NCI, LLC F/K/A AUTO GLASS STORE LLC A/A/O DORA NOE

v.

PROGRESSIVE SELECT INSURANCE COMPANY

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

NCI, LLC F/K/A AUTO GLASS STORE

LLC A/A/O DORA NOE,

Appellant,

v. Case No. 5D21-1282 LT Case No. 2019-SC-037205-O

PROGRESSIVE SELECT INSURANCE

COMPANY,

Appellee.

________________________________/

Opinion filed November⁴, 2022

Nonfinal Appeal from the County Court for Orange County, Carly S. Wish, Judge.

Earl I. Higgs, Jr., of Higgs Law, P.A., Orlando, for Appellant.

Lissette M. Gonzalez, of Cole, Scott & Kissane, P.A., Miami, for Appellee.

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TRAVER, J.

NCI, LLC, formerly known as Auto Glass Store LLC, as assignee of Dora Noe (“NCI” and “the insured,” respectively), appeals the trial court’s order dismissing NCI’s complaint without prejudice. We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(iv). The trial court ordered NCI and Progressive Select Insurance Company (“Progressive”) to comply with the operative car insurance policy’s appraisal provision. Because this provision is valid, an appraisable issue exists, and Progressive did not waive its right to appraisal, we affirm.

I.

Background The insured sustained damage to her windshield and retained NCI to fix it. NCI replaced the windshield, and in return, the insured assigned all benefits under her policy to NCI. NCI invoiced Progressive for the repairs; Progressive acknowledged coverage but did not pay the full invoice amount. Thereafter, NCI sued Progressive for breach of contract and declaratory judgment. It alleged Progressive had breached the policy by failing to pay “all the benefits due.” It also sought a declaration that the appraisal provision was invalid, an appraisable issue did not exist, and Progressive waived its right to appraisal.

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Progressive moved to dismiss, arguing that NCI had failed to comply with the policy’s appraisal provision. Alternatively, it asked the trial court to stay the case while appraisal occurred. It also sought dismissal because NCI lacked standing. The appraisal provision outlined the applicability, process, time frame, and costs of appraisal, which would ultimately result in a binding determination on the amount Progressive owed NCI for the windshield replacement: If we cannot agree with you on the amount of loss, then we or you may demand an appraisal of the loss. However, mediation, if desired, must be requested prior to demanding appraisal. Within 30 days of any demand for an appraisal, each party shall appoint a competent and impartial appraiser and shall notify the other party of that appraiser’s identity. The appraisers will determine the amount of loss. If they fail to agree, the disagreement will be submitted to an impartial umpire chosen by the appraisers, who is both competent and a qualified expert in the subject matter. If the two appraisers are unable to agree upon an umpire within 15 days, we or you may request that a judge of a court of record, in a county where you reside, select an umpire. The appraisers and the umpire will determine the amount of loss. The amount of loss agreed to by both appraisers, or by one appraiser and the umpire, will be binding. You will pay your appraiser’s fees and expenses. We will pay our appraiser’s fees and expenses. All other expenses of the appraisal, including payment of the umpire if one is selected, will be shared equally between us and you. Neither we nor you waive any rights under the policy by agreeing to an appraisal.

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The policy also contains a clause entitled, “Legal Action Against Us,” which states that “[w]e may not be sued unless there is full compliance with all the terms of this policy.” Following a non-evidentiary hearing, the trial court determined the policy’s appraisal provision was valid, an appraisable issue existed, and Progressive did not waive appraisal. It dismissed the case without prejudice for the parties to comply with the policy’s appraisal provision. It memorialized its findings in a detailed order that addressed and discarded each of NCI’s arguments.

II.

Standard of Review

We review the trial court’s non-final order compelling appraisal de novo. See Underwriters at Lloyd’s, London v. Sorgenfrei, 278 So. 3d 930, 931 (Fla. 5th DCA 2019). We also interpret an insurance policy de novo. See Fla. Ins. Guar. Ass’n v. Branco, 148 So. 3d 488, 491 (Fla. 5th DCA 2014). We accord great deference, however, to a trial court’s dismissal of a declaratory judgment action, and we review this decision for an abuse of discretion. See Palumbo v. Moore, 777 So. 2d 1177, 1178 (Fla. 5th DCA 2001).

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III.

Analysis NCI raises several arguments on appeal, which mostly attack the appraisal clause’s validity. One is unpreserved,¹ and none have merit.² It argues the appraisal clause:¹) is ambiguous because it indicated appraisal would be binding on the parties, but it also contained a reservation of rights clause;²) does not describe the procedures governing appraisal, likening it to an unenforceable arbitration agreement;³) is unenforceable because it violates the public policy behind Florida’s insurance scheme, which awards attorney’s fees to an insured who wins a suit against their insurer;⁴) violates NCI’s fundamental rights of access to the courts, due process, and a jury trial under Florida’s Constitution; and⁵) violates the “Prohibitive Cost Doctrine,” contending that appraisal should not occur because the process would be more expensive than the windshield replacement itself. NCI also insists that no appraisable issue exists because Progressive had not actually disputed

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the amount of loss. Finally, NCI claims Progressive had waived its appraisal rights by challenging NCI’s standing to sue in its motion to dismiss. We consider these arguments in turn. First, however, we outline some general propositions relating to appraisals and contract interpretation. “Appraisals are creatures of contract and the subject or scope of appraisal depends on the contract provision.” See Branco, 148 So. 3d at 491. The goal of appraisal provisions is to settle disputes without litigation. See SafePoint Ins. v. Hallet, 322 So. 3d 204, 207 (Fla. 5th DCA 2021). Courts construe motions to compel appraisal like motions to compel arbitration. See Fla. Ins. Guar. Ass’n v. Castilla, 18 So. 3d 703, 704 (Fla. 4th DCA 2009) (citing Allstate Ins. v. Suarez, 786 So. 2d 645, 646 (Fla. 3d DCA 2001)). The Florida Supreme Court has held that courts must consider three elements in ruling whether a dispute is arbitrable:¹) whether a valid written agreement to arbitrate exists;²) whether an arbitrable issue exists; and³) whether a party has waived the right to arbitrate. Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999). The parties agree that these elements guide our review of the trial court’s order compelling appraisal. See, e.g., Fla. Select Ins. v. Keelean, 727 So. 2d 1131, 1132 (Fla. 2d DCA 1999) (applying threeelement arbitrability test to appraisal provision), disapproved on other

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grounds by Johnson v. Nationwide Mut. Ins., 828 So. 2d 1021, 1026 (Fla. 2002).

A.

A Valid Written Appraisal Provision Exists.

NCI’s five separate challenges to the policy’s appraisal provision are unavailing. It is neither vague nor subject to multiple meanings. We can easily reconcile the last sentence of this section, which allows the parties to reserve their rights under the policy, with the remainder of the appraisal provision. Even if the appraisal provision lacked basic arbitration-style procedures—which it does not—this absence would not void the provision. The appraisal provision is neither void for public policy reasons nor violative of NCI’s fundamental rights. Finally, we decline to extend the Prohibitive Cost Doctrine to apply to the appraisal process.

1.

The Reservation of Rights Clause Does Not Render the Appraisal Provision Ambiguous.

The appraisal provision is unambiguous. NCI claims the appraisal provision is vague and subject to multiple meanings because it reserves litigation rights to the parties even though it states the loss amount resolved through appraisal “will be binding.” To NCI, this means that it should be able to challenge the amount of Progressive’s partial payment via its breach of contract claim and outside the appraisal process. But this is not a permissible reading of the policy. In construing an insurance policy, we will

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read the policy as a whole, attempting to give every provision its full meaning and effect. See Mendota Ins. v. At Home Auto Glass, LLC, 346 So. 3d 96, 98 (Fla. 5th DCA 2022) (citing Auto-Owners Ins. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000)). Where provisions in a contract appear to conflict, we will reconcile any apparent inconsistencies, if possible. See Excelsior Ins. v. Pomona Park Bar & Package Store, 369 So. 2d 938, 941 (Fla. 1979). We cannot rewrite policy terms, and when an insurance policy is unambiguous, we will give it effect as written. See Hallet, 322 So. 3d at 207. Here, we can easily reconcile the appraisal provision’s reservation of rights clause with the binding appraisal clause. This reconciliation is reflective of the nature of appraisal, which allows parties to settle a damage amount while still preserving the ability to raise defenses and other matters through litigation. See State Farm Fire & Cas. Co. v. Licea, 685 So. 2d 1285, 1288 (Fla. 1996). Our sister court has analyzed the same appraisal provision and reached the same conclusion. See Progressive Am. Ins. v. Glassmetics, LLC, 343 So. 3d 613, 625–26 (Fla. 2d DCA 2022). If we were to construe the appraisal provision as NCI urges, it would effectively be eliminated from the policy. This reading would transform an agreed-upon and binding process to determine the amount of loss into an optional choice between appraisal and litigation. This is not a reasonable interpretation. See Mendota, 346 So. 3d

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at 99 (“[F]or an ambiguity to exist, the policy language must be susceptible to more than one reasonable interpretation.”). For this reason, NCI’s first challenge to the appraisal clause’s validity fails.

2.

The Appraisal Provision Contains Adequate Procedures.

The policy’s appraisal process is neither ambiguous nor unenforceable because it omits essential procedural terms. NCI contends that the appraisal provision is vague because it does not describe “any rules or procedures that would govern appraisal.” Citing Greenbrook NH, LLC v. Estate of Sayre, 150 So. 3d 878 (Fla. 2d DCA 2014), NCI argues that because arbitration agreements must outline these procedures to be enforceable, so should appraisal provisions. This argument has two problems. First, appraisal is— by its nature—a different process than arbitration. See generally Citizens Prop. Ins. v. Mango Hill #6 Condo. Ass’n, 117 So. 3d 1226, 1229–30 (Fla. 3d DCA 2013) (describing differences between appraisal and arbitration). Unlike the quasi-judicial nature of arbitration, appraisal is an “informal process.” See Allstate Ins. v. Suarez, 833 So. 2d 762, 765 (Fla. 2002); see also Glassmetics, 343 So. 3d at 623 (“We conclude that the procedures for arbitration are not applicable to appraisal based on Suarez and the differences between arbitration and appraisal as set out in Mango Hill.”). Once a party to an insurance contract properly invokes appraisal, the parties

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should conduct those proceedings in accord with the agreed-on policy provisions. Suarez, 833 So. 2d at 765. Second, the policy’s appraisal provision contains numerous processes characteristic of an enforceable arbitration agreement, much less a more informal appraisal provision. Here, the policy’s appraisal provision outlines: a) when appraisal can occur; b) a procedure for the selection of the appraisers; c) a deadline for the appointment of an appraiser and notification to the opposing party; d) a procedure if the parties’ respective appraisers fail to agree on the amount of the loss; e) the qualifications of an umpire and the procedure for appointing one; and f) provisions for payment of the appraisers, umpire, and other appraisal expenses. This appraisal provision is more detailed than the one the Suarez Court found enforceable. See id. at 762–63. In this sense, NCI’s contention that the appraisal provision lacks any procedures is indefensible. Further, its reliance on Greenbrook is misplaced. The Greenbrook court found an arbitration agreement enforceable even though portions of the agreement were obscured. See 150 So. 3d at 881. It explained that the essential terms of an arbitration agreement included the “form and procedure for arbitration, the number of arbitrators, how the arbitrators were to be selected, or the issues to be decided by arbitration.” Id. (quoting Malone &

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Hyde, Inc. v. RTC Transp., Inc., 515 So. 2d 365, 366 (Fla. 4th DCA 1987)). It emphasized these factors were not exhaustive, but they were sufficient and definite because they informed the parties “what matters are to be arbitrated and provide some procedure by which arbitration is to be effected.” Id. Even if appraisal were not an informal process, we fail to see how the parties’ appraisal policy falls short of this standard.