Miami Associate Carly Weiss and Partner Lissette Gonzalez successfully obtained a reversal of a trial court order granting plaintiff’s ore tenus motion to compel appraisal.
The parties were ordered to report to trial and, on Day 1 at the pretrial hearing, plaintiff/insured orally moved for an appraisal under a novel theory of equitable estoppel, arguing that the insurance carrier should be estopped from objecting to an appraisal. The carrier argued that the appraisal clause within the policy of insurance requires that both parties consent to an appraisal; and, here, the carrier was not consenting to appraisal and therefore appraisal was not applicable. The carrier also objected to the trial court hearing the ore tenus motion as a violation of its due process rights, as there was no prior notice given to the insurer of this motion. The trial court disagreed with the carrier’s positions, granted the plaintiff’s ore tenus motion, and ordered the parties to appraisal. The Third District Court of Appeal reversed and held that the carrier’s policy of insurance language was clear in that an appraisal required the consent of both parties. The Third District ordered that the trial court must interpret the policy in accordance with the plain meaning of the language used so to give the effect to the policy as it was written. The appellate court also held that the trial court’s entertaining of the ore tenus motion, during the pretrial hearing, without prior notice to the carrier, and over the carrier’s objections, was a violation of the carrier’s due process rights.
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