DOES AN INSURER WAIVE ITS RIGHT TO APPRAISAL BY FAILING TO PROVIDE TIMELY NOTICE OF MEDIATION?

In a recent decision by the Second District Court of Appeal the issue of timely notice of mediation was raised.

In the case American Integrity Ins. Co. of Florida v. Gainey, So. 3d, 37 FLW D2297 (Fla. 2nd DCA 9-28-2012), the insurance company defended a breach of contract case brought by the insured under a claim for damages as a result of water damage. When mediation proved to be unsuccessful, the insurance company moved to abate the proceedings in favor of appraisal.

Gainey, as the insured and plaintiff, moved to enjoin the appraisal and argued that American waived its right to appraisal by failing to provide timely notice of mediation under Florida Statute 627.7015. The trial court granted Gainey’s motion and as a result American appealed.

At issue in the appeal was whether the notice provision of Fla. Stat. 627.7015(7) applies under the circumstances where the insured has commenced a cause of action already. Fla. Stat. 627.7015(7) provides an alternative procedure for resolution of disputed property insurance claims and permits insureds and insures to use the mediation process to encourage an inexpensive and speedy resolution of insurance claims prior to commencing the appraisal process or commencing litigation.

The Second District Court of Appeal ruled that the Plaintiff prematurely commenced litigation against American and therefore the notice requirement under Fla. Stat. 627.7015(7) did not apply. In short, the Second District ruled that Plaintiffs cannot rely on the statute to avoid the appraisal proceeding, if the filing of the lawsuit rendered the statute inapplicable.

Florida’s property insurance laws and procedures can be confusing and complex. When facing an insurance claim the defense often positions their case and strategy to limit the insurance companies’ exposure to greater damages and the policyholder needs representation to face this challenge.

If you have a question regarding a Florida insurance claim we invite you to contact Givens Givens Sparks for a free case evaluation. Our firm represents policyholders across the State of Florida in a wide variety of insurance claims including sinkhole litigation, water damage, hurricane, and other property losses.

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