Full Opinion

Third District Court of Appeal State of Florida Opinion filed October 7, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D20-266 Lower Tribunal No. 19-22640 ________________ People's Trust Insurance Company, Appellant, vs. Farua Portuondo, Appellee. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Jose M. Rodriguez, Judge. Beck Law, P.A., and Joshua S. Beck (Boca Raton); Brett R. Frankel, Jonathan Sabghir and Robert B. Gertzman (Deerfield Beach), for appellant. Greenspoon Marder, LLP and John H. Pelzer (Fort Lauderdale); Geyer Fuxa Tyler, PLLC, Jeremy Tyler, Andy Fuxa and Maria Fuxa (Sunrise), for appellee. Before FERNANDEZ, LINDSEY, and GORDO, JJ. FERNANDEZ, J. People’s Trust Insurance Company (“People’s Trust”) appeals the non-final Order Denying Defendant’s Motion to Compel Appraisal. Concluding that People’s Trust did not waive its right to appraisal by either 1) choosing to extend only partial coverage to the losses claimed by the insured, or 2) abating the appraisal process after insured served People’s Trust with a breach of contract lawsuit, we reverse and remand with instructions to grant People’s Trust motion to compel appraisal. On September 10, 2017, plaintiff Farua Portuondo’s (“Portuondo”) property was damaged by Hurricane Irma. Portuondo reported the damage to People’s Trust on December 7, 2018. In response to the claim, People’s Trust agreed to cover the interior damage but not the damage to the roof. Disagreeing with the scope of covered repairs, Portuondo filed suit against People’s Trust on July 30, 2019. People’s Trust demanded appraisal on August 26, 2019, and the appraisal process subsequently began. Upon being served with the lawsuit on September 16, 2019, midway through the appraisal process, People’s Trust instructed its adjuster to stop work on the appraisal and filed Motions to Compel Appraisal, to Compel Defendant’s Right to Repair, and to Compel Payment of the Policy’s Hurricane Deductible, together with a Memorandum of Law. Portuondo filed a Civil Remedy Notice of Insurer Violations on December 10, 2019, to which People’s Trust responded on January 2, 2020. On February 5, 2020, the trial court denied People’s Trust’s Motion to Compel Appraisal without 2 including the court’s reasoning in the order. Our review of the hearing transcript, suggests that the judge denied the motion because the insurer provided partial coverage, which did not include coverage of the damaged roof. The court stated in relevant part: The Court: Is there a roof issue as to coverage? Mr. Hodges: The roof will be covered in appraisal. The appraiser . . . . The Court: Is the roof covered and the only issue is come back . . . . Mr. Hodges: They think that the roof is covered. We don’t think that the roof is covered, but it’s an issue for appraisal. The Court: Your motion is denied. Have a wonderful day. People’s Trust appealed this order the following day on February 6, 2020. The standard of review of a trial court’s ruling on a motion to compel appraisal is de novo. People’s Tr. Ins. Co. v. Garcia, 263 So. 3d 231, 233 (Fla. 3d DCA 2019) (finding that the application of law to the facts by the trial court is reviewed de novo); see also Underwriters at Lloyd’s, London v. Sorgenfrei, 278 So. 3d 930, 931 (Fla. 5th DCA 2019). Furthermore, the trial court’s factual findings are reviewed for competent substantial evidence. Fla. Ins. Guar. Ass’n, Inc. v. Castilla, 18 So. 3d 703, 704 (Fla. 4th DCA 2009). Portuondo argues that People’s Trust waived its right to appraisal by choosing to cover only part of the loss claimed by Portuondo. We disagree. This Court has found that an insurer’s motion to compel appraisal should be granted when an insurer 3 decides to repair a covered loss and when the parties do not agree on the scope of repairs. See Baptiste v. People’s Tr. Ins. Co., 299 So. 3d 1148 (Fla. 3d DCA 2020). The “governing provision” in Baptiste is the same appraisal provision included in Portuondo’s policy. Also, as in Baptiste, Portuondo and People’s Trust disagreed on the “amount of loss” and “scope of repairs,” specifically whether the roof was covered and whether the deductible was met. Additionally, this Court has granted insurer’s right to appraisal when the insurer “has not wholly denied coverage,” leaving the “amount-of-loss question for the appraisal panel.” Garcia, 263 So. 3d at 238. As in Garcia, the insurer here covered interior damage resulting from damage to the roof in Portuondo’s home but excluded coverage for the roof itself because it was not covered by the policy. Applying this Court’s precedent to the facts here, we conclude that the trial court’s order denying People’s Trust’s Motion to Compel Appraisal must be reversed. Portuondo claims that People’s Trust waived its right to appraisal by abating the original appraisal after being served with the lawsuit. We disagree. A party’s right to appraisal is waived when the “party actively participates in a lawsuit or engages in conduct inconsistent with the right to appraisal.” Fla. Ins. Guar. Ass’n, Inc. v. Martucci, 152 So. 3d 759, 761 (Fla. 5th DCA 2014) (citing Fla. Ins. Guar. Ass’n v. Maroulis, 153 So. 3d 298, 300 (Fla. 5th DCA 2014)). People’s Trust did 4 not actively participate in Portuondo’s lawsuit; rather, People’s Trust moved to compel appraisal after Portuondo filed the lawsuit. Portuondo further argues that People’s Trust “engage[d] in conduct inconsistent with the right to appraisal” by ordering its appraiser to stop working on the appraisal when it was already a month into the process. Id. We disagree. Portuondo does not cite to any caselaw that renders this action inconsistent with the right to appraisal. Additionally, this Court and the Florida Supreme Court have demonstrated their preference for appraisal in situations where there is a challenge to the amount of loss covered by the insurer. Citizens Property Ins. Corp. v. Mango Hill Condo. Ass’n 12 Inc., 54 So. 3d 578, 581 (Fla. 3d DCA 2011) (citing Johnson v. Nationwide Mut. Ins. Co., 828 So. 2d 1021, 1022 (Fla. 2002)). Thus, because People’s Trust’s right to appraisal was not only preserved but preferred in this situation, we find that the trial court erred in denying People’s Trust’s Motion to Compel Appraisal. Accordingly, we reverse the order on appeal and remand with instructions to grant the motion to compel appraisal. Reversed and remanded with instructions. 5