NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FLORIDA INSURANCE GUARANTY )
ASSOCIATION, INC., )
)
Appellant, )
)
v. ) Case No. 2D13-5453
)
DONNA FRANK, )
)
Appellee. )
________________________________ )
Opinion filed February 20, 2015.
Appeal pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Pasco County;
W. Lowell Bray, Jr., Judge.
Hinda Klein and Diane H. Tutt of
Conroy, Simberg, Ganon, Krevans,
Abel, Lurvey, Morrow, & Schefer, P.A.,
Hollywood, for Appellant.
George A. Vaka and Nancy A. Lauten of
Vaka Law Group, Tampa, and John E.
"Jed" Thomas of Marshall Thomas
Burnett, Tampa, for Appellee.
NORTHCUTT, Judge.
Florida Insurance Guaranty Association, Inc., appeals a nonfinal order
compelling an appraisal of a sinkhole claim by Donna Frank. As explained in this
court's recent opinion in Florida Insurance Guaranty Ass'n v. de la Fuente, 40 Fla. L.
Weekly D123 (Fla. 2d DCA Jan. 7, 2015), appraisal is not available under the amended
statute applicable to this case.
Few facts are necessary to resolve the limited issue before us. Frank was
insured by Homewise Preferred Insurance Company, and she filed suit against
Homewise after it denied her claim for sinkhole damage. When Homewise was
declared insolvent on November 4, 2011, FIGA assumed responsibility for handling the
claim. FIGA later admitted that Frank had a sinkhole loss, but the parties disagreed
about the method necessary to repair the damage. Ultimately, the circuit court granted
Frank's motion to compel an appraisal, a process provided for in the Homewise
insurance policy.
FIGA argues that appraisal is not appropriate under section 631.54(3)(c),
Florida Statutes (2011). Part of the FIGA Act, §§ 631.50-.70, Fla. Stat. (2011), this
statute excludes from the definition of covered claim "[a]ny amount payable for a
sinkhole loss other than testing deemed appropriate by the association or payable for
the actual repair of the loss." § 631.54(3)(c). It also prevents FIGA from paying the
policyholder directly. Id. In de la Fuente, we addressed a similar case in which FIGA
was handling a claim following Homewise's insolvency, and this court held that the 2011
statute was applicable. 40 Fla. L. Weekly at D124 (relying on Fla. Ins. Guar. Ass'n v.
Bernard, 140 So. 3d 1023 (Fla. 1st DCA), review denied, No. SC14-1416, 2014 WL
6883868 (Fla. Dec. 5, 2014), to hold that the applicable version of the FIGA Act was the
one in effect on the date the insurance company was declared insolvent). Further, de la
Fuente held that "requiring FIGA to participate in the appraisal process is at odds with
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FIGA's statutory mandate to pay only for the actual cost of repair for a covered sinkhole
loss." Id. at D125.
Accordingly, we reverse the nonfinal order compelling appraisal and
remand for further proceedings. As this court did in de la Fuente, we certify the
following questions of great public importance:
I. DOES THE DEFINITION OF "COVERED CLAIM"
IN SECTION 631.54(3), FLORIDA STATUTES, EFFECTIVE
MAY 17, 2011, APPLY TO A SINKHOLE LOSS UNDER A
HOMEOWNERS' POLICY THAT WAS ISSUED BY AN
INSURER BEFORE THE EFFECTIVE DATE OF THE NEW
DEFINITION WHEN THE INSURER WAS ADJUDICATED
TO BE INSOLVENT AFTER THE EFFECTIVE DATE OF
THE NEW DEFINITION?
II. DOES THE STATUTORY PROVISION LIMITING
FIGA'S MONETARY OBLIGATION TO THE AMOUNT OF
ACTUAL REPAIRS FOR A SINKHOLE LOSS PRECLUDE
AN INSURED FROM OBTAINING AN APPRAISAL AWARD
DETERMINING THE "AMOUNT OF LOSS" IN
ACCORDANCE WITH THE TERMS OF THE
HOMEOWNERS' POLICY OF INSURANCE?
Id.
Reversed and remanded.
SILBERMAN and VILLANTI, JJ., Concur.
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