Reliance Ins. Co. v. Harris, s. BM-406
| Decision Date | 05 March 1987 |
| Docket Number | Nos. BM-406,BP-262,s. BM-406 |
| Citation | 12 Fla. L. Weekly 715,503 So.2d 1321 |
| Parties | 12 Fla. L. Weekly 715 RELIANCE INSURANCE COMPANY, a Pennsylvania corporation, Appellant, v. Henry T. HARRIS and Harris Engraving Company, a Florida corporation, Appellees. |
| Court | Florida District Court of Appeals |
W. Lane Neilson, of Neilson and Associates, Orlando, for appellant.
Franklin Reinstine, of Reinstine, Reinstine, & Panken, Jacksonville, for appellees.
Reliance Insurance Company brings this appeal from a final summary judgment holding the amount of loss due to fire damage to be the amount agreed upon by two appraisers pursuant to an appraisal clause in the insurance policy, and from an order amending a judgment for attorney's fees and costs. We affirm the final summary judgment but reverse the order of attorney's fees and costs.
Henry T. Harris and Harris Engraving Company (Harris) filed a complaint against Reliance to recover damages on a fire insurance policy, the damages having been caused by a fire to the building owned by Harris and covered by the policy. Reliance filed a motion to abate and compel appraisal pursuant to paragraph eight of the policy, which provides in part:
If the Named Insured and the Company fail to agree as to the amount of loss, each shall, on the written demand of either, select a competent and disinterested appraiser and notify the other of the appraisers selected.... The appraisers shall then appraise the loss in accordance with the policy conditions, stating separately the amount of loss, and failing to agree shall submit their differences to the umpire [previously selected by the appraisers].
An award in writing of any two shall determine the amount of loss.
Reliance's motion to compel appraisal was granted, and the parties selected the respective appraisers. In the meantime, the city demolished the building after having condemned it as a safety hazard. The appraisers disagreed as to the amount of loss and therefore submitted their differences to the umpire. The umpire subsequently rendered his award, agreeing with Harris' appraiser that the building was a total loss. Reliance's appraiser, on the other hand, figured the loss on the basis of the cost of repair, without considering the fact that the building had been demolished.
On the basis of the umpire's report, Harris filed a motion for summary judgment. In granting the motion, and entering final summary judgment, the trial court found that The court quoted the finding of loss by the umpire and concluded that there was no issue as to any material fact and that Harris was entitled to recover the face amount of the policy, less 10 percent for the policy coverage of coinsurance, less $100 representing the deductible, or $244,700 plus interest.
On appeal, Reliance raises four points, all of which are essentially bottomed on whether Harris was required to mitigate the damages to the building. It is Reliance's position that the building would not have been a total loss but for Harris' failure to repair or replace the building, or to otherwise mitigate the damages as allegedly required in paragraph 1(b) of the policy....
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