HEATHER SILVERSMITH v. STATE FARM INSURANCE COMPANY

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

HEATHER SILVERSMITH,
Appellant,

v.

STATE FARM INSURANCE COMPANY,
Appellee.

No. 4D20-2685

[July 7, 2021]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John B. Bowman, Judge; L.T. Case No. CACE19-026047.

Samuel Alexander of Alexander Appellate Law P.A., DeLand, for
appellant.

Ubaldo J. Perez, Jr. of Law Office of Ubaldo J. Perez, Jr., Miami Lakes,
and Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, for appellee.

PER CURIAM.

An insured homeowner appeals an order denying her motion for
summary judgment and ruling that no one may audio/video record the
inspection of her home by the insurer’s appraiser unless all participants
consent.

We reverse. The trial court erred in applying section 934.03, Florida
Statutes (2020), which precludes interception of oral communications in
some circumstances. Here, the appraiser has no legitimate expectation of
privacy in the insured’s home, and the statute does not apply.

The insured filed a property damage claim, and the insurer invoked its
right to appraisal under the policy. The insured then filed an action in
circuit court seeking a declaratory judgment that she has the right to
audio/video record the appraiser’s inspection of the home even though the
appraiser objects.

The insured moved for summary judgment on her declaratory judgment
action, and the trial court denied the motion. In the order, the court ruled
that no one may audio/video record the inspection unless all participants
consent. The insured timely appeals.

First, we reject the insured’s argument that the court violated her right
to due process by granting unpleaded injunctive relief. The insured
brought the issue before the court through her action and summary
judgment motion and failed to preserve any errors in the court granting
unpleaded relief.

We agree with the insured, however, that the court erred in precluding
her from openly recording a visitor within her own home.

At the hearing on the motion, the court announced that, under Florida
law, “the only way to record by way of video or audio is with the full consent
of all parties participating.” The court was apparently relying on section
934.03, Florida Statutes (2020), which precludes interception of oral
communications in some circumstances. The court erred.

As argued by the insured, “for an oral conversation to be protected
under section 934.03 the speaker must have an actual subjective
expectation of privacy, along with a societal recognition that the
expectation is reasonable.” State v. Smith, 641 So. 2d 849, 852 (Fla. 1994)
(concluding that a person did not have a legitimate expectation of privacy
while seated in the back of a police car).

The insured is correct that nothing in the policy precluded audio/video
recording of an appraisal inspection and that the insurer’s appraiser has
no legitimate expectation of privacy while in the insured’s home for the
inspection.

The insurer has not identified anything that would validly preclude a
homeowner from openly recording an inspection of her own home.

As recognized in State Farm Florida Insurance Co. v. Chirino, 300 So. 3d
1240, 1242 (Fla. 3d DCA 2020), where the court denied certiorari review
of an order allowing a homeowner to record an inspection, the homeowner
and her representatives have a right to be present during the inspection,
and the insurer has shown nothing that precludes the homeowner or her
representatives from openly making a recording of the inspection.

Accordingly, the order is reversed and remanded for further
proceedings consistent with this opinion.

Reversed and remanded.

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GROSS, CIKLIN and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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