UNITED SERVICES AUTOMOBILE ASSOCIATION, APPELLANT,
v.
STEVEN A. MODREGON AND TANYA MODREGON ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, APPELLEES
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USAA appealed orders denying its motion to dismiss a class action lawsuit and its motion to compel an appraisal regarding USAA's alleged policy of using non-OEM replacement parts in vehicle repairs. The court affirmed the denial of the appraisal motion and dismissed the appeal of the motion to dismiss as not appealable.
An appraisal is not appropriate when the gravamen of the complaint challenges a policy decision regarding non-OEM parts rather than disagreement over the amount of loss, and an order denying a motion to dismiss is not an appealable interlocutory order.
[1] An order denying a motion to dismiss is not an appealable nonfinal order.
[2] An appraisal is not appropriate when the gravamen of a complaint challenges a policy decision regarding the type of replacement parts used, rather than the relative value…
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Join FLexlaw to unlock all legal intelligence“the gravamen of [the] complaint challenges a policy decision by Defendant to use non-OEM parts, not the relative value of the damage to Plaintiffs vehicle”
Establishes that the appraisal provision does not apply because the dispute concerns policy decisions, not valuation disagreements
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Join FLexlaw to unlock all legal intelligenceSteven and Tanya Modregon filed a class action against their insurer USAA, alleging USAA had a corporate policy requiring non-OEM replacement parts fo…
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BLUE, Chief Judge.
In consolidated cases, United Services Automobile Association (USAA) appeals an order that denied its motion to dismiss and an order that denied its motion to compel an appraisal. We affirm the order denying the appraisal; we dismiss the appeal of the order that denied USAA’s motion to dismiss.
Steven A. and Tanya Modregon have filed a class action lawsuit against their automobile insurer, USAA. They alleged that USAA has a corporate policy requiring the use of non-OEM replacement parts1 for repairs. They further alleged that this corporate policy constitutes a breach of their insurance policy. Under the insurance policy, USAA’s limit of liability for loss is “the lesser of the actual cash value of the property or part damaged or stolen, or the amount necessary to repair or replace the property or part.” The insurance policy defines actual cash value as “the amount which it would cost to replace the stolen or damaged property with new property of like kind and quality, less allowance for depreciation and physical deterioration.” The insurance policy also states that “[i]f we and you do not agree on the amount of loss, either may demand an appraisal.”
USAA filed a motion to compel an appraisal. The trial court denied the motion, holding that “the gravamen of [the] complaint challenges a policy decision by Defendant to use non-OEM parts, not the relative value of the damage to Plaintiffs vehicle” and that “[w]hether non-OEM parts are parts of ‘like kind and quality’ is not an appropriate issue for an appraiser to determine.” We have reviewed the class action complaint and agree that it states more than a disagreement over the amount of loss for the Modregons’ vehicle. Accordingly, we affirm the order denying USAA’s motion to compel an appraisal. See Fla. Select Ins. Co. v. Keelean, 727 So. 2d 1131 (Fla. 2d DCA 1999).
As to the order denying USAA’s motion to dismiss, this order is not appealable. See Fla.R.App. P. 9.130 (listing appealable, nonfinal orders but omitting orders denying motions to dismiss); RD & G Leasing, Inc. v. Stebnicki, 626 So. 2d 1002, 1003 (Fla. 3d DCA 1993) (finding no interlocutory jurisdiction over order denying motion to dismiss). Therefore, we dismiss the appeal of this order. Case 2D01-1324 is dismissed; case 2D01-1598 is affirmed.
NORTHCUTT and GREEN, JJ., Concur. . " 'Nonoriginal equipment manufacturer aftermarket crash part’ means an aftermarket crash part made by any manufacturer other than the original vehicle manufacturer or [its] supplier.” § 501.32(3), Fla. Stat. (2000).
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Cotton States Mut. Ins. v. D'Alto, 879 So. 2d 67 (Fla. 1st DCA 2004)…me as an! order determining entitlement to arbitration. See Florida Farm Bureau Cas. Ins. Co. v. Sheaffer, 687 So. 2d 1331 (Fla. 1st DCA 1997). This was the rule in other district courts of appeal, as well. See United Servs. Auto. Ass’n v. Modregon, 818 So. 2d 562 (Fla. 2d DCA 2002); U.S. Fidelity & Guar. Co. v. Romay, 744 So. 2d 467 (Fla. 3d DCA 1999); Delisfort v. Progressive Express Ins. Co., 785 So. 2d 734 (Fla. 4th DCA 2001). However, we conclude that the jurisdictional principle stated in these decision…
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Nationwide Mut. Fire Ins. Co. v. Schweitzer, 872 So. 2d 278 (Fla. 4th DCA 2004)…involving appraisal prior to Suarez. See Delisfort v. Progressive Express Ins. Co., 785 So. 2d 734 (Fla. 4th DCA 2001); Intracoastal Ventures Corp. v. Safeco Ins. Co. of Am., 540 So. 2d 162 (Fla. 4th DCA 1989); United Servs. Auto. Ass’n v. Modregon, 818 So. 2d 562 (Fla. 2d DCA 2002); U.S. Fid. & Guar. Co. v. Romay, 744 So. 2d 467 (Fla. 3d DCA 1999); Fla. Select Ins. Co. v. Keelean, 727 So. 2d 1131 (Fla. 2d DCA 1999). Suarez plainly held that an appraisal provision is not an agreement to arbitrate. It foll…
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R.H.B. v. J.B.W., 826 So. 2d 346 (Fla. 2d DCA 2002)…a practical matter, an order denying a motion to dismiss is not an appealable nonfi-nal order. See Fla. R.App. P. 9.130(a)(3) (listing appealable nonfinal orders but omitting orders denying motions to dismiss); United Servs. Auto Ass’n v. Modregon, 818 So. 2d 562 (Fla. 2d DCA, 2002). Even if this court could have considered the appeal of this earlier order to be a petition for certiorari, the petition would have been untimely. See Fla. R.App. P. 9.100(c)(1). . This holding in Eldridge v. Eldridge, 153 Fla.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- RD & G Leasing, Inc. v. Stebnicki, 626 So. 2d 1002 (Fla. 3d DCA 1993)
- Fla. Select Ins. Co. v. Keelean, 727 So. 2d 1131 (Fla. 2d DCA 1999)