Florida Insurance Matters is a monthly update on Florida insurance-related legal developments by the Colodny Fass Insurance Litigation Practice, recently recognized as the Insurance Litigation Department of the Year in South Florida by the Daily Business Review.

ABOUT THE AUTHOR

Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on representing insurance companies in complex insurance litigation and counseling insurers on claims resolution. She has represented insurers in connection with property damage and first-party coverage litigation, claims of “bad faith,” high-risk exposures, class actions and multi-district litigation.

For more information about Ms. Koltnow, click here.

Another Appellate Court Holds Public Adjuster Cannot Serve as “Disinterested” Appraiser

The Second District held a public adjuster that has a contingency interest in an insured’s appraisal award, or represents an insured in an appraisal process, is not a “disinterested appraiser” under the insurance policy’s appraisal provision. The policy here required each party to select a “disinterested appraiser”. The appellate court interpreted the term “disinterested” to mean an appraiser who does not hold an “interest” in the outcome of the appraisal process. A public adjuster’s contingency stake in a potential appraisal award constitutes a pecuniary “interest.” In addition, the public adjuster was representing the insured in the underlying dispute and was professionally bound to not act “in a manner prejudicial to the insured”. State Farm Ins. Co. v. Parrish, 2nd DCA (Jan. 6, 2021)

TIPS & LESSONS

• The 2nd DCA followed recent decisions from the 5th DCA and 4th DCA, and certified conflict with the 3d DCA, which held an appraiser’s financial interest in the outcome of appraisal did not disqualify the appraiser. The 3d DCA subsequently certified the question to the Florida Supreme Court as one of great public importance.
• The policy language is critical. The terms “independent” and “disinterested” carry different meanings. Some policies only require a “competent” appraiser. Check your policy language to ensure the parties are required to use an impartial or disinterested appraiser—if it does not, consider changing your policy form.

Insurer’s Claim File is “Privileged” and “Irrelevant” in First-Party Property Dispute 

In a first-party property insurance dispute, the insured sought documents contained within the insurer’s claim file. The insurer asserted “work-product privilege”, but the trial judge ordered the insurer to produce the adjuster’s loss report and unredacted photographs. The appellate court reversed and held the investigative materials constituted “work product” and were prepared in response to an event which could be made the basis of a claim. Moreover, when the issue of coverage remains in dispute, the documents contained within the claim file are irrelevant.  Avatar Prop & Cas. Ins. Co. v. Mitchell, 3d DCA (Jan. 13, 2021). 

TIPS & LESSONS

• This case holds the reporting of an insurance claim is an “event’ in anticipation of litigation that triggers the work-product privilege.
• Despite many cases that have held the claim file is either “privileged’ or “irrelevant” in a first-party insurance dispute, trial judges often order the production of claim file documents. Defense counsel should raise both “relevancy” and work-product”, as well as any other applicable objections, to preserve the issues on appeal.