EXPRESS DAMAGE RESTORATION, LLC, etc. v. CITIZENS PROPERTY INSURANCE CORPORATION

E
      Third District Court of Appeal
                               State of Florida

                          Opinion filed May 5, 2021.
       Not final until disposition of timely filed motion for rehearing.

                            ________________

                             No. 3D21-141
              Lower Tribunal Nos. 17-4572 CC & 20-131AP
                          ________________


            Express Damage Restoration, LLC, etc.,
                                  Appellant,

                                     vs.

            Citizens Property Insurance Corporation,
                                  Appellee.


      An Appeal from the County Court for Miami-Dade County, Myriam
Lehr, Judge.

     The Diener Firm, P.A., and Erik D. Diener (Plantation), for appellant.

      Cole, Scott & Kissane, P.A., and David C. Borucke (Tampa), for
appellee.


Before LOGUE, SCALES and LOBREE, JJ.

     SCALES, J.
        In this first party insurance action filed in the county court, Express

Damage Restoration, LLC (“EDR”), as the assignee of the insured, Marie

Casimir, appeals a final summary judgment entered in favor of Citizens

Property Insurance Corporation (“Citizens”) on EDR’s declaratory judgment

action. EDR’s action sought a determination that Citizens wrongfully invoked

the underlying homeowner’s insurance policy’s appraisal provision to resolve

a disagreement between the parties as to both the necessity of the water

mitigation services provided by EDR and the reasonableness of EDR’s

charges for those services. In its May 31, 2020 final summary judgment

order, the trial court determined that the subject appraisal provision clearly

and unambiguously applies to EDR’s claim for water mitigation services. For

the following reasons, we agree and affirm.

   I.     RELEVANT FACTS AND PROCEDURAL HISTORY

        Citizens issued an HO-3 homeowner’s insurance policy covering Marie

Casimir’s home for the policy period between February 24, 2016 and

February 24, 2017. On September 14, 2016, the interior of Ms. Casimir’s

home sustained water damage. Ms. Casimir then retained EDR to perform

water mitigation services in her home. In return for EDR’s services, Ms.

Casimir gave EDR an assignment of benefits that entitled EDR to collect any




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and all insurance benefits and proceeds due to Ms. Casimir for a covered

claim under the subject Citizen’s policy.

      Following the completion of its water mitigation services inside Ms.

Casimir’s home, EDR provided Citizens the assignment of benefits executed

by Ms. Casimir and an itemized invoice charging $7,604.33 for EDR’s

services. Citizens’s own appraiser then evaluated the invoice and prepared

a detailed report determining that the cost for the reasonable and necessary

water mitigation services provided by EDR should have been only $2,355.99.

On February 13, 2017, Citizens sent EDR a letter advising EDR that Citizens

considered EDR’s invoice to be excessive (by $5,248.34). Citizens’s letter

demanded an appraisal to resolve the parties’ disagreement over the

reasonable costs of the mitigation services. Citizens attached to the letter

its appraiser’s evaluation report along with a check for $2,355.99

(representing the amount Citizens had determined was reasonable for the

mitigation services).

      On March 13, 2017, EDR filed the instant action in the county court.

EDR’s second amended complaint for declaratory relief sought a

determination that the subject policy’s appraisal provision did not apply to

water mitigation services and, therefore, Citizens had wrongfully invoked the

policy’s appraisal provision.



                                      3
          Because the facts were not disputed and the action presented only

questions of contractual interpretation, the parties filed competing motions

for summary judgment. After conducting a hearing on the parties’ motions,

the trial court entered its May 31, 2020 final summary judgment order

concluding that the dispute was subject to the policy’s appraisal provision

and ordering the appraisal process to commence. Specifically, the trial court

concluded that “the language of the appraisal provision of the subject policy

is clear and unambiguous, straightforward, and that appraisal is appropriate

for this [water mitigation services] claim.” EDR timely appealed this May 31,

2020 final summary judgment order.1

    II.     ANALYSIS2



1
  Frequently, a trial court order compelling appraisal under an insurance
policy will reserve jurisdiction to, among other things, enforce the terms of
any appraisal award. Hence, we generally review orders that determine a
party’s entitlement to appraisal under an insurance policy as nonfinal orders
pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). In this
case, though, the challenged order does not reserve jurisdiction, and is
characterized by both parties as a final order. In fact, the order contains
standard language of finality expressly stating that it “is final and closes the
case” and that “(EDR) shall take nothing by this action and (Citizens) shall
go hence without day.”
2
  We review de novo an order granting summary judgment. Gidwani v.
Roberts, 

248 So. 3d 203

, 206 (Fla. 3d DCA 2018). We review the
interpretation of an insurance policy de novo, as well. Cheetham v. S. Oak
Ins. Co., 

114 So. 3d 257

, 261 (Fla. 3d DCA 2013).


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      EDR argues that the policy’s appraisal provision applies only to

disputes regarding the valuation of property damaged by a covered loss, and

not to disputes regarding the valuation of services (such as those performed

by EDR) undertaken after a covered loss to prevent further property damage.

The relevant text of the policy’s appraisal provisions, coupled with the

structure of the subject insurance policy, bely EDR’s argument.

      A. The structure of the Citizens policy

      The subject HO-3 Citizens insurance policy provides the insured with

coverage for both property (in the policy’s Section I) and liability (in the

policy’s Section II). 3 Section I contains four distinct parts. The first part of

Section I, labeled “PROPERTY COVERAGES,” details the different

coverages provided for the insured’s property, including the insured’s

dwelling, other structures, personal property and loss of use. Included in this

first part of Section I, and relevant to this case, is a schedule of “Additional

Coverages” that includes “Reasonable Repairs” that are “incurred by [the

insured] for necessary measures taken solely to protect against further

damage.” This is the policy provision that covers the post-loss services

performed by EDR.



3
  The policy’s liability provisions contained in Section II are not implicated in
this appeal.

                                       5
     The second part of Section I identifies the “PERILS INSURED

AGAINST.” The third part of Section I outlines “EXCLUSIONS” to the

property coverage. The fourth part of Section I contains a host of

“CONDITIONS” applicable to all Section I coverages.

     B. The policy’s appraisal provision

     The policy’s appraisal provision is contained in the fourth part (labeled

“CONDITIONS”) of Section I, and reads, in relevant part, as follows:

F. Mediation or Appraisal

     2. Appraisal.

     Appraisal is an alternate dispute resolution method to address
     and resolve disagreement regarding the amount of the covered
     loss.

     a. If you and we fail to agree on the amount of loss, either party
     may demand an appraisal of the loss. If you or we demand
     appraisal, the demand for appraisal must be in writing and shall
     include an estimate of the amount of any dispute that results from
     the covered cause of loss.

     The estimate shall include a description of each item of damaged
     property in dispute as a result of the covered loss, along with the
     extent of damage and the estimated amount to repair or replace
     each item.

           ....

     f. The appraisal award will be in writing and shall include the
     following:




                                     6
     (1) A detailed list, including the amount to repair or replace, of
     each specific item included in the award from the appraisal
     findings;

     (2) The agreed amount of each item, its replacement cost value
     and corresponding cash value; and

     (3) A statement of “This award is made subject to the terms and
     conditions of the policy.”

           ....

     h. You, we, the appraiser and the umpire shall be given
     reasonable and timely access to inspect the damaged property,
     in accordance with the terms of the policy.

(Emphases added).

     C. Applicability of the policy’s appraisal provision to the dispute

     The subject appraisal provision unambiguously provides that either

party may demand appraisal “to address and resolve disagreement

regarding the amount of the covered loss.” In this appeal, as below, EDR

concedes that the work it performed is part of “the amount of the covered

loss.” Notwithstanding this concession, EDR claims that the parties’ dispute

over EDR’s invoice for water mitigation services is not subject to appraisal

because, according to EDR, the appraisal provision’s language “narrow[s]

the scope of appraisal by defining specific requirements of the appraisal

process that are impossible once services/repairs are complete and are only

possible with respect to existing property damage.” Specifically, EDR relies



                                      7
upon the provision’s language – emphasized above – requiring that the

written estimate address the cost of repairing “each item of damaged

property” as well as any corresponding depreciation applicable thereto, and

also the requirement that timely access be given “to inspect the damaged

property.” Claiming that the appraisal provision’s language is ambiguous,

EDR argues that the provision can reasonably be construed as applying only

to property damage resulting from a covered loss, and not also to water

mitigation services performed in order to prevent further damage to the

property.

      As mentioned above, EDR’s water mitigation services are covered

under the first part of the policy’s Section I. The appraisal provision is also

contained under Section I of the policy as a “CONDITION” to coverage under

Section I. The structure of the policy, therefore, indicates that the appraisal

provision applies to water mitigation services that are incurred to protect

covered property against further damage. See Walker v. State Farm Fire &

Cas. Co., 

758 So. 2d 1161

, 1162 (Fla. 4th DCA 2000) (“Insurance contracts

are to be reviewed as a whole, viewing all words in context.”); Nationwide

Mut. Fire Ins. Co. v. Olah, 

662 So. 2d 980

, 982 (Fla. 2d DCA 1995) (“When

construing an insurance policy to determine coverage the pertinent

provisions should be read in pari materia.”).



                                      8
          EDR suggests that the appraisal provision applies only to dwelling and

other structures coverages that also appear as coverages under the first part

of the policy’s Section I. We simply find no support for this argument in any

provision of the policy or in the structure of the policy. Indeed, the language

of the appraisal provision and the structure of the policy plainly and

unambiguously provide that disputes over valuation of “Reasonable Repairs”

performed pursuant to the policy – such as those performed by EDR in this

case – are subject to the policy’s appraisal provision.

   III.     CONCLUSION

          The subject appraisal provision provides that either party may demand

an appraisal to resolve a “disagreement regarding the amount of the covered

loss.” It is not disputed that the water mitigation services performed by EDR

are part of the amount of the covered loss. Reading the policy as a whole

and giving the appraisal provision its plain meaning, we conclude that the

appraisal provision is unambiguous and that the provision applies to the

instant claim for water mitigation services. Accordingly, we affirm the trial

court’s May 31, 2020 final summary judgment order.

          Affirmed.




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