14 Fla. L. Weekly Supp. 1118c
Insurance — Homeowners — Appraisal process — Waiver — Insurer that failed to notify insured of right to participate in mediation of dispute regarding claim for hurricane damage waived right to invoke appraisal clause of homeowners insurance policy
MARIA SIERRA, Individually, Plaintiff, v. CITIZEN’S PROPERTY INSURANCE COMPANY, a corporation authorized and doing business in Florida, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 06 22195CA 20. September 28, 2007. Daryl E. Trawick, Judge. Counsel: W. Anthony Loe, for Plaintiff. Adam M. Pastis, for Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISS/ABATE PLAINTIFF’S COMPLAINT
THIS CAUSE having come on to be heard on September 20, 2007 on the Defendant’s Motion To Dismiss/Abate Plaintiff’s Complaint, and the Court having heard argument of counsel, and being otherwise advised in the premises, the Court makes the following factual findings:
1. The Defendant received correspondence from the Garfinkel Trial Group sent on June 27, 2006 which stated in pertinent part:
“Our investigation shows that insufficient monies have been paid to your insured and/or the estimates generated by your company do not adequately compensate your insured for the hurricane damages. We respectfully request you immediately assign this matter to an adjustor for prompt re-evaluation of the claims.”
2. The Defendant was thereby put on notice that there was a dispute as to the monies provided by the Defendant to the Plaintiff for the damages arising from Hurricane Wilma, pursuant to the home owner’s insurance policy issued by the Defendant.
3. Florida Statute 627.7015 Alternative Procedure for Resolution of Disputed Property Insurance Claims puts in place a mediation program to help insureds resolve their claims disputes with the insurer. Subsection (2) of this statute provides:
“At the time a first-party claim within the scope of this section is filed, the insurer shall notify all first-party claimants of their right to participate in the mediation program under this section.”
4. Florida Administrative Code Section 69J-2.003(3)(a) implements Florida Statute 627.7015 by setting forth a mediation procedure which dictates that the insurer must provide “notice of the right to mediate disputed claims to the insured within 5 days of the time the insured or the Department notifies an insurer of a dispute regarding the insured’s claim”.
5. Citizens Property Insurance Corporation did not notify the insured/Plaintiff of her right to participate in the mediation program pursuant to Florida Statute 627.7015.
6. Florida Statute 627.7015(7) provides:
If the insurer fails to comply with subsection (2) by failing to notify a first-party claimant of its right to participate in the mediation program under this section or if the insurer requests the mediation, and the mediation results are rejected by either party, the insured shall not be required to submit to or participate in any contractual loss appraisal process of the property loss damage as a precondition to legal action for breach of contract against the insurer for its failure to pay the policyholder’s claims covered by the policy.
7. Thus, Citizens Property Insurance Corporation waived their right to invoke the appraisal clause of the home owner’s insurance policy since they did not notify the insured/Plaintiff of her right to participate in the mediation program pursuant to Florida Statute 627.7015.
8. The parties have stipulated to the voluntary dismissal of Counts II and III of the Complaint without prejudice.
It is hereupon ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss Count I or in the alternative to Abate to Appraisal be DENIED. With respect to Counts II and III, pursuant to the stipulation of the parties, they are dismissed without prejudice. The Defendant shall have ten (10) days in which to file an answer to Count I of the Complaint.