Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT HERITAGE PROPERTY & CASUALTY ) INSURANCE COMPANY, ) ) Appellant, ) ) v. ) Case No. 2D20-587 ) SUPERIOR CONTRACTING & ) ENVIRONMENTAL SPECIALTIES, LLC ) a/a/o Villages at Stella Maris COA 2700, ) Inc., ) ) Appellee. ) ) Opinion filed March 26, 2021. Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Collier County; Lauren L. Brodie, Judge. Kara Rockenbach Link and David A. Noel of Link & Rockenbach, PA, West Palm Beach; and Jeffrey A. Rubinton and Udoka O. Nwosu of Rubinton & Associates, P.A., Tampa, for Appellant. George A. Vaka and Kurt J. Rosales of Vaka Law Group, Tampa; and Mark A. Dombrosky of Smith & Thompson, Tampa, for Appellee. SMITH, Judge. Heritage Property and Casualty Insurance Company appeals the trial court's nonfinal order granting Superior Contracting & Environmental Specialties, LLC's motion to compel appraisal of a claim under an insurance policy. Because we find Superior waived its right to appraisal, we reverse the trial court's order compelling appraisal.1 I. The insured submitted a claim to Heritage under its insurance policy for property damage caused by Hurricane Irma, with a date of loss of September 10, 2017. By letter dated November 6, 2017, Heritage accepted coverage for the damage caused by Hurricane Irma but determined that the amount of the loss was below the insured's hurricane deductible.2 Almost two years later, on March 11, 2019, the insured entered into an assignment of benefits with Superior whereby the insured assigned its insurance rights and any potential claim against Heritage under the insurance policy to Superior and, in exchange, Superior would perform the required repairs to the property.3 At some point thereafter, Superior determined that the amount of loss to the property was in excess of $200,000 and sent Heritage documentation regarding this loss. Heritage 1Because the issue of waiver is dispositive, we do not address the trial court's failure to conduct an evidentiary hearing on whether Superior complied with the postloss obligations under the terms of the policy prior to compelling the appraisal. 2The loss determined by Heritage was only $1186, which was far less than the policy deductible of $39,616 for hurricane loss. 3By virtue of this assignment, Superior stood in the shoes of the insured, and so we find no merit in Superior's argument that its right to demand an appraisal did not arise until after it acquired its rights under the assignment of benefits. See Bioscience West, Inc. v. Gulfstream Prop. & Cas. Ins. Co., 185 So. 3d 638, 642 (Fla. 2d DCA 2016) ("[I]nsured/assignor, then assigned her vested insurable interest by the post- loss execution of the assignment of benefits to [assignee], permitting [assignee] to step into [insured's] shoes."). -2- did not respond and alleges that it did not receive any notice of a dispute as to the amount of loss prior to Superior filing suit. Three months later, on June 29, 2019, Superior initiated a lawsuit with a single count for breach of contract against Heritage, alleging Heritage breached the insurance contract by failing to pay all damages owed under the policy. No demand for an appraisal was made in the complaint. Instead, Superior served with the complaint multiple discovery requests on Heritage, including a request for production, request for admissions, first set of interrogatories, and a notice of taking deposition duces tecum of Heritage's corporate representative. Only after Heritage moved to dismiss Superior's complaint and filed a motion for entry upon land for inspection did Superior seek an appraisal and a stay of the proceedings in its response to the motion to dismiss. The trial court held a hearing and granted Heritage's motion to dismiss and its motion requesting an inspection and ordered Superior to file an amended complaint specifically amending certain allegations relating to the performance of any conditions precedent. Superior's motion to compel appraisal was scheduled for hearing on January 24, 2020, after the deadline to file its amended complaint. Superior timely filed its amended complaint—no demand for an appraisal was pled. Heritage again moved to dismiss the amended complaint. Before the hearing on Superior's motion to compel appraisal, Heritage filed its amended response arguing, among other grounds, that Superior waived its right to appraisal by actively participating in litigation. At the hearing on Superior's motion to compel appraisal, on January 24, 2020, the trial court denied Heritage's second motion to dismiss and -3- granted Superior's motion to compel appraisal. Thereafter, the trial court entered two orders: an order denying Heritage's motion to dismiss and ordering Heritage to answer the amended complaint and to respond to the discovery that was served with the initial complaint and an order granting Superior's motion to compel the appraisal and staying the action ninety days pending the appraisal. During the ninety-day stay, Heritage filed its answer as required by the trial court's order, and Superior filed a reply to Heritage's answer and affirmative defenses. This appeal followed. II. When reviewing a trial court's ruling on a motion to compel appraisal, the trial court's factual findings are reviewed for competent, substantial evidence, while the trial court's application of the law to the facts is reviewed de novo. Fla. Ins. Guar. Ass'n v. Waters, 157 So. 3d 437, 439-40 (Fla. 2d DCA 2015). "But when the trial court makes no findings of fact on the issue of waiver and the facts are undisputed, appellate review is de novo." Id. at 440 (citing Fla. Ins. Guar. Ass'n v. Branco, 148 So. 3d 488, 493 (Fla. 5th DCA 2014)). We employ a de novo review here. An "[a]ppraisal exists for a limited purpose—'the determination of the amount of the loss.' " Citizens Prop. Ins. Corp. v. Mango Hill #6 Condo. Ass'n, 117 So. 3d 1226, 1230 (Fla. 3d DCA 2013). An appraisal becomes appropriate after the insurer acknowledges that an insured has sustained a covered loss. Fla. Ins. Guar. Ass'n v. Reynolds, 148 So. 3d 840, 842 (Fla. 5th DCA 2014); see also Branco, 148 So. 3d at 493-94. Because Heritage admitted coverage and evaluated the claim back in November 2017, it follows that an appraisal would have been appropriate at that time. However, two years would elapse before any appraisal was sought. Based upon the -4- limited record before us, it is unclear whether Heritage was aware of any disagreement as to the amount of the loss prior to the lawsuit. But what is clear is that Superior filed suit and sought extensive discovery relevant to the amount of the loss before seeking an appraisal. The cases relied upon by Superior that allow an insurer to demand appraisal after the insured filed suit, where coverage was initially denied, have no application here. Cf. Branco, 148 So. 3d 488; Gonzalez v. State Farm Fire & Cas. Co., 805 So. 2d 814 (Fla. 3d DCA 2000). Waiver has been defined as "the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right." Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005) (citing Major League Baseball v. Morsani, 790 So. 2d 1071, 1077 n.12 (Fla. 2001)). Like the right to arbitration, or any other contractual right, a party may waive the right to demand an appraisal when the party's conduct is inconsistent with that right, such as participating in litigation. Waters, 157 So. 3d at 440. The courts have viewed the question of whether a party's participation in litigation will be sufficient to act as a waiver of the right to demand appraisal on a case-by-case basis, focusing on whether the party acted inconsistently with this right. See Branco, 148 So. 3d at 493 (noting that while the length of time that a case has been pending may be relevant in deciding whether a waiver has occurred, it is not the sole inquiry nor is it dispositive of whether a party has waived the right to demand an appraisal). Here, Heritage acknowledged that the property had sustained damage from Hurricane Irma in 2017 but determined that the damage amounted to a loss far below the policy's deductible. Nearly two years later, Superior, standing in the shoes of -5- the insured, filed a complaint and contemporaneously sought extensive discovery related to the same issues that would be addressed in an appraisal. Neither the insureds nor Superior demanded an appraisal prior to the litigation or at the time the lawsuit was filed. It was only after Heritage moved to dismiss the complaint that Superior sought to compel an appraisal and stay the case. And even after the trial court granted Superior everything it asked for, including the stay, Superior again acted inconsistently with the appraisal process by preparing and submitting a proposed order on Heritage's motion to dismiss that included a paragraph requiring Heritage to respond to the outstanding discovery within twenty days of the order—during the ordered stay— and by affirmatively participating in the litigation by replying to Heritage's answer and affirmative defense in contravention of the stay.4 For these reasons we cannot say that Superior acted consistently with its appraisal rights. On the contrary, these actions were consistent with Superior's desire to litigate, as opposed to resolving their dispute vis-à-vis the appraisal process. Accordingly, under these specific circumstances, we find that Superior voluntarily and intentionally waived its right to seek an appraisal under the terms of the policy. See Waters, 157 So. 3d at 440-41 (holding the insured actively litigated the case and waived any right to an appraisal by amending the complaint and engaging in substantial discovery); Reynolds, 148 So. 3d at 841-42 (explaining a demand for appraisal became appropriate after the insurer acknowledged loss and a waiver of the right to seek appraisal occurs when the party seeking appraisal actively 4We note that the order on the motion to dismiss only ordered Heritage to file its answer to the complaint and response to the discovery and that the order compelling appraisal and staying the case did not provide for the filing of additional pleadings other than the answer by Heritage. -6- participates in a lawsuit or engages in conduct inconsistent with the right to appraisal). III. In conclusion, under the facts of this case, Superior waived its right to proceed with an appraisal to determine the amount of loss, having, instead, chosen the path of litigating the amount of the loss. Accordingly, we reverse the order compelling appraisal and remand for further proceedings. Reversed and remanded for further proceedings. LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur. -7-