MD Grants Insurer’s Motion To Compel Appraisal, Rejecting Waiver Argument

By Zachary D. Sonenblum

In LeMcke v. Scottsdale Ins. Co., the United States District Court for the Middle District of Florida granted Scottsdale’s motion to compel appraisal and rejected Plaintiff’s argument that Scottsdale waived the right to demand by appraisal by waiting until the lawsuit was filed to demand said appraisal. More specifically, Plaintiff LeMcke argued that Scottsdale needed to invoke appraisal in response to her Notice of Intent to Initiate Litigation filed with the Florida Department of Financial Services, but the Court was not persuaded by Plaintiff’s argument.

To the contrary, the Court found that 1) the Policy did not provide a deadline for invoking appraisal and 2) that Scottsdale did not actively participate in the litigation necessary to trigger a waiver of the right to demand appraisal. More specifically, the Court stated the following:

The Court is not persuaded. Lemke cites no policy provision that sets a deadline for invoking appraisal. And in the absence of such a term, Defendant was not required to seek appraisal before Lemke filed suit. “[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); see also Am. Cap. Assur. Corp. v. Courtney Meadows Apartment, L.L.P., 36 So. 3d 704, 707 (Fla. 1st DCA 2010) (finding appraisal demand timely since the policy did not contain any language to invoke appraisal within set time from receiving or waiving sworn proof of loss). Put simply, an insurer does not act inconstant with its appraisal rights by waiting until suit is filed to demand appraisal. Gonzalez v. State Farm Fire & Cas. Co., 805 So. 2d 814, 817 (Fla. 3d DCA 2000) (finding no waiver where motion to compel appraisal was made within thirty days of filing suit).

LeMcke v. Scottsdale Ins. Co., 2024 U.S. Dist. LEXIS 33009, No. 2:24-cv-46-JLB-KCD at *2-3 (M.D. Fla. Feb. 27, 2024).

The Court further explained that Scottsdale “did not actively litigate this case. Indeed, the Court stayed all discovery when entering the Hurricane Ian Scheduling Order. These facts do not trigger waiver.” Id. Finally, the Court reiterated Florida law’s overwhelming preference to resolve conflicts through any extra-judicial means, concluding that “[g]iven this preference, and with no facts showing waiver, the motion to compel appraisal is both mandated by the policy and appropriate.” Id. at *4.

Accordingly, the Court granted Scottsdale’s Motion to Compel Appraisal and Motion to Stay, and entered an Order staying the litigation pending the completion of the appraisal process.