Notice Requirements under Florida Statute 627.7015 Did Not Apply Where Insured Initiated Litigation

Am. Integrity Ins. Co. v. Gainey (Fla. 2d DCA 2012)

A claim was brought under a homeowner’s insurance policy for damage caused by a water leak. The insurer issued a check to its insured as partial payment of the damages, indicating that additional funds may be issued following further investigation. The insured responded by filing a sworn proof of loss statement and a breach of contract complaint. The insurer advised its insured that it disagreed with her estimate of loss, provided the statutory notice of mediation under section 527.7015, and then moved to dismiss the complaint, urging the trial court to abate litigation in favor of appraisal.

After a mediation proved unsuccessful, the trial court initially granted the insurer’s request for appraisal. However, the insured successfully moved to enjoin the appraisal and lift the stay of litigation by contending that the insurer had waived its right of appraisal by failing to provide timely notice of mediation under section 627.7015.

The second district reversed, explaining that section 627.7015 merely describes mediation as a viable option before an insured resorts to litigation and that the notice requirement was inapplicable since the insured had first initiated the breach of contract action: “[S]ection 627.7015 permits insureds and insurers to use the mediation process to encourage an inexpensive and speedy resolution of insurance claims prior to commencing the appraisal process, or commencing litigation. Here, because Gainey prematurely commenced litigation against American, we conclude that the notice requirement under section 627.7015(7) does not apply. Accordingly, Gainey cannot rely on the statute to avoid appraisal proceedings where her filing of the lawsuit rendered the statute inapplicable.”