In The Florida Insurance Guaranty Association, Inc. v. Shadow Wood Condominium Association, ____ So.3d ____ (Fla. 4th DCA December 2, 2009), FIGA moved for appraisal of a condo claim. The insured argued that FIGA’s predecessor waived its right to demand appraisal by failing to provide the insured notice of the state sponsored mediation program pursuant to 627.7015(2).
Subsection (2) of 627.7015 requires the insurer to "notify all first-party claimants of their right to participate in the mediation program under" section 627.7015 "[a]t the time a first-party claim within the scope of this section is filed." Citing subsection (7), the court noted that:
If an insurer fails to comply with the section 627.7015(2) notice requirement, then the insured shall not be required to submit or participate in any contractual loss appraisal process of the property loss damage as a precondition to legal action for breach of contract against the insurer for its failure to pay the policyholder’s claims covered by the policy.
The court then noted that the predecessor insurer did not properly notify its insured of the availability of mediation, and then held:
Because FIGA is bound by Southern Family’s failure to notify Shadow Wood of the availability of mediation, we hold that Shadow Wood was not required to submit to the loss appraisal process sought by FIGA.
The 4th DCA made a similar finding in another case released at the same time. See, The Florida Insurance Guaranty Association, Inv. v. Devon Neighborhood Association, ____ So.3d ____ (Fla. 4th DCA December 2, 2009).