IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT WILLIAM J. WROE, Appellant, Case No.: SD08-245 L.T. Case No.: 05-CA-5958 v. MICA MUTUAL INSURANCE COMPANY, Appellee. AMICA MUTUAL INSURNCE COMPANY’S ANSWER BRIEF JAMIE BILLOTTE MOSES, ESQUIRE Florida Bar No. 0009237 Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A. ar Post Office Box 712 FILED | | Orlando, FL 32802-0712 jmoses@fisherlawfirm.com MAY 27 2008 ' i 407-843-2111; Facsimile: 407-422-1080 | Counsel for Amica Mutual Insurance Company ___| WK 3 go gan WRIGHT. ERA METRE COWIRT OF APPEAL MAY 27 2008 DISTRICT COURT OF A\ FET OIsTaICN |TABLE OF CONTENTS TABLE OF CONTENTS... TABLE OF AUTHORITIES... STATEMENT OF THE CASE AND FACTS. STATEMENT OF THE CASE STATEMENT OF THE FACTS... STANDARD OF REVIEW... SUMMARY OF ARGUMENT... ARGUMENT....... I. THE TRIAL COURT PROPERLY ENTERED ITS ORDER ON DEFENDANT'S MOTION TO CONFIRM APPRAISAL AWARD BECAUSE THE ISSUE OF COVERAGE WAS PROPERLY BEFORE THE COURT (Responsive to All Three Arguments Raised by Appellant). CONCLUSION... CERTIFICATE OF SERVICE .. CERTIFICATE OF TYPE FACE COMPLAINCE.TABLE OF AUTHORITIES. Cases Page Gonzalez v. State Farm Fire and Cas. Co., 805 So. 2d 814 (Fla. 3d DCA 2009)... Johnson y. Nationwide Mutual Ins. Co., 828 So. 2d 1021 (Fla. 2002). 10, 12, 13, 14 Kendall Lakes Townhomes Developers, Inc. v. Agricultrual Excess and Surplus Lines Ins. Co., 916 So. 2d 12 (Fla. 3d DCA 2005)... Liberty American Ins. Co, v. Kennedy, 890 So. 2d 539, 541 (Fla. 2d DCA 2005) 10,11 State Farm Fire and Cas. Co. v. Licea, 685 So. 2d 1285 (Fla. 1996).. on, TL, 13 iiiSTATEMENT OF THE CASE AND FACTS Statement of the Case Although a final judgment has not been entered in this case, pursuant to this Court's April 16, 2008 Order, this appeal is being treated as an appeal from a final order. Appellant William J. Wroe (“Wroe”) filed a notice of appeal on January 10, 2008 (V. 1, p. 227-30)' of the trail court’s Order on Defendant's Motion to Confirm Appraisal Award. (V. 1, P. 220-21). Statement of the Facts ‘On October 22, 2004, Wroe was involved in a motor vehicle accident. (V.1,P.1 - 10). Because Wroe was dissatisfied with the amount paid to him under his motor vehicle policy with Amica Mutual Insurance Company (“Amica”), he initiated suit by filing a Complaint in the Circuit Court of the Ninth Judicial Circuit. (V. 1, P. 1— 10). In response to the Complaint, Amica served its Motion to Compel Appraisal and Stay of Litigation and Discovery. (V. 1, P. 11-58). After a hearing, an Amended Agreed Report on Defendant’s Motion to Compel Appraisal was entered by Magistrate Judge Glatt. (V. 1, P. 65 — 66). This December 5, 2005 Amended Agreed Report was eventually ratified and approved by the Court on December 7, 2005. (V. 1, P. 71-74). In said Amended Agreed Report, the Court stated: ' References to the record on appeal as prepared by the Clerk of Court of the Ninth Judicial Circuit shall be: (Volume Number, Page Number).Pursuant to the terms of the appraisal provision, each party will select a competent appraiser and the two appraisers will select an umpire. Each appraiser will state separately the actual cash value and the amount of loss of the vehicle that they allege. If the two fail to agree, they will submit their differences to the umpire. A decision agreed to by any of two of these individuals shall be binding. (V. 1, P. 66). On June 11, 2006, Wroe filed his Motion to Confirm Appraisal Award and Entry of Judgment Thereon based upon his appraiser's report. (V. 1, P. 80-85). Then, on October 5, 2007, Wroe filed another Motion to Confirm Appraisal Award and Entry of Judgment Thereon based upon an August 15,2007 damage award reached by Wroe’s appraiser and the umpire without consultation of Amica’s appraiser. (V. 1, P. 86-89). In that August 15, 2007 damage award, Wroe’s appraiser and the umpire state: We the undersigned, pursuant to our appointment, DO HEREBY CERTIFY that we have truly and conscientiously performed the duties assigned to us and have appraised and hereby award as an amount of loss the following sums to wit in the above described action. These sums include only those relating to the actual cash value of the above described vehicle and do not include and no consideration has been given to any other property loss for personal property, legal fees, related costs or loss of use. This award is based on the amount of corrective and additional repair required to bring this vehicle back to as close as is humanly possible to it’s [sic] preaccident condition and value. It has been determined by this appraiser and the selected umpire that the corrective and additional repairs would be in the amount 2of $8,011.74 before tear down as previously itemized, Therefore, taking into consideration the cost of original repair coupled with the approximate preliminary amount required to make necessary corrective and additional repair we have deemed this vehicle to be a total loss as these joint sums coupled with additional corrective repairs that would be found to be necessary after tear down would exceed eighty per cent [sic] of this vehicle’s actual cash value at the date of loss. Actual Cash Value of Vehicle $22,450.00 Other Damage $ 00.00 Total Amount of Award $22,450.00 (V. 1, P. 89). Wroe then filed a memorandum of law in support of his motion (V. 1, P. 135 - 57), to which Amica replied. (V. 2, P. 158-218). A hearing followed. Pursuant to the trial court’s ruling at the hearing on said motion, counsel for Amica submitted a proposed order to the trial court and copied Wroe’s counsel. (V. 2, P. 219). ‘The trial court subsequently entered its Order on Defendant’s Motion to Confirm Appraisal Award. (V. 2, P. 220-21). Wroe then moved to vacate the order and set it for hearing for January 29, 2008 (V. 2, P. 222 — 23), but filed a Notice of Appeal on January 10, 2008. (V. 2, P. 227-30). ‘This Court issued an Order to Show Cause as to why the appeal should not be dismissed for lack of jurisdiction, but subsequently allowed the appeal to proceed as a final appeal after Wroe submitted his Initial Brief prior to the Court ruling upon theOrder to Show Cause. Thus, Appellee is not challenging the jurisdiction of this Court to hear this appeal.STANDARD OF REVIEW Although Appellant’s recitation of the standard of review is argumentative and factually incorrect, Appellee would concede that a de novo standard of review would more likely than not apply to this appeal given it involves the interpretation of an insurance contract,IMMARY OF ARGUMEN’ The trial court properly entered its Order requiring Amica to pay $8,011.74 because the issue of whether the policy’s limitation of liability provision allowed for such an amount to be awarded was for the court to decide. Once the appraiser and umpire determined the actual cash value versus the amount of loss, their job was completed. The appraiser and the umpire did not have the authority to determine that ‘Amica had to pay the greater of the two amounts when the policy explicitly provided that the lesser of the two amounts should be paid. Recognizing the appraiser and the umpire exceeded both the authority provided to them in the trial court’s Amended Agreed Report on Defendant’s Motion to Compel Appraisal and pursuant to Wroe’s policy of insurance with Amica, the trial court directed Amica to pay the amount properly owed under the policy of insurance in question. The trial court simply resolved the coverage issue as it was authorized to do so. This Court should affirm the judgment below.ARGUME! L THE TRIAL COURT PROPERLY ENTERED ITS ORDER ON DEFENDANT’S MOTION TO CONFIRM APPRAISAL AWARD BECAUSE THE ISSUE OF COVERAGE WAS PROPERLY BEFORE THE COURT (Responsive to All Three Arguments Raised by Appellant). Appellant and Appellee actually agree on several issues. First, Appellant and Appellee are in agreement that Amica has not denied coverage of this claim. Second, Appellant and Appellee agree that the appraisers have the responsibility of determining the amount of loss of an insured, but not the coverage issues relative to an insured’s claim. Third, Appellant and Appellee agree that Amica immediately paid Wroe $8,011.74 as a result of the August 15, 2007 report of Wroe’s appraiser and the umpire. What the parties clearly disagree about is whether Wroe’s appraiser and the umpire exceeded their authority in resolving a coverage issue by basically “finding” Amica had the obligation to pay $22,450 instead of the $8,011.74. Agreeing with Amica, the trial court found such “finding” was in contravention of the authority granted through the appraisal process and ordered Amica to pay only that which it was required to pay under its policy of insurance with Wroe. Given it is for the trial court to conclude issues of coverage, it was appropriate for the trial court to rule as it did. The Order below is proper and this Court should affirm.