IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

 FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

PHILLIP LANDERS,

Appellant,

v. Case No. 5D15-4032

STATE FARM FLORIDA 

INSURANCE COMPANY,

Appellee.

________________________________/

Opinion filed January 19, 2018

Appeal from the Circuit Court 

for Seminole County,

Jessica J. Recksiedler, Judge.

George A. Vaka and Nancy A. Lauten, of 

Vaka Law Group, PL, Tampa, and Kelly L. 

Kubiak, of Merlin Law Group, Tampa, for 

Appellant.

Matthew J. Lavisky, Anthony J. Russo and 

Lee Craig, of Butler Weihmuller Katz Craig 

LLP, for Appellee. 

ON MOTION FOR REHEARING

COHEN, C.J.

Upon consideration of Appellee State Farm Florida Insurance Company’s Motion 

for Rehearing, we grant the motion, withdraw our prior opinion, and substitute this one in 

its place. 
2

In this appeal, we consider whether, when an insurance contract provides for an 

appraisal process, an insured must wait until that process is completed before filing a civil 

remedy notice pursuant to section 624.155, Florida Statutes (2008). Because we find no 

such limitation in the statute or relevant case law, we reverse. 

In 2009, Phillip Landers’s home sustained a loss from suspected sinkhole activity. 

He submitted a claim to his insurer, State Farm Florida Insurance Company (“State 

Farm”).

1 State Farm hired SDII Global Corporation (“SDII”) to conduct a subsidence 

investigation. SDII verified that sinkhole activity was the cause of the damage, and State 

Farm admitted coverage. SDll initially concluded that 975 cubic yards of grout needed to 

be injected into forty-nine holes around the home’s perimeter. SDII did not recommend 

underpinning. After considering the report of a neutral evaluator from the Department of 

Financial Services pursuant to section 627.7074, Florida Statutes (2008), SDII amended 

its report to require an additional fifteen grout injection points. 

Landers obtained an independent opinion from Biller Reinhart Structural Group 

(“Reinhart”). In Reinhart’s opinion, proper stabilization required underpinning.2 State 

Farm provided Reinhart’s report for review by the neutral evaluator. The neutral evaluator 

concluded that underpinning was unwarranted. While State Farm demanded appraisal

under the policy to resolve the parties’ disagreement over the amount of the loss,

3

 1 Landers’s policy provided coverage in excess of $1,000,000.

2 The neutral evaluator’s cost of remediation was estimated at approximately 

$350,000. Reinhart’s cost of remediation was closer to $1,000,000. 

3 The appraisal clause of the insurance policy stated:

If you and we fail to agree on the amount of loss, either one 

can demand that the amount of the loss be set by appraisal. 
3

Landers agreed, pursuant to the terms of the insurance contract, to proceed with SDll’s 

recommended repair plan, despite his belief that the repairs were inadequate. State Farm

placed its appraisal demand on hold while the stabilization repairs were made. Further 

appraisal would be required to address cosmetic repairs to the home. 

After the repairs were completed in September 2011, State Farm reiterated its 

request for appraisal of the cosmetic damage to the home. The home continued to 

experience damage after repairs were completed. As a result, Landers hired Sonny 

Gulati, a geotechnical engineer, to examine the property. In January 2012, while Gulati’s 

report was pending, Landers filed a civil remedy notice (“CRN”), alleging, among other 

things, claim delay, failure to promptly and properly investigate the claim, failure to adjust 

the loss, and the failure to tender policy limits. Landers contended that the repairs were

completed pursuant to State Farm’s expert’s recommendation, yet his home remained 

unlivable. Landers demanded the immediate tender of “the policy limits for dwelling . . . 

of $1,026,500.00 minus any prior payments that have been made to the insured . . . so 

that [Landers] may adequately complete the repairs [he] has started to [his] home.” In 

response, State Farm requested that all issues be submitted to appraisal. 

In March 2012, Landers brought suit against State Farm for breach of contract. In 

that suit, State Farm sought to compel appraisal, which Landers opposed. The circuit 

 

If either makes a written demand for appraisal, each shall 

select a competent, disinterested appraiser. Each shall notify 

the other of the appraiser’s identity within 20 days of receipt 

of the written demand. The two appraisers shall then select a 

competent, impartial umpire. . . . The appraisers shall then set 

the amount of the loss. If the appraisers fail to agree within a 

reasonable time, they shall submit their differences to the 

umpire. Written agreement signed by any two of these three 

shall set the amount of the loss. 
4

court compelled appraisal, and Landers appealed from that order. This Court affirmed.

Landers v. State Farm Fla. Ins. Co., 149 So. 3d 33 (Fla. 5th DCA 2014). In July 2014, the 

appraisal panel determined that the amount of loss exceeded the policy limits. State Farm 

tendered the policy limits in August 2014, without any deduction for the amounts 

previously paid. 

Landers then brought the underlying first-party bad-faith suit against State Farm, 

alleging ten purported violations of sections 624.155(1)(b)(1) and 626.9541(1)(i), Florida 

Statutes (2008), including allegations of claim delay and low-balling. Landers contended 

that his damages always exceeded the policy limits and that State Farm acted in bad faith 

by delaying payment of the policy limits until after appraisal. 

State Farm moved for summary judgment. State Farm asserted that when Landers 

filed the CRN, “there was no contractual amount due and no damages owed under the 

contract” because a condition precedent to payment—determining the amount of loss 

through appraisal—had not been fulfilled. Therefore, the CRN was not valid and Landers 

had no claim. The trial court granted summary judgment, but the order granting summary 

judgment contained no explanation, findings of fact, or conclusions of law.4 This appeal 

followed. 

This Court reviews orders granting summary judgment de novo. Volusia Cty. v. 

Aberdeen at Ormond Beach, 760 So. 2d 126, 130 (Fla. 2000). The issue presented on 

appeal is primarily a question of law: whether the insurer’s demand for appraisal tolls the 

 4 The only reasoning provided by the court was at the summary judgment hearing, 

where the court appears to have adopted State Farm’s theory that the CRN was void 

because it was filed before the appraisal was complete. 
5

filing of a CRN until the amount of the appraisal has been established. State Farm asserts 

the CRN was void because Landers’s claim was not yet ripe.5

Bad-faith claims are governed by section 624.155, Florida Statutes (2008). Section 

624.155(1) provides that: 

(1) Any person may bring a civil action against an insurer

when such person is damaged:

. . . .

(b) By the commission of any of the following acts by the

insurer:

1. Not attempting in good faith to settle claims when, under all 

the circumstances, it could and should have done so, had it 

acted fairly and honestly toward its insured and with due

regard for her or his interests . . . .

§ 624.155(1)(b)1., Fla. Stat. 

As a condition precedent to bringing such an action, Florida’s Department of

Financial Services and the insurer must be given sixty days’ written notice of the claim. 

See id. § 624.155(3)(a). The CRN must set forth the specific statutory provision the 

insurer allegedly violated, the facts giving rise to the violation, the relevant policy 

language, and a statement that the notice is given to perfect the right to pursue the civil 

 5 State Farm argues alternatively that the CRN was invalid because it failed to 

comply with the bad-faith statute. Because we cannot determine whether the court ruled 

on this basis, we decline to address this issue for the first time on appeal. It also is not 

clear whether the trial court determined if State Farm’s handling of the claim constituted 

bad faith. Statutory bad-faith claims generally involve fact-intensive disputes that are 

resolved under a “totality of the circumstances” standard. State Farm Mut. Auto. Ins. Co. 

v. LaForet, 658 So. 2d 55, 62–63 (Fla. 1995); Menchise v. Liberty Mut. Ins. Co., 932 So. 

2d 1130, 1133 (Fla. 2d DCA 2006). It is the rare case where “the facts . . . allow a court 

to rule on a bad faith claim as a matter of law at summary judgment.” Kearney v. AutoOwners Ins. Co., 664 F. Supp. 2d 1234, 1243 (M.D. Fla. 2009). Therefore, both of these

issues may be addressed on remand. 
6

remedy authorized by the statute. Id. § 624.155(3)(b). During the sixty-day period, the 

insurer has an opportunity to cure the alleged violation—no action will lie if, within those 

sixty days, “the damages are paid or the circumstances giving rise to the violation are 

corrected.”6 See id. § 624.155(3)(d).

There are three prerequisites to filing a statutory bad-faith claim: (1) determination 

of the insurer’s liability for coverage; (2) determination of the extent of the insured’s 

damages; and (3) the required notice must be filed under section 624.155(3)(a). See

Cammarata v. State Farm Fla. Ins. Co., 152 So. 3d 606, 612 (Fla. 4th DCA 2014). The 

settlement of a sinkhole claim via the appraisal process is sufficient to satisfy the first two 

requirements. See id. (finding that appraisal award was “‘favorable resolution’ of an action 

for insurance benefits, so that [the insured] . . . satisfied the necessary prerequisite to 

 6 In Talat Enterprises, Inc. v. Aetna Casualty & Surety Co., 753 So. 2d 1278, 1284 

(Fla. 2000), the Florida Supreme Court explained that, “in creating this statutory remedy 

for bad-faith actions, the Legislature provided this sixty day window as a last opportunity 

for insurers to comply with their claim-handling obligations when a good-faith decision by 

the insurer would indicate that contractual benefits are owed.” Furthermore, “[t]he purpose 

of the civil remedy notice is to give the insurer one last chance to settle a claim with its 

insured and avoid unnecessary bad faith litigation—not to give the insured a right of action 

to proceed against the insurer even after the insured’s claim has been paid or resolved.” 

Lane v. Westfield Ins. Co., 862 So. 2d 774, 779 (Fla. 5th DCA 2003).

In Talat, the insured obtained an appraisal award that was paid in full before the 

insured ever filed a CRN. 753 So. 2d at 1283. Accordingly, the insured did not have a 

statutory bad-faith claim in that case because the insurer remedied the claim before the 

expiration of the sixty-day period following the CRN. Talat did not address and does not 

stand for the proposition that a CRN filed after appraisal has been demanded is a legal 

nullity as State Farm argues.
7

filing a bad faith claim” (alteration in original) (quoting Trafalgar at Greenacres, Ltd. v. 

Zurich Am. Ins. Co., 100 So. 3d 1155, 1158 (Fla. 4th DCA 2012))).7

State Farm argues that the CRN is not effective until all of the contractual 

preconditions to suit are met and there has been a final determination of coverage and 

the amount owed. The plain language of section 624.155(3)(d) provides no time limitation 

for when a CRN may be filed and does not require a final determination of coverage and 

damages before it is filed. The statute simply states that “no action shall lie” if the badfaith allegation is corrected or the damages are paid within sixty days of the insurer 

receiving the notice. 

This case is controlled by Vest v. Travelers Insurance Co., 753 So. 2d 1270, 1272 

(Fla. 2000). In Vest, the Florida Supreme Court expressly noted that under section 

624.155, “there is no statutory requirement which prevents the insured from sending the 

statutory notice before there is a determination of liability or damages. Nor is the insurer’s 

appropriate response to that notice dependant on such a determination.” 753 So. 2d at 

1275. Vest clarifies that the purpose of the CRN is to facilitate and encourage good-faith 

efforts to timely settle claims before litigation, not to vindicate continuing efforts to delay. 

Filing a CRN before the appraisal process is complete and damages are determined does 

not render the CRN a legal nullity, precluding Landers’s bad-faith claim.

8

 7 The trial court correctly relied on Cammarata for the proposition that a bad-faith 

claim is not ripe until the appraisal process is complete. However, a finding that an action 

is not ripe does not mean that the CRN was not appropriately filed. 

8 Federal courts that have addressed this issue likewise have reached the merits 

of bad-faith claims, even when the CRN was filed after the invocation of appraisal. See 

Fox Haven of Foxfire Condo. IV Ass’n v. Nationwide Mut. Fire Ins. Co., No. 2:13-CV-399-

FTM-29CM, 2015 WL 667935, at *1 (M.D. Fla. Feb. 17, 2015) (denying insurer’s motion 

for summary judgment as facts did not demonstrate that insurer acted in good faith as a 
8

Preventing an insured from filing a CRN before coverage and liability have been 

conclusively established would frustrate the purpose of the statute by further delaying the 

time necessary to assess and pay out claims and discouraging insurers from taking 

timely, independent action on claims. Accordingly, we find that pursuant to the plain 

language of section 624.155(1)(d), the fact that the appraisal process is ongoing does not 

render a CRN filed during that process a legal nullity. Once the appraisal process is 

complete, and a legally sufficient CRN had previously been provided, the conditions 

precedent to filing a statutory bad-faith claim are met. Cf. Cammarata, 152 So. 3d at 612.

In this case, Landers filed his CRN before the appraisal process was complete.

State Farm did not cure the alleged violation within the sixty-day window in section 

624.155(3)(d). Landers’s position is that had State Farm properly investigated his claim, 

it would have known that the subsurface repair plan was inadequate. Whether State Farm 

actually acted in bad faith in resolving his claim presents a question of fact that remains 

to be resolved. Yet, nothing in the statute or case law precludes the filing of a CRN while 

a demand for appraisal is outstanding. We reverse the order granting summary judgment 

and remand for further proceedings. 

REVERSED and REMANDED. 

NICHOLS, D., Associate Judge, concurs, and concurs specially with opinion. 

BERGER, J., concurs in part and dissents in part, with opinion. 

 

matter of law; insured demanded appraisal and then filed CRN while the appraisal 

process was ongoing); see also 316, Inc. v. Maryland Cas. Co., 625 F. Supp. 2d 1187, 

1193 (N.D. Fla. 2008).
9

 CASE No. 5D15-4032

NICHOLS, D., Associate Judge, concurring specially, with opinion. 

I concur with the opinion of the Court and write to specifically address the “Loss 

Payment” provision of the insurance contract. 

It is undisputed that there is a provision in the insurance contract that provides in 

the event of a disagreement:

[l]oss will be payable: . . . 60 days after [insurer] receive[s] 

[insured’s] proof of loss and:

(1) there is an entry of a final judgment; or

(2) there is a filing on an appraisal award with us. 

As stated by the majority, bad-faith claims are governed by section 624.155, 

Florida Statutes. Although State Farm paid the claim within sixty days of the appraisal 

award, section 624.155(b)(1) specifically provides: 

(1) Any person may bring a civil action against an insurer 

when such person is damaged:

. . . .

(b) By the commission of any of the following acts by the 

insurer: 

1. Not attempting in good faith to settle claims when, under all 

the circumstances, it could and should have done so, had it 

acted fairly and honestly toward its insured and with due 

regard for her or his interests . . . .

§ 624.155(1)(b)1., Fla. Stat. (2008).

State Farm argues that because it paid the claim within sixty days of the completion 

of the appraisal process as set forth in the insurance contract, it is immune from the 
10

application of section 624.155. No language in the statute or the contract prohibited

Landers from filing a civil remedy notice under the circumstances of this case. 

State Farm’s position implies that an insurer could cause delays, or otherwise act 

in bad faith, so long as payment was made within the sixty-day time period of the appraisal 

award with impunity. State Farm’s position would render the bad-faith statute 

meaningless. 

No opinion is expressed on the merits of Lander’s bad-faith cause of action. As the 

majority aptly concludes, “[w]hether State Farm actually acted in bad faith in resolving the

claim presents a question of fact that remains to be resolved.” 
11

 CASE NO. 5D15-4032

BERGER, J., concurring in part and dissenting in part, with opinion.

I agree with the majority that nothing precludes the filing of a CRN while a demand 

for appraisal is outstanding. However, because I also agree with the trial court that no 

bad faith claim can be maintained under the facts of this case, I would affirm the order 

granting summary judgment. Accordingly, in all other respects, I dissent.