Transamerica Ins. Co. v. Weed
| Decision Date | 12 October 1982 |
| Docket Number | ZZ-296,Nos. XX-19,s. XX-19 |
| Citation | 420 So.2d 370 |
| Parties | TRANSAMERICA INSURANCE CO., Appellant, v. John WEED and Conrad Bishop, d/b/a The Diamond Shop, Appellee. |
| Court | Florida District Court of Appeals |
Fred M. Johnson and Baya Harrison, III, of Fuller, Johnson & Harrison, Tallahassee, for appellant.
Stephen A. Smith, of Smith & Smith, Lake City, for appellee.
After denial of their motion to compel arbitration, Transamerica filed a petition for writ of common law certiorari seeking review of that denial. However, there was no stay of the proceedings below and the case went to a jury trial. Final judgment was entered against Transamerica before this court ruled on the petition for certiorari. Transamerica then perfected a timely appeal primarily raising the arguments which were presented in the petition. On Transamerica's motion, the appeal and petition have been consolidated. We affirm the judgment and deny the writ.
Transamerica issued an insurance policy to "The Diamond Shop" covering loss due to fire damage of the building, its contents, and inventory. Sometime thereafter, all were destroyed by fire. Transamerica paid the policy limits for the damage to the building. However, the parties could not agree on the amount of loss as to the contents and inventory. On March 7, 1980, The Diamond Shop filed a complaint demanding judgment against Transamerica for all covered losses. Transamerica answered on April 3, 1980, asserting the following affirmative defense:
2. Plaintiffs have failed and refused to comply with their obligation under the provisions of their policy of insurance with the Defendant and consequently the Defendant is not liable to them in any amount.
On the same day, Transamerica filed an interrogatory requesting a detailed description, quantity, and cash value of each item included in the inventory loss. On April 15, 1980, The Diamond Shop filed a motion to set the case for trial, to which Transamerica did not object. On April 23, 1980, Transamerica answered interrogatories propounded by The Diamond Shop, and on May 5, 1980, The Diamond Shop filed a detailed statement of inventory loss. On May 21, 1980, Transamerica offered a $30,000 settlement which was rejected on June 5, 1980. After a second offer was rejected, Transamerica demanded an appraisal pursuant to paragraph 16 of the policy. On June 23, 1980, the attorney for The Diamond Shop informed Transamerica's attorney that his clients would not voluntarily submit to an appraisal. Finally, on June 24, 1980, Transamerica filed a motion to compel appraisal, the denial of which gave rise to the now consolidated petition for writ of common law certiorari and appeal from final judgment in favor of The Diamond Shop.
The provisions of the policy which are pertinent to this appeal provide:
15. Duties Of The Named Insured After A Loss. In case of loss the named insured shall:
(c) prepare an inventory of damaged personal property showing in detail, quantity, description, actual cash and amount of loss. Attach to the inventory all bills, receipts and related documents that substantiate figures in the inventory.
16. Appraisal. If the named insured and the Company fail to agree on the amount of the loss, either can demand that the amount of loss be set by appraisal. If either party makes a written demand for appraisal, each shall select a competent independent appraiser. Each shall notify the other of the selected appraiser's identity within twenty (20) days of the receipt of the written demand.
The two appraisers shall select a competent, impartial umpire. If the appraisers are unable to agree upon an umpire within fifteen (15) days, the named insured or the Company may petition a judge of a Court of Record in the state where the insured premises is located to select an umpire.
The appraisers shall then set the amount of the loss. If the appraisers submit a written report of an agreement to the Company, the amount agreed upon shall be the amount of the loss. If the appraisers fail to agree within a reasonable time, they shall submit their differences to the umpire. Written agreement signed by any two of these...
To continue reading
Request your trial
-
J. WISE SMITH v. Nationwide Mut. Ins. Co., 95-2189.
...823 S.W.2d at 438; Trade Arbed, Inc. v. S/S Ellispontos, 482 F.Supp. 991, 998 (S.D.Tex.1980)). In Florida, Transamerica Ins. Co. v. Weed, 420 So.2d 370, 372 (Fla.Dist.Ct.App.1982), held that the insurer "took a position and utilized procedures inconsistent with arbitration, resulting in wai......
-
Bland v. Green Acres Group, L.L.C.
...his failure to specifically raise the arbitration clause at that point waived his right to assert it. See Transamerica Ins. Co. v. Weed, 420 So.2d 370, 372 (Fla. 1st DCA 1982). An arbitration clause is not a "Contractual Defense" to the action's merits. See Mitsubishi Motors Corp. v. Soler ......
-
PRESTIGE PROTECTIVE CORPORATION v. BURNS INTERN. SECUR. …
...Co. of Am., 540 So.2d 162 (Fla. 4th DCA 1989); U.S. Fire Ins. Co. v. Franko, 443 So.2d 170 (Fla. 1st DCA 1983); Transamerica Ins. Co. v. Weed, 420 So.2d 370 (Fla. 1st DCA 1982). For example, in Weed, this court treated as an arbitration agreement an appraisal provision virtually identical t......
-
Florida Farm Bureau Cas. Ins. Co. v. Sheaffer, 96-2504
...Co. of Am., 540 So.2d 162 (Fla. 4th DCA 1989); U.S. Fire Ins. Co. v. Franko, 443 So.2d 170 (Fla. 1st DCA 1983); Transamerica Ins. Co. v. Weed, 420 So.2d 370 (Fla. 1st DCA 1982). For example, in Weed, this court treated as an arbitration agreement an appraisal provision virtually identical t......