Middle District of Florida Holds That Appraisal Not Waived When Invoked After Suit
By Douglas M. Cohen
In this first party property insurance dispute, Lemcke v. Scottsdale Ins. Co., No. 2:24-cv-46-JLB-KCD, 2024 U.S. Dist. LEXIS 33009 (M.D. Fla. Feb. 27, 2024), the Defendant/Insurer moved to compel appraisal after suit was filed. The parties did not dispute that appraisal was available under the policy. However, the Plaintiff/Insured argued that the Defendant waived appraisal by not invoking it pre-suit, or in its response to the Notice of Intent to Initiate Litigation filed with the Florida Department of Financial Services.
Although the Court recognized that appraisal can be waived “when the party seeking appraisal actively participates in a lawsuit or engages in conduct inconsistent with the right to appraisal”, the Court found that the Insured cited no policy provision setting a deadline for invoking appraisal and that a one-month delay from Defendant answering the complaint and demanding appraisal was not considered actively litigating the case. The Court recognized “there is an overwhelming preference in Florida for the resolution of conflicts through any extra-judicial means…for which the parties have themselves contracted.” Given this preference, the Court granted the Defendant’s motion to compel appraisal.
Douglas M. Cohen