ABC University Shops, LLC v. Scottsdale Insurance Company

Filing 49

ORDER on Defendant's Motion to Dismiss [ECF No. 35] and Petitioner's Motion to Compel Appraisal and to Stay Litigation [ECF No. 38]. Signed by Judge Darrin P. Gayles See attached document for full details. (hs01)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 18-60562-CV-GAYLES/SELTZER
ABC UNIVERSITY SHOPS, LLC,
Plaintiff,
v.
SCOTTSDALE INSURANCE
COMPANY,
Defendant.
/
ORDER
THIS CAUSE comes before the Court on Defendant’s Motion to Dismiss and
Memorandum of Law in Opposition to Petitioner’s Amended Petition for Declaratory Relief and
Petition to Compel Appraisal (“Motion to Dismiss”) [ECF No. 35] and Petitioner’s Motion to
Compel Appraisal and to Stay Litigation (“Motion to Compel Appraisal”) [ECF No. 38]. The
Court referred all pretrial matters to Magistrate Judge Seltzer pursuant to 28 U.S.C. § 636 and
Magistrate Rules of the Local Rules of the Southern District of Florida. [ECF Nos. 21 & 25].
Judge Seltzer issued a Report and Recommendation (the “Report”) recommending that the Court
grant in part and deny in part Defendant’s Motion to Dismiss, and grant Plaintiff’s Motion to
Compel Appraisal. [ECF No. 43]. Defendant has timely objected to the Report [ECF No. 45] and
Plaintiff submitted a reply [ECF No. 47].
A district court may accept, reject, or modify a magistrate judge’s report and
recommendation. 28 U.S.C. § 636(b)(1). Those portions of the report and recommendation to
which an objection is made are accorded de novo review, if those objections “pinpoint the
specific findings that the party disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360

(11th Cir. 2009); see also Fed. R. Civ. P. 72(b)(3). Any portions of the report and recommendation
to which no specific objection is made are reviewed only for clear error. Liberty Am. Ins. Grp.,
Inc. v. WestPoint Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001); accord
Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006).
In his Report, Judge Seltzer found that Plaintiff’s Amended Petition for Declaratory
Relief did not identify true ambiguities as to Plaintiff’s rights under the policy such that the terms
would need interpretation. Judge Seltzer found that Plaintiff’s claims were factual in nature—a
dispute of facts and an application of the policy to those facts. Because the Amended Petition
sounds in breach of contract, Judge Seltzer recommended dismissal of the Amended Petition for
Declaratory Judgment without prejudice to be pled as such. Judge Seltzer further found in his
Report that Plaintiff properly moved to compel appraisal of the disputed amount of loss to its
property and that Defendant failed to properly show waiver through Plaintiff’s actions. The
Report reasoned that appraisal was appropriate because Defendant admitted coverage for a
portion of Plaintiff’s loss. See People’s Trust Ins. Co. v. Tracey, 251 So. 3d 931, 931 (Fla. 4d
DCA 2018) (“[C]ausation and the amount of loss are issues to be determined by an appraisal
where the insurer has not wholly denied there is a covered loss.” (internal quotation marks
omitted)).
The Court, having conducted a de novo review of the record, agrees with Judge Seltzer’s
well-reasoned analysis and recommendation that Defendant’s Motion to Dismiss be granted in
part and denied in part. The Court agrees that Plaintiff’s Amended Petition for Declaratory
Relief sounds in breach of contract such that the Declaratory Judgment Act does not apply. See
28 U.S.C. § 2201. Though Plaintiff claims to be “in doubt as to its rights and obligations

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pursuant to the subject all-risk Policy,” [ECF No. 43 at 6], Plaintiff does not identify any
provision of the insurance policy that is truly in need of interpretation and construction.
The Court also agrees with Judge Seltzer’s recommendation that Plaintiff’s Motion to
Compel Appraisal be granted. As articulated in the Report, Florida law makes clear that
coverage issues under an insurance policy are to be determined by a judge or jury while
amount of loss issues are to be determined by appraisers, as provided by the insurance policy.
See Arvat Corp. v. Scottsdale Ins. Co., No. 14-22774, 2015 WL 6504587, at *2 (S.D. Fla. Oct.
28, 2015); Johnson v. Nationwide Mut. Ins. Co., 828 So. 2d 1021, 1022 (Fla. 2002); Tracey,
251 So. 3d at 933. Here, Defendant admits coverage for a portion of Plaintiff’s claim but
denies coverage for other portions, making the issue of the amount of loss appropriate for
determination by appraisal. As Judge Seltzer found, Plaintiff has not waived its right to an
appraisal of the amount of loss simply because it entered into litigation with Defendant.
Therefore, this Court agrees that Plaintiff’s Motion to Compel Appraisal should be granted and
appraisal should proceed to determine the value of Plaintiff’s property and the amount of loss
to the property. 1
The Court also finds that Defendant’s request for a delineated appraisal award
providing “a line itemization of damages and delineation of scope in the appraisal award”
should be denied. [ECF No. 45 at 5–6]. First, Defendant never sought the relief requested
before Judge Seltzer such that it could have been addressed in the Report. See Williams v.
McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009) (“[A] district court has discretion to decline to
consider a party’s argument when that argument was not first presented to the magistrate
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Defendant challenges the Report’s determination that “all coverage issues in the instant litigation can be
resolved through appraisal . . . .” [ECF No. 43 at 19]. While Judge Seltzer refers to “all coverage issues” in
delineating which issues should be determined through appraisal, the Court finds that, when read in the context of
the Report as a whole, “all coverage issues” refers to issues of the amount of loss in dispute to be determined by
appraisal.

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judge.”). Second, the plain language of the policy does not require a delineated appraisal
award. See Vista View Apartments, Ltd. v. Chubb Custom Ins. Co., No. 08-22772, 2009 WL
10669062, at *2 (S.D. Fla. July 6, 2009) (“In interpreting insurance contracts, the Florida
Supreme Court has made clear that ‘the language of the policy is the most important factor.’”
(citations omitted) (internal quotation marks omitted)). The language of the policy states that
“each party will select a competent and impartial appraiser . . . [and] [t]he two appraisers will
select an umpire. . . . The appraisers will state separately the value of the property and amount
of loss.” [ECF No. 43 at 13]. The language of the policy here does not require a delineated
appraisal award and the request is therefore denied. See Vista View Apartments, 2009 WL
10669062, at *2.
Accordingly, after careful consideration, it is ORDERED AND ADJUDGED as follows:
(1)

Judge Seltzer’s Report and Recommendation [ECF No. 43] is ADOPTED in its
entirety.

(2)

Defendant’s Motion to Dismiss and Memorandum of Law in Opposition to
Petitioner’s Amended Petition for Declaratory Relief and Petition to Compel
Appraisal [ECF No. 35] is GRANTED in part and DENIED in part. Plaintiff’s
Declaratory Relief Claim is DISMISSED without prejudice.

(3)

Petitioner’s Motion to Compel Appraisal and to Stay Litigation [ECF No. 38] is
GRANTED.

(4)

Defendant’s Motion for a Delineated Appraisal Award [ECF No. 45] is DENIED.

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(5)

The action is STAYED pending completion of the appraisal process and CLOSED
for administrative purposes.

DONE AND ORDERED in Chambers at Miami, Florida, this 30th day of November, 2018.

________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE

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