Wednesday, April 7, 2010

Order Highlights The Distinction Between Florida Courts and Federal Courts Regarding Appraisal

The Middle District of Florida released an opinion that highlights the difference between the federal courts and the Florida Courts view of appraisal in the insurance context [HERE].  The district court opinion noted that:
When the Florida Supreme Court has not spoken and the federal district court “is faced with contradictory decisions of the Eleventh Circuit and the state’s intermediate appellate courts,” the district court “believes it is bound to follow the Eleventh Circuit’s interpretation of Florida Supreme Court precedent absent an intervening decision to the contrary by the Florida Supreme Court or the Eleventh Circuit.”
The opinion at issue was released on March 30, 2010 and can be found HERE.  The difference of opinion relates to the Eleventh Circuit's opinion in Three Palms Pointe, Inc. v. State Farm Fire & Casualty, Co., 362 F.3d 1317 (11th Cir. 2004) and an opinion from the Second District Court of Appeal in Liberty American Ins. Co. v. Kennedy, et al., 890 So. 2d 539, 541-42 (Fla. Dist. Ct. App. 2005) and the Fourth District Court of Appeal in Fisher v. Certain Interested Underwriters, 930 So. 2d 756 (Fla. 4th DCA 2006).  The opinion at issue stated in a footnote that:
There have been several Florida District Court and Federal District Court cases that have held that the Eleventh Circuit misinterpreted the holding of Licea. Liberty American Ins. Co. v. Kennedy, et al., 890 So. 2d 539, 541-42 (Fla. Dist. Ct. App. 2005)(“We conclude, however, that the court in Three Palms Pointe, Inc. misinterpreted the holding of Licea.... [T]he submission of the claim to appraisal does not foreclose Liberty American from challenging an element of loss as not being covered by the policy.”); see Jablonski v. St. Paul Fire and Marine Ins. Co., No. 2:07-cv-00386, 2009 U.S. Dist. LEXIS 65247, at * 26-27 (M.D. Fla. July 24, 2009)(noting that “[a]t least two Florida district courts of appeals have concluded, either expressly or implicitly that the Eleventh Circuit’s holding in Three Palms Pointe . . . misinterpreted the Florida Supreme Court’s decision in... Licea.”); Sands on the Ocean Condominium Assoc., Inc. v. QBE Ins. Corp., No. 05-14362-CIV, 2009 U.S. Dist. LEXIS 24689, at *8 (S.D. Fla. Mar. 23, 2009)(noting that state district courts found that Three Palms Pointe misinterpreted Licea and holding that “Defendant is entitled to challenge the coverage as to portions of the appraisal award.”); Pacific Ins. Co., Ltd. v. New Park Towers Condominium Assoc., Inc., No. 07-60512-CIV, 2008 U.S. Dist. LEXIS 4091, at * 11 (S.D. Fla. Jan. 18, 2008)(In Licea, “[t]he Supreme Court agreed...that the appraisal provision ‘require[s] an assessment of the amount of a loss. This necessarily includes determinations as to the cost of repair or replacement and whether or not the requirement for a repair or replacement was caused by a coverage peril or a cause not covered, such as normal wear and tear, dry rot, or various other designated, excluded clauses.’” (citing Licea, 685 So.2d at 1287)).


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