INSURANCE: HOMEOWNERS’ INSURANCE: SINKHOLE: APPRAISAL: FIGA: SINKHOLE CLAIMS AGAINST FIGA ARE NOT SUBJECT TO APPRAISAL UNDER THE 2011 AMENDEMENT TO SECTION 631.54(3), FLORIDA STATUTES: INSUREDS WAIVED APPRAISAL BY ACTIVELY LITIGATING FOR TWO YEARS BEFORE SEEKING APPRAISAL; APPEALS: CERTIFIED QUESTIONS

Florida Insurance Guaranty Association, Inc. v. Kirschner, ___ So. 3d ___, 40 Fla. L. Weekly D764 (Fla. 2d DCA March 27, 2015)

Based upon its decision in Florida Insurance Guaranty Association v. de la Fuente, ___ So. 3d ___, 40 Fla. L. Weekly D123 (Fla. 2d DCA January 7, 2015), the court held that sinkhole claims against FIGA are not subject to appraisal under the 2011 amendment to Section 631.54(3), Florida Statutes. In any event, the insureds waived their right to appraisal by actively litigating for two years before requesting appraisal. The court re-certified to the Florida Supreme Court the questions of great public importance that it raised in the de la Fuente case; namely, whether (1) the amended 2011 definition of covered claim in Section 631.54(3), Florida Statutes, applies to a sinkhole loss that occurred after the amendment if the policy was issued before the amendment, and (2) the statutory provision limiting payment to the amount of actual repairs precludes appraisal of sinkhole claims against FIGA.

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