In a recent decision, a Florida Appellate Court was seemingly confronted with a difficult choice: Applying the Florida Statutes then in effect, or applying a Property Insurance Policy Provision: First Protective Insurance Co. v. Schneider Family Partnership, 2012 WL 5499987 (Fla. 2d DCA November 17, 2012)(STATED NOT FINAL). Actually, there was no choice at all under the facts of that case.
The Florida Statutes then extant set out the requirements regarding Appraisal, or not, following a Mediation of Property Insurance Claims. The Statutes then provided that in a situation where the Insurance Company requested Mediation, and the Mediation is unsuccessful, only an Insured, not the Insurance Company, can elect an Appraisal as the next step before litigation. The current Florida Statute is Fla. Stat. § 627.7015(7)(2012), and it retains that requirement.
The Florida Appellate Court, however, ruled in this case that the Property Insurance Policy Provision trumped the Florida Statute on the record facts. "Because the statute does not address a situation where the insured requests mediation and the parties cannot reach an agreement, we conclude that under the statute FPIC is entitled to pursue an appraisal pursuant to the terms of the contract." First Protective Insurance Co. v. Schneider Family Partnership, 2012 WL 5499987 *1 (Fla. 2d DCA November 17, 2012). [Emphasis added.]
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