Singh et al v. GeoVera Specialty Insurance Company

Filing 20

ORDER: denying 5 --motion to dismiss; granting 5 --motion to stay; staying the action; denying 10 --motion for leave to reply; granting in part 19 --motion to extend deadlines; denying 19 --motion to "dispense with and/or defer mediation"; mediation of this action must proceed in accord with the notice (Doc. 18 ) of mediation. Signed by Judge Steven D. Merryday on 12/3/2015. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RAM SINGH, et al.,
Plaintiffs,
v.

CASE NO. 8:15-cv-1974-T-23JSS

GEOVERA SPECIALTY INSURANCE
COMPANY,
Defendant.
_____________________________________/
ORDER
After Ram and Cynthia Singh’s property caught fire, GeoVera Specialty
Insurance Company indemnified the Singhs for a portion of the “insured value of the
property.” (Doc. 2 at 2) Arguing “total loss” of the property, the Singhs sue (Doc. 2)
GeoVera for a determination of the amount of loss, for additional indemnity, and for an
attorney’s fee and costs. After commencement of the suit, GeoVera requested, and the
Singhs consented to, an appraisal of the amount of loss. GeoVera moves (Doc. 5) to
dismiss this action or “to stay litigation pending completion of [the] appraisal.”1
Further, Geovera moves (Doc. 19) unopposed to “extend all deadlines in this case
pending completion of the appraisal” and to “dispense with and/or defer mediation.”

1

Although the Singhs consented to the appraisal, GeoVera moves “to compel [an] appraisal
and to stay litigation pending completion of [an] appraisal.” (Doc. 5 at 1) To the extent GeoVera
moves to compel an appraisal, the motion is denied as moot.

1. Appraisal
Moving to dismiss, GeoVera argues that an appraiser, not a court, must
determine the amount of loss. The insurance agreement states, “If you and we fail to
agree on the amount of loss, either may demand an appraisal of the loss. In this event,
each party will choose a competent and impartial appraiser within 20 days after
receiving a written request from the other.” (Doc. 2-1 at 22) GeoVera requested, and
the Singhs consented to, an appraisal of the amount of loss. “When the insurer admits
that there is a covered loss, but there is a disagreement on the amount of loss, it is for
the appraisers to arrive at the amount to be paid.” Johnson v. Nationwide Mut. Ins. Co.,
828 So. 2d 1021, 1025 (Fla. 2002) (analyzing an almost identical appraisal provision).
And the Singhs agree that “the amount of loss will be conclusively determined by the
appraisal panel.” (Doc. 9 at 2)
2. Dismissal
Because the complaint requests not only an appraisal but also an attorney’s fee
and costs, dismissal is premature. See Arvat Corp. v. Scottsdale Ins. Co., 2015 WL
6504587, at *1 (S.D. Fla. Oct. 28, 2015) (Gayles, J.) (dismissing a petition to compel an
appraisal). And “[i]f the [insurance agreement] contained a mandatory . . . appraisal
provision,” the Singhs would have engaged in unnecessary litigation and “would not be
entitled to attorney’s fees. But the . . . appraisal [provision is] permissive, not

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mandatory, providing that either party may demand an appraisal.”2 Jerkins v. USF & G
Specialty Ins. Co., 982 So. 2d 15, 18 (Fla. 5th DCA 2008) (Orfinger, J.).

CONCLUSION
GeoVera’s motion (Doc. 5) to dismiss is DENIED. GeoVera’s motion (Doc. 5)
to stay is GRANTED. This action is STAYED “pending completion of [the]
appraisal.” (Doc. 5 at 1) GeoVera’s motion (Doc. 10) for leave to reply is DENIED.
Because this action is stayed, GeoVera’s unopposed motion (Doc. 19) to “extend all
deadlines in this case pending completion of the appraisal process” is GRANTED IN
PART. Mediation of this action must proceed in accord with the notice (Doc. 18) of
mediation. GeoVera’s unopposed motion (Doc. 19) to “dispense with and/or defer
mediation” is DENIED.
ORDERED in Tampa, Florida, on December 3, 2015.

2

In response to the motion to dismiss, the Singhs argue that an “appraisal award” for the
Singhs would constitute a “confession of judgment,” which entitles the Singhs to an attorney’s fee
under Section 627.428, Florida Statutes. (Doc. 9 at 2) Because the parties have yet to complete the
appraisal, a determination of whether in this action an “appraisal award” would constitute a
“confession of judgment” is premature. In other words, a determination of whether an attorney’s fee
is appropriate in this action is premature. See Jerkins, 982 So. 2d at 18 (considering the “substantial
discrepancy between [the insurer’s] initial estimate of the damages to the . . . property . . . and the
final appraisal value” to award an attorney’s fee).

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