AMERICAN COASTAL INSURANCE COMPANY vs THE VILLAS OF SUNTREE HOMEOWNER'S ASSOCIATION, INC.

• Court: District Court of Appeal of Florida
• Decided: June 3, 2022
• Docket: 21-1354
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

AMERICAN COASTAL INSURANCE COMPANY,

Appellant, Case No. 5D21-1354 v. LT Case No. 05-2020-CA-042981

THE VILLAS OF SUNTREE HOMEOWNER'S ASSOCIATION, INC.,

Appellee.

________________________________/

Opinion filed June 3, 2022

Nonfinal Appeal from the Circuit Court for Brevard County, Curt Jacobus, Judge.

Lilian Rodriguez-Baz, Hope C. Zelinger, and Samantha S. Epstein, of Bressler, Amery & Ross, P.C., Fort Lauderdale, for Appellant.

Matthew G. Struble, of Struble, P.A., Indialantic, for Appellee.

EDWARDS, J.

Appellant, American Coastal Insurance Company (“ACIC”), appeals

the trial court’s order granting Appellee’s, The Villas of Suntree Homeowners Association, Inc. (“Suntree”), motion to compel appraisal. This Court has

jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(iv). ACIC asserts that the

trial court erred in ordering appraisal of Suntree’s initial and supplemental

claims before a coverage determination had been made. ACIC argues that

it was unable to make a coverage determination because Suntree did not

provide sufficient information regarding the supplemental claim. For the

following reasons, we affirm.

Background Information

Initial Claim

ACIC issued a commercial insurance policy to Suntree, insuring

various buildings and structures located at 1000 Villa Drive, Melbourne,

Florida 32940 (“the Property”). After Hurricane Irma passed through the area

in 2017, Suntree made a claim under the policy for damages the Property

sustained. Suntree initially reported and made a claim for wind damage only

to the roofs of certain buildings on the Property.

ACIC investigated the initial claim and on January 29, 2018, rendered

an estimate of damages of $38,353.69, which did not exceed Suntree’s

aggregate deductible of $374,973.99. However, damage at one affected

location on the Property did exceed the deductible applicable to that building.

Accordingly, ACIC made an undisputed payment of $373.40 for wind

2 damage to the roof of that one building. After that, until 2020, ACIC received

no further claims, notices, or demands from Suntree, so it closed the claim

file.

2020 Supplemental Claim

On February 14, 2020, Suntree, through its counsel, submitted another

claim for damages allegedly caused by Hurricane Irma and provided the

following to ACIC: (1) a sworn proof of loss claiming $3,125,787.84 in

damages; (2) a damage estimate obtained by Suntree’s public adjuster; (3)

photographs of the Property; and (4) a hyperlink to an Adobe-based platform

where 2,036 pages of materials supposedly related to the loss and claim

could be viewed. Suntree’s 2020 proof of loss included additional claims of

roof damage as well as claims of window and door damage, all caused by

Hurricane Irma.

On March 17, 2020, ACIC responded to Suntree, stating that it had

received the proof of loss but was unable to view the 2,036 pages of

documents submitted via the hyperlink, claiming some problem or defect in

the Adobe hyperlink itself. Suntree’s counsel responded by resubmitting the

photographs and responsive documents with what appears to be the same

Adobe hyperlink.

3 On April 17, 2020, ACIC responded to the claim submitted February

14, 2020. It tendered an additional payment of $738,568.63 to address

Suntree’s undisputed additional roof damages while advising that it was

continuing to investigate the remainder of the 2020 claim for $3,125,787.84.

On July 14, 2020, ACIC sent a second follow-up request seeking

documentation in support of the 2020 claim. Two days later, Suntree’s

counsel abandoned the Adobe platform hyperlink and instead provided ACIC

with a hyperlink to Dropbox that was confirmed to be functional.

ACIC was finally able to review all the materials referenced in the 2020

claim.1 Later, ACIC claimed that it had not been provided with “other

documents that it had requested” that were necessary to make a coverage

determination. At the time, ACIC did not state what specific documents it still

needed. In August 2020, Suntree’s counsel responded that ACIC had

sufficient documentation to make a determination on the window and door

damage claims. ACIC disagreed, saying it could not make a coverage

determination without the additional, still unspecified documents.

1 In its briefs, ACIC repeatedly and incorrectly asserts that it never got access to the hyperlinked documents. However, Kevin Huff, ACIC’s designated corporate representative, confirmed in his affidavit that once a working link was provided, the documents could be reviewed. Mr. Huff was apparently available to testify at the May 6, 2021 evidentiary hearing, but ACIC never actually called him to testify nor did ACIC proffer what his testimony would have been if he had testified.

4 In the fall of 2020, Suntree filed suit against ACIC alleging breach of

contract and seeking to compel appraisal. Both sides demanded trial by jury

of all issues so triable. 2 The trial court scheduled and conducted a hearing

on Suntree’s motion to compel appraisal. In advance of that hearing, both

parties filed various affidavits, correspondence, and other documents which

they stipulated could be considered as evidence by the trial court with no

need for any live witness testimony. Following that hearing, the trial court

granted Suntree’s motion to compel and directed the parties to each select

an appraiser and to proceed in accordance with the appraisal provisions of

the policy. It is from that order that ACIC appeals.

Analysis

“Before arbitration (or appraisal) under an insurance policy such as the

one at issue here may be compelled, a disagreement, or ‘arbitrable,’ issue

must be demonstrated to exist.” Citizens Prop. Ins. Corp. v. Mango Hill

Condo. Ass’n 12, 54 So. 3d 578, 581 (Fla. 3d DCA 2011). “No disagreement

or arbitrable issue exists unless ‘some meaningful exchange of information

sufficient for each party to arrive at a conclusion’ has taken place.” Id.

(citation omitted). “Thus, an ‘insured must comply with all of the policy’s post-

2 We reject ACIC’s claim that the order compelling appraisal denied it of the right to jury trial without further discussion.

5 loss obligations before the appraisal clause is triggered.’” Id. (citation

omitted). In order to determine whether an insured has complied with the

post-loss conditions under an insurance policy, a trial court is required to hold

an evidentiary hearing. Id. at 582.

Here, an evidentiary hearing was held on May 6, 2021.3 Instead of

having witnesses testify and admitting documents into evidence, at ACIC’s

counsel’s suggestion during the evidentiary hearing, both parties stipulated

that the documents attached to Suntree’s motion and ACIC’s response

would be evidence for the court to consider. Although the trial court’s order

made no explicit factual findings on whether Suntree had complied with its

post-loss obligations, the order compelling appraisal implicitly determined

sufficient compliance as it was rendered after the evidentiary hearing during

which it entertained argument from both parties on that issue. The trial court

was presented with competent substantial evidence that would support a

finding that Suntree had sufficiently documented its claim in accordance with

the insurance policy to permit the appraisal to be sufficiently ripe to go

forward.

3 During the hearing, ACIC’s counsel stated, “Your Honor, I know that this is, obviously, an evidentiary hearing.”

6 We reject ACIC’s argument that the trial court was obligated to make

and include specific fact findings within its order compelling appraisal.

Generally, a trial court’s order must contain explicit factual findings only when

mandated by statute or a rule of procedure. See, e.g., In Int. of K.W., 234

So. 3d 835, 836 (Fla. 2d DCA 2018) (requiring factual findings set forth by

dependency statute); Fulmer v. Fulmer, 961 So. 2d 1081, 1082 (Fla. 1st DCA

2007) (requiring factual findings set forth by equitable distribution statute);

Salazar v. Hometeam Pest Def., Inc., 230 So. 3d 619, 621 (Fla. 2d DCA

2017) (requiring factual findings for a temporary injunction under Florida Rule

of Civil Procedure 1.610). For appraisal, there do not appear to be any

statutes or rules of civil procedure requiring a trial court to make explicit

factual findings, and ACIC has not called our attention to any.

ACIC also argues that it was improper for the trial court to grant

appraisal on Suntree’s 2020 supplemental claim when ACIC had yet to make

a coverage determination and prior to a judicial coverage determination.

There is a disagreement amongst the district courts on the sequence

in which a trial court should resolve appraisal and coverage issues, as

explained by the Second District in American Capital Assurance Corp. v.

Leeward Bay at Tarpon Bay Condominium Ass’n, 306 So. 3d 1238 (Fla. 2d

DCA 2020). The Second and Third Districts have adopted a “dual-track

7 approach,” which gives a trial court discretion on the order in which the

issues of damages and coverage are to be determined. Id. at 1242 (citing

Sunshine State Ins. Co. v. Rawlins, 34 So. 3d 753, 754 (Fla. 3d DCA 2010)).

On the other hand, the Fourth District has held that a trial court must resolve

all underlying coverage disputes prior to ordering an appraisal where the

insurer wholly denies coverage. Id. (citing Citizens Prop. Ins. Corp v.

Demetrescu, 137 So. 3d 500, 502 (Fla. 4th DCA 2014); Citizens Prop. Ins.

Corp. v. Mich. Condo. Ass’n, 46 So. 3d 177, 178 (Fla. 4th DCA 2010)).

It does not appear that we have previously taken a position on what

order the issues of coverage and damages need to be addressed. As far as

the proper sequence for the determination of coverage and damages issues,

this Court has simply held that appraisal is appropriate where an insurer did

not wholly deny coverage of the disputed claim. See Underwriters at Lloyd’s,

London v. Sorgenfrei, 278 So. 3d 930, 931 (Fla. 5th DCA 2019); First

Protective Ins. Co. v. Colucciello, 276 So. 3d 456, 458 (Fla. 5th DCA 2019).

Here, ACIC has not denied coverage; rather, it asserts that it was unable to

reach a coverage decision because of Suntree’s alleged failure to provide

documents.

The dual-track approach, however, is only available once the trial court

determines a demand for appraisal is ripe. Leeward Bay, 306 So. 3d at 1242

8 (“We note that ‘[o]nce the trial court determines that a demand for appraisal

is ripe, the court has discretion to control the order in which an appraisal and

coverage determinations proceed.’” (quoting Citizens Prop. Ins. Corp. v.

Admiralty House, Inc. 66, So. 3d 342, 344 (Fla. 2d DCA 2011))).

ACIC has not pointed to any language in the insurance policy that

dictates in what sequence determination of coverage and appraisal must

proceed. Under these circumstances, we find no error or abuse of discretion

in the trial court essentially employing a dual-track approach in this case by

granting the motion to compel appraisal before deciding coverage issues.

Although not explicitly stated in its order, it is apparent that the trial court

found that Suntree’s demand for appraisal was ripe based upon the court’s

implied conclusion that Suntree had sufficiently complied with its post-loss

obligations in terms of providing documentation and information. Therefore,

the dual-track approach, when utilized here, would permit the appraisal to go

forward while still permitting ACIC the ability to raise and litigate any

coverage defenses should it chose to contest coverage.

AFFIRMED.

EVANDER, J., concurs. EISNAUGLE, J., concurs in result, with opinion.

9 Case No. 5D21-1354 LT Case No. 05-2020-CA-042981-X

EISNAUGLE, J., concurring in result with opinion.

I agree that we must affirm the order on appeal. There may well be

error in the proceedings below, but any error was either inadequately argued

on appeal or is unpreserved. Therefore, I would affirm because ACIC has

failed to demonstrate error.

Ripeness

For instance, ACIC’s argument that the demand for appraisal is not

ripe, as framed in the argument section of the initial brief, is based on a

factual representation that ACIC never received a working hyperlink for the

responsive documents. Yet, as the majority observes, ACIC’s own corporate

representative swore by affidavit that ACIC was eventually able to access

the documents. ACIC’s argument fails to even acknowledge this fact, let

alone explain why appraisal is not ripe in light of this admission.

Dual-Track versus Single-Track

Similarly, ACIC argues that the trial court abused its discretion when

employing a dual-track procedure but does not base this argument on any

statute or the policy’s language. Instead, ACIC invites this court to choose

one track over the other, apparently for all cases in this district, based on

10 public policy considerations. I agree with the majority that this public policy

argument is without merit.

Entitlement to an Evidentiary Hearing

Finally, ACIC argues that the trial court erred when it entered the order

without “considering the evidence” and “refused [ACIC’s] proffer of evidence,

including the testimony of [ACIC’s] [c]orporate [r]epresentative.” This

argument is improperly inserted in the middle of ACIC’s argument that the

trial court failed to make factual findings. See Fell v. Carlin, 6 So. 3d 119,

120 n.1 (Fla. 2d DCA 2009) (“[I]n order to obtain appellate review, alleged

errors relied upon for reversal must be raised clearly, concisely, and

separately as points on appeal. Therefore, we do not decide this issue.”

(citations omitted)).

However, even if we were to consider this as a stand-alone argument,

it finds little support in the transcript. While ACIC argued at times that an

evidentiary hearing was required, ACIC also confusingly represented to the

trial judge that the parties were present that day for an evidentiary hearing.

Yet, ACIC never actually attempted to call the corporate representative

to testify, nor did ACIC make a proffer on the dispositive issues on appeal.

Instead, counsel offered to call the corporate representative “[t]o the extent

11 that the Court needs additional information besides what is in our motion and

represented.”

Ironically, at one point during the hearing, ACIC’s counsel even invited

the trial court to consider the various affidavits and documents filed by the

parties for purposes of deciding the motion—stating that calling witnesses

was not necessary to introduce these documents. Given these unexplained

and seemingly conflicting positions at the hearing, ACIC’s brief fails to

establish error on this ground.

In sum, ACIC has failed to demonstrate error on appeal, and we must

affirm. See State v. Town of Sweetwater, 112 So. 2d 852, 854 (Fla. 1959)

(“It is an elemental principle of appellate procedure that every judgment,

order or decree of a trial court brought up for review is clothed with the

presumption of correctness and that the burden is upon the appellant in all

of such proceedings to make error clearly appear.”); Lynn v. City of Fort

Lauderdale, 81 So. 2d 511, 513 (Fla. 1955) (“It is elementary that when a

decree of the trial court is brought here on appeal the duty rests upon the

appealing party to make error clearly appear. An appellant does not

discharge this duty by merely posing a question with an accompanying

assertion that it was improperly answered in the court below and then

dumping the matter into the lap of the appellate court for decision.” (citation

12 omitted)); Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So. 2d 958, 960

(Fla. 4th DCA 1983) (“When points, positions, facts and supporting

authorities are omitted from the brief, a court is entitled to believe that such

are waived, abandoned, or deemed by counsel to be unworthy. Again, it is

not the function of the Court to rebrief an appeal.”).