Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-1373 _____________________________ CASTLE KEY INSURANCE COMPANY, Appellant, v. WOODEN FAMILY TRUST, Appellee. _____________________________ On appeal from the Circuit Court for Bay County. John L. Fishel, II, Judge. June 1, 2021 JAY, J. Defendant below, Castle Key Insurance Company (“Castle Key”), appeals from the nonfinal order denying its Motion to Abate Action, Stay Discovery and Compel Appraisal in this breach of insurance contract action. 1 The trial court agreed with Plaintiff below, Wooden Family Trust (“the Trust”), that Castle Key actively litigated the case and, thus, waived its right to compel an appraisal. We disagree. We hold that Castle Key’s motions were reasonable under the circumstances, its participation in the 1 We have jurisdiction. See Art. V, § 4(b)(1), Fla. Const.; Fla. R. App. P. 9.130(a)(3)(C)(iv). litigation did not imply a voluntary and intentional relinquishment of its contractual right to compel an appraisal, and—in all relevant respects—its actions were indistinguishable from those undertaken by the insurer in State Farm Florida Insurance Co. v. Nordin, 312 So. 3d 200 (Fla. 1st DCA 2021), in which we reversed a similarly-based nonfinal order. Consequently, for the reasons expressed in Nordin, we also reverse the nonfinal order denying Castle Key’s motion and remand the case for further proceedings. We write only to clarify why Castle Key was entitled to file a motion for more definite statement without crossing the implied line between a legitimate litigation position and conduct effecting the waiver of its express right to an appraisal. I. Castle Key insured the Wooden Family Trust’s property under a homeowner’s policy from March 16, 2018, through March 16, 2019. In October 2018, the Trust filed a claim for property damages caused by a hurricane. Castle Key accepted coverage for the claim under the policy and advanced payments in November and December 2018. In March 2019, the Trust’s public adjuster submitted an estimate that was significantly higher than Castle Key’s initial estimate. Castle Key returned to the property and, upon inspection, issued a supplemental payment in May 2019. Notwithstanding, in August 2019, the Trust sued Castle Key for breach of contract and declaratory relief, alleging Castle Key had not paid its claim as required by the policy. Written discovery was served with the lawsuit. In paragraph 13 of Count I of the complaint the Trust alleged that Castle Key failed to (i) acknowledge coverage for the Loss; and/or (ii) acknowledge that payment of insurance proceeds for the Loss [would] be forthcoming; and/or (iii) issue payment in full of insurance proceeds for the Loss to Plaintiff. It was further alleged that said conduct constituted a breach of contract entitling the Trust to payment of all unpaid bills with interest. 2 Castle Key responded by filing a motion for more definite statement pursuant to Florida Rule of Civil Procedure 1.140(e). The motion focused on the allegations pleaded in the alternative in paragraph 13. Castle Key asserted it could not determine from the paragraph which coverage or what damages were at issue, or whether the Trust was alleging additional damages. As a result, Castle Key maintained it was “unable to intelligibly evaluate the claims at issue or formulate its response to the Complaint whether in the form of an answer and affirmative defenses, or demand for appraisal.” In short, Castle Key averred that it could not “determine the specific matter which [was] in dispute” and, consequently could not “frame a response to the Complaint.” In addition, Castle Key filed a motion to dismiss the separate count for declaratory relief. At the hearing on the motions, counsel for Castle Key distilled its argument for a more definite statement to its essence: So it’s unclear what the Plaintiff is seeking or what the issue is. Are they saying there’s no payment? Are they saying that the payment was not enough? So we’re not really understanding what the Plaintiff is seeking, what’s at issue, so we can’t really frame a response to the count for breach of contract. We’re not sure how to plead or whether it’s even necessary to plead and whether this is something that can simply be resolved through appraisal, because Defendant did actually extend coverage and issue payment, and so that is why we are requesting a more definite statement. (Emphasis added.) The trial court denied both of Castle Key’s motions and ordered Castle Key to respond to the Trust’s written discovery requests by November 13, 2019. It also granted the Trust’s motion to compel depositions. Promptly, on November 26, 2019, Castle Key filed its Motion to Abate Action, Stay Discovery and Compel Appraisal, expressly invoking its right to an appraisal in accordance with the policy terms, which were set forth in full in its motion. The motion asserted that a dispute regarding the amount of loss existed and should be resolved by appraisal. That same day, Castle Key filed 3 an answer denying any breach and raising the appraisal provision as an affirmative defense. The motion to compel appraisal was not heard until March 26, 2020. At the hearing, argument was directed principally to the issue of waiver, with the Trust’s attorney arguing that if Castle Key had intended to invoke its right to appraisal under the policy, it should have done so when the public adjuster first made it aware of a dispute over the amount of covered losses in March 2019. In response, Castle Key claimed its participation in the litigation had been entirely passive and consistent with its appraisal right. The trial court denied Castle Key’s motion for an appraisal, finding that it had waived its right. At the hearing, the judge expressed his rationale as follows: I agree with the defense in one respect. I agree that I don’t think that any presuit activity in terms of reinspecting the property or issuing additional payments could be conceived or perceived as being [a] waiver of the right to request appraisal. Because as we well know that’s a part of the process is that . . . you go back out and readjust and inspect and issue additional payments and I think that happens all the time. But . . . to me the more important focus of this – on this particular case with this particular record has to do with the activity after suit was filed. And it’s not – you know, not one that’s necessarily easy to rule on. Some of these are very easy, this one . . . I think is a little bit trickier. But I’m going to have to tell you that I have ruled repeatedly that throughout the last 16, or 17, or 18 months, however long it’s been since that hurricane hit here, that the demand for appraisal can be made after suit is filed and I think the case law supports that. However, in this particular instance where what we did in response to the complaint is a Motion for More Definite Statement as to Count 1 and a Motion to Dismiss to Count 2, and then a hearing on that, and then a couple 4 of Motions for Extension of Time, and then an Answer to [sic] Motion to Compel Appraisal, that to me is a different picture than what I have seen repeatedly; which is as soon as the defendant is served with the complaint, we get a Motion to Stay Discovery or Motion for Protective Order and a Motion to Dismiss the Case or Stay it pending appraisal. So in this particular case with this particular record I’m going to conclude that indeed the defense did waive the right to demand appraisal by not asserting it earlier in the litigation. II. As generally recognized, “[a]n appraisal clause may be invoked for the first time after litigation has commenced.” Fla. Ins. Guar. Ass’n, Inc. v. Castilla, 18 So. 3d 703, 705 (Fla. 4th DCA 2009) (citing Gonzalez v. State Farm Fire & Cas. Co., 805 So. 2d 814 (Fla. 3d DCA 2000)); accord People’s Tr. Ins. Co. v. Fernandez, 46 Fla. L. Weekly D444 (Fla. 3d DCA Feb. 24, 2021) (reaffirming Castilla); Fla. Ins. Guar. Ass’n v. Branco, 148 So. 3d 488, 494 (Fla. 5th DCA 2014). But a waiver of that right “occurs when the party seeking appraisal actively participates in a lawsuit or engages in conduct inconsistent with the right to appraisal.” Fla. Ins. Guar. v. Rodriguez, 153 So. 3d 301, 303 (Fla. 5th DCA 2014) (citing Branco, 148 So. 3d at 493). It is worth noting that two of the motions filed by Castle Key— the motion for more definite statement and the motion to dismiss— had also been filed by the defendant insurer, in Nordin, neither of which, in this Court’s opinion, constituted participation in the litigation so as to be inconsistent with its right to compel an appraisal. Specifically, we held that State Farm’s motions for more definite statement and to stay discovery were filed “with the express purpose of determining whether appraisal was appropriate.” 312 So. 2d at 204. We further noted that it was not until State Farm received Nordin’s amended complaint that it “knew the dispute was over the amount of loss and that appraisal would be appropriate.” Id. State Farm then responded to the amended complaint by moving to compel appraisal under the policy and raised its right of appraisal as an affirmative defense in 5 its answer. Accordingly, we held that “the length of litigation, the number of filings, and the substance of State Farm’s motions and pleadings were all consistent with its right of appraisal” and that “the record reflect[ed] deliberate action to evaluate the nature of the claims and then invoke appraisal at the first reasonable opportunity.” Id. at 204–05. We see no compelling reason to depart from that holding in this case. III. It is abundantly clear that Castle Key’s motion for more definite statement was a key component of the trial court’s decision to deny its motion to compel an appraisal. In our view, however, given the vague and ambiguous nature of the Trust’s claims in Count I, it was unreasonable to require Castle Key to file a responsive pleading. Florida Rule of Civil Procedure 1.140(e) addresses a motion for more definite statement in the following contexts: “If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, that party may move for a more definite statement before interposing a responsive pleading.” Admittedly, the motion has been roundly criticized and its efficacy marginalized by a number of commentators. 2 Nevertheless, 2 See Henry P. Trawick, Florida Practice & Procedure § 11:11 (2020-2021) (footnote omitted) (“The motion is a useless anachronism. There are no allegations so vague or ambiguous that the responding pleader cannot deny them or plead that he is without knowledge of them. If the pleading states a cause of action, logically it must be definite enough to respond to. If the pleading does not state a cause of action, it should be dismissed.”); Bruce J. Berman & Peter D. Webster, 4 Fla. Prac., Civil Procedure § 1.140:43 (Apr. 2021) (footnote omitted) (“It is difficult, indeed, to imagine how, on the one hand, a complaint can have sufficient clarity in alleging a cause of action both to meet the pleading requirements of Rule 1.110 and be able to survive dismissal under subdivision (b) of Rule 1.140, while on the other hand, the very same complaint can be so ‘vague and ambiguous’ as to make it impossible for the defendant to frame an answer. It is thus difficult 6 despite its detractors, the motion continues to maintain its niche as a defensive motion—however small—and continues to enjoy a modicum of vitality and propriety under the correct circumstances. 3 See e.g., Foerman v. Seaboard Coast Line R.R. Co., 279 So. 2d 825, 827 (Fla. 1973) (footnotes omitted) (“The numerous authorities holding that the complaint must be sufficiently pleaded so as to apprise both the court and the defendant of the nature of the claim asserted, draw a distinction between the purpose of a motion to dismiss for failure to state a cause of action and a motion for more definite statement (the latter being directed to vagueness and ambiguity).”); Jensen v. Pinellas Cty., 293 So. 3d 1076, 1080 n.4 (Fla. 2d DCA 2020) (citations omitted) (“We note that defects of vagueness are appropriately addressed with a motion for more definite statement or motion to strike, not with a motion to dismiss.”); Manka v. DeFranco’s Inc., 575 So. 2d 1357, 1360 (Fla. 1st DCA 1991) (finding the allegations of the counterclaim sufficient to assert a cause of action for fraudulent misrepresentation “so as to preclude a judgment on the pleadings,” but observing that a motion for more definite statement “could have [been] sought to clarify any ambiguity”); Wilson v. Clark, 414 So. 2d 526, 528–29 (Fla. 1st DCA 1982) (holding the trial court’s denial of the motion to dismiss the complaint was proper since the motion was “an improper vehicle to imagine how a credible motion can be made under subdivision (e), or that trial judges would be particularly receptive to such motions.”); Philip J. Padovano 5 Fla. Prac., Civil Practice § 7:28 (2021 ed.) (footnote omitted) (“Arguably, this remedy is one of little value. If a pleading is so vague and ambiguous that it would be unreasonable for the court to expect a response, that pleading would be subject to dismissal.”). 3 Patrick P. Coll, CIVPRAC FL-CLE Florida Civil Practice Before Trial § 13.2.G.5. (13th ed. 2020) (citation omitted) (“As previously noted, a motion to dismiss for failure to state a cause of action is not appropriate to attack vague and ambiguous pleadings. Fla. R. Civ. P. 1.140(e) provides that a party required to respond to a pleading may first move for a more definite statement when the pleading ‘is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading.’”). 7 to employ,” observing that the defendant “had two avenues upon which to rectify the improper pleading of undue influence,” one of which was to file “a motion for a more definite statement pursuant to Rule 1.140(e), Florida Rules of Civil Procedure, in an effort to seek a clarification of vague and ambiguous allegations of undue influence,” the other, a motion to strike the allegations); see also Ekberg v. Pennington, No. Civ. A. 02-845, 2002 WL 1611641 *1 (E.D. La. July 19, 2002) (“A district court will grant a motion for a more definite statement pursuant to Rule 12(e) when the pleading at issue ‘is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading.’ Fed. R. Civ. P. 12(e). . . . [T]he Supreme Court recently noted that ‘[i]f a pleading fails to specify the allegations in a manner that provides sufficient notice,’ then a Rule 12(e) motion may be appropriate. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S. Ct. 992, 998, 152 L. Ed. 2d 1 (2002).”). The tension that is evident in the foregoing authorities respecting the motion for more definite statement in relation to a motion to dismiss was skillfully addressed by the commentators in Wright and Miller’s formidable treatise, Federal Practice and Procedure regarding the federal counterpart to Florida’s rule 1.140(e)—Federal Rule of Civil Procedure 12(e). 4 See Arthur R. Miller, Mary Kay Kane, & A. Benjamin Spencer, Federal Practice & Procedure (Wright & Miller) (Oct. 2020 Update). As the treatise clarified: The language of Rule 12(e) suggests that it should ordinarily not be directed at a pleading that does not 4 Fed. R. Civ. P. 12(e): “Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.” 8 contain a claim for relief. Inasmuch as no responsive pleading is required to a pleading that does not contain a claim, it should not be subject to a motion for a more definite statement. Id. at § 1376. The treatise continued by sharply distinguishing the distinct roles of the Rule 12(e) motion for more definite statement and the Rule 12(b)(6) motion to dismiss: In addition to being restricted to pleadings to which a response is due, Rule 12(e) is limited to instances in which the challenged pleading “is so vague or ambiguous that the party cannot reasonably prepare a response.” An appreciation of the relationship between the Rule 12(e) and the Rule 12(b)(6) motions is critical to understanding this standard and the proper office of the motion for a more definite statement. If the movant believes the opponent’s pleading does not state a claim for relief, the proper course is a motion under Rule 12(b)(6) even if the pleading is vague or ambiguous. Moreover, even if the pleading is so sketchy that it cannot be construed to show a right to relief, the proper attack is by a motion under Rule 12(b)(6) rather than Rule 12(e). If the pleading is impermissibly vague, the court may act under Rule 12(b)(6) or Rule 12(e), whichever is appropriate, without regard to how the motion is denominated. Thus, the class of pleadings that are appropriate subjects for a motion under Rule 12(e) is quite small. As the cases make clear, to withstand a motion under Rule 12(e) a pleading must be sufficiently intelligible for the district court to be able to make out one or more potentially viable legal theories on which the claimant might proceed. At the same time, the pleading also cannot be so vague or ambiguous that the opposing party cannot respond—even with a simple denial—in good faith, without prejudice to himself. Rule 12(e) motions are particularly useful when addressing so called ‘shotgun pleadings,’ and some courts have ordered repleading sua sponte when faced with such complaints. . . . 9 Because the difference between a pleading that either fails to state a claim for relief or is so poorly drafted that it gives the appearance of not stating a claim for relief and a pleading that states a claim so vaguely or ambiguously that it cannot be answered often is difficult to perceive, a number of federal courts sometimes have found it necessary to convert erroneously made Rule 12(b)(6) motions into Rule 12(e) motions. Similarly, challenges to a pleading often request relief under Rule 12(b)(6) and Rule 12(e) in the alternative. This difficulty in distinguishing between a complaint that fails to state a claim at all and one that fails to state a claim intelligibly, however, does not mean there is an identity between the requirements for surviving a motion under Rule 12(b)(6) and one under Rule 12(e). . . . Id. To the extent rule 1.140(e) traces the language of the federal rule, the foregoing evaluation may serve to explain why Castle Key filed both a motion for more definite statement and a motion to dismiss. Regardless, as to the motion for more definite statement, the relevant analysis is whether Castle Key could not have reasonably been required to answer Count I. Given the significant ambiguities in paragraph 13, we believe that filing a motion for more definite statement was the correct choice. Our decision in Frisch v. Kelly, 137 So. 2d 252 (Fla. 1st DCA 1962), adds further support for this view. In Frisch the plaintiff appealed from a final judgment dismissing with prejudice his complaint for breach of contract based on the defendant’s motion to dismiss for failure to state a cause of action. Specifically, the judgment was based on the trial court’s findings that the complaint’s allegations were “‘so vague, ambiguous, uncertain, indefinite and/or contradictory as to fail to state a cause of action.’” Id. at 253. The plaintiff complained on appeal that the trial court should not have dismissed his complaint if the only objection to it was vagueness and ambiguity. Rightly perceiving the plaintiff’s argument to mean that his complaint could be remedied simply by a defense motion for a more definite statement, this Court instructed him on the finer distinctions between the two motions. 10 If a pleading to which a responsive pleading is required or permitted is so vague or ambiguous that the responding party cannot reasonably be required to frame a responsive pleading thereto, relief may be obtained by the responding party through a motion for more definite statement in accordance with the provisions of [then] Rule 1.11(e), Florida Rules of Civil Procedure, 30 F.S.A. As stated by the Second District Court of Appeal, ‘A motion to dismiss a complaint for failure to state a cause of action does not reach the defects of vague and ambiguous pleading, nor does it reach redundant, immaterial, impertinent or scandalous matter. A motion for more definite statement is appropriate for dissipation of vagueness and ambiguity . . . .” If, however, a complaint is so vague, indefinite and ambiguous as to wholly fail to state a cause of action, it is subject to dismissal. Id. (footnote omitted) (quoting Calhoun v. Epstein, 121 So. 2d 828 (Fla. 2d DCA 1960)). For our purposes, Frisch answers the critical question. As Castle Key credibly argued, Count I of the Trust’s complaint was so ambiguous that Castle Key could not have reasonably been required to prepare a responsive pleading. By stringing together three purported breaches separated by the and/or conjunction, paragraph 13 created seven alternative violations in a single sentence. This deficiency was exacerbated by the reincorporation by reference of a predecessor “and/or” paragraph—paragraph 8— that added additional allegations to an already obscure claim. Specifically, paragraph 8 superimposed new breaches into Count I, breaches that emanated from Castle Key’s alleged “fail[ure] to” abide by the contract. Conversely, paragraph 13 alleged that Castle Key “refus[ed] to” honor the parties’ agreement. Thus, in addressing Count I, Castle Key was forced to confront a labyrinth of confusing and imprecise allegations—all advanced by the Trust in the same poorly crafted count. Faced with the similar use of and/or in a complaint, the district court in J & J Sports Productions, Inc. v. Torres, No. 6:09- cv-391-Orl-19DAB, 2009 WL 1774268 (M.D. Fla. June 22, 2009), aptly quipped: “Plaintiffs in federal court are permitted to plead in 11 the alternative, Fed. R. Civ. P. 8(d)(2) (permitting alternative pleading), but they are not permitted to plead ‘in the ambiguous.’” 2009 WL 1774268 at *3 (citations omitted) (“One possible reading of paragraph 21 is that Torres either individually intercepted and de-scrambled the program or directed her employees to do so. However, due to three uses of ‘and/or’ in one sentence, among several other ambiguities, that is only one of several possibilities.”). The judge concluded that if J & J had desired to plead in the alternative, it should have so stated “clearly and succinctly.” Id. Likewise, in the present case, the several potential claims are ill-suited to a good faith simple denial without prejudice to Castle Key. As observed by the district court in Clark v. McDonald’s Corp., 213 F.R.D. 198 (D.N.J. 2003): Examples [warranting a motion for more definite statement include] where the allegations of a complaint are not sufficiently specific to enable a defendant to determine the propriety of interposing in his answer a waivable defense . . . or where, in the absence of certain information peculiarly within the knowledge of the plaintiff, the defendant cannot, in good faith, answer the complaint with a general denial . . . . Id. at 233 (citations omitted). The judge went on to sagely advise that “[m]otions for a more definite statement are also an appropriate vehicle to pare down ‘shotgun’ pleadings” and that “[b]y requiring more definiteness, issue may be joined on particular claims, discrete defenses can be interposed in discrete fashion, and the litigation may be made more manageable, through more controlled discovery, to the benefit of the litigants and the district court alike.” Id. (citations omitted); see also Joe Hand Promotions, Inc. v. Creative Entm’t, LLC, 978 F. Supp. 2d 1236, 1240 (M.D. Fla. 2013) (“The Complaint’s usage of several ‘and/or’ conjunctions among other ambiguities, make the allegations against Defendants vague and ambiguous.” (citing United States v. Bush, 70 F.3d 557, 562 (10th Cir.1995) (explaining that “the use of ‘and/or’ is strongly disfavored because it creates unnecessary ambiguity”)); Pinto v. Microsoft Corp., No. 12-60509- CIV, 2012 WL 5986629 *2 (S.D. Fla. Nov. 29, 2012) (acknowledging 12 that “motions for more definite statement are disfavored,” but granting that a more definite statement was warranted in the case before it where the plaintiff’s amended complaint failed “to link the laws, rules, or regulations listed in paragraph 36 with the conduct described in the remainder” of the amended complaint and agreeing with the defendant that, as drafted, the defendant would “‘be required to demonstrate that each activity, policy, or practice allegedly objected to (over a period of more than two years) did not constitute a violation of not one, but ten different laws, rules, and regulations, and all of their subparts.’”). 5 So, for all of the foregoing reasons, we hold that Castle Key was entirely justified in seeking a more definite statement before filing its answer. Such use of the motion for more definite statement did not signal a shift in the procedural posture of the case—to full litigation—that would warrant a finding that Castle Key had waived its right under the insurance contract to compel an appraisal. IV. Therefore, we reverse the trial court’s order denying Castle Key’s Motion to Abate Action, Stay Discovery and Compel Appraisal for the reasons expressed in Nordin. As was true in Nordin, nothing in the present case establishes that Castle Key 5 Cf. Kenneth A. Adams & Alan S. Kaye, Revisiting the Ambiguity of “And” and “Or” in Legal Drafting, 80 St. J.L. Rev. 1167, 1189-90 (footnotes omitted) (“Drafters sometimes use and/or to convey the meaning of the inclusive or. Judges and legal-writing commentators have fulminated against use of and/or, but it has gained greater acceptance among general authorities. It does, after all, have a specific meaning – X and/or Y means X or Y or both. One could use Acme may dissolve Subsidiary A and/or Subsidiary B as an alternative to [Acme may dissolve one or both of Subsidiary A and Subsidiary B]. (X, Y, and/or Z means X or Y or Z or any two or more of them). On the other hand, X or Y or both is generally clearer than and/or. And drafters sometimes use and/or when the only possible meaning is that conveyed by or: Acme shall incorporate Subsidiary in Delaware and/or New York. On balance, it is best to avoid and/or.”) (Emphasis added.) 13 “waived or engaged in conduct that implies it knowingly waived its right to appraisal.” 312 So. 3d at 205. “To the contrary, the record reflects deliberate action to evaluate the nature of the claims and then invoke appraisal at the first reasonable opportunity.” Id. Accordingly, the order denying Castle Key’s Motion to Abate Action, Stay Discovery and Compel Appraisal is reversed and the cause is remanded for further proceedings consistent with this opinion. REVERSED and REMANDED. B.L. THOMAS and WINOKUR, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Scot E. Samis of Traub Lieberman Straus & Shrewsberry LLP, St. Petersburg, for Appellant. Samuel Alexander of Alexander Appellate Law P.A., DeLand, for Appellee. 14