service addresses: service.mfa@duttonlawgroup.com 3 service.csd@duttonlawgroup.com Phone: (850) 390-4040 /s/ Manuel F. Alvarez MANUEL F, ALVAREZ, ESQUIRE Florida Bar No: 81795 CHRISTOPHER S. DUTTON, ESQUIRE Florida Bar No: 115714 #43821 DEFENSE COMPOSITE EXHIBIT A Filing # 157584814 E-Filed 09/16/2022 02:22:58 PM IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT IN AND FOR ESCAMBIA COUNTY, FLORIDA ANN L. GRADY, Plaintiff, Vv. STATE FARM FLORIDA INSURANCE COMPANY, CASE NO: 2021-CA-000701 Defendant. DIVISION: E / ORDER DENYING PLAINTIFF’S MOTION TO SET ASIDE AND/OR VACATE APPRAISAL AWARD AND SET A SPEEDY TRIAL THIS CAUSE, having come before the Court on July 29, 2022, on Plaintiff's Motion to Set Aside and/or Vacate Appraisal Award and Set a Speedy Trial, and the Court having heard argument and otherwise being fully advised in the premises, it is hereby ORDERED and ADJUDGED that: Plaintiffs Motion to Set Aside and/or Vacate Appraisal Award and Set a Speedy Trial is DENIED with qualification. At the hearing, Plaintiff raised an issue about whether the HVAC system was considered/evaluated during the appraisal process. If the HVAC was inadvertently excluded, Plaintiff may pursue that claim in this case. DONE and ORDERED in Chambers at Escambia County, Florida. rn ono ° 3/16/2022 13.0228 uDsiGML+ seem Tn05T CR BETO: Honorable Jan Shackelford Copies furnished to: C. Phil Hall, Esquire Christopher S. Dutton, Esquire DEFENSE COMPOSITE EXHIBIT B Filing # 166764984 E-Filed 02/14/2023 12:47:11 PM IN THE CIRCUIT COURT IN AND FOR ESCAMBIA COUNTY, FLORIDA ANN L. GRADY, Plaintiff, V. Case No.: 2021 CA 000701 STATE FARM FLORIDA INSURANCE COMPANY, Defendant. NOTICE FOR TRIAL Plaintiff, Ann L. Grady, by and through the undersigned counsel, requests that this case be set for trial pursuant to Florida Rules of Civil Procedure, Rule 1.440, and as grounds therefore would state: 1. That this cause of action is at issue. 2. That jury trial has been requested. 3. That the trial is on the issue of payment for the HVAC system that is part of the damages outline in the Complaint filed March 24, 2021. 4. That the trial of this cause shall take two (2) days inclusive of jury selection. WHEREFORE, Plaintiffs respectfully request that this Court enter an order fixing a date for trial at a time allowed by this Court’s docket. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of the foregoing has been furnished via the Florida ePortal to Christopher S. Dutton, Esquire, and Sheridan K. Weissenborn, Esquire, Dutton Law Group, 119 N Palafox Street, Pensacola, FL 32502 to service.csd@duttonlawgroup.com and to service.skw@duttonlawgroup.com on this the 14" day of February, 2023. /s C. Phil Hall C. Phil Hall Florida Bar No.: 621145 Phil Hall, P.A. 4300 Bayou Boulevard, Suite 32 Pensacola, FL 32503 Telephone: 850-760-2156 Fax: 850-270-7735 Primary: phil@askalawyerfirst.com Secondary: wkendall@askalawyerfirst.com Attorney for Plaintiff