Synergy Contracting Group, Inc. a/a/o Terry and Patricia Clark v. FEDNAT National Ins. Co

Appraisal Opinions

Arlene Carozza v. First Protective Ins. Co.

No. 2D21-3235 (Fla. 2d DCA Aug. 24, 2022) (per curiam)

KK TAKEAWAY:

Appraisal remains a remedial mechanism that does not require judicial intervention.

KK TAKEAWAY:

Post-suit invocation is not dispositive of an insured’s right to attorney’s fees.

BACKGROUND:

The Insured brought a breach of contract action based upon the Insurer’s pre-suit payment without any pre-suit submission of a competing estimate. There were no indications of a dispute until the Insured filed the action. Insurer immediately sought appraisal in response to the complaint. An appraisal determination was made, and Insurer promptly paid the amount remaining after reduction for the deductible and prior payment.

The Second District Court of Appeals per curiam affirmed the trial court’s grant of summary judgment finding the lawsuit was not necessary to bring the claim to submit the claim to appraisal.

Synergy Contracting Group, Inc. a/a/o Terry and Patricia Clark v. FEDNAT National Ins. Co.

OJCC Case No. 21-025559WWA (FL.Off.Judge.Comp.Cl. June 17, 2022)

KK TAKEAWAY:

Post-suit payment of an appraisal award does not entitle Insurer to summary judgment in its favor.

KK TAKEAWAY:

A trial court must consider entitlement to fees and costs under the confession of judgment doctrine.

KK TAKEAWAY:

An injury that is the direct and natural result of a compensable primary injury can be filed under a new date of accident.

BACKGROUND:

Insureds engaged Synergy Contracting Group to perform water remediation and restoration services in exchange for an assignment of benefits. Fednat issued payment to Synergy, albeit not the total invoice.

Fednat invoked appraisal in response to the Complaint. In doing so, Fednat acknowledged coverage and admitted payment for a portion of the damages, however, Fednat disputed the remaining amount claimed by Synergy.

The appraisal panel determined the amount of loss to be $35,000, in which Fednat paid the remaining balance of $7,597.06 (the amount left after reduction for payment and deductible). Synergy sought entitlement to attorney’s fees under the confession of judgment doctrine, claiming the payment was a confession of judgment.

In opposition to the Motion for Fees, Fednat filed a Motion for Final Summary Judgment claiming that Fednat paid what was owed under the policy and that because Fednat complied with the terms of the policy, there was no breach, thus no additional judicial labor was required. The trial court granted summary judgment finding that the appraisal award was timely paid in full but reserved jurisdiction on entitlement to fees and costs.

Six months later, Fednat filed a Motion for Final Summary seeking a judgment in its favor because there were no more justiciable issues. The trial court granted final summary judgment in Fednat’s favor.

The judgment was reversed and remanded for further proceedings regarding Synergy’s attorney fees claim. Specifically, the Second District Court of Appeals discussed that the payment of an appraisal award does not render a Plaintiff’s claim for breach of contract moot. Instead, further proceedings were necessary to determine entitlement to fees. That is whether Synergy has a valid claim for confession of judgment or whether Fednat has a defense to entitle such as “race to the courthouse defense.”