# Third District Court of Appeal

State of Florida

Opinion filed November 26, 2014.

Not final until disposition of timely filed motion for rehearing.

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No. 3D13-2868

Lower Tribunal No. 10-1365 -K

________________



### Dynamic Public Adjusters, Inc.

,

Appellant,

vs.



### Henry Rodriguez, etc., et al.

,

Appellees.

An Appeal from the Circuit Court for Monroe County, Tegan Slaton

, Judge.

Alvarez, Carbonell, Feltman & DaSilva, PL, and Paul B. Feltman

, for

appellant.

Arnaldo Velez, P.A., and Arnaldo Velez

, for appellee Henry Rodriguez.

Before WELLS and SUAREZ, JJ., and LEVY, Senior Judge.

PER CURIAM.

Dynamic Public Adjusters, Inc. (“Dynamic”), a licensed public adjusting

company, appeals the trial court’s order awarding Henry Rodriguez (“Rodriguez”),an appraiser, a $400,000 fee stemming from the settlement of the two supplemental

Hurricane Wilma claims filed by Key West Beach Club Condominium Association

1, Inc. and Key West Beach Club Condominium Association No. 2, Inc.

(collectively, “the condominium associations”) against their property insurer,

Citizens Property Insurance Corporation (“Citizens”). We reverse the order under

review and remand with instruction to enter a judgment awarding the $400,000 fee

to Dynamic.

On October 24, 2005, Key West Beach Club Condominium 1 and 2 suffered

damages as a result of Hurricane Wilma, and Citizens subsequently paid $1.2

million to the condominium associations for the loss. Thereafter, in April 2010,

the condominium associations, unsatisfied with Citizens’ original payment,

retained Dynamic to pursue supplemental claims for the losses suffered as a result

of Hurricane Wilma. Dynamic and the condominium associations entered into a

Public Insurance Adjuster’s Retainer Agreement (“the Public Adjuster’s

Agreement”) whereby Dynamic agreed to act as the condominium associations’

agent and representative during the adjustment of their supplemental claims against

Citizens. This work included several inspections, estimates, and other activities to

ascertain the value of the loss. In exchange, the condominium associations agreed

to pay Dynamic “an amount equal to 20% of the gross amount of the collectible

loss or damage recovered

. . . regardless of whether the loss is settled or paid by

2[Citizens] as a result of adjustment, mediation, appraisal, arbitration, lawsuit or

otherwise.” The Public Adjuster’s Agreement further provided: “For

supplemental or re-open claims, Public Adjuster’s fee will be calculated only for

claim payments or settlement obtained through the work of Public Adjuster after

entering into this contract.”

At the time Dynamic and the condominium associations entered into the

Public Adjuster’s Agreement, Rodriguez was working as a public adjuster

apprentice for Dynamic. Rodriguez assisted Dynamic in preparing the inspection

reports and estimates of loss submitted to Citizens on the condominium

associations’ behalf. Citizens reviewed these reports and estimates and denied the

condominium associations’ supplemental claims.

In October 2010, the condominium associations filed suit against Citizens

seeking declaratory relief and damages for breach of the insurance policies. The

trial court granted the condominium associations’ motion to compel appraisal

based on the terms of the insurance policies

, which also granted the condominium

associations the right to appoint one of the appraisers. By then, Rodriguez and

Dynamic had suffered a falling out, and Rodriguez was no longer working for

Dynamic. Rodriguez and the condominium associations entered into two

Appraisal Agreements, in which Rodriguez agreed to act as the condominium

associations’ appraiser in exchange for 20% of the monies collected from Citizens

3on the supplemental claims.

In the Appraisal Agreements, Rodriguez and the condominium associations

recognized that the condominium associations had previously entered into an

agreement with Dynamic for the supplemental claims, and that the condominium

associations had already agreed to pay Dynamic 20% of the amount recovered by

the condominium associations from Citizens in regard to the supplemental claims.

Additionally, the Appraisal Agreements specifically capped the condominium

associations’ total combined obligations to Dynamic and Rodriguez at 20%, with

Rodriguez’s rights being inferior to Dynamic’s. Specifically, the Appraisal

Agreements stated:

As a result [of the Public Adjuster’s Agreement], Henry Rodriguez

agrees that his 20% appraisal fee for this claim is subject to a

reduction by any amounts that may become due to Dynamic under

[the condominium associations’] agreement with Dynamic. The

maximum obligation that may be incurred by [the condominium

associations] for all monies that may become due to Henry Rodriguez

and Dynamic collectively in regard to this appraisal shall not exceed

20% of the recovered amount. Henry Rodriguez shall defend and

indemnify [the condominium associations] from any claims asserted

by Dynamic which could result in payment by [the condominium

associations] of more than 20% of the amount recovered from

[Citizens] to Henry Rodriguez or Dynamic collectively.

The appraisal panel, which consisted of Rodriguez, Citizen’s chosen

appraiser, and the umpire appointed by the trial court, entered a revised appraisal

award awarding the condominium associations approximately $3.7 million for the

supplemental claims. After the appraisal process was completed, several coverage

4issues regarding the supplemental claims remained pending. Rather than litigating

those issues, however, Citizens and the condominium associations settled the

supplemental claims for $2 million.

Rodriguez and Dynamic both intervened in the action, with both asserting an

interest in the condominium associations’ recovery from Citizens based on their

respective fee arrangements. The trial court ordered the condominium

associations’ counsel to retain the disputed $400,000 fee (20% of the $2 million

settlement) in his trust account pending resolution.

Following a non-jury trial on Rodriguez’s and Dynamic’s claims, the trial

court entered an order awarding Rodriguez the entire $400,000 fee. In doing so,

the trial court found that the settlement of the supplemental claims “was the direct

product of the efforts of Rodriguez conducted on behalf of the condominium

associations pursuant to the appraisal agreements with [the condominium

associations].” Therefore, the settlement “did not result as ‘the work of the Public

Adjuster’ as specified by Dynamic’s Public Insurance Adjuster’s Retainer

Agreement but rather as a product of the appraisal process.” Dynamic appeals the

trial court’s determination that Rodriguez is entitled to the $400,000 fee.

Dynamic contends that the trial court erred in construing the Public

Adjuster’s Agreement and awarding the $400,000 fee to Rodriguez. Based on our

de novo review of the Public Adjuster’s Agreement and the Appraisal Agreements,

5we agree. See Real Estate Value Co. v. Carnival Corp.

, 92 So. 3d 255, 260 (Fla.

3d DCA 2012) (“The interpretation of a contract

. . . is a matter of law subject to

de novo review.”); Muniz v. Crystal Lake Project, LLC

, 947 So. 2d 464, 469 (Fla.

3d DCA 2006) (“The interpretation of a contract involves a pure question of law

for which [an appellate] court applies a de novo standard of review.”); Barone v.

Rogers

, 930 So. 2d 761, 764 (Fla. 4th DCA 2006) (holding that when a contract

provision is clear and unambiguous, “the standard of review is de novo

, and the

appellate court may reach a different interpretation than the trial court”). In the

instant case, the Public Adjuster’s Agreement is clear that Dynamic is entitled to

20% of the settlement between Citizens and the condominium associations; and the

Appraisal Agreements are clear that Rodriguez’s 20% interest in the settlement

proceeds are subordinate to Dynamic’s. Because the condominium associations

can only pay a maximum total of 20%, the full 20% must go to Dynamic.

Pursuant to the Public Adjuster’s Agreement, the condominium associations

agreed to pay Dynamic 20% of the gross amounts recovered from Citizens on the

condominium associations’ supplemental claims “ regardless of whether the loss

is settled or paid by [Citizens] as a result of adjustment, mediation, appraisal,

arbitration, lawsuit or otherwise

. . . .” (Emphasis added). Simply put, the

parties contemplated that settlement or payment of the loss may not occur during

Dynamic’s adjustment of the supplemental claims, but Dynamic would be entitled

6to 20% of any recovery from Citizens regardless of the method of that recovery.

Indeed, the condominium associations agreed to pay Dynamic the 20%

contingency fee “regardless” of whether the payment or settlement was as the

result of a lawsuit, appraisal, or “otherwise.” Therefore, as the settlement of the

supplemental claims was a result of the appraisal process, we conclude that

Dynamic is entitled to the $400,000 contingency fee under the terms of the Public

Adjuster’s Agreement.

The trial court’s determination that Dynamic was not entitled to the

contingency fee under the Public Adjuster’s Agreement was simply a

misinterpretation of the following provision in the Public Adjuster’s Agreement:

“For supplemental or re-open claims, Public Adjuster’s fee will be calculated only

for claim payments or settlement obtained through the work of Public Adjuster

after entering into this contract.” (Emphasis added). This provision merely

provides that the calculation of Dynamic’s fee will be based only on payments

made by Citizens on the supplemental claims and would not include the $1.2

million Citizens had already paid. 1 It does not mean that Dynamic would recover

1 The contractual provision is consistent with section 626.854(11)(a), Florida

Statutes (2011), which provides:

If a public adjuster enters into a contract with an insured

. . . to reopen

a claim or file a supplemental claim that seeks additional payments for

a claim that has been previously paid in part or in full or settled by the

insurer, the public adjuster may not charge, agree to, or accept any

compensation, payment, commission, fee, or other thing of value

7its 20% contingency fee only if Citizen’s payment resulted directly from

Dynamic’s initial adjustment and request for payment of the supplemental claims.

Finally, in the Appraisal Agreements, the condominium associations and

Rodriguez agreed that the condominium associations’ total obligations to Dynamic

and Rodriguez combined was capped at 20% of the condominium associations’

recovery from Citizens on the supplemental claims. Rodriguez’s share, if any, was

to be paid only after Dynamic received its portion. In agreeing to act as the

condominium associations’ appraiser, particularly since he already knew that

Dynamic was contractually entitled to 20% of the recovery, Rodriguez assumed

the risk of not being paid for his services. As we have determined that the

condominium associations are required to pay Dynamic the 20% contingency fee

($400,000) under the Public Adjuster’s Agreement, and the condominium

associations cannot pay more than 20% under any circumstances, Rodriguez is

contractually entitled to 0% of the $400,000 fee under the Appraisal Agreement.

Rodriguez took the risk that he would not recover his 20% fee by expressly

based on a previous settlement or previous claim payments by the

insurer for the same cause of loss. The charge, compensation,

payment, commission, fee, or other thing of value must be based only

on the claim payments or settlement obtained through the work of

the public adjuster after entering into the contract with the insured

or claimant. Compensation for the reopened or supplemental claim

may not exceed 20 percent of the reopened or supplemental claim

payment.

. . .

(Emphasis added).

8subordinating his rights to those of Dynamic. Rodriguez’s gamble did not pay off,

and he cannot now seek to undo Dynamic’s legally negotiated contract because his

own bargain was poorly struck.

Accordingly, we reverse the order review and remand with instructions to

enter a final judgment awarding the entire $400,000 fee to Dynamic.

9