Several posts on this blog have discussed how important it is to request appraisal timely and to not act inconsistently with the right to appraisal—or it can be waived. Actively litigating a case has been held to be a waiver of appraisal. There has been another recent case in Florida dealing with this issue.1

The policyholders had discovered sinkhole damage to their property and made a claim with HomeWise Preferred Ins. Co. The carrier confirmed sinkhole activity at the property as a cause of the damage to the property. Several months later, some payment was made to the policyholders and they later hired counsel. They sought additional damages and a slightly different repair protocol from some experts of their own. The carrier requested neutral evaluation; the policyholder filed a lawsuit during the neutral evaluation process. They agreed to stay the case pending completion of neutral evaluation. A few months after the process was completed, the policyholders requested the case be set for trial. Then HomeWise was declared insolvent and the case was stayed for several months until Florida Insurance Guaranty Association (FIGA) was substituted in as defendant. FIGA admitted coverage for the claim and the parties’ dispute was on the method of repair. The policyholders again requested the case be set for trial. About three weeks before the pretrial conference, the policyholders first requested appraisal and the trial court ordered the claim to proceed to appraisal.

FIGA appealed, and the appellate court reversed the order compelling appraisal and sent the case back to the trial court. The appellate court noted that the policyholders:

[D]id not file their motion to compel appraisal until [] only three weeks before the scheduled pretrial and six weeks before the case was scheduled for jury trial.

The undisputed facts demonstrate that—despite the absence of a dispute about coverage—the Lustres actively litigated their claim for almost three years. They asked that the case be set for jury trial twice, and they did not seek appraisal until just before the pretrial when both parties should have been in the midst of their final preparations for trial. We are unable to discern any basis in the record for the substantial delay by the Lustres in seeking appraisal of their claim. Under these circumstances, we conclude that the Lustres waived their right to seek appraisal under the terms of the policy. Accordingly, the trial court erred in ordering appraisal.

If appraisal is a remedy that a policyholder seeks, appropriate actions should be taken so the insurance carrier cannot argue that the right to appraisal has been waived. While each set of factual circumstances is different, always consult with experienced representatives to determine if appropriate steps are being followed to ultimately get the claim to appraisal.

1 Florida Ins. Guaranty Assoc. v. Lustre, 2D13-5780, 2015 WL 1874445 (Fla. 2d DCA April 24, 2015).