# Third District Court of Appeal

State of Florida

Opinion filed March 22, 2017.

Not final until disposition of timely filed motion for rehearing.

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No. 3D16-1367

Lower Tribunal No. 11-12182

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### Orlando Noa,

Appellant,

vs.



### Florida Insurance Guaranty Association,

Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade

County, Jose M. Rodriguez, Judge.

Alvarez, Carbonell, Feltman, & DaSilva and Paul B. Feltman, for appellant.

Conroy Simberg and Hinda Klein (Hollywood), for appellee.

Before SALTER, EMAS and FERNANDEZ, JJ.

SALTER, J.

Orlando Noa appeals a non-final order denying his motion to compel a

second appraisal of an insured windstorm loss claim under a policy insuring hishome. The issue presented is whether any effects of “Ordinance and Law” costs

were subsumed in the initial appraisal conducted as provided by the policy. We

affirm the order below, concluding that Mr. Noa’s post-appraisal submission of

increased costs is not a legally sufficient basis for re-opening the existing appraisal

or conducting a new one.

Loss and Appraisal

Mr. Noa obtained residential insurance coverage through First Home

Insurance Company (“First Home”). In October 2005, with the policy in full force

and effect, Hurricane Wilma damaged the residence. Mr. Noa submitted a claim to

First Home, which assigned an adjuster to evaluate the loss. In December 2005,

First Home advised Mr. Noa that the damages did not exceed the policy deductible

of $4,392.00.

Over three years later, in August 2009, Mr. Noa submitted a second claim to

First Home relating to the same residence, policy, and windstorm. This claim,

detailed in a sworn statement and proof of loss form, was for $71,682.97,

exceeding the deductible by $67,290.47. First Home rejected the claim and

invoked the appraisal clause in the policy. As part of his second claim, Mr. Noa

submitted a letter from a tile company reporting that the Old Havana tiles

originally installed on the roof were no longer in stock and “have been out of

circulation for a considerable time now,” making a color match difficult.

2Mr. Noa’s appraiser, the insurer’s appraiser, and an umpire selected by the

party appraisers, each evaluated the loss. The umpire and the insurer’s appraiser

agreed on an actual cash value of the claim in April 2010, of $17,602.10. 1 That

computation allowed $3,780.00 for the replacement of 120 roof tiles, $1,200.00 for

repair of the underlayment beneath the affected area, and $4,360.00 for treatment

of the entire roof after installation of the new tiles to provide a color match. The

120 tiles comprised approximately 3% of the 3,200 square foot roof. The

appraisal stated that it did not appraise any allowance for the effects of law and

ordinances. The insurer paid the appraisal amount, less any deductible and any

prior payment.

Less than a month after the appraisal award was entered and First Home

paid the award amount (less the deductible) to Mr. Noa, a roofing contractor

selected by Mr. Noa submitted a permit application to repair 30% of the roof with

“current leaking,” reflecting a price of $8,700.00. The permit application was

rejected by the building and zoning authority, 2 as Miami-Dade County’s building

code requires that not more than 25% of the total roof area can be repaired,

1 Although the insured’s appraiser disagreed with the appraisal award and declined

to sign it, the appraisal clause in the insurance policy specified that the award

would become effective if signed by any two of the party appraisers and the

umpire.

2 In submitting that permit application, the Miami-based, licensed roofer must

have known, or in any event, should have known, that the application would be

rejected based on longstanding Miami-Dade County building code requirements.

3replaced, or recovered in any twelve month period unless the entire roofing system

or roof section complies with the current code. Fla. Bldg. Code § 611.1.1 (2007);

Miami-Dade County, Fla., Code § 8-2 (2001). The contractor then prepared, and

Mr. Noa signed, a contract for the full roof for $26,000.00. Mr. Noa submitted the

contract to First Home with a request to fund the additional amount required as a

result of the ordinance requirement.

First Home denied the full-roof additional claim, and in 2011 Mr. Noa filed

a circuit court lawsuit in an effort to recover the differential amount of that postappraisal claim. Thereafter, First Home became insolvent, and the Florida

Insurance Guaranty Association (“FIGA”) was substituted as defendant in 2012.

After various pretrial proceedings, the trial court denied FIGA’s motion to re-open

the existing appraisal (to demonstrate that the award included under 25% of the

total roof area for repair), and the court denied Mr. Noa’s motion for a new

appraisal regarding his additional claim for an ordinance and law award. Mr.

Noa’s appeal followed.

Analysis

“Ordinance and Law” coverage provides additional reimbursement to the

insured, in amounts and on other terms specified in the insurance policy, to cover

“costs necessary to meet applicable laws and ordinances regulating the

construction, use, or repair of any property or requiring the tearing down of any

4property, including the costs of removing debris.” § 627.7011(1)(b), Fla. Stat.

(2011). The question before us is subject to de novo review, as it involves the

interpretation of the appraisal and “Ordinance and L aw” provisions of the policy.

While issues concerning coverage challenges are exclusively for the courts,

the appraisers are charged with determining the amount of the loss when an insurer

admits there is a covered loss and there is a disagreement regarding the amount of

the loss. See Citizens Prop. Ins. Corp. v. Mango Hill Condo. Ass'n 12, Inc.

, 54 So.

3d 578, 581 (Fla. 3d DCA 2011). In order to perform competently as an appraiser

for this purpose, and to be designated by a party or by other appraisers or the court

(as an umpire), logic and common sense require that an appraiser must have

experience in the estimation of materials and labor costs for the repair and

replacement of damaged property. In the case of roof work, appraisers must

consider the requirements of the applicable building codes in order to estimate the

cost of repair or replacement. This is an area for professional construction industry

expertise and should be “baked into” the appraisers’ and umpire’s computations,

and not left open for a re-appraisal or for a determination by the court.

Whether a building code provision requires a particular standard for

plywood decking, or the use of specified thicknesses of felt or shingles, or (as here)

replacement of an entire roof if over 25% of the roof must be replaced, such

provisions are established regulatory requirements known to, or knowable by,

5construction professionals and to be taken into account in computing the cost of

the work when they conduct their appraisal. 3 The appraisal provision in the

present case sufficed to leave these issues to the appraisal panel, not the court.

This explains the notation on the appraisal award that “Law & Ordinance”

was not appraised

— the majority of the appraisal panel concluded that current

building code requirements did not require replacement of the whole roof, and

their estimation line items confirm an estimate of 3% of the roof area to be

replaced, not 25% or more. The notation surely cannot mean that the appraisal is

subject to circumvention a month later if the insured can just find a roofing

contractor to sign a proposal stating that 30%, not 3%, of the roof needs

replacement. If the appraisal award had concluded that the entire roof had to be

replaced because the necessary re-roofing exceeded 25% of the area of the roof,

then this additional cost would have been shown and the appraisal panel would

have reported that ordinance and law costs were appraised and included.

To hold otherwise would allow the insured’s post-appraisal roofing

contractor to step into the adjustment process as a super-umpire whose opinion

supersedes the appraisal and requires a new round of valuation estimates. In this

case, such a process would occur against the backdrop that the original appraisal

3 A different analysis could apply if a new, more onerous (i.e., more expensive)

building code requirement was imposed after the appraisal but before the

commencement of the repair work. That did not occur in the present case.

6award was issued almost five years after the windstorm damage, primarily due to

the delay by the homeowner in filing a supplemental claim (nearly four years after

the damage occurred). If the insured intends to offer a roofer’s professional

opinion that the applicable building code will require replacement of the entire

roof, not just 3% of the area of the roof, the appraisal process must surely be the

time to offer that evidence

— not as an afterthought on the heels of the appraisal.

The present case is distinguishable from Jossfolk v. United Property &

Casualty Co.

, 110 So. 3d 110 (Fla. 4th DCA 2013), because in that case the insurer

had not raised its “under 25%” roof replacement argument in its motion for

summary judgment. Id. at 113. The present case only involves the denial of the

insured’s request for a second appraisal

— not a summary judgment in favor of the

insurer

— on the grounds that the appraisal panel had previously considered and

determined the percentage of replacement required. The present case is also

distinguishable from Ceballo v. Citizens Property Insurance Corp.

, 967 So. 2d 811

(Fla. 2007), relied upon as “determinative” in Jossfolk

, 110 So. 3d at 113. In

Ceballo

, the issue was whether Florida’s Valued Policy Law (VPL) 4 required the

insured to demonstrate an actual (incurred) loss before payment could be required

for ordinance and laws coverage. The present case does not involve a total loss or

4 The VPL, section 627.702, Florida Statutes (2016), requires an insurer to pay the

face amount for which a covered property was insured if the property is a total loss

as a result of a covered peril (with additional provisions not applicable here).

7the VPL, and Mr. Noa and his appraiser had already submitted the costs of the fullroof repair they proposed to the first appraisal panel.

Affirmed.

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