State Farm Fla. Ins. Co. v. Sanders

• Decision Date: 15 April 2020
• Docket Number: No. 3D19-927,3D19-927
• Citation: 327 So.3d 342
• Parties: STATE FARM FLORIDA INSURANCE COMPANY, Petitioner, v. Charles SANDERS and Diana Sanders, Respondents.
• Court: Florida District Court of Appeals

327 So.3d 342

STATE FARM FLORIDA INSURANCE COMPANY, Petitioner,

v.Charles SANDERS and Diana Sanders, Respondents.

No. 3D19-927

District Court of Appeal of Florida, Third District.

Opinion filed April 15, 2020.

Link & Rockenbach, P.A., Kara Rockenbach Link and David A. Noel (West Palm Beach), for petitioner.

Marin, Eljaiek, Lopez & Martinez, P.L., Anthony M. Lopez, Tampa, Steven E. Gurian and Joe De Prado, Coconut Grove, for respondents.

Brewton Plante, P.A., Wilbur E. Brewton and Kelly B. Plante (Tallahassee), for Florida Association of Public Insurance Adjusters, Inc., as amicus curiae.

Colodny Fass, Nate Wesley Strickland and L. Michael Billmeier, Jr. (Tallahassee), for Florida Property and Casualty Association, and Personal Insurance Federation of Florida, Inc., as amici curiae.

Before EMAS, C.J., and FERNANDEZ and LINDSEY, JJ.

PER CURIAM.

ON MOTION FOR REHEARING

State Farm petitioned this Court for a writ of certiorari to quash a trial court order that permitted the insureds’ public adjuster to act as their "disinterested" appraiser.

In our original opinion, issued July 24, 2019, this panel granted the writ of certiorari and quashed the trial court's order. We held that a fiduciary, such as a public adjuster who is in a contractual agent-principal relationship with the insureds, cannot be a disinterested appraiser as a matter of law. We concluded that the trial court's order—which permitted the insureds’ public adjuster to act as their "disinterested" appraiser—constituted a departure from the essential requirements of the law which could not be remedied on appeal.

Respondents/insureds moved for rehearing¹ and, upon consideration, we grant the motion for rehearing, withdraw our original opinion, and substitute the following opinion in its place.

INTRODUCTION

State Farm petitions this Court for a writ of certiorari to quash the trial court's April 9, 2019 order allowing the insureds' agent/public adjuster to act as their "disinterested" appraiser. We deny State Farm's petition because State Farm cannot establish that the trial court's order constituted a departure from the essential requirements of the law. Indeed, the trial court did not depart from the essential requirements of the law because its order followed this Court's existing precedent in Rios v. Tri-State Insurance Company, 714 So. 2d 547 (Fla. 3d DCA 1998) and Galvis v. Allstate Insurance Company, 721 So. 2d 421 (Fla. 3d DCA 1998).

FACTS AND PROCEDURAL HISTORY

Respondents/insureds Charles Sanders and Diana Sanders ("Sanders") had a homeowners’ insurance policy with State Farm to provide coverage for property damages. The appraisal condition in State Farm's Homeowner Policy states that, "Each party will select a qualified, disinterested appraiser ..." On August 13, 2018, the insureds filed suit against State Farm for breach of contract arising out of a Hurricane Irma property damage claim, alleging that State Farm failed to provide coverage for the loss. In response to the complaint, State Farm filed a Motion to Invoke Appraisal, claiming that there was a pre-suit dispute regarding the insureds’ selected appraiser.

On December 12, 2018, the parties entered into an agreed order granting State Farm's Motion to Invoke Appraisal. The Order named Peter Patterson of VRS Vericlaim as State Farm's appraiser and required the insureds to designate their "qualified, disinterested appraiser," as stated in State Farm's policy. The insureds selected Gian Franco Debernardi of 911 Claims Corporation as their appraiser.

Mr. Debernardi is the insureds’ agent pursuant to their contract with 911 Claims Corporation, which states that he will "be the agent and representative, under the insurance contract by State Farm Insurance ... to adjust, appraise, advise and assist in the settlement of the loss." In addition, the contract assigns 10% of the amount recovered to 911 Claims Corporation. Previously, Mr. Debernardi inspected the property, reported the insurance claim to State Farm, and prepared the $88,536.41 estimate that is the subject of the dispute between State Farm and the insureds.

On February 20, 2019, the insureds filed a Motion to Lift Stay and Compel Compliance with the Court Order, contending that appraisal should move forward with Mr. Debernardi as their appraiser. State Farm argued that Mr. Debernardi was not "disinterested" because of his agent/principal relationship with the insureds, his contingency fee, and his prior estimate of damages.² On April 9, 2019, the trial court granted the Motion to Lift Stay and entered an order permitting Mr. Debernardi to act as the insureds' "disinterested" appraiser. State Farm then filed this petition for writ of certiorari.

ANALYSIS AND DISCUSSION

In order to grant a petition for writ of certiorari, State Farm must show that the trial court's April 9, 2019 order (allowing the insureds' agent/public adjuster to act as their "disinterested" appraiser) departs from the essential requirements of the law and will cause material injury to State Farm throughout subsequent proceedings that cannot be remedied on appeal. Rousso v. Hannon, 146 So. 3d 66, 69 (Fla. 3d DCA 2014) ("To invoke an appellate court's certiorari jurisdiction, ‘[t]he petitioning party must demonstrate that the contested order constitutes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on post-judgment appeal.’ "). Consequently, we recognize that we cannot grant State Farm's petition in this case because the trial court was required to follow Rios and Galvis.

Because this issue was presented to this Court by a petition for writ of certiorari, our scope and standard of review is significantly narrowed, foreclosing our authority to address the continued vitality of Rios and Galvis. It is possible that our decision might be different had the question before us been presented by way of a plenary appeal, as was the case in our sibling court's decision in State Farm Florida Insurance Company v. Valenti, 285 So. 3d 958 (Fla. 4th DCA 2019). In the instant case, however, we cannot grant certiorari relief if the trial court's order was faithful to the existing and binding precedent of this Court. A classic example of a departure from the essential requirements of the law is a trial court's failure to follow binding precedent. See, e.g., State v. Walsh, 204 So. 3d 169 (Fla. 1st DCA 2016) ; Powell v. City of Sarasota, 857 So. 2d 326 (Fla. 2d DCA 2003). It is self-evident that the trial court's faithful following of our decisions in Rios and Galvis cannot constitute a departure from the essential requirements of the law. (Indeed, one might rightly conclude that had the trial court failed to follow those two decisions it would have constituted a departure from the essential requirements of the law.). Moreover, once we determine that the trial court's order did not depart from the essential requirements of the law, we must not venture beyond denying the petition, even if we do so in a well-intentioned effort to clarify the law in our district.

Simply put, State Farm cannot demonstrate that the trial court departed from the essential requirements of the law because the law in effect in our district at the time the trial court rendered its order allowing Mr. Debernardi to act as the insureds’ disinterested appraiser, was Rios and Galvis. Those two cases, as well as their progeny, Brickell Harbour Condominium Association, Inc. v. Hamilton Specialty Insurance Company, 256 So. 3d 245, 248 (Fla. 3d DCA 2018) (where this Court applied Rios and Galvis’ holdings and affirmed the appointment of an insurer's agent, an employee of a building consultant it previously hired, as a "disinterested" appraiser), all hold that a "direct or indirect financial or personal interest in the outcome of the [appraisal]" does not require the disqualification of the party appointed appraiser. Rios, 714 So. 2d at 550. If the appraiser's financial interest is disclosed, it is acceptable for that appraiser to participate in the appraisal process. Accordingly, we must deny State Farm's petition for writ of certiorari on the basis of this Court's controlling precedent at the time of the trial court's order, articulated in Rios and Galvis.

This is true even if, as the concurring opinion discusses, this panel (or the en banc court) is of the present belief that Rios and Galvis have been undermined by subsequent developments in the law, or that Rios and Galvis and its progeny are no longer viable, or that we should recede from those decisions. See, e.g., GEICO Indem. Co. v. DeGrandchamp, 99 So. 3d 625 (Fla. 2d DCA 2012) (denying cert petition, concluding trial court did not depart from the essential requirements of the law by following existing precedent at the time the trial court entered its order, even if the district court shortly thereafter receded from that precedent).

However, we do recognize that our decisions in Rios and Galvis conflict with decisions of the Fifth District Court of Appeal in State Farm Florida Insurance Company v. Cadet, 290 So.3d 1090 (Fla. 5th DCA 2020), and State Farm Florida Insurance Company v. Crispin, 290 So.3d 150 (Fla. 5th DCA 2020), as well as the decision of the Fourth District Court of Appeal in State Farm Florida Insurance Company v. Valenti, 285 So. 3d 958 (Fla. 4th DCA 2019).

We therefore deny the petition for writ of certiorari. We further certify express conflict with State Farm Florida Insurance Company v. Cadet, 290 So.3d 1090 (Fla. 5th DCA 2020), and State Farm Florida Insurance Company v. Crispin, 290 So.3d 150 (Fla. 5th DCA 2020), as well as the decision of the Fourth District Court of Appeal in State Farm Florida Insurance Company v. Valenti, 285 So. 3d 958 (Fla. 4th DCA 2019). We also certify the following question to the Florida Supreme Court to be resolved as a matter of great public importance:

CAN A FIDUCIARY, SUCH AS A PUBLIC ADJUSTER OR APPRAISER

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