Silvia v. Castle Key Ins. Co.

• Docket Number: 1D21-3889
• Decision Date: 14 June 2023
• Parties: Joseph Silvia, Appellant, v. Castle Key Insurance Company, Appellee.
• Court: Florida District Court of Appeals

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Joseph Silvia, Appellant,
v.
Castle Key Insurance Company, Appellee.

No. 1D21-3889

Florida Court of Appeals, First District

June 14, 2023

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

On appeal from the Circuit Court for Washington County. Timothy Register, Judge.

Stephanie A. Taylor and J. Phillip Warren of Taylor, Warren &Weidner, P.A., Pensacola, for Appellant.

Jerry D. Sanders of Vernis &Bowling of N.W. Florida, P.A., Pensacola, for Appellee.

RAY, J.

Joseph Silvia appeals a nonfinal order granting Castle Key Insurance Company's motion to invoke appraisal and abate litigation. In granting the motion, the trial court determined that Castle Key's conduct did not result in a waiver of its right to invoke the appraisal clause of the insurance contract. Because Castle Key's participation in litigation was inconsistent with its right to appraisal, we vacate the order on review.

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Castle Key insured Joseph Silvia under a homeowner's policy. In 2018, the home suffered damage from Hurricane Michael, and

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Silvia submitted a claim for benefits. In September 2020, he filed a complaint alleging that Castle Key had failed "to timely provide adequate compensation for Plaintiff's covered losses." With the complaint, Silvia filed a request for production and interrogatories.

A month later, Castle Key filed its answer. In response to an allegation in the complaint that damage occurred due to Hurricane Michael, Castle Key admitted that the hurricane made landfall, but it denied the amount of damages Silvia's property suffered. Castle Key also admitted that Silvia gave timely notice of the damages, but it denied that he had submitted his claim for benefits according to the terms of the policy. The answer also denied the allegation that Castle Key failed to timely provide adequate compensation. Castle Key raised three affirmative defenses: setoff, to the extent that any of the losses were payable by a collateral source; that Castle Key "tendered and/or paid all amounts due and owing to plaintiff under his insurance policy with Castle Key Insurance Company"; and failure to mitigate damages. The answer also requested trial by jury.

Next, Castle Key served its answers to the interrogatories. In response to a question about whether a coverage decision had been made and what payments had been provided, Castle Key responded:

Coverage was afforded the Plaintiff and the Defendant issued payments on 11/27/18 for $12,990.88, a second payment on 2/13/19 for $2,188.43 and $1,574.96 on 1/8/20 and coverage was reviewed by telephone on October 17, 2018, and further evaluation of the damage was delayed/suspended at the request of Plaintiff until he returned to the area after the storm Inspections were completed and benefits paid accordingly Coverage letter sent 11/23/18.... ....

Plaintiff requested benefits for damage to fix a fence (per hurricane policy provisions and hurricane deductible, fences are excluded), debris removal and removal of trees down to roots are not covered under the policy as discussed by telephone with Plaintiff on 12/4/2018 by

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Amos Sessions. Further at the time of the inspections, no storm damage was present to warrant a replacement of the garage roof as there was no damage to shingles, and that depreciation was applied until proof of repairs completed at which point the depreciation could be recovered. Plaintiff was also unable to provide photos or any other evidence of damages to the garage roof. Multiple inspections were performed as Plaintiff indicated additional damage/issues. On February 12, 2019, Woodrow Wilson with Castle Key met in person with the Plaintiff, explained the coverages available, and issued payment advising that the limits on the Coverage B had been exhausted. On 6/20/19 Mr. Wilson spoke with Plaintiff and explained the deductible, what was paid, how the depreciation allowance withheld would be paid upon completion of the roof repairs and the limits purchased for other structure coverage. This was followed by additional telephone calls on various dates regarding the requirement for a contractor to report any additional damage before supplemental benefits can be considered. On 10/28/19 James Marthone spoke with Plaintiff advising that he was allowed for a full roof replacement but cannot extend coverage for additional damage because prior repairs were not made resulting in water leaking into insulation. A statement from Terminix was provided by Plaintiff. On 1/3/20 a final invoice from Mike Moody Metal Roofing was reviewed and supplemental benefits were approved in the amount of $1,574.96. Telephone call from James Marthone was made prior to plaintiff advising him of additional benefits at which point Plaintiff had an estimate for windows but replacement was not warranted due to fogging of same and was not the result of sudden accidental damage under the terms of the policy....

Castle Key also responded to some of the requests for production by providing photographs of the damage to the property, statements and copies of canceled checks showing all payments that had been made to Silvia, all documents concerning the inspections of Silvia's property, and statements or receipts from service providers that Silvia had submitted to Castle Key.

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But Castle Key objected to many questions because the requests were too broad, implicated protected work product, or implicated attorney-client privilege or confidential proprietary information.

After Silvia challenged certain deficiencies in Castle Key's production, Castle Key filed a supplemental response with a privilege log. According to the response, Castle Key provided correspondence received from Silvia's counsel, communications with its vendors, and correspondence to Silvia and his counsel.

About a month later, Castle Key moved to invoke appraisal and abate litigation. The motion explained that a provision in the insurance contract stated that if the parties failed to agree upon the amount of loss, either party could make a demand for an appraisal. Each party is then required to obtain its own appraisal of the loss amount. If the appraisers disagree, the appraisers will submit their differences to an umpire. A written award agreed upon by any two will determine the amount of loss.

According to Castle Key, it "had received no written or oral claim or amount being claimed more than [what] had been...