Summary
rejecting argument that insurer had waived its right to deny coverage by not responding to claim prior to insured filing suit, as "[w]aiver is the intentional or voluntary relinquishment of a known right or conduct which warrants an inference of the relinquishment of a known right" and the insurer was still investigating the claim at the time of the lawsuit and had never affirmatively denied coverage
Summary of this case from Hawks Nest Condo. v. Westchester Surplus Lines Ins. Co.Opinion
No. 4D10-1794.
October 27, 2010.
Appeal From the Seventeenth Judicial Circuit Court, Broward County, John J.
Scot E. Samis of Abbey, Adams, Byelick, Kiernan, Mueller, Marone Samis, L.L.P., Saint Petersburg, for appellant. Mary K. Forteon and Kelly L. Kubiak of Merlin Law Group, P.A., Tampa, for appellee.
An insurer appeals from a circuit court order granting the insured's motion to compel an appraisal before the court resolved the parties' underlying coverage dispute. The insurer argues that the order conflicts with our holding that a trial court "must resolve all underlying coverage disputes prior to ordering an appraisal." Sunshine State Ins. Co. v. Corridori, 28 So.3d 129, 131 (Fla. 4th DCA 2010). We agree and reverse.
The insured argues that Corridori is distinguishable because there, the insurer denied coverage before the insured filed suit, whereas here the insurer denied coverage after the insured filed suit. According to the insured, the insurer's failure to deny coverage before the insured filed suit constitutes a waiver of the insurer's right to deny coverage.
We disagree with the insured's argument. "'Waiver is the intentional or voluntary relinquishment of a known right or conduct which warrants an inference of the relinquishment of a known right.'" Aberdeen Golf Country Club v. Bliss Constr., Inc., 932 So.2d 235, 244 (Fla. 4th DCA 2005) (citation omitted). We see nothing in the record which suggests that the insurer intentionally, voluntarily, or inferentially relinquished its right to deny coverage. Rather, the insurer still was investigating the claim at the time the insured filed suit.
The insured also argues that we should allow the appraisal to go forward while preserving the insurer's right to contest coverage. In support, the insured relies on Sunshine State Ins. Co. v. Rawlins, 34 So.3d 753 (Fla. 3d DCA 2010), in which the third district held that a circuit court did not abuse its discretion in allowing an appraisal to go forward on a "dual track" basis while preserving the insurer's right to contest coverage as a matter of law. Id. at 755.
We respectfully disagree with Rawlins' recognition of a dual-track approach. We appreciate the third district's rationale that the dual-track approach may save "'judicial resources which might otherwise be required in resolving the factual and legal issues involved in the [coverage issue] by a relatively swift and informal decision by the appraisers as to the amount of the loss.'" Id. (citation omitted). However, we believe that "[a] finding of liability necessarily precedes a determination of damages." Engle v. Liggett Group, Inc., 945 So.2d 1246, 1262-63 (Fla. 2006). We certify conflict with Rawlins. Reversed.
MAY and DAMOORGIAN, JJ., concur.