DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

PROGRESSIVE AMERICAN INSURANCE COMPANY,

Appellant,

v.

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

LINARES,

Appellee.

No. 4D21-542

[May 26, 2021]

Nonfinal appeal from the County Court for the Seventeenth Judicial 

Circuit, Broward County; Steven 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. Dawson of Law Offices of Joseph R. Dawson, P.A., Fort 

Lauderdale, for appellee.

PER CURIAM.

This case concerns the availability of the prohibitive cost doctrine to 

challenge an insurer’s invocation of an appraisal process provided for in 

the insurance policy. We hold that the doctrine 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 prohibitive 

cost doctrine 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 2021), the order at issue is now 

appealable in this Court 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

Background

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 letter 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 small claims statement of 

claim in the county court asserting a breach of contract for failing to pay 

the full amount of the repair invoice, $117.70. 

Progressive moved to dismiss or abate the action and to compel an 

appraisal. BIRC moved for an evidentiary 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 impartial 

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 the 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 prohibitive 

cost doctrine precluded appraisal. The evidence at the hearing established 

that the damages at issue was $117.70 and that 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 petition 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 was 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 prohibitive cost doctrine to the contractuallymandated appraisal process here at issue. The doctrine 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. The 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 narrowlyfocused, bargained-for dispute resolution mechanism 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 contractual remedy. 

The prohibitive cost doctrine 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 Ctr., Inc. v. Hardin (ex rel. Hardin), 122 So. 3d 916, 921 (Fla. 2d DCA 

2013) (parallel citations omitted). The significant Florida cases discussing 

the prohibitive cost doctrine 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 the 
4

ground that it may involve some cost shifting to establish that the 

agreement would preclude him from effectively vindicating his rights by 

showing the likelihood, not the possibility, of incurring such costs.” 

(Emphasis supplied). Similarly, Zephyr Haven recognized that a person 

seeking to invalidate 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 922 (quoting Bradford v. Rockwell 

Semiconductor Sys., Inc., 238 F.3d 549, 556–57 (4th Cir. 2001)). In FlTampa, LLC v. Kelly-Hall, 135 So. 3d 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 agreement.” (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.

WARNER and GROSS, JJ., concur.

ARTAU, J., concurs specially with opinion.

ARTAU, J., concurring specially.

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

rewrite the contract provision mandating appraisal by imposing a judgecrafted 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 doctrine to rewrite this or any other 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 doctrine

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 provisions 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).