ORFINGER, J.
Florida Insurance Guaranty Association ("FIGA")
The Brancos' home sustained suspected sinkhole damage in April 2010. They reported the loss to their homeowner's insurer, HomeWise Preferred Insurance Company ("HomeWise"), several days later. In response, HomeWise retained an engineering firm to perform a limited structural assessment. Following receipt of the engineer's report, HomeWise denied the Brancos' claim, concluding that a "sinkhole loss," as defined in the policy, had not occurred. Several months later, the Brancos sued HomeWise, alleging breach of contract. HomeWise filed its answer and defenses in May 2011, denying that it had breached the insurance contract because the Brancos' property had not sustained a covered loss.
In November 2011, HomeWise was declared insolvent and FIGA stepped in to deal with the "covered claims" within the scope of its enabling statutes. As a result, the Brancos' case was automatically stayed.
The Brancos demanded appraisal in a letter to FIGA on April 30, 2013. On May 23, 2013, the Brancos moved the court to compel appraisal. The Brancos' appraisal request was based on a provision in the insurance policy that provided, in relevant part:
(Emphasis added).
On June 24, 2013, FIGA again asked the trial court for an additional stay to allow for neutral evaluation of the Brancos' claims and, simultaneously opposed the Brancos' motion to compel appraisal. The trial court granted FIGA's request for an additional stay and further ordered that "[t]he parties are to first attempt to resolve the underlying claims in the lawsuit through neutral evaluation, and barring resolution, the parties are to then take the matter through appraisal." FIGA appeals this order to the extent that it requires appraisal.
FIGA first argues that the trial court erred in ordering the parties to appraisal because their dispute with the Brancos is over the "method of repair" rather than the "amount of loss." Interpretation of insurance policies is reviewed de novo, e.g., State Farm Florida Insurance Co. v. Phillips, 134 So.3d 505, 507 (Fla. 5th DCA 2014), as are orders compelling appraisal, e.g., Citizens Property Insurance Corp. v. Demetrescu, 137 So.3d 500, 502 (Fla. 4th DCA 2014).
Appraisals are creatures of contract and the subject or scope of appraisal depends on the contract provisions. Citizens Prop. Ins. Corp. v. Casar, 104 So.3d 384, 385-86 (Fla. 3d DCA 2013). Absent ambiguity, the plain meaning of an insurance policy controls. E.g., Arias v. Affirmative Ins. Co., 944 So.2d 1195, 1197 (Fla. 4th DCA 2006) (quoting Se. Fire Ins. Co. v. Lehrman, 443 So.2d 408, 408-09 (Fla. 4th DCA 1984)). Courts should resort to rules of interpretation only when the policy language is ambiguous or otherwise susceptible to multiple meanings. E.g., Phillips, 134 So.3d at 507 (citing Arias, 944 So.2d at 1197).
When the disagreement concerns the amount of loss, not coverage, it is for the appraisers to arrive at the amount to be paid. Johnson v. Nationwide Mut. Ins. Co., 828 So.2d 1021, 1025 (Fla.2002). The issue in this case is whether the method or extent of necessary repairs is within the
Williamson v. Chubb Indem. Ins. Co., No. 11-cv-6476, 2012 WL 760838, at *4 (E.D.Pa. Mar. 8, 2012); see also UrbCamCom/WSU I, LLC v. Lexington Ins. Co., No. 12-CV-15686, 2014 WL 1652201, at *6 (E.D.Mich. Apr. 23, 2014) (approvingly citing Williamson, and holding that dispute regarding necessary repairs, and length of time, to reopen building goes to "amount of loss," which falls squarely within ambit of appraisal); Correnti v. Merchs. Preferred Ins. Co., Civ. No. 12-6303, 2013 WL 373273, at *2 (E.D.Pa. Jan. 31, 2013) (determining that as dispute was over "extent of damage," it was dispute regarding "amount of loss," and, thereby, required appraisal); Sydney v. Pac. Indem. Co., Civil Action No. 12-1897, 2012 WL 3135529, at *3 (E.D.Pa. Aug. 1, 2012) ("A disagreement as to the scope of the repairs and replacements needed to remedy a loss is still within the purview of the appraisal clause.").
We agree with the analysis in Williamson and believe that FIGA's interpretation of the appraisal clause in the policy would render the appraisal process meaningless. Although FIGA may characterize the dispute over the necessary repairs as a coverage issue, in reality, it is an "amount of loss" issue. There is no dispute that HomeWise insured the Brancos' home at the relevant time for sinkhole losses, and FIGA has now admitted that the Brancos have sustained a covered loss. The logical disagreement between an insured and the insurer after a covered loss would be, as the court in Williamson stated, "disagreement as to whether the covered occurrence actually caused a certain portion of the putative damage, as well as disagreements about the scope and method of necessary repairs." 2012 WL 760838, at *4. The extent and cost of the necessary repairs to the Brancos' property will determine, in large part, the amount FIGA owes. To accomplish their task, the appraisers will have to consider the necessary method and scope of required repairs to evaluate the amount of the Brancos' loss.
FIGA also argues that the Brancos waived their right to appraisal by initiating and participating in litigation. In this regard, appraisal clauses are viewed similarly to arbitration clauses. Thus, we review the trial court's findings of fact for competent, substantial evidence, and its conclusions of law de novo. Fla. Ins. Guar. Ass'n v. Castilla, 18 So.3d 703, 704 (Fla. 4th DCA 2009); Doctors Assocs. v. Thomas, 898 So.2d 159, 162 (Fla. 4th DCA 2005) (reiterating that question of waiver is one of fact, reviewable for competent, substantial evidence, and all questions about waivers of arbitration should be construed in favor of arbitration, rather than against it). Here, while the trial court made no findings of fact on the issue of waiver, the facts are not in dispute. Therefore, we review the waiver issue de novo. See Truly Nolen of Am., Inc. v. King Cole Condo. Ass'n, 143 So.3d 1015, 1017 (Fla. 3d DCA 2014).
In the context of arbitration, a waiver of the right to arbitrate occurs when a party actively participates in a lawsuit or engages in conduct inconsistent with the right to arbitrate. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005). Active participation in a lawsuit is considered a waiver because it is generally presumed to be inconsistent with the right to arbitrate. Thomas, 898 So.2d at 162; see, e.g., Morrell v. Wayne Frier Manufactured Home Ctr., 834 So.2d 395, 395-98 (Fla. 5th DCA 2003) (finding waiver where party litigated for eleven months with various motions and pleadings); ARI Mut. Ins. Co. v. Hogen, 734 So.2d 574, 576 (Fla. 3d DCA 1999) (finding waiver when party engaged in "aggressive" litigation for nine months with pleadings, interrogatories, requests for productions, sought hearings, and contested other party's motions and pleadings); Owens & Minor Med., Inc. v. Innovative Mktg. & Distribution Servs., Inc., 711 So.2d 176, 176 (Fla. 4th DCA 1998) (finding waiver when party litigated for thirteen months, secured prejudgment writ of garnishment, made multiple requests for admissions, filed pleadings and motions, and contested other party's pleadings and motions); Gray Mart, Inc. v. Fireman's Fund Ins. Co., 703 So.2d 1170, 1171-73 (Fla. 3d DCA 1997) (finding waiver following fourteen months of litigation and demand for appraisal one month before trial).
As FIGA notes, the Brancos litigated their case for more than two years with multiple pleadings and discovery requests. However, the question of waiver of appraisal is not solely about the length of time the case is pending or the number of filings the appraisal-seeking party made. Instead, the primary focus is whether the Brancos acted inconsistently with their appraisal rights. Saldukas, 896 So.2d at 711; see Am. Capital Assur. Corp. v. Courtney Meadows Apartment, L.L.P., 36 So.3d 704, 707 (Fla. 1st DCA 2010) (finding party did not waive right to appraisal as party had not acted inconsistently with right from time of demand).
Because coverage for the Brancos' loss was initially denied, appraisal would not have been appropriate until April 2013 at the earliest, when FIGA conceded that a covered loss had occurred. After FIGA admitted coverage and the trial court lifted the stay, the Brancos filed one request for admissions and demanded appraisal three weeks later. Because the Brancos demanded appraisal shortly after FIGA conceded coverage, and propounded only a single request for admissions before seeking appraisal, we view this case as closer to those finding no waiver. See, e.g., Courtney Meadows, 36 So.3d at 707 (indicating appraisal demand was timely as policy did not contain any language to invoke appraisal within set time from receiving or waiving sworn proof of loss); Castilla, 18 So.3d at 703-05 (explaining appraisal clause may be invoked for first time after litigation has commenced and concluding that party did not act inconsistently with right to appraisal by participating in suit). Thus, we conclude, as did the trial court, that the Brancos did not waive their right to appraisal.
Finally, FIGA argues that the trial court erred in ordering appraisal after the Brancos nominated one of their own attorneys, Alan S. Marshall, as an appraiser, violating the policy's requirement of "disinterested" appraisers. The Brancos concede that their policy requires disinterested appraisers, and admit that Attorney Marshall is "a partner in the law firm representing them." Further, Attorney Marshall actually represented the Brancos below, as his name appears on several documents filed on their behalf. Because these facts are undisputed and the interpretation of the insurance policy is a pure question of law, the trial court's acceptance of Attorney Marshall as a "disinterested appraiser" is reviewed de novo. Truly Nolen, 143 So.3d at 1017; Demetrescu, 137 So.3d at 502; Phillips, 134 So.3d at 507; Castilla, 18 So.3d at 704.
American Arbitration Association, The Code of Ethics for Arbitrators in Commercial Disputes (Oct. 21, 2011), https://www.adr.org/aaa/faces/arbitratorsmediators/aboutarbitratorsmediators/codeofethics (follow "Code of Ethics for Arbitrators in Commercial Disputes" hyperlink).
Unlike the Code of Ethics relied upon in Rios, the current Code of Ethics establishes a presumption of neutrality for all arbitrators, including party-appointed arbitrators. This fundamental change undermines the Rios holding, particularly when, as here, the contract requires the appointment of "disinterested" appraisers. If an appraiser owes his nominating party a "fiduciary duty of loyalty" or a "confidential relationship," as do attorneys, then "[t]he existence of such a relationship between a litigant and an [appraiser] creates too great a likelihood that the [appraiser] will be incapable of rendering a fair judgment." Donegal Ins. Co. v. Longo, 415 Pa.Super. 628, 610 A.2d 466, 468-69 (1992) (citing Bole v. Nationwide Ins. Co., 475 Pa. 187, 379 A.2d 1346, 1350 (1977) (Roberts, J., dissenting, but agreeing with majority that attorney in present employment of party cannot serve as arbitrator)); see Land v.
The policy provision, which requires a "disinterested appraiser," expresses the parties' clear intention to restrict appraisers to people who are, in fact, disinterested. Given the duty of loyalty owed by an attorney to a client, we conclude that attorneys may not serve as their clients' arbitrators or appraisers when "disinterested" arbitrators or appraisers are bargained for.
For these reasons, we reverse that part of the order allowing Attorney Marshall to serve as an appraiser. In all other respects, we affirm the order.
AFFIRMED in part; REVERSED in part; REMANDED.
WALLIS and LAMBERT, JJ., concur.