Rios v. Tri-State Ins. Co.

714 So. 2d 547, 1998 WL 329518
CourtDistrict Court of Appeal of Florida
DecidedJune 24, 1998
Docket98-260
StatusPublished
Cited by8 cases

This text of 714 So. 2d 547 (Rios v. Tri-State Ins. Co.) 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
Rios v. Tri-State Ins. Co., 714 So. 2d 547, 1998 WL 329518 (Fla. Ct. App. 1998).

Opinion

714 So.2d 547 (1998)

Clemente RIOS and Rosa Rios, his wife, Petitioners,
v.
TRI-STATE INSURANCE COMPANY a foreign insurance company, Respondent.

No. 98-260.

District Court of Appeal of Florida, Third District.

June 24, 1998.

*548 Lauri Waldman Ross, Miami; Marks & Truppman, Miami, for petitioners.

Freud & Abraham and Peter E. Abraham, Miami, for respondent.

Before COPE, GODERICH and SHEVIN, JJ.

COPE, Judge.

Clemente and Rosa Rios ("the insureds") petition for a writ of certiorari, seeking to quash a discovery order entered preliminary to appraisal under an insurance policy.[1] We grant the petition in part and deny it in part.

I.

The insureds filed suit to compel appraisal of a Hurricane Andrew claim under a homeowners' policy issued by respondent Tri-State Insurance Company. The insureds designated East Coast Appraisers, Inc., as their appraiser.

The appraisal clause in this insurance contract requires each party to select "a competent, independent appraiser" (emphasis added), and the two party-designated appraisers will then select a "competent, impartial umpire."[2]

*549 The insurer moved to dismiss the appraisal suit arguing, among other things, that the insureds' appraiser, East Coast, was not "independent" within the meaning of the appraisal clause because East Coast's compensation was based on a contingency percentage of the insureds' recovery. The insurer asked the insureds to divulge the compensation arrangement with East Coast, and the insureds refused. The insurer then propounded discovery on that issue, to which the insureds objected. The trial court entered an order compelling discovery of the compensation arrangement, which order the insureds now seek to quash.[3]

At oral argument, the insureds acknowledged that East Coast is to be compensated based on a contingency percentage of the award.

II.

The threshold question presented by the parties is how to interpret the term "independent appraiser" as used in the insurance policy. The parties are free by contract to specify the credentials of party-appointed appraisers, and have done so in this instance. See Lee v. Marcus, 396 So.2d 208, 210 (Fla. 3d DCA 1981) (recognizing that parties may by contract place words of limitation on the identity, status, or qualifications of arbitrators). The insurance contract in this case restricts the choice to an "independent appraiser" but the policy contains no definition and neither the parties nor we have located case law addressing the point.[4]

Dictionary definitions of "independent" include "not subject to control, restriction, modification, or limitation from a given outside source," Black's Law Dictionary 770 (6th ed.1990), and "not subject to control by others...." Webster's Third New International Dictionary 1148 (1986). We conclude that this language calls for the appointment of an outside appraiser, unaffiliated with the parties. This means that a party cannot appoint himself, herself, or itself, see Finkelstein v. Smith, 326 So.2d 39, 40 (Fla. 1st DCA 1976), nor can a party appoint the party's employee. If a firm is designated to do the appraisal, it must be unaffiliated with the appointing party, that is, it cannot be a firm in which the appointing party has an ownership interest.

The insurer urges us to go farther and rule that an appraiser cannot be "independent" whose pay is based, in whole or in part, on a contingent fee percentage of the award. The insurer contends that a contingent fee arrangement gives the appraiser a direct financial interest in the award, and renders the appraiser not "independent" under this insurance contract. We acknowledge that two courts have accepted this reasoning and forbid contingent fee compensation for a party-appointed designee, either across the board, see Aetna Cas. & Sur. Co. v. Grabbert, 590 A.2d 88 (R.I.1991) (arbitration),[5] or based on the language of the insurance policy. See Central Life Ins. Co. v. Aetna Cas. & Sur. Co., 466 N.W.2d 257 (Iowa 1991) (appraisal).[6] We decline to apply those cases here.

First, the appraisal clause now before us states that "[e]ach appraiser shall be paid by the party selecting that appraiser." It does not limit the type of compensation which may be paid. The insurance policy must be read favorably to the insured. See Berkshire Life Ins. Co. v. Adelberg, 698 So.2d 828, 830 (Fla. 1997). That being so, we decline to interpret the term "independent" (which is not defined *550 in the policy) to limit the type of compensation which can be paid.

Second, we think the more workable approach to this issue is found in the Code of Ethics for Arbitrators in Commercial Disputes ("Code of Ethics"), promulgated jointly by the American Arbitration Association ("AAA") and American Bar Association ("ABA").[7] Canon IIA(1) of the Code states that "persons who are requested to serve as arbitrators should, before accepting, disclose (1) any direct or indirect financial or personal interest in the outcome of the arbitration...."[8] Such disclosure is required of nonneutral as well as neutral arbiters. See Code of Ethics, Canon VIIB. The theory is that the disclosure is for the benefit not only of the appointing party, "but also for the benefit of the other parties and arbitrators so that they may know of any bias which may exist or appear to exist." Id.; see also Commonwealth Coatings Corp. v. Continental Cas. Co., 393 U.S. 145, 152, 89 S.Ct. 337, 21 L.Ed.2d 301 (1968) (White, J, concurring) (stating that arbitrators should err on the side of disclosure); Lee v. Marcus, 396 So.2d at 210, (concealment of relationship between arbitrator and appointing party "reflects, at best, a lack of candor which was totally unacceptable and should not be repeated").

In this appeal, the insureds concede that the fee agreement with East Coast is based on a contingency fee percentage of the recovery. Since that amounted to a "direct ... financial ... interest in the outcome of the arbitration," Code of Ethics, Canon IIA(1), it follows that there should have been voluntary disclosure.

The next question is whether a direct or indirect financial interest in the outcome of the arbitration requires the disqualification of a party-appointed arbitrator. Under the Code of Ethics, it does not. Id. Canon VIB(2). The balance struck by the Code is that such an interest will not be a basis for disqualification, but it must be disclosed so that the other arbitrators are aware of it before they proceed with their work. In this way, the process will operate on the basis of fair disclosure, and party-appointed appraisers may make full disclosure without fear that the disclosure will serve as a basis for disqualification. "[T]he act of disclosure serves as a cure rather than an excuse for intervention by the courts." Perez v. Mid-Century Ins. Co., 85 Wash.App. 760, 934 P.2d 731, 734 (1997).

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Bluebook (online)
714 So. 2d 547, 1998 WL 329518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rios-v-tri-state-ins-co-fladistctapp-1998.