American Capital Assurance Corp. v. Courtney Meadows Apts., No. 1D09-2940, ___ So. 3d ___ (Fla. 1st DCA, April 7, 2010)

A hailstorm damaged the roof of the insured apartment complex. On October 3, 2008, the insurer sent a final estimate, which indicated that only the office roof needed to be replaced and that the remaining roofs in the complex could be repaired. The final estimate also included other items of loss and estimated the total amount of damage at $168,285.98.

A hailstorm damaged the roof of the insured apartment complex. On October 3, 2008, the insurer sent a final estimate, which indicated that only the office roof needed to be replaced and that the remaining roofs in the complex could be repaired. The final estimate also included other items of loss and estimated the total amount of damage at $168,285.98.

On October 22, 2008, the insurer gave the insured a check for $168,285.98, asked the insured to file a sworn proof of loss, and stated that if the parties were unable to resolve the dispute the insurer may wish to proceed with appraisal.

November 11, 2008, the insured rejected the insurer's check and refused to provide the sworn proof of loss. The insured agreed with the portion of the final estimate regarding the heat, vent, and air conditioning; window reglazing; and painting the gazebo. The insured also claimed additional items that were not included in the final estimate. On November 18, 2008, the insurer demanded appraisal. On December 23, 2008, the insured filed a complaint, seeking declaratory relief and alleging numerous breaches of contract. The insurer in turn moved to dismiss and/or abate the action and to compel appraisal, arguing that it had properly invoked the appraisal process under the terms of the policy.

As the insurance policy did not specify a time limit for demanding appraisal, Florida’s First Circuit Court of Appeal held that, under the terms of the policy, the insurer's demand for appraisal was not untimely. Further, the insurer did not waive its right to appraisal because it did not act inconsistently with that right from the time of demand. In addition, the trial court erred in granting appraisal of the items not included in the final estimate as those items had yet to be adjusted. Without adjustment, it is impossible to know whether the parties dispute the amount of loss so that appraisal is appropriate.

Court Slip Opinion