Clausen Miller Secures Denial of Motion to Compel Appraisal in US District Court for the Southern District of Florida
Kelly Vogt successfully blocked a motion to compel her client to appraisal in the U.S. District Court for the Southern District of Florida.
In December 2022, the plaintiff filed a complaint against Kelly’s client alleging breach of contract and declaratory judgment in addition to demanding a jury trial. The plaintiff later filed an amended complaint alleging one claim for breach of contract and repeating their jury trial demand.
The defense then filed a motion to dismiss the amended complaint, which the court granted as the plaintiff failed to respond. The plaintiff filed a second amended complaint containing the same claims as the first. The defense moved to dismiss, which the court granted in part, ordering the plaintiff to file a third amended complaint with his wife as a claimant.
In June 2023, the plaintiffs filed a motion to compel appraisal pursuant to the terms of the insurance policy. The defense filed a response arguing that the plaintiffs waived their right to pursue appraisal as a litigation alternative when they filed the lawsuit and amended the complaint three times without an appraisal request.
Citing Pena v. Scottsdale Ins. Co., the court held that the right to appraisal may be waived if a party acts inconsistently with the appraisal remedy. The court therefore dismissed the plaintiffs’ motion to compel appraisal.
Kelly Vogt is the Co-Managing Partner of Clausen Miller’s Florida offices. She focuses her practice on first-party property and insurance coverage matters. She is also experienced in the areas of third-party liability, appellate law, general civil litigation, and professional liability defense.
Kelly M. Vogt