Florida Insurance Guaranty Ass'n v. Hunnewell

173 So. 3d 988, 2015 Fla. App. LEXIS 3614, 2015 WL 1088469
CourtDistrict Court of Appeal of Florida
DecidedMarch 13, 2015
DocketNo. 2D14-397
StatusPublished
Cited by2 cases

This text of 173 So. 3d 988 (Florida Insurance Guaranty Ass'n v. Hunnewell) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florida Insurance Guaranty Ass'n v. Hunnewell, 173 So. 3d 988, 2015 Fla. App. LEXIS 3614, 2015 WL 1088469 (Fla. Ct. App. 2015).

Opinion

WALLACE, Judge.

Florida Insurance Guaranty Association, Inc. (FIGA), appeals a nonfinal order compelling appraisal concerning the repair of damages caused by a sinkhole to a residence owned by. Daniel Hunnewell and Heather Hunnewell (the Hunnewells). Based on this court’s recent decision in Florida Insurance Guaranty Ass’n v. de la Fuente, 158 So.3d 675, (Fla. 2d DCA Jan. 7, 2015), we conclude that the circuit court erred in determining that the Hunnewells were entitled to appraisal of their claim. In addition, we conclude that the Hunnewells’ activities in litigating their claim amounted to a waiver of appraisal. For these reasons, we reverse the order compelling appraisal and remand for further proceedings.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

The Hunnewells discovered sinkhole damage to their residence on November 14, 2008, and they reported the loss to their insurer, HomeWise Preferred Insurance Company, on August 21, 2009. HomeWise responded to the claim by retaining SDII Global Corporation (SDII). SDII performed testing that reflected sinkhole activity at the residence. SDII recommended subsurface repairs consisting of deep-grout injection. A contractor completed the recommended subsurface repairs on February 23, 2010. HomeWise also extended coverage and tendered payment for cosmetic repairs based upon an estimate from Neumann Construction.

Unsatisfied with the repairs, the Hunne-wells retained a law firm, which in turn retained Florida Testing and Environmental (FTE) to perform a peer review of SDH’s report. FTE issued a report disputing the sufficiency of the repairs recommended by SDII and recommended that a system of underpinning be performed at a cost of $82,080.

HomeWise requested a neutral evaluation. Shortly thereafter, the Hunnewells filed the underlying lawsuit, which was stayed pending the neutral evaluation. The neutral evaluator, John R. Edwards, performed an evaluation and met with the parties at the Hunnewells’ residence on November 21, 2010. Mr. Edwards reported that additional settlement of the residence of 0.3 to 0.7 inches after the grout injection. was “possibly indicating minor structural movement attributed to the grouting activities.” According to Mr. Edwards, this minor movement was normal and to be expected. He had no basis to conclude that the grouting program was deficient or that an insufficient amount of grout had been used. Nevertheless, Mr. Edwards recommended that “a program of chemical grouting utilizing 2,500 pounds [of] expanding urethane foam be implemented to stabilize the shallow subsurface due to the presence of very loose and loose soil conditions within the upper 10 feet.” However, Mr. Edwards concluded that [990]*990“[t]here [was] no damage at the Hunnewell residence that [rose] to a level requiring underpinning.” After receipt of Mr. Edwards’ report, the Hunnewells proceeded with the underlying lawsuit. The Hunne-wells filed a notice for jury trial on May 1, 2011; the trial court set the case for trial on October 17, 2011.

On September 2, 2011, HomeWise went into receivership, and an automatic stay of the lawsuit went into effect. On November 4, 2011, HomeWise was declared insolvent. On December 12, 2011, FIGA notified the Hunnewells that it had assumed handling of their claim, including notice that the sinkhole loss claim would be handled in accordance with chapter 631, Florida Statutes (2011).

The Hunnewells served an amended complaint naming FIGA as the defendant on June 8, 2012. The amended complaint alleges that “HomeWise’s engineering firm unilaterally recommended certain subsurface remedial measures, which, according to [Appellees’] retained engineer, are structurally insufficient to properly and permanently repair and remediate the subsurface and foundation of the home.” The amended complaint further alleges that the Hunnewells signed a contract with Champion Foundation Repair Systems to perform the building stabilization recommended by their expert and demanded that FIGA authorize the repairs within ten days; The demand also included a cosmetic repair estimate in the amount of $76,245.14 from Triad Consulting Group. FIGA refused to authorize the additional repairs. In their amended complaint, the Hunnewells sought “general and special damages,” prejudgment interest, attorney’s fees, and expert witness fees.

FIGA answered the amended complaint on July 30, 2012, and alleged that it had not denied coverage to the Hunnewells and that it was ready to pay the Hunnewells for “actual repairs to the property” in accordance with section 631.54(3), Florida Statutes (2011). FIGA alleged that under section 631.54(3)(c), it was only obligated to pay for “the actual repair of the loss” and that it could not pay attorney’s fees or public adjuster fees or pay the policy holder directly.

After the parties engaged in some discovery, the Hunnewells served a motion to compel appraisal on June 21, 2013. FIGA objected to the demand for appraisal and filed a memorandum of law in opposition. FIGA argued (1) that appraisal was not an appropriate remedy to resolve the dispute over the correct method of repair; (2) that even if appraisal were appropriate for that purpose, it was inappropriate in the context of a sinkhole claim because under the 2011 amendment to section 631.54(3)(e), FIGA may only pay the contractor the cost for “actual repairs” and the “amount of loss” was to be determined as the repairs were performed; and (3)' that the Hunne-wells had waived any right to seek appraisal by their active litigation of the case to that point. The trial court entered an order compelling appraisal. In its order, the trial court did not make any findings of fact or law. This appeal followed.1

II. FRAMING THE ISSUES

The main issues for our review are these: (1) whether under the HomeWise policy the determination of the method of repair is appropriate for resolution under the policy’s appraisal process and (2) whether the Hunnewells waived any right to appraisal by engaging in litigation activities for an extended period before requesting appraisal. The issue of whether the Hunnewells were entitled to appraisal under the terms of their policy under the [991]*9912011 amendment to section 631.54(3) is controlled by this court’s decision in de la Fuente.

III. THE STANDARD OF REVIEW

With regard to an order compelling appraisal, we review the trial court’s factual findings under a competent, substantial evidence standard. Our review of the trial court’s application of the law to the facts is de novo. Where, as in this case, the trial court made no findings of fact or law, we apply the relevant law to the facts in the record. See Fla. Ins. Guar. Ass’n v. Castilla, 18 So.3d 703, 704 (Fla. 4th DCA 2009) (citing United HealthCare of Fla., Inc. v. Brown, 984 So.2d 583, 585 (Fla. 4th DCA 2008)); see also Fla. Ins. Guar. Ass’n v. Branco, 148 So.3d 488, 493 (Fla. 5th DCA 2014) (“Here, while the trial court made no findings of fact on the issue of waiver, the facts are not in dispute. Therefore, we review the waiver issue de novo.”). Our review of the question of the applicability of the 2011 amendment to section 631.54(3) to the Hunne-wells’ rights under the policy is a question of statutory construction that we review de novo. W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So.3d 1, 8 (Fla.2012).

IV. DISCUSSION

A.

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Bluebook (online)
173 So. 3d 988, 2015 Fla. App. LEXIS 3614, 2015 WL 1088469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-insurance-guaranty-assn-v-hunnewell-fladistctapp-2015.