Insured Not Entitled to Two Bites of the Appraisal Apple

Mar 30, 2017

MARCH 2017

Here’s your update on Florida insurance-related legal developments from the Colodny Fass Insurance Litigation Practice.

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.

Insured Not Entitled to Two Bites of the Appraisal Apple

The case involved a supplemental Wilma claim where the insured sought an entire re-roof. The insurer invoked appraisal. In the appraisal process, the umpire and insurer agreed on the value of the roof damages (3% damaged) which did not include an allowance for law and ordinance. After the insurer paid the appraised amount, the insured hired a roofer who applied for a permit to repair 30% of the roof. The permit was rejected since a county building ordinance required the entire roofing system to comply with the current code. The insured then made a second supplemental claim for the increased repair costs for law and ordinance, which the insurer denied. The insured sued and sought to force the insurer into a new appraisal.

The trial court refused to “re-open” the appraisal and the appellate court agreed. The appellate court held the parties’ dispute over whether a re-roof was necessary had already been determined through the appraisal process. The court implicitly chastised the insured for attempting to circumvent the appraisal process by finding a roofing contractor to submit a proposal stating that 30% of the roof needed replacement in an attempt to re-open a new round of valuation estimates.

Noa v. Florida Insurance Guaranty Association, (3d DCA, March 22, 2017)

When going to appraisal, advise your appointed appraiser of any anticipated issues and disputes to ensure they are fully addressed.

The court noted that a different analysis could apply if after the appraisal but before repairs, a new, more onerous building code requirement was imposed.

Insureds not permitted to revive a decade-old claim by demanding appraisal

A federal trial court entered summary judgment for the insurer barring the insureds’ supplemental Katrina claim. The insurer initially afforded coverage for the loss and made a payment to the insureds. Ten years later, the insureds made a supplemental claim and demanded appraisal. The insurer denied the request for appraisal due to the statute of limitations. The insureds argued the statute of limitations began to run when the insurer denied their request for appraisal. The trial court disagreed since the insureds never advised the insurer of their dissatisfaction with the payment within the limitations period. The court found the insureds’ request for appraisal was nothing more than a “rehashed request to review a decade-old claim”. The trial court also entered summary judgment finding as a matter of law the insureds failed to provide prompt notice of the loss and presented no evidence to overcome the presumption that the insurer was prejudiced by the delay.

Rodriguez v. Liberty Mutual Insurance Co., S.D. Fla., March 2, 2017

The court applied the statute of limitations in effect at the time of the loss (2005); however, it has since been amended (in 2011) to require an action for breach of a property insurance contract be brought within 5 years from the date of the loss.

The case contains good language to support summary judgment on late notice, as a matter of law, and relied on the fact that the insureds had made repairs to the property and had subsequent damage.

Maria Elena Abate to moderate panel at CLM

Colodny Fass Shareholder Maria Elena Abate will moderate a panel on the topic of civil unrest, riots and terrorism coverage at the annual CLM Conference in Nashville, Tennessee on Thursday.

The discussion will explore recent examples of high profile situations such as the Boston Marathon bombing, the Ferguson riots and the Sandra Bland case in Texas, where there have been millions of dollars paid out in insurance claims and resulting civil litigation.

Contact Maria for more information at mabate@colodnyfass.com.

For over 40 years, Colodny Fass has represented insurers in complex and high-risk litigation including class actions, bad faith, insurance fraud, multi-jurisdictional cases, coverage matters, and fact-intensive, multi-party lawsuits. The Daily Business Review has recognized Colodny Fass as having the Insurance Litigation Department of the Year in South Florida.

About Amy L. Koltnow

Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on insurance disputes from trial through appeals. She has represented insurance companies in federal and state courts, as well as in mediation and administrative forums. Ms. Koltnow oversees complex litigation matters and has successfully defended numerous class actions and insurance bad faith cases. She is a member of the Claims and Litigation Management Alliance, a national, invitation-only organization committed to furthering high standards of litigation and claims management in pursuit of client defense.

To view Ms. Koltnow’s complete professional biography, click here.

Contact Amy at akoltnow@colodnyfass.com or (954) 492-4010.

Insured Not Entitled to Two Bites of the Appraisal Apple

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