Tampa., Florida - Small Claims lawyer represented Appellee with a underpayment of an insurance claim Dispute.

Glassmetics, LLC, a/a/o Devan Hammond, filed a small

claims lawsuit in county court against Progressive American

Insurance Company for the alleged underpayment of an insurance

claim for repair of a damaged windshield. Progressive now

challenges a nonfinal order that denies Progressive's amended

motion to dismiss or, alternatively, motion to abate or stay and

motion to compel appraisal.

The trial court refused to enforce the insurance policy's

appraisal provision on a number of grounds, and Progressive raises

multiple issues on appeal.1

We reverse the order because the trial

court erroneously determined (1) that the appraisal provision was

against the public policy underlying section 627.428, Florida

Statutes (2016); (2) that the appraisal provision failed to provide

sufficient procedures and methodologies; (3) that Progressive waived

its appraisal right; (4) that the appraisal provision was

unenforceable because Progressive failed to prove that the insured

knowingly, voluntarily, and intelligently waived his rights of access

1

Based on our resolution, we need not address Progressive's

argument that the trial court impermissibly rewrote the insurance

policy by invalidating the appraisal provision.

3

to courts, to a jury trial, and to due process; and (5) that the

appraisal provision contains an ambiguity. In light of our

conclusions, we remand for further proceedings consistent with this

opinion.

I. FACTS AND PROCEDURAL HISTORY

This case involves a Progressive policy issued to Frank

Hammond as the named insured. Devan Hammond is listed as a

driver and resident relative. The effective date of the policy is

September 16, 2016. The appraisal provision provides:

If we cannot agree with you on the amount of a loss,

then we or you may demand an appraisal of the loss.

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 the county

where you reside, select an umpire. The appraisers and

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.

4

Neither we nor you waive any rights under this policy by

agreeing to an appraisal.

Devan had Glassmetics repair a damaged windshield and

assigned to Glassmetics his right to payment under the policy. On

December 1, 2016, Glassmetics sent an invoice for $187.25 to

Progressive. On December 12, 2016, Progressive issued a check for

$64.20. After cashing the check, Glassmetics filed suit in county

court on December 27, 2016, and alleged that Progressive had

breached the insurance policy by failing to pay the full value of

benefits under the policy. On February 16, 2017, Progressive filed a

notice invoking the appraisal provision and its motion to dismiss or

alternatively to stay and enforce appraisal. Glassmetics amended

its complaint, and Progressive filed its amended motion to dismiss

or, alternatively, motion to abate or stay and motion to compel

appraisal (the amended motion).

The trial court conducted a nonevidentiary hearing on the

amended motion. In the order now on appeal, the court noted that

Progressive had filed a copy of a presuit letter dated December 8,

2016, invoking its right to appraisal. The court found that a

disputed issue of fact remained as to whether Progressive actually

5

mailed or delivered the letter and properly invoked the appraisal

provision before Glassmetics filed suit. The court then determined

that apart from the presuit issue, Progressive waived its right to

compel appraisal by challenging Glassmetics' standing in the

amended motion, even though in that motion Progressive sought, in

the alternative, to compel appraisal. The court then ruled that the

appraisal provision was invalid because it violated the public policy

underlying section 627.428 that provides for an award of attorney's

fees to a prevailing insured. The court also ruled that the provision

was invalid and unenforceable because it lacks procedures and

methodologies to govern the appraisal process.

Further, the trial court ruled that the appraisal provision was

ambiguous based on its view that the retained rights clause

conflicts with the language that the determination of the amount of

loss would be binding. The trial court construed the retained rights

clause as preserving an "[i]nsured's contractual right to insist upon

receiving full payment up to the maximum amount allowable" under

the policy notwithstanding the provision that the appraisal

determination would be binding.

6

Although in its order the trial court stated that it was denying

Progressive's motion to compel appraisal without prejudice, the

order was in effect a denial with prejudice because the court found

the appraisal provision to be invalid and unenforceable. As a

result, Progressive was precluded from invoking its contractual

right to an appraisal.2



Progressive originally sought certiorari review of the order

denying its right to an appraisal in the circuit court. The case was

subsequently transferred to this court after the change in appellate

jurisdiction. See ch. 2020-61, § 3, Laws of Fla. (effective Jan. 1,

2021). This court has jurisdiction of this appeal from a nonfinal

order that determined Progressive's entitlement to appraisal under

the insurance policy. See art. V, § 4(b)(1), Fla. Const.; Fla. R. App.

P. 9.030(b)(1)(B); Fla. R. App. P. 9.130(a)(3)(C)(iv); Progressive Am.

2

The trial court presumably characterized the denial as one

without prejudice because the court found unresolved factual

issues that prevented the court from compelling an appraisal

without allowing the parties to conduct reasonable discovery and

without holding an evidentiary hearing. For example, the court

noted that evidence would be necessary to address the prohibitive

cost doctrine. Progressive does not challenge this ruling on appeal,

and we do not address it except to note that our opinion should not

be construed as precluding the parties and the trial court from

addressing this issue on remand.

7

Ins. v. Broward Ins. Recovery Ctr., LLC, 322 So. 3d 103, 104 (Fla.

4th DCA 2021) (citing Mallory v. Brinckerhoff, 312 So. 3d 944 (Fla.

4th DCA 2021)).

II. ANALYSIS

A. Public policy and section 627.428

Progressive contends that the trial court erred in concluding

that the appraisal provision violates the public policy underlying

section 627.428. We agree.

In making this argument, Progressive asserts that it invoked

appraisal via the letter of December 8, 2016, before Glassmetics

filed suit. The trial court correctly recognized that Progressive

needed to show the letter was sent but failed to do so. However, the

court found that Progressive invoked the appraisal "process during

the lawsuit by virtue of its alternative motion to compel appraisal."

The trial court determined that the appraisal provision violated

public policy based on section 627.428, which provides insureds

with an award of attorney's fees when they obtain a judgment

against an insurance company that underpaid a claim. Section

627.428(1), provides as follows:

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(1) Upon the rendition of a judgment or decree by any of

the courts of this state against an insurer and in favor of

any named or omnibus insured or the named beneficiary

under a policy or contract executed by the insurer, the

trial court or, in the event of an appeal in which the

insured or beneficiary prevails, the appellate court shall

adjudge or decree against the insurer and in favor of the

insured or beneficiary a reasonable sum as fees or

compensation for the insured's or beneficiary's attorney

prosecuting the suit in which the recovery is had.

Section 627.428's purpose "is to discourage the contesting of

valid claims against insurance companies and to reimburse

successful insureds for their attorney's fees when they are

compelled to defend or sue to enforce their insurance contracts."

Ins. Co. of N. Am. v. Lexow, 602 So. 2d 528, 531 (Fla. 1992). In

addition to discouraging insurers "from withholding benefits on

valid claims," the statute further serves to "make an already

financially burdened insured whole again." Johnson v. Omega Ins.,

200 So. 3d 1207, 1209 (Fla. 2016). But section 627.428 also

"discourage[s] litigation and encourage[s] prompt disposition of valid

insurance claims without litigation." Goff v. State Farm Fla. Ins.,

999 So. 2d 684, 688 (Fla. 2d DCA 2008) (alterations in original)

(quoting Jerkins v. USF & G Specialty Ins., 982 So. 2d 15, 17 (Fla.

5th DCA 2008)).

9

Under section 627.428, "an incorrect denial of benefits,

followed by a judgment or its equivalent of payment in favor of the

insured, is sufficient for an insured to recover attorney's fees."

Johnson, 200 So. 3d at 1219; see also Barreto v. United Servs. Auto.

Ass'n, 82 So. 3d 159, 162 (Fla. 4th DCA 2012) ("Here, because the

insurer paid the full amounts claimed only after suit was filed, it

essentially confessed judgment."). "It is only when the claims

adjusting process breaks down and the parties are no longer

working to resolve the claim within the contract, but are actually

taking steps that breach the contract, that the insured may be

entitled to an award [of] fees under section 627.428." Hill v. State

Farm Fla. Ins., 35 So. 3d 956, 960 (Fla. 2d DCA 2010); see also

Goldman v. United Servs. Auto. Ass'n, 244 So. 3d 310, 311 (Fla. 4th

DCA 2018) (quoting Hill, 35 So. 3d at 960). The right to a fee award

"turns upon whether the filing of the suit served a legitimate

purpose." Barreto, 82 So. 3d at 162 (quoting Lewis v. Universal

Prop. & Cas. Ins., 13 So. 3d 1079, 1082 (Fla. 4th DCA 2009)).

For instance, in Goff the insureds were entitled to fees under

section 627.428 when their action "forced State Farm to request an

appraisal and to pay significant additional amounts." Goff, 999 So.

10

2d at 688. In contrast, when an insured filed suit after the insurer

had initiated the appraisal process, the insured was not entitled to

section 627.428 fees. See id. (citing Federated Nat'l Ins. v. Esposito,

937 So. 2d 199, 201-02 (Fla. 4th DCA 2006)).

Resolving disputes without litigation is the goal of the

appraisal process. SafePoint Ins. v. Hallet, 322 So. 3d 204, 207

(Fla. 5th DCA 2021); see also Esposito, 937 So. 2d at 201 (stating

that "the laudable goal of the appraisal process" is "to resolve

disputes without litigation"). The appraisal process does not entail

"legal work arising from an insurance company's denial of coverage

or breach of contract; it is simply work done within the terms of the

contract to resolve the claim." Hill, 35 So. 3d at 961. A fee award

under section 627.428 "should normally be limited to the work

associated with filing the lawsuit after the insurance carrier has

ceased to negotiate or has breached the contract and the additional

legal work necessary and reasonable to resolve the breach of

contract." Id.

Thus, section 627.428 and appraisal provisions both serve

public policy goals. "Because we hold the freedom to contract in

high regard, we carefully weigh the right to freely contract against

11

the legislative intent and the public policy it seeks to enact."

Hernandez v. Crespo, 211 So. 3d 19, 26 (Fla. 2016). "Contractual

provisions which contravene a statute or legislative intent are

injurious to the public good, violate public policy, and are therefore

unenforceable." Id. at 25.

In Hernandez, the court determined that a medical

malpractice arbitration agreement violated public policy when "it

exclude[d] required provisions of the Medical Malpractice Act." Id.

at 20-21. One of the provisions in the arbitration agreement was to

share arbitration costs equally rather than have the defendants

"assume most of the costs of arbitration as in the statutory

scheme." Id. at 27; see also Gessa v. Manor Care of Fla., Inc., 86 So.

3d 484, 493 (Fla. 2011) (concluding that provisions in an

arbitration agreement that limited noneconomic damages and

waived punitive damages violated public policy because they

"directly frustrate the remedies created by statute"); Cincinnati Ins.

v. Cannon Ranch Partners, Inc., 162 So. 3d 140, 143 (Fla. 2d DCA

2014) (determining that a retained rights clause in favor of the

insurer was permitted under Florida law and stating that the trial

court "could not have found the appraisal clause to be

12

unenforceable unless the clause violated either statutory law or

public policy").

Here, the trial court relied upon Hernandez as well as other

arbitration cases, such as Holt v. O'Brien Imports of Fort Myers, Inc.,

862 So. 2d 87, 90 (Fla. 2d DCA 2003), and Flyer Printing Co. v. Hill,

805 So. 2d 829, 832–33 (Fla. 2d DCA 2001). At oral argument,

Glassmetics' counsel asserted that Holt and Flyer Printing control

the present case.

In Holt, a provision on attorney's fees in the arbitration

agreement was contrary to statutes under which the car buyers

sued that provided a right to attorney's fees if they prevailed. See

862 So. 2d at 90. This court stated that "even if the Buyers prevail

on their claims they could be taxed with O'Brien Imports' attorney's

fees because O'Brien Imports obtained a court order compelling

arbitration." Id. Based in part on the attorney's fee provision, this

court determined that the arbitration agreement was unenforceable.

See id. at 89-90.

In Flyer Printing, this court determined that an arbitration

agreement that required an employee to shoulder half the costs and

fees associated with the arbitration was unenforceable. See 805 So.

13

2d at 833. This court explained that the arbitration "agreement

contravened [the employee's] statutory right to seek a full award of

her fees and costs" and therefore defeated the remedial purposes of

the statutes at issue. Id.

In contrast, Progressive's appraisal provision contains no

language concerning attorney's fees. As Progressive argues, there is

no right to attorney's fees in appraisal, even under section 627.428,

because there are no attorneys involved in appraisal and there is no

final judgment or its equivalent in the appraisal process. In

determining that Progressive's appraisal provision violated the

public policy of section 627.428, the trial court noted the small

amount in dispute in this case, $123.05. The trial court reasoned

that windshield shops must rely on contingency fee contracts to

pursue litigation for underpaid claims and are made whole by an

award of fees under section 627.428 when they prevail. Progressive

notes that if Glassmetics litigated and lost, even under a

contingency agreement, the litigation costs would exceed the

appraisal costs.

In Progressive American Insurance v. SHL Enterprises, LLC,

264 So. 3d 1013, 1017-18 (Fla. 2d DCA 2018), this court found no

14

merit in the argument that requiring a party to pay appraisal costs

violated the public policy of section 627.7288, which prohibits

imposing a deductible on a claim for windshield damage. Here,

Progressive recognizes that a "de facto deductible" is not at issue;

rather, it contends that appraisal costs are part of the claims

process and also do not constitute de facto attorney's fees. The cost

of appraisal is "a cost of doing business, i.e., a fee paid to a neutral

third party who is hired to help resolve a dispute about the amount

of the total loss." Id. at 1017. Like section 627.7288 in SHL

Enterprises, section 627.428 "contains no express prohibition

against requiring an insured to pay his or her own appraisal costs

where there is a dispute over windshield repair/replacement costs."

Id. This court concluded that when "the contracting parties have

freely contracted for" a provision that requires "each party to bear

its own appraisal costs in an insurance payment dispute," then

"they or their assignees may not rely on section 627.7288 to avoid

their responsibility to pay such costs." Id. at 1018.

Unlike arbitration cases that the trial court relied upon,

Progressive's appraisal provision does not address attorney's fees.

We conclude that the appraisal provision does not violate the public

15

policy behind the attorney's fee statute in section 627.428.

Therefore, the trial court erred in finding the appraisal provision

invalid and unenforceable on that basis. The statute's purpose is

not only to discourage the withholding of benefits on valid claims

and to make the insured whole but also to discourage litigation.

Appraisal provisions also serve the goal of reducing litigation.

We recognize the concern that the cost of the appraisal

process appears to far exceed the $123.05 at issue, and no

economical solution exists for windshield shops if insurance

companies underpay claims. But as noted in SHL Enterprises, "[i]f

the legislature intends for insurers to solely bear the costs of

appraisal in windshield damage claims, it knows how to express

that intention." Id.

B. Lack of procedures and methodologies

The trial court ruled in its conclusion that the appraisal

provision "is otherwise invalid and unenforceable due to its lack of

any procedures and methodologies governing the appraisal process

and the determinations of the appraisers and the umpire." The trial

court's ruling appears to invalidate Progressive's appraisal provision

in all cases. The trial court did not otherwise discuss the lack of

16

procedures and methodologies in the body of its order, other than to

cite two arbitration cases for the proposition that arbitration

agreements must provide the procedures for the arbitration process:

Greenbrook NH, LLC v. Estate of Sayre, 150 So. 3d 878, 881 (Fla. 2d

DCA 2014), and Premier Real Estate Holdings, LLC v. Butch, 24 So.

3d 708, 711 (Fla. 4th DCA 2009).

Neither party cites a case in the appraisal context on what is

required to be spelled out in an appraisal provision. Glassmetics

relies upon arbitration cases and cases from other areas of the law.

For instance, Glassmetics states the need for "identifiable and

enforceable rules governing a dispute resolution process" and cites

to Zelman v. Zelman, 175 So. 3d 871, 878 (Fla. 4th DCA 2015), but

that case dealt with due process in guardianship proceedings before

a judge.

Glassmetics contends that nothing in Progressive's policy

provides any procedural or substantive rules that will govern the

appraisal process. At the hearing, Glassmetics argued that the

appraisal provision leaves numerous questions unanswered.

Glassmetics summed up the alleged deficiencies as follows:

17

It doesn't explain, you know, even how we're going to

challenge if this second appraiser that they have

identified is biased or we have a problem with that

appraiser, maybe not competent or biased, what have

you. How do we go about challenging that? What rules

and procedures are going to govern once we're in their

appraisal process? Do we get to submit evidence? Do we

get to be heard? Do we have notice? Do the appraisers

get to talk to each other? Do they get to do their own

independent investigation? Is it completely ex parte? Is

it not ex parte? We don't know. Are there any ethical

standards? It's not stated in Progressive's policy. There's

not a single rule about it. We don't even know if the

rules of evidence apply. We don't know if there's any

kind of process for appeal. We don't know if the

decisions have to be supported by any evidence

whatsoever or whether they have to employ any type of

methodology for reaching that conclusion. We know

nothing about that process.

Progressive argued that the appraisal provision sets forth "the

relevant information that's necessary to go through the appraisal

process." Progressive distinguished an informal appraisal

proceeding from a formal arbitration hearing, relying upon Allstate

Insurance v. Suarez, 833 So. 2d 762 (Fla. 2002), and Citizens

Property Insurance v. Mango Hill # 6 Condominium Ass'n, 117 So. 3d

1226 (Fla. 3d DCA 2013).

In Suarez, the Florida Supreme Court determined that an

appraisal provision could not be construed as an arbitration

agreement so as to require a formal arbitration hearing. 833 So. 2d

18

at 765-66. The court explained, "It is clear from a plain reading of

the clause that an informal appraisal proceeding, not a formal

arbitration hearing pursuant to section 682.06, Florida Statutes

(1999), was intended and agreed upon by the parties in agreeing to

the appraisal provisions of the policy." Id. at 765. The Suarez court

concluded, "Once a trial court has determined that the appraisal

provisions of a contract of insurance have been properly invoked,

further proceedings should be conducted in accord with those

provisions, rather than by the wholly different proceedings

contemplated by an agreement to arbitrate." Id.

In Mango Hill, the court explained the differences between

arbitration and appraisal:

The differences between arbitration and appraisal

are well defined in this state. First and foremost, while

an agreement to arbitrate ordinarily encompasses the

disposition of the entire controversy between the parties,

an agreement for appraisal extends merely to the

resolution of the specific issues of actual cash value and

"amount of loss." Second, the appraisal process is an

informal one. There is no requirement that appraisers be

sworn. Appraisers generally are chosen for and expected

to act on their own skill and knowledge relating to the

matters being appraised. There is no obligation for

appraisers to give formal notice of their activities to the

parties or counsel, or to hear evidence. They even may

engage in ex parte investigation, so long as they

ultimately meet in good faith for the purpose of ironing

19

out individual differences. Finally, all issues other than

those contractually assigned to the appraisal panel are

reserved for determination in a plenary action.

Arbitrations, on the other hand, are quasi-judicial

proceedings. Although not conducted with the same

degree of formality as a judicial proceeding, arbitration

proceedings are impressed with the same procedural

safeguards. These safeguards are codified in substantial

part in the Florida Arbitration Code. Under the Florida

Arbitration Code, each party is entitled to a full hearing

in the presence of every other party, unless such right is

waived by agreement or conduct. The arbitrators must

meet together in each session, and may not engage in

independent investigation of the thing in issue. The

Arbitration Code guarantees to each party not only the

right to notice of each hearing session, but also the right

to counsel, the opportunity to present evidence, and the

right to cross-examine witnesses. Finally, unlike

appraisal, the arbitration panel may adjudge the case

only on what is presented to them in the course of the

proceeding.

Id. at 1229-30 (citations omitted).

Cases recognize that "appraisal clauses are often treated

similarly to arbitration clauses." Webb Roofing & Constr., LLC v.

FedNat Ins., 320 So. 3d 803, 806 (Fla. 2d DCA 2021) (applying the

reasoning from an arbitration case and determining that a postloss

assignee of an insurance policy was bound to comply with the

appraisal conditions in the insurance contract). However, this court

also recognized that "appraisal and arbitration differ in some

20

important respects," id. at 805, and that unlike the informal

process of appraisal, "arbitration is a quasi-judicial proceeding with

a degree of formal safeguards," id. at 805 n.3 (citing Mango Hill, 117

So. 3d at 1229-30).

Based on Mango Hill, Progressive argued that appraisal is an

informal process that "is not bound by a set of rules" and that the

appraisal provision gave the necessary details to complete the

process. For instance, the appraisal provision sets forth how

appraisal is invoked, how each party is to select a "competent and

impartial" appraiser with notice to the other party, how an impartial

and competent umpire who is a "qualified expert in the subject

matter" is selected if the appraisers disagree as to the amount of

loss, how any such disagreement as to the amount of loss is

resolved, and how the appraisal costs are divided. The provision

also limits the scope of appraisal to the amount of loss and states

that it is a binding determination.

A requirement for more explicit rules in the appraisal provision

is unnecessary for a process that the Florida Supreme Court has

called an informal one and when case law appears to answer many

of the questions Glassmetics contends are unanswered. We

21

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. And although it may be

helpful to provide more detail in an appraisal provision, we are

unable to conclude that the absence of such detail makes the

provision unenforceable. Thus, the trial court erred in finding the

appraisal provision to be invalid and unenforceable based on the

lack of procedures and methodologies.

C. Waiver of appraisal right

Glassmetics argued in the trial court that a waiver of the

appraisal right occurred because Progressive sought "dismissal of

the complaint for lack of standing and for failure to state a cause of

action." The court stated that by challenging standing, Progressive

was "requesting relief that is within the exclusive province of a court

to provide, and that relief is inconsistent with [Progressive's]

'alternative' request to compel the appraisal remedy." The trial

court concluded that these actions waived Progressive's right to

compel appraisal.

After Glassmetics filed its original complaint, Progressive filed

a notice of invoking its appraisal provision and a motion to dismiss

22

or, alternatively, to stay and enforce appraisal. In response to

Glassmetics' amended complaint, Progressive filed the amended

motion. The amended motion sought dismissal in paragraph 13

based on Glassmetics' failure to comply with the appraisal

provision. In paragraph 14, Progressive also sought dismissal for

"lack of standing, failure to state a cause of action/failure to comply

with Florida Civil Rules of Procedure 1.130 or Small Claims Rules

7.050(a)(1)." Progressive alternatively sought an order compelling

appraisal and abating or staying the proceedings.

At the hearing on the amended motion, Progressive argued for

dismissal based on the failure to comply with the appraisal

provision. Later, in commenting on its presuit letter that demanded

appraisal and reserved the right to assert defenses, Progressive

stated, "[A]s we are here today, we are not arguing over standing,

which of course, is different from coverage."

The determination of whether a party's litigation activity is

sufficient to waive its right to demand an appraisal is "on a case-bycase basis, focusing on whether the party acted inconsistently with

this right." Heritage Prop. & Cas. Ins. v. Superior Contracting & Env't

Specialties, LLC, 314 So. 3d 743, 746 (Fla. 2d DCA 2021). In

23

Heritage, this court determined that the insured's assignee waived

the right to appraisal when it "filed a complaint and

contemporaneously sought extensive discovery related to the same

issues that would be addressed in an appraisal" and when it replied

to the insurer's answer and affirmative defense after the trial court

had entered a stay. Id. This court concluded that the assignee's

conduct was inconsistent with the appraisal process and that the

assignee was "affirmatively participating in the litigation." Id.

In contrast, this court held in an arbitration case that the

filing of a motion to dismiss "directed to deficiencies in the

complaint" did not constitute "such an active participation in the

lawsuit as to" waive the right to compel arbitration. PrudentialBache Sec. v. Pauler, 488 So. 2d 894, 895 (Fla. 2d DCA 1986); see

also Houchins v. King Motor Co. of Fort Lauderdale, Inc., 906 So. 2d

325, 328 (Fla. 4th DCA 2005) ("[T]he filing and hearing on the

motion to dismiss directed to the sufficiency of the allegations of the

complaint did not constitute a waiver of the right to arbitrate.").

Further, in an appraisal case the Fourth District determined

that FIGA did not act inconsistently with its appraisal rights where

"FIGA asserted the right to an appraisal in its original motion to

24

dismiss and in all subsequent pleadings and at hearings." Fla. Ins.

Guar. Ass'n v. Castilla, 18 So. 3d 703, 704 (Fla. 4th DCA 2009).

"Asserting that the insured meet all other conditions precedent to

claiming a loss is not inconsistent with demanding an appraisal.

Claiming that the loss is not covered is also not inconsistent with a

demand for an appraisal." Id. at 705.

Here, it appears that Progressive sought dismissal in

paragraph 14 of its amended motion based on Glassmetics' failure

to attach documents to its pleading. See Fla. R. Civ. P. 1.130(a)

(requiring certain documents to be incorporated in or attached to

pleadings); Fla. Sm. Cl. R. 7.050(a)(1) ("If the claim is based on a

written document, a copy or the material part thereof shall be

attached to the statement of claim."). In addition, Progressive did

not argue for dismissal on the ground in paragraph 14 at the

hearing. Rather, Progressive sought dismissal based on

Glassmetics' failure to comply with the appraisal provision or, in the

alternative, to stay the case and compel appraisal. Under these

circumstances, the inclusion of paragraph 14 in Progressive's

amended motion did not waive Progressive's right to an appraisal.

25

Glassmetics also contended in the trial court that Progressive

waived its right to an appraisal by failing to select an impartial

appraiser. "Even if the insured is correct that the insurer appointed

an appraiser who was not competent, that is not conduct which is

inconsistent with the right to appraisal, and there is no legal basis

for asserting that the insurer had waived the right to appraisal."

Travelers of Fla. v. Stormont, 43 So. 3d 941, 945 (Fla. 3d DCA

2010). Thus, the fact that Glassmetics contended that Progressive's

initially chosen appraiser was not impartial does not waive

Progressive's right to appraisal.

Therefore, the trial court erred in determining that Progressive

waived its right to an appraisal.

D. Waiver of rights of access to courts, jury trial, and due

process

Progressive contends that the trial court also erred in

determining that it was "unable to enforce the appraisal provision at

this juncture" when Progressive had yet to present evidence that the

insured knowingly, voluntarily, and intelligently waived his rights of

access to courts, to a jury trial, and to due process. Progressive

also contends that the trial court erred in concluding that since

26

Devan Hammond was not the named insured, but rather a listed

driver, there was insufficient evidence to establish that the named

insured was authorized to waive these rights on behalf of the listed

driver.

We disagree with these determinations by the trial court.

"[T]he rights of access to courts and trial by jury may be

contractually relinquished subject to general contract

defenses . . . ." Hobby Lobby Stores, Inc. v. Cole, 287 So. 3d 1272,

1275 (Fla. 5th DCA 2020) (citing Glob. Travel Mktg., Inc. v. Shea,

908 So. 2d 392, 398 (Fla. 2005)). In addition, the insured did not

completely waive the right to a jury trial or the right of access to

courts. The waiver applies only to the amount of loss. This is in

contrast to Seifert v. U.S. Home Corp., 750 So. 2d 633, 642 (Fla.

1999), upon which the trial court relied. In Seifert, the arbitration

agreement in a contract between a home builder and buyer did not

expressly provide for arbitration of tort claims. Id. The supreme

court determined that to deprive the buyer of trial by jury, due

process, and access to courts "simply because she and her husband

signed a contract which contained an arbitration provision, the

language of which provides no indication that tort claims arising

27

under the common law were contemplated or included, would

clearly be unjust." Id.

Here, the appraisal provision contains a retained rights clause

that states, "Neither we nor you waive any rights under this policy

by agreeing to an appraisal." But the appraisal provision

specifically sets forth when appraisal is required and that "[t]he

amount of loss agreed to by both appraisers, or by one appraiser

and the umpire, will be binding." In addition to stating that the

amount of loss determined in appraisal is binding, the policy

further provides, "We may not be sued unless there is full

compliance with all the terms of this policy." Thus, the insured

waived his right to sue unless he complied with all policy terms,

which includes a binding determination on the amount of loss when

appraisal is invoked.

As to whether Devan Hammond waived rights concerning the

amount of loss, the policy also provides, "The action of one named

insured will be binding on all persons provided coverage under this

policy." Thus, Devan Hammond is bound by any actions taken by

the named insured, Frank Hammond, under the policy. As

Progressive argues, to determine otherwise would allow any listed

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drivers to not comply with the terms of the policy and yet still

receive benefits, despite that the named driver who is responsible

for the premium would be bound by all terms.

In addition, Glassmetics is bound by the appraisal provision

as assignee. See Webb Roofing, 320 So. 3d at 807 ("Webb Roofing

received an assignment that entitled it to receipt of payment from

the insurance carrier, and concomitant with that right was its duty

to comply with the conditions of the contract that afforded it

payment. Therefore, we conclude that the assignment in this case

did not eliminate the duty of compliance with the conditions

imposed by the insurance contract, including appraisal, and the

trial court did not err in granting the motion to compel appraisal.").

E. Clauses on retained rights and binding amount of loss

Progressive contends that the trial court erred in concluding

that the appraisal provision is ambiguous based on the retained

rights clause and the clause stating that the amount of loss

determined in appraisal is binding. Citing cases concerning "oneway" retained rights clauses, Progressive argues that a retained

rights clause does not render an appraisal provision ambiguous or

unenforceable. See State Farm Fire & Cas. Co. v. Licea, 685 So. 2d

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1285, 1288 (Fla. 1996) ("[W]e interpret the clause as retaining only

the right to dispute the issues of coverage as to the whole loss, or

whether the policy conditions have been violated as specified

above."); Cannon Ranch, 162 So. 3d at 143 (determining that a

retained rights provision did not render the appraisal clause

unenforceable).

Here, the trial court found, "On one hand, the appraisal

provision states that the appraisal process 'will be binding' but on

the other hand, the last sentence states neither party waives any

right under the insurance policy by agreeing to an appraisal." The

trial court found that the binding loss and retained rights clauses

rendered the appraisal provision ambiguous and then stated that

ambiguous provisions are construed against the drafter. The trial

court ruled:

[A]ssuming arguendo the appraisal provision is

enforceable and lawfully invoked, these two conflicting

provisions of the appraisal provision must be construed

as preserving (and not waiving) the Insured's contractual

right to insist upon receiving full payment up to the

maximum amount allowable under the other terms and

conditions of the insurance policy.

We cannot agree that the appraisal provision is ambiguous;

instead, the two clauses can be harmonized. See Shelby Mut. Ins.

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Co. of Shelby, Ohio v. Smith, 556 So. 2d 393, 396 (Fla. 1990)

(determining that because two subsections of a statute could "be

harmonized, there is no ambiguity on the face of the statute");

Dodge City, Inc. v. Byrne, 693 So. 2d 1033, 1035 (Fla. 2d DCA 1997)

("[W]here one or more provisions of a contract conflict, 'they should

be construed so as to be reconciled, if possible.' " (quoting

Seabreeze Rest., Inc. v. Paumgardhen, 639 So. 2d 69, 71 (Fla. 2d

DCA 1994))).

Because the clauses can be harmonized, the binding appraisal

process remains enforceable while still allowing the parties to

enforce such other rights as they may have under the policy. For

example, to the extent the appraisal process results in a

determination that Progressive underpaid Glassmetics, Glassmetics

would be entitled to pursue any rights it may have against

Progressive due to the underpayment in accordance with the

provisions of the policy and the applicable law.

For the foregoing reasons, we reverse the trial court's order

and its conclusions (1) that the appraisal provision was against the

public policy underlying section 627.428; (2) that the appraisal

provision failed to provide sufficient procedures and methodologies;

(3) that Progressive waived its appraisal right; (4) that the appraisal

provision was unenforceable because Progressive failed to prove

that the insured knowingly, voluntarily, and intelligently waived his

rights of access to courts, to a jury trial, and to due process; and (5)

that the appraisal provision contains an ambiguity.

Reversed and remanded for further proceedings.