A Florida appellate court recently held that an insured waived his right to appraisal by acting inconsistently with his right to invoke appraisal. Fla. Ins. Guar. v. Rodriguez, 2014 WL 5285005 (Fla. 5th DCA Oct. 17, 2014).

An insured filed a breach of contract action against his insurer based on a disagreement with his insurer as to which repairs were necessary to correct damage to the insured’s home. The insurer had acknowledged that a covered loss had occurred and the parties participated in neutral evaluation before the lawsuit. There was no mention of appraisal in the insured’s original complaint or amended complaint. The insured served discovery requests with the original and amended complaints. After an unsuccessful mediation, the insured served a third set of discovery requests and deposed the neutral evaluator. Over two years after the lawsuit was filed, the insured moved to compel appraisal, which the trial court granted. The insurer appealed.

The appellate court reversed, holding that the facts demonstrated that the insured had acted inconsistently with, and thus waived, his right to appraisal. The court determined that a waiver of the right to seek appraisal occurs when the party seeking appraisal actively participates in a lawsuit or engages in conduct inconsistent with the right to appraisal. The court determined that the insured had waited three years before demanding appraisal, had filed several discovery requests, pursued other litigation activities, and never reserved his right to appraisal.