### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

PROGRESSIVE AMERICAN INSURANCE COMPANY
, Appellant,

v.

BROWARD INSURANCE RECOVERY CENTER, LLC a/a/o ALBERT

LINARES
, Appellee

.

No. 4D 21

- 542

[ May 26, 2021 ]

Nonfinal a ppeal from the County Court for the Seventeenth Judicial Circuit, Broward County ; Steve n DeLuca , Judge; L.T. Case No. CONO17

- 001287, CACE20

- 7748

.

Alexandra Valdes and Daniel Montgomery of Cole, Scott & Kissane, P.A., Miami, for appellant.

Joseph R. Dawso n of Law Offices of Joseph R. Dawson, P.A., Fort Lauderdale, for appellee.

P ER C URIAM

.

This case concerns the availability of the p rohibitive c ost d octrine to challenge an insurer’s invocation of an appraisal process provided for in the insurance policy . We hold that the d octrine is not available to invalidate an insurer’s election of the appraisal process.

This case was transferred from the circuit court due to the recent change in appellate jurisdiction. The circuit court granted a certiorari petition and quashed a county court order that had applied the p rohibitive

c ost d octrine to preclude appraisal of a windshield repair claim. The plaintiff in the county court case filed a timely motion for rehearing

, which remained pending following the transfer to this Court.

We treat the petition for certiorari as a nonfinal appeal. The order at issue determines the right to appraisal and is appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). Under Mallory v.2 Brinckerhoff

, 312 So. 3d 944 (Fla. 4th DCA 20 21), the order at issue is now appealable in this C ourt following the transfer from circuit court.

We grant the motion for rehearing, but nonetheless reverse the order of the county court. Our reasoning differs from that of the circuit court. 1

Backg round

Albert Linares had a comprehensive automobile insurance policy with Progressive American Insurance Company that provided coverage for breakage of window glass. The policy stated that Progressive would pay (without a deductible) up to the “prevailing competitive labor rates charged in the area where the property is to be repaired and the cost of repair or replacement parts and equipment” as reasonably determined by the

insurer.

In 2015, Linares’ s covered vehicle suffered windshield damage. He had it repaired by Clear Vision Windshield Repair, LLC. Linares assigned his insurance benefits to Clear Vision, which submitted an invoice to Progressive for $117.70. Progressive determined that the reasonable repair cost was $60 and sent Clear Vision a letter invoking the right to appraisal under the policy. Clear Vision failed to respond within the 30

- day time provided for in the policy. Progressive sent another let ter deeming Clear Vision to have accepted Progressive’s determination of a reasonable cost of repair and paying $60 for the claim.

Clear Vision assigned its rights under the policy to Broward Insurance Recovery Center (“BIRC”). In 2017, BIRC filed a s mall claims statement of claim in the county court asserting a breach of contract for failing to pay the full amount of the repair invoice, $117. 7 0.

Progressive moved to dismiss or abate the action and to compel an appraisal. BIRC moved for an evidenti ary hearing, arguing that it had a right to present evidence that the cost of appraisal was prohibitive and

that the clause was therefore unenforceable. The policy’s appraisal clause required the insurer and insured to each select a competent and impartia l appraiser. If the appraisers were unable to agree as to the amount of the loss, the appraisers would select an impartial umpire to settle the dispute. The policy required the insured to pay the cost for its appraiser and to split

all other costs with t he insurer

– including the cost of an umpire if

necessary.

1 However, we do not disturb the circuit court’s denial of Broward Insurance Recovery Center’s motion for attorney’s fees.3 After an evidentiary hearing, the county court ruled that the p rohibitive

c ost d octrine precluded appraisal. The evidence at the hearing established that the damages at issue was $117.70 and th at BIRC would have to spend between $150 and $200 for an appraiser as well as the cost of an umpire if one became necessary.

Challenging the order, Progressive petitioned for a writ of certiorari in

the circuit court. The circuit court granted the peti tion and quashed the county court’s order. The circuit court reasoned that BIRC failed to carry its burden of showing that the cost of appraisal would grossly exceed the cost of litigation. BIRC moved for rehearing, which remained pending

when the case w as transferred to this court. In its motion, BIRC pointed out that the actual amount of damages was liquidated at about $26 and contended that it had shown that it would cost at least $150 to appraise

the claim.

Discussion

We decline to extend the p rohibitive c ost d octrine to the contractually

mandated appraisal process here at issue. The d octrine arose in arbitration cases and has been applied in arbitration cases. Apart from the traditional court system, arbitration is an alternate forum for litigation where the competing parties have the chance to present evidence to a

finder of fact. T he contractual appraisal process contemplates a more abbreviated dispute resolution than either arbitration or the court system. The sole focus of the appraisal is the amount of the loss. Such a narrowly

focused, bargained

- for dispute resolution mechanis m may deliver benefits

to both sides

— lower rates for the insured and lower litigation costs for the insurer. Absent a directive from the Florida Supreme Court, this Court should not rewrite the contract by imposing a judge

- crafted doctrine to bypass the c ontractual remedy.

The p rohibitive c ost d octrine is a “ defense which has been developing since the United States Supreme Court ’ s opinion in Green Tree Financial Corp.

- Alabama v. Randolph

, 531 U.S. 79 (2000). ” Zephyr Haven Health &

Rehab C tr. , Inc. v. H ardin ( ex rel. Hardin ) , 122 So. 3d 916, 921 (Fla. 2d DCA 2013) (parallel citations omitted)

. The significant Florida cases discussing

the p rohibitive c ost d octrine all recognize its applicability to cases where

arbitration is at issue.

For example, in Stewart Agency, Inc. v. Robinson , 855 So. 2d 726, 728 (Fla. 4th DCA 2003)

, we explained that “ Green [ Tree ] has been interpreted as requiring the party seeking to avoid the arbitration agreement on the4 ground that it may involve some cost shifti ng to establish that the agreement would preclude him from effectively vindicating his rights by showing the likelihood, not the possibility, of incurring such costs.” ( E mphasis supplied). Similarly, Zephyr Haven recognized that a person seeking to inval idate an arbitration agreement must make “some showing of individualized prohibitive expense” that is “so substantial as to deter the bringing of claims.” 122 So. 3d at 92 2 (quoting Bradford v. Rockwell Semiconductor Sy s. , Inc.

, 238 F.3d 549, 556

– 57 (4th Cir. 2001)). In Fl

Tampa, LLC v. Kelly

- Hall , 135 So. 3 d 563, 567 (Fla. 2d DCA 2014), the

court observed that “since Green Tree the issue of the prohibitive costs of

arbitration has developed into a separate defense to the enforcement of an

arbitration agr eement.” (Emphasis supplied). We have found no authority for extending the doctrine to an appraisal process like the one involved in

this case. 2

Based on the foregoing, we grant the motion for rehearing and reverse the order of the county court for the reasons expressed in this opinion.

Reversed and remanded

.

W ARNER and G ROSS

, JJ., concur.

A RTAU , J., concurs specially with opinion.

A RTAU , J., concurring specially.

While I concur with the majority’s conclusion that this court cannot

rewrite the c ontract provision mandating appraisal by imposing a judge

crafted doctrine, I write separately to express my view that judges are not policymakers. Thus, in the absence of legislative authority, we should not apply such a doct rine to rewrite this or any o ther contractual provision.

Accordingly, I fully concur with the granting of the motion for rehearing and reversal of the county court’s application of a judge

- crafted d octrine

to preclude enforcement of the contractual provision mandating appraisal.

* * *

Not final until disposition of timely filed motion for rehearing.

2 We also question whether an assignee of benefits under the insurance policy on
a post

- loss claim can challenge the remedial provisio ns of the policy, having taken the assignment with full knowledge of the terms of the appraisal process. See Webb Roofing & Constr., LLC v. Fednat Ins. Co. , 2D20

- 1881, 2021 WL 1277974 (Fla. 2d DCA Apr. 7, 2021 ).