IN THE CIRCUIT COURT OF THE 15th JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA, LES MILLER, CASE NO.: 502008CA015555 AJ Plaintiff, vs. FLORIDA INSURANCE GUARANTY ASSOCIATION, IN Defendant. f ORDER DENYING PLAINTIFF'S MOTION TO CONFIRM AND ENTER JUDGMENT ‘ON APPRAISAL AWARD, AND FOR ATTORNEY'S FEES AND COSTS PPRAISAL AWARD, AND FOR ATTORNEY'S FEES | ‘THIS CAUSE, having come before the Court upon the Plaintiff's Motion to Confirm and Enter Judgment on Appraisal Award, and for Attorney’s Fees and Costs (the “Motion”), it is thereupon ORDERED AND ADJUDGED as follows: FACTS AND PROCEDURAL STORY. ‘The Plaintiff was issued a residential property insurance policy (the “Policy") by insolvent insurer Atlantic Preferred Insuranee Company (“Atlantic Preferred”). On September 4, 2004, Plaintif’s property was damaged as a result of Hurricane Frances. An appraisal award was entered for the damage from Hurricane Frances and Atlantic Preferred paid the Plaintiff for the damage under the Policy. Plaintiff alleged that his property suffered damage about @ year later as a result of Hurricane Wilma on October 24, 2005. Atlantic Preferred paid the Plaintiff $11,420.58 for damage caused by Hurricane Wilma. Shortly thereafter, Atlantic Preferred became insolvent and triggered Florida Insurance Guaranty Association, Inc.’s (“FIGA”) obligations pursuant to section 631.57, Florida Statutes.! TRIGA was ereated in part by the legislature to “[plrovide a mechanism for the payment of covered clatms under certain insurance policies to avoid excessive delay in payment and to avoid financial Toss to claimants or policyholders because of the insolvency of the insurer.” § 631.51(1), Fla, Stat. 2010) (emphasis added).After receiving payment, Plaintiff disputed the amount provided and the parties proceeded to appraisal. An appraisal award was entered determining the amount of loss “arising out of physical damage caused by Hurricane on 10/24/05" at $27,342.29. FIGA made no additional payments to the Plaintiff after FIGA deducted the applicable deductible ($2,232.00) and amount of prior payments Plaintiff received for Hurricane Frances (approximately $34,000) and Wilma ($11,420.58). FIGA notified Plaintif’s counsel that the reason no payment would be {issued was because of Plaintif?'s failure to make repairs to his roof, interior and exterior after the receipt of payment for Hurricane Frances and prior to Hurricane Wilma. FIGA notified Plaintiff that if they were mistaken, and repairs did take place, that Plaintiff should send FIGA invoices showing proof of repair. Plaintiff instead filed a Compl on May 30, 2008 claiming that FIGA failed to agree on the amount of the loss and denied liability for part of the Plaintiff's loss under the Policy. ANALYSIS [As the Florida Supreme Court stated, itis the appraiser's duty to determine the amount of loss, while questions of coverage are left for the judiciary. State Farm Fire & Cas. v. Licea, 685 So. 2d 1285, 1287 (Fla. 1996). Plaintiff argues that FIGA admits there was a covered loss to Plaintiff's property due to Hurricane Wilma and, therefore, causation is an amount of loss question for the appraisal pancl. Plaintiff relies upon the Florida Supreme Court’s decision in Johnson v. Nationwide Mut, Ins. Co., 828 So. 2d 1021 (Fla, 2002), which addressed the conflict between two district court decisions on the issue of whether causation is a coverage question for the court or an amount of loss question for the appraisal panel when the insurer wholly denies that there is a covered loss. Id. at 1022. The court held that “causation is a coverage question for the court when an insurer wholly denies that there is a covered loss and an amount of lossquestion for the appraisal panel when an insurer admits that there is a covered loss, the amount of which is disputed.” Id. However, FIGA is not disputing the validity of the amount of loss in the appraisal award. FIGA’s position is that it should not be forced to pay for damages caused by Hurricane Frances that were not repaired prior to Hurricane Wilma as required by the terms and conditions of the applicable Policy, Although Atlantic Preferred paid Plaintiff $11,420.58 for damage caused by Hurricane Wilma, FIGA was not created to take on the “full gamut of a defunct insurance company’s liabilities.” Florida Ins. Guar. Ass'n, Inc. v. Olympus Ass'n, ine., 34 So. 3d 791, 794 (Fla. 4th DCA 2010). Whether or not something is covered may hinge on the cause of loss. However, the final determination of whether the loss as a whole, or only specific portions of the loss, are covered by the insurance policy is strictly a judicial question, Licea, 685 So. 2d at 1287-88 (citing Midwest ‘Mut. Ins, Co, v. Santiesteban, 287 So. 2d 665 (Fla. 1974)); see also Liberty American Ins. Co. v. Kennedy, 90 So. 2d 539, 541 (Pla, 24 DCA 2005). The Fourth District Court of Appeal confirmed that it is error to confirm an appraisal award and enter judgment without first determining an insurer’s coverage liability. Olympus, 34 So. 3d at 79S. Just because the parties agree to appraisal does not preclude the insurance company from subsequently raising any of its defenses to coverage. Florida Windstorm Underwriting v. Gajwani, 934 So. 2d 501, 506 (Fla 3d DCA 2005) (citing Licea, 685 So. 2d at 1288), Pursuant to the Policy at issue, FIGA. argues that the Policy imposes important post-loss obligations on the insured and states as follows: SECTION I-CONDITIONS B, Duties after Loss IGA quoted a portion ofthe Poliey in its Response to Plaintiff's Motion, Also, a portion ofthe Policy is atached as exhibit “F” to FIGA’s Motion to Compe! Responses and Production of Documents from Plaintiff