MENDOTA INSURANCE COMPANY vs AT HOME AUTO GLASS, LLC A/A/O CAROLINE JACKSON

• Court: District Court of Appeal of Florida
• Decided: May 6, 2022
• Docket: 21-1648
• 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

MENDOTA INSURANCE COMPANY,

Appellant,

v. Case No. 5D21-1648 LT Case No. 2020-SC52373-O

AT HOME AUTO GLASS, LLC A/A/O CAROLINE JACKSON,

Appellee.

________________________________/

Opinion filed May 6, 2022

Nonfinal Appeal from the County Court for Orange County, Michael Deen, Judge.

Matthew C. Scarborough, and Amy Lee, of Scarborough Attorneys at Law, Tampa, for Appellant.

Earl I. Higgs, Jr., of Higgs Law, P.A., Orlando, for Appellee.

EVANDER, J. Mendota Insurance Company (“Mendota”) appeals a nonfinal order

denying its motion to dismiss complaint and motion to compel appraisal. We

dismiss Mendota’s appeal of the trial court’s denial of its motion to dismiss

complaint because that part of the court’s order is not appealable. Williams

v. Oken, 62 So. 3d 1129, 1134 (Fla. 2011); Couto v. People’s Tr. Ins. Co.,

320 So. 3d 224, 22 n.1 (Fla. 3d DCA 2021). However, we have jurisdiction

to review the trial court’s denial of Mendota’s motion to compel appraisal.

See Fla. R. App. P. 9.130(a)(3)(C)(iv) (permitting appeal of nonfinal order

determining entitlement to appraisal under insurance policy). The trial court

denied the motion to compel appraisal on the ground that there was no

disputed appraisable issue. We reverse and remand for further proceedings.

Mendota’s insured, Caroline Jackson, suffered windshield damage to

her motor vehicle and had the windshield replaced by Appellee, At Home

Auto Glass, LLC (“Home Auto Glass”). Jackson assigned her right to make

a claim under her insurance policy to Home Auto Glass. Thereafter, Home

Auto Glass made a claim against Mendota for $2,487.75. In response,

Mendota tendered a check to Home Auto Glass for $1,049.20 and requested

an appraisal if the parties could not agree on the amount of the loss.

Ultimately, Home Auto Glass brought suit against Mendota. In its ensuing

2 motion to compel appraisal, Mendota referenced the policy’s appraisal

provision which stated, as follows:

If we and you do not agree on the amount of the loss, either party may:

1. Request an appraisal of the loss; or

2. Request mediation . . .

In the event appraisal is requested, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. The appraisers will separately state the actual cash value and the amount of the loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding as to the amount of the loss.

At the hearing on the motion to compel appraisal, Mendota

represented that it was only requesting an appraisal for the amount of money

owed to Home Auto Glass and was not disputing the extent of physical

damage. Home Auto Glass noted that the insurance policy defined

“loss” as “a sudden, direct and accidental loss of or physical damage to

property” and, therefore, the policy’s appraisal provision only applied where

there was a dispute as to the amount of physical damage. Thus, according

to Home Auto Glass, appraisal was not required because there was no

dispute as to the amount of physical damage sustained by the insured’s

vehicle. The trial court agreed with Home Auto Glass, stating:

3 Using the rules of construction, the definition in the policy, and the use of the word in the policy, the word “loss” is synonymous with physical damage. Appraisal would be improper in this context, where the physical damage is not in dispute. Even if the word “loss” is ambiguous within the policy, this Court would be required by law to construe the definition against [Mendota].

We review the trial court’s order de novo. First Protective Ins. Co. v.

Colucciello, 276 So. 3d 456, 457 (Fla. 5th DCA 2019). In construing an

insurance policy, a court should read the policy as a whole and attempt to

give every provision its full meaning and effect. Auto-Owners Ins. Co. v.

Anderson, 756 So. 2d 29, 34 (Fla. 2000).

Mendota argues generally, and correctly, that Florida courts have

repeatedly determined that when an insurance policy contains an appraisal

clause triggered by a dispute over the “amount of loss,” appraisal

“necessarily includes determinations of the cost of repair or replacement.”

State Farm Fire & Cas. Co. v. Licea, 685 So. 2d 1285, 1288 (Fla. 1996)

(dispute over amount of hurricane damage to covered home); see also

Johnson v. Nationwide Mut. Ins. Co., 828 So. 2d 1021, 1025 (Fla. 2002)

(“[W]hen the insurer admits that there is a covered loss, but there is

disagreement on the amount of loss, it is for the appraisers to arrive at the

amount to be paid.” (quoting Gonzalez v. State Farm Fire & Cas. Co., 805

So. 2d 814, 816 (Fla. 3d DCA 2000))); Citizens Prop. Ins. Corp. v. River

4 Manor Condo. Ass’n, 125 So. 3d 846, 854 (Fla. 4th DCA 2013) (“The division

of responsibility between the appraisers and court is therefore clear. The

appraisers determine the amount of the loss, which includes calculating the

cost of repair or replacement of property damage, and ascertaining how

much of the damage was caused by a covered peril” whereas “court decides

whether the policy provides coverage for the peril which inflicted the damage,

and for the particular property at issue; in other words, all coverage matters”);

U.S. Fid. & Guar. Co. v. Romay, 744 So. 2d 467, 469 (Fla. 4th DCA 1999)

(“Arbitrable issues involved with appraisal, by their nature, are narrowly

restricted to the resolution of specific issues of actual cash value and amount

of loss . . . . It is therefore axiomatic that an arbitrable issue exists between

parties whose agreement provides for appraisal when there is a

disagreement in the dollar amount of the loss being claimed.”).

Here, the appraisal provision references a lack of agreement as to “the

amount of the loss.” Although the policy definition of “loss” includes the term

“physical damage to property,” that does not mean that a determination of

“the amount of the loss” is limited to a determination of the extent of physical

damage. A determination of “the amount of the loss” necessarily includes

determining both the extent of covered damage and the monetary amount

necessary to repair or replace the damaged property. See, e.g., Cincinnati

5 Ins. Co. v. Cannon Range Partners, Inc., 162 So. 3d 140, 143 (Fla. 2d DCA

2014) (“Notably, in evaluating the amount of loss, an appraiser is necessarily

tasked with determining both the extent of covered damage and the amount

to be paid for repairs.”). The trial court’s overly-narrow interpretation of the

term “the amount of loss” would render the appraisal provision meaningless

and would ignore the other provisions in the policy that discuss “loss” in terms

of cost to repair or replace. For example, the policy’s Physical Damage

Coverage provision for Payment of Loss provides that Mendota “may pay the

loss in money or repair or replace the damaged or stolen property.”

Similarly, the Physical Damage Coverage provision for Limit of Liability

provides that Mendota’s limit of liability for a loss would not exceed the lesser

of the “amount necessary to repair physical damage to an insured auto … .”

Home Auto Glass alternatively argues that “amount of loss” is

ambiguous in that it could mean the extent of physical damage or cost to

repair or replace the damage, in which case, this court should affirm because

ambiguities must be resolved against Mendota. Anderson, 756 So. 2d at 34.

(“Ambiguous policy provisions are interpreted liberally in favor of the insured

and strictly against the drafter who prepared the policy.”). However, for an

ambiguity to exist, the policy language must be susceptible to more than one

reasonable interpretation. Id. Courts must “examine the entire agreement

6 and seek to harmonize and give effect to all provisions so that none would

be meaningless.” Carolina Cas. Ins. Co. v. Spicer, 323 So. 3d 350, 352 (Fla.

1st DCA 2021) (quoting Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s

London, 327 S.W. 3d 118, 126 (Tex. 2010)). Interpretation of policy

language that renders that provision or another provision meaningless is

therefore unreasonable. Id. at 353. In this case, a dispute over the monetary

value of repairing or replacing a windshield is necessarily included within a

dispute over the amount of physical damage because, to hold otherwise

would render the appraisal clause meaningless. Cf. Fla. Ins. Guar. Ass’n v.

Branco, 148 So. 3d 488, 492 (Fla. 5th DCA 2014) (holding that appraisers

could determine method or scope of necessary repairs when determining the

amount of loss; to interpret otherwise “would render the appraisal process

meaningless”).

Home Auto Glass also raises several “tipsy coachman” arguments.

Under the tipsy coachman rule, “if a trial court reaches the right result, but

for the wrong reasons, it will be upheld if there is any basis which would

support judgment in the record.” Dade Cnty. Sch. Bd. v. Radio Station

WQBA, 731 So. 2d 638, 644 (Fla. 1999). However, an appellate court should

not employ the rule where the trial court has not made the necessary factual

findings on the issue. Bueno v. Workman, 20 So. 3d 993, 998 (Fla. 4th DCA

7 2009). Accordingly, we decline to address Home Auto Glass’ argument that

the policy’s appraisal provision creates an economic deterrent in violation of

the prohibited cost doctrine.

We reject Home Auto Glass’ contention that the appraisal provision

violates the public policy behind section 627.428, Florida Statutes (2020).

That statute authorizes courts to award reasonable attorney’s fees to an

insured where the insured prevails in litigation against its insurer. In rejecting

Home Auto Glass’ argument, we would observe that attorney’s fees and

costs have been awarded to an insured where the insured prevailed in the

appraisal process. See First Floridian Auto & Home Ins. Co. v. Myrick, 969

So. 2d 1121, 1122 (Fla. 2d DCA 2007) (expressly rejecting insurer’s

argument that fee award was improper where insurance claim was resolved

through appraisal process); see also Johnson v. Omega Ins. Co., 200 So. 3d

1207, 1215 (Fla. 2016) (holding that insurer’s payment of previously denied

claim following initiation of action for recovery, but prior to issuance of final

judgment, constitutes functional equivalent of confession of judgment

entitling insured to reasonable attorney’s fees under section 627.428).

We also reject Home Auto Glass’ argument that the appraisal provision

at issue violates the right to a jury trial, access to courts, and due process.

Florida courts have long recognized the validity of insurance policy appraisal

8 provisions. See, e.g., New Amsterdam Cas. Co. v. J.H. Blackshear, Inc.,

156 So. 695, 696 (Fla. 1934) (“Covenants in policies of insurance, which

provide for appraisal by arbitrators of the amount of any loss claimed by an

insured, are valid and are binding upon the parties if they are appropriately

invoked.”); see also Myrick, 969 So. 2d at 1125 (recognizing that appraisal

process provides mechanism to resolve insurance claims promptly).

Finally, we conclude that the other “tipsy coachman” arguments raised

by Home Auto Glass are without merit.

DISMISSED, in part; REVERSED, in part; REMANDED for further

proceedings in accordance with this opinion.

HARRIS and NARDELLA, JJ., concur.