Jon Douglas Parrish v. State Farm Florida Insurance Company ( 2023 )

Supreme Court of Florida
____________
No. SC21-172
____________
JON DOUGLAS PARRISH,
Petitioner,
vs.
STATE FARM FLORIDA INSURANCE COMPANY,
Respondent.
February 9, 2023
COURIEL, J.
May the president of a homeowner’s public adjusting firm,
which is to be compensated on a contingency basis for its adjusting
services, subsequently serve as a “disinterested” appraiser under
the language of an insurance policy? No, said the Second District
Court of Appeal, State Farm Florida Insurance Co. v. Parrish, 312
So. 3d 145 (Fla. 2d DCA 2021), acknowledging that its decision
conflicted with the rule in the Third District Court of Appeal. See
Brickell Harbour Condo. Ass’n v. Hamilton Specialty Ins. Co., 256 So.
3d 245 (Fla. 3d DCA 2018). 1 Finding no way around the plain
meaning of the word “disinterested,” we approve the Second
District’s decision below and hold that an appraiser cannot be
“disinterested” if he or she, or a firm in which he or she has an
interest, is to be compensated for services as a public adjuster with
a contingency fee.
I
Jon Parrish was insured under a policy issued by State Farm
Florida Insurance Company (State Farm) when, in September 2017,
Hurricane Irma damaged his home. Mr. Parrish filed a claim and
hired Keys Claims Consultants, Inc. (KCC) to provide public
adjusting services—that is, to assess the damage and the cost of
repairs. Mr. Parrish agreed to pay KCC a contingency fee equal to
ten percent of whatever amount he eventually recovered from State
Farm.
In December 2017, representatives from State Farm and KCC
inspected and evaluated the damage to Mr. Parrish’s home. KCC
presented its estimate of the losses to State Farm, but State Farm
1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
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could not reconcile KCC’s estimate with its own. On January 8,
2018, State Farm attempted to schedule a second inspection with
KCC.
That same day, Bobby Sims of KCC wrote a letter to State
Farm demanding that the appraisal process set forth in Mr.
Parrish’s insurance policy be initiated. In his letter, Mr. Sims
specified that George Keys, the president of KCC, would serve as
Mr. Parrish’s appraiser. The appraisal provision in Mr. Parrish’s
policy stated:
If you and we fail to agree on the amount of loss,
either party can demand that the amount of the loss be
set by appraisal. A demand for appraisal must be in
writing. You must comply with Your Duties After Loss
before making a demand.
Each party will select a qualified, disinterested
appraiser and notify the other of the appraiser’s identity
within 20 days of receipt of the written demand. Each
party shall be responsible for the compensation of their
selected appraiser. The two appraisers shall then select
a qualified, disinterested umpire. If the two appraisers
are unable to agree upon an umpire within 15 days, you
or we can ask a judge of a court of record in the state
where the residence premises is located to select an
umpire. Reasonable expenses of the appraisal and the
reasonable compensation of the umpire shall be paid
equally by you and us.
(Emphasis added.)
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State Farm responded on January 15 that it would be
premature to enter appraisal before it finished investigating Mr.
Parrish’s claim. State Farm also requested that KCC appoint an
appraiser other than Mr. Keys. According to State Farm, Mr. Keys
could not be considered a “disinterested” appraiser since his firm
was already serving as Mr. Parrish’s public adjuster.
On February 10, having completed its investigation of the
claim, State Farm sent a letter to KCC with its own significantly
lower damages estimate. After unsuccessful efforts to reconcile the
estimates, State Farm issued its own demand for appraisal. Mr.
Parrish again named Mr. Keys as his appraiser. State Farm then
petitioned a trial court to compel Mr. Parrish to enter appraisal with
a disinterested appraiser.
The trial court denied State Farm’s petition, finding that Mr.
Keys could serve as Mr. Parrish’s disinterested appraiser because
the two had disclosed their arrangement to State Farm. State Farm
Fla. Ins. Co. v. Parrish, 26 Fla. L. Weekly Supp. 829, 830 (Fla. 20th
Cir. Ct. Dec. 14, 2018) (citing Brickell Harbour, 256 So. 3d at 249
(“[D]isclosure rather than disqualification in the case of an
appraiser” with a “direct or indirect financial interest in the
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outcome of the arbitration” is a “workable approach.”)). The trial
court also found that—unlike the parties in Florida Insurance
Guaranty Ass’n v. Branco, 148 So. 3d 488 (Fla. 5th DCA 2014)2—
Mr. Parrish and KCC had no confidential attorney-client
relationship that would disqualify Mr. Keys.
The Second District reversed. Parrish, 312 So. 3d at 151. It
found that, within the context of the policy, “disinterested” was not
ambiguous, and the requirement that appraisers be “disinterested”
plainly excluded any appraiser who held an interest in the outcome
of the appraisal process. Id. at 149-50. Therefore, Mr. Keys could
not serve as Mr. Parrish’s disinterested appraiser. Id. at 151.
The Second District found that Mr. Keys had an interest for
two reasons: First, KCC’s ten percent stake in Mr. Parrish’s
insurance payout necessarily gave Mr. Keys, the firm’s president, a
pecuniary interest in the outcome of appraisal. Id. Second, Mr.
2. In Branco, the insureds’ proposed appraiser had been their
attorney. 148 So. 3d at 494. The Fifth District Court of Appeal
concluded that “[g]iven the duty of loyalty owed by an attorney to a
client . . . attorneys may not serve as their clients’ arbitrators or
appraisers when ‘disinterested’ arbitrators or appraisers are
bargained for.” Id. at 496.
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Keys could not be disinterested because KCC represented Mr.
Parrish as his public adjuster. Id. at 150. As to the latter finding,
the Second District expressly extended Branco’s prohibition of
attorney-appraisers to public-adjuster-appraisers because “an
insured hires [both] for much the same purpose in these disputes:
to maximize the insured’s financial recovery on the policy.” Id. at
151 n.4.
The Second District certified conflict with Brickell Harbour “to
the extent it holds that a public adjuster who has a contingency
interest in an insured’s appraisal award or represents an insured in
an appraisal process can serve as a ‘disinterested appraiser’ under
a policy’s appraisal provision.” Parrish, 312 So. 3d at 151. We
resolve that conflict today.
II
Because there is no factual dispute, the only issue we must
determine is what “disinterested” means in the context of this
insurance policy. We review the decision below on that question de
novo. Am. S. Home Ins. Co. v. Lentini, 286 So. 3d 157, 158 n.2 (Fla.
2019) (citing U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871, 877
(Fla. 2007)).
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A
We start with the text of the insurance policy. See Taurus
Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla.
2005) (“[I]nsurance contracts are construed according to their plain
meaning.”); Prudential Prop. & Cas. Ins. Co. v. Swindal, 622 So. 2d
467, 470 (Fla. 1993) (“Insurance contracts are construed in
accordance with the plain language of the policies as bargained for
by the parties.”). We read policies as a whole and undertake to give
every provision its “full meaning and operative effect.” Auto-Owners
Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000). We do so
because “the intention of the [contracting] parties governs, and
such intention will be determined from the language used when it is
unambiguous.” Robbinson v. Cent. Props., Inc., 468 So. 2d 986, 988
(Fla. 1985).
Assigning to the contractual term its plain meaning in the first
instance, we nonetheless check the context of the contract as a
whole to determine whether the parties agreed to give
“disinterested” a meaning other than the one ascribed to it in
general usage. See In re Yates Dev., Inc., 256 F.3d 1285, 1290
(11th Cir. 2001) (“Appellee concedes that, when construing a
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contract, a court should look to the whole contract.”) (citing Transp.
Rental Sys. Inc. v. Hertz Corp., 129 So. 2d 454, 456 (Fla. 3d DCA
1961)). The most obvious indication to this effect would be if Mr.
Parrish’s insurance contract defined the term “disinterested.” It
does not. See Gov’t Emp. Ins. Co. v. Macedo, 228 So. 3d 1111, 1113
(Fla. 2017) (“When a term in an insurance policy is undefined, it
should be given its plain and ordinary meaning . . . .”) (quoting
Botee v. S. Fid. Ins. Co., 162 So. 3d 183, 186 (Fla. 5th DCA 2015)).
Next, while neither party comes right out and argues that
“disinterested” is a term of art in the context of insurance, each
looks to our statutes for support of its view of the roles of public
adjusters and appraisers. So we consider Florida’s Insurance Code
to see whether it gives us a reason to assign to the word
“disinterested” anything other than its ordinary meaning. See
Walter E. Headley Jr., Miami Lodge No. 20 v. City of Miami, 215 So.
3d 1, 9 (Fla. 2017) (“[W]hen the words in a statute are technical in
nature and have a fixed legal meaning, it is presumed that the
Legislature intended that the words be given their technical
meaning.”); Hillsborough Cnty. Aviation Auth. v. Nat’l Airlines, 63 So.
2d 61, 63-64 (Fla. 1953) (“Courts should attempt to give words and
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phrases used in contracts the natural meaning or that meaning
most commonly understood when considered in reference to subject
matter and circumstances.”) (emphasis added) (quoting Rupp Hotel
Operating Co. v. Donn, 29 So. 2d 441, 445 (Fla. 1947)). It does not.
First, Florida’s Insurance Code does not define “disinterested.” Tit.
XXXVII, chs. 624-632, 634-636, 641-642, 648, 651, Fla. Stat.
(2017). 3 And second, the three appearances of “disinterested”
within Florida’s Insurance Code each correspond with the word’s
nontechnical, common usage. 4 These two facts, considered
3. While “disinterested director” and “disinterested person”
are defined elsewhere in the Florida Statutes, those definitions
provide limited insight into the meaning of “disinterested” as used
in the insurance provision before us. See § 607.0901(1)(h), Fla.
Stat. (2017) (defining “disinterested director” in the context of
corporate governance as “[a]ny member of the board of directors of
the corporation who was a member of the board of directors before”
a certain date and “[a]ny member of the board . . . who was
recommended for election by . . . a majority of the disinterested
directors then on the board”); § 738.1041(1)(b), Fla. Stat. (2017)
(defining “disinterested person” in the context of trust
administration as “a person who is not a related or subordinate
party with respect to the person acting as trustee of the trust and
excludes the grantor and any interested trustee”).
4. See § 626.2815(7)(k)2, Fla. Stat. (2017) (requiring a
“disinterested third party” to approve certain continuing education
programs for insurance professionals); § 627.728(8)(a), Fla. Stat.
(2017) (requiring a “disinterested employee” to evaluate an appeal of
a notice of cancellation of an auto insurance policy);
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together, reveal a legislative choice to allow the word’s nontechnical,
common usage to control. See Nehme v. Smithkline Beecham
Clinical Labs., 863 So. 2d 201, 204-05 (Fla. 2003) (“One of the most
fundamental tenets of statutory construction requires that we give
statutory language its plain and ordinary meaning, unless words
are defined in the statute or by the clear intent of the legislature.”)
(quoting Green v. State, 604 So. 2d 471, 473 (Fla. 1992)); see also
Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d 1242, 1246 (11th
Cir. 2008) (“When statutory terms are undefined, we typically infer
that Congress intended them to have their common and ordinary
meaning, unless it is apparent from context that the disputed term
is a term of art.”).
With no evidence within either Mr. Parrish’s contract or
Florida’s Insurance Code indicating that we should do otherwise, we
determine and apply the word’s plain meaning. Dictionaries aid us
in establishing the publicly understood plain meaning of a word
whose relevant definition is contested, and we look to them when a
§ 628.431(2)(d), Fla. Stat. (2017) (requiring “disinterested
appraisers” to determine the fair market value of certain capital
stock).
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contractual term is undefined within a contract. See Macedo, 228
So. 3d at 1113 (“[C]ourts may look to legal and non-legal dictionary
definitions to determine” the “plain and ordinary meaning” of a term
undefined in an insurance contract.) (quoting Botee, 162 So. 3d at
186); see, e.g., Siegle v. Progressive Consumers Ins., 819 So. 2d 732,
736 (Fla. 2002) (employing a dictionary to define “repair” and
“replace” as used unambiguously in an insurance policy); Container
Corp. of Am. v. Maryland Cas. Co., 707 So. 2d 733, 736 (Fla. 1998)
(same, but for the potentially ambiguous use of “operations”). We
also engage in this exercise when a statutory term is undefined
within a statute. See Smith v. Smith, 224 So. 3d 740, 745 (Fla.
2017) (“When necessary, the plain and ordinary meaning [of a
statutory term] can be ascertained by reference to a dictionary.”)
(quoting Bennett v. St. Vincent’s Med. Ctr., Inc., 71 So. 3d 828, 839
(Fla. 2011)).
When Mr. Parrish and State Farm entered into their contract
in 2016, Black’s Law Dictionary defined “disinterested” as “[f]ree
from bias, prejudice, or partiality and therefore able to judge the
situation fairly; not having a pecuniary interest in the matter at
hand.” Disinterested, Black’s Law Dictionary (10th ed. 2014).
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Webster’s dictionary defined it as “1: lacking or revealing lack of
interest . . . apathetic . . . 2: not influenced by regard to personal
advantage: free from selfish motive: not biased or prejudiced.”
Disinterested, Webster’s Third New International Dictionary (1986).
The Black’s definition and the second Webster’s definition are self-
explanatory and consistent with each other: a “disinterested”
person cannot, consistently with the generally understood meaning
of that word, have a pecuniary interest in the matter at hand. 5
B
That should not be the end of it, says Mr. Parrish, for two
reasons. One has to do with language in his insurance contract
adjacent to the provision at issue, and the other with two 1998
district court of appeal decisions.
5. A cursory examination of the Corpus of Contemporary
American English from 2016 (as well as the years immediately
prior) does not reveal—as Mr. Parrish would have us believe—any
equivalence between “disinterested” and “transparent.” See
Disinterested, Corpus of Contemporary American English (COCA),
https://www.english-corpora.org/coca/ (last visited Nov. 3, 2022).
Instead, when Americans were not using the term “disinterested” as
a synonym for “apathetic”—which was the case far more often than
not—they were using it to reflect an absence of self-interest. Id.This latter use is entirely consistent with the purpose the term
appears to be serving in Mr. Parrish’s insurance policy.
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First, Mr. Parrish argues that the context in which
“disinterested” appears in his insurance provision requires us to
understand it as modifying how an appraiser is selected, not
compensated. Because the policy’s requirement of
disinterestedness comes before (and apart from) its statement that
“[e]ach party shall be responsible for the compensation of their
selected appraiser,” Mr. Parrish argues, we should understand that
the policy makes disinterestedness a matter separate and apart
from the appraiser’s manner of compensation. See Petitioner’s
Reply Brief at 2 (“The words of a governing text are of paramount
concern, and what they convey, in their context, is what the text
means.”) (quoting Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 56 (2012)). That asks a bit much of
the text, though, which on its face speaks only to who will bear the
cost of the appraisers’ services. Such redefinition by subtle
organization of words would seem an odd choice indeed, where the
parties could have simply defined “disinterested” if they had meant
for it to mean something other than what the dictionary says it
does.
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Second, Mr. Parrish argues that, in the context of his policy,
“disinterested” is essentially identical to the word “independent.”
See Petitioner’s Initial Brief at 10-13. That, he says, is what the
Third District concluded in Galvis v. Allstate Insurance Co., 721 So.
2d 421 (Fla. 3d DCA 1998). In that one-paragraph decision, the
court invoked Rios v. Tri-State Insurance Co., 714 So. 2d 547 (Fla.
3d DCA 1998), for the proposition that an appraiser could be
“independent” while also receiving a contingency fee, then asserted
(without anything in the way of reasoning, really) that the parties’
use of the word “disinterested” in their agreement did not “make[]
any legal difference.” Galvis, 721 So. 2d at 421. But parties to a
contract choose their words on purpose, and we respect those
choices when we can discern them. “Independent” and
“disinterested” may do similar work sometimes, but they are not the
same. Compare Independent, Black’s Law Dictionary (10th ed.
2014) (defining “independent” as “[n]ot subject to the control or
influence of another”), with Disinterested, Black’s Law Dictionary
(10th ed. 2014) (defining “disinterested” as “[f]ree from bias,
prejudice, or partiality and therefore able to judge the situation
fairly; not having a pecuniary interest in the matter at hand”). Our
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language is rich enough to have provided the parties a word to use
had they chosen to permit the participation of an appraiser who
was not subject to the control or influence of another, but not
necessarily altogether free of any pecuniary interest in the matter:
they might have called such an appraiser “independent.” They said
“disinterested” instead.
Our Legislature, too, has been choosy about these two words,
using them together where the use of one would have sufficed if
they meant the same thing. 6 See Scalia & Garner, supra, at 174
(“[E]very word and every provision is to be given effect . . . . None
should be ignored. None should needlessly be given an
interpretation that causes it to duplicate another provision or have
no consequence.”). While “[s]ometimes drafters do repeat
6. See § 605.0804(2), Fla. Stat. (2022) (“A special litigation
committee must be composed of one or more disinterested and
independent individuals, who may be members.”) (emphasis added);
§ 607.0744(3), Fla. Stat. (2022) (“Upon motion by the corporation,
the court may appoint a panel consisting of one or more
disinterested and independent individuals to make a determination .
. . .”) (emphasis added); see also Fla. Admin. Code R. 69W-
700.027(4) (“For past transactions which are now closed, if there
were less than two (2) such disinterested independent directors at
the time of the transaction, the prospectus shall disclose that the
issuer lacked sufficient disinterested independent directors to ratify
the transaction.”) (emphasis added).
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themselves and do include words that add nothing of substance,”
id. at 176, “words with no meaning . . . should be regarded as the
exception rather than the rule,” id. at 178.
That an individual can be “independent” but not
“disinterested”—or vice versa—further distinguishes these two
terms. Take the corporate context, for example, in which
“[r]emembering the difference between the concepts of an
‘interested’ director and of an ‘independent’ director is vital.”
William B. Chandler III & Leo E. Strine, Jr., The New Federalism of
the American Corporate Governance System: Preliminary Reflections
of Two Residents of One Small State, 152 U. Pa. L. Rev. 953, 997
(2003). An individual is “independent” from the other parties
involved in a transaction, but “disinterested” as to the substance of
the transaction itself. “Indeed, abstractly independent directors
(defined by their lack of connection to management) may themselves
have a conflict of interest in particular corporate transactions . . . .”
Donald C. Clarke, Three Concepts of the Independent Director, 32
Del. J. of Corp. L. 73, 105-06 (2007) (emphasis added). Therefore,
just as an independent board member can have a pecuniary
interest in a corporate action because of an external connection to
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the underlying subject matter, so too can a non-independent
corporate officer be disinterested as to a particular firm transaction.
Mr. Parrish and State Farm did not agree to hire
“independent” appraisers. They agreed to hire “disinterested”
appraisers. From the text and structure of the policy, and in light
of the Florida Insurance Code, we have no reason to think the
parties’ agreement was anything other than to require that each
select an appraiser without an interest in the outcome of the claim. 7
C
The contingency fee arrangement agreed to between Mr.
Parrish and KCC gives Mr. Keys, as president of KCC, a pecuniary
interest in Mr. Parrish’s claim. As a “member of a limited liability
company”—in this case KCC—Mr. Keys is by definition an “interest
holder” in it. See § 605.0102(31)(f), Fla. Stat. (2022). And here, Mr.
Keys’s interest is of a pecuniary, or financial, nature. See Financial
Interest, Black’s Law Dictionary (11th ed. 2019) (defining “financial
7. Finding no ambiguity in this choice, we have no reason to
“construe[] [the policy provision] in favor of the insured and strictly
against the drafter.” Taurus Holdings, 913 So. 2d at 532 (quoting
Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla.
2003)).
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interest” as “[a]n interest involving money or its equivalent”). Put
simply, the more Mr. Parrish recovers, the more KCC collects; and
the more KCC collects, the likelier it is that Mr. Keys will himself be
in a position to be paid, or that his interest in KCC will be valuable.
Mr. Keys’s pecuniary interest in evaluating Mr. Parrish’s loss such
that Mr. Parrish recovers as much as possible means Mr. Keys is
not “disinterested.” To the contrary, the whole point of the
contingency fee agreement is to align Mr. Keys’s economic interests
with Mr. Parrish’s.
This breaks no new ground. Judge Sasso reached the same
conclusion in State Farm Florida Insurance Co. v. Crispin, 290 So.
3d 150 (Fla. 5th DCA 2020), as did Judge Kuntz in his special
concurrence in State Farm Florida Insurance Co. v. Valenti, 285 So.
3d 958 (Fla. 4th DCA 2019). Like the case before us, Crispin
involved a dispute between an insured and State Farm over the
same appraisal provision’s use of “disinterested.” 290 So. 3d at
151-52. In Crispin, the insured agreed to a ten percent contingency
fee arrangement with her public adjuster whom she subsequently
named to serve as her appraiser. Id. at 152. The Fifth District
Court of Appeal found that this arrangement violated the
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“disinterested” requirement, holding that “an appraiser is not
disinterested in an insurance claim if the appraiser is entitled to a
percentage of the recovery from the same insurance claim.” Id.
(citing Valenti, 285 So. 3d at 963 (Kuntz, J., concurring specially)).
That the public adjuster and appraiser in Crispin were the same
person does not distinguish that case from the one before us
because, here, KCC’s interest in the claim can be imputed to Mr.
Keys as its president.
Mr. Parrish argues that disclosure of his contingency fee
arrangement with Mr. Keys salvages the latter’s “disinterested”
status. See Petitioner’s Initial Brief at 12-13 (citing Galvis, 721 So.
2d at 421, and Rios, 714 So. 2d at 550). Yet he directs us to no
evidence that anyone—least of all the parties—understands
disinterestedness to require either disclosure or secrecy. The word
simply does not carry a meaning on that front, one way or the
other.
D
Nor does the meaning of the word “disinterested” turn on the
balance of economic interests between insureds and insurers. Mr.
Parrish argues that because contingency fees require less out-of-
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pocket investment by insureds than flat fees or hourly rates,
insureds will suffer if we give effect to the plain meaning of the word
“disinterested” in this policy. See Petitioner’s Initial Brief at 35-37.
State Farm answers that a more faithful conception of
“disinterested” will result in less disagreement during appraisal,
less reliance on an umpire, and ultimately less involvement of
Florida courts. Respondent’s Answer Brief at 56-58. To the extent
this policy debate between the parties needs settling, it does not
need it from us. See Webb v. Hill, 75 So. 2d 596, 605 (Fla. 1954)
(“The Legislature determines the public policy of the state . . . .”).
III
Because Mr. Keys’s company, KCC, is to be compensated via
contingency fee, he has a pecuniary interest in the outcome of the
claim and cannot qualify as a “disinterested” appraiser. We approve
the Second District’s decision and disapprove the Third District’s
decision to the extent it is inconsistent with our decision here.
It is so ordered.
MUÑIZ, C.J., and CANADY, POLSTON, and GROSSHANS, JJ.,
concur.
LABARGA, J., dissents with an opinion.
FRANCIS, J., did not participate.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
LABARGA, J., dissenting.
Under the majority’s plain meaning analysis, a public adjuster
compensated by an insured under a contingency fee agreement is
disqualified from serving as a “disinterested” appraiser. While it is
a standard matter of contract interpretation that the terms of
insurance contracts be construed in accordance with their plain
meaning, in this certified conflict case, the term “disinterested” is
ambiguous. The majority’s failure to recognize this ambiguity will
result in a financial burden on insureds of limited economic means.
I respectfully dissent.
The majority’s analysis notwithstanding, the plain meaning of
the word “disinterested” is not determinative because the term is
ambiguous. See Robbinson v. Cent. Props., Inc., 468 So. 2d 986,
988 (Fla. 1985) (“In construing contracts, the intention of the
parties governs, and such intention will be determined from the
language used when it is unambiguous.” (emphasis added)); Fla. Ins.
Guar. Ass’n v. Branco, 148 So. 3d 488, 491 (Fla. 5th DCA 2014)
(“Absent ambiguity, the plain meaning of an insurance policy
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controls.” (emphasis added)). The ambiguity of the term
“disinterested” is reflected in the conflicting, reasonable
interpretations of the district courts. Although the use of the term
“disinterested” in the appraisal provision could require the
appraisers not to have a pecuniary interest in the award, as the
Second District held below and the majority holds today,
“disinterested” could also mean that appraisers are required to
exercise independent judgment and be unaffiliated with the parties,
as other district courts have held. See Branco, 148 So. 3d at 496(holding that attorneys, under the duty of loyalty owed to clients,
cannot serve as “disinterested” appraisers for them); Galvis v.
Allstate Ins. Co., 721 So. 2d 421, 421 (Fla. 3d DCA 1998) (equating
“disinterested” with “independent”) (citing Rios v. Tri-State Ins. Co.,
714 So. 2d 547, 549 (Fla. 3d DCA 1998) (holding that an
“independent” appraiser must be an “outside appraiser, unaffiliated
with the parties”)).
In the present case, interpreting “disinterested” to require
independent judgment is particularly reasonable because the policy
does not expressly prohibit the parties from compensating the
appraisers with contingency fees. Indeed, interpreting
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“disinterested” in this manner is proper because it is well settled
that all ambiguities in an insurance contract must be resolved in
favor of the insured. See Taurus Holdings, Inc. v. U.S. Fid. and
Guar. Co., 913 So. 2d 528, 532 (Fla. 2005) (“Ambiguities are
construed against the insurer . . . .”); Swire Pac. Holdings, Inc. v.
Zurich Ins. Co., 845 So. 2d 161, 165 (Fla. 2003) (“An ambiguous
provision is construed in favor of the insured and strictly against
the drafter.”); Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34
(Fla. 2000) (“Ambiguous policy provisions are interpreted liberally in
favor of the insured and strictly against the drafter who prepared
the policy.”); Berkshire Life Ins. Co. v. Adelberg, 698 So. 2d 828, 830
(Fla. 1997) (“It has long been a tenet of Florida insurance law that
an insurer, as the writer of an insurance policy, is bound by the
language of the policy, which is to be construed liberally in favor of
the insured and strictly against the insurer.”); Firemans Fund Ins.
Co. of S.F., Cal. v. Boyd, 45 So. 2d 499, 501 (Fla. 1950) (“This court
is committed to the rule that a contract of insurance prepared and
phrased by the insurer is to be construed liberally in favor of the
insured and strictly against the insurer, where the meaning of the
language used is doubtful, uncertain or ambiguous.”). Facing two
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reasonable interpretations, we should resolve the ambiguity in
Parrish’s favor and hold that receiving a contingency fee does not
disqualify a public adjuster from serving as a “disinterested”
appraiser.
However, the majority’s plain language analysis disregards the
ambiguity. Citing as an example this Court’s decision in Container
Corp. of Am. v. Md. Cas. Co., 707 So. 2d 733, 736 (Fla. 1998), the
majority turns to dictionaries to determine the plain meaning of the
word “disinterested.” Majority op. at 10-12. But in Container, this
Court first stated that because the possibly ambiguous terms were
“susceptible to differing interpretations,” they “should be construed
in favor of the insured.” Container, 707 So. 2d at 736. This Court
then looked to dictionary definitions to interpret the terms. See id.
at 736-37.
In fact, the very definitions to which the majority defers
highlight the ambiguity. For instance, Black’s Law Dictionary
defines “disinterested” as “able to judge the situation fairly.”
Disinterested, Black’s Law Dictionary (10th ed. 2014). However, the
majority moves past this language to instead focus on the language
“free from pecuniary interest.” See Majority op. at 11-12. The
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appraisal provision uses the term “disinterested” to describe not
only the appraisers, but also the umpire. Just as the parties may
have intended neither the appraisers nor the umpire to have a
pecuniary interest in the matter, the parties may have intended the
appraisers to exercise independent judgment like the umpire would.
The ambiguity of the word “disinterested” requires that the
term be construed in the insured’s favor. Because the majority
disregards this ambiguity, I dissent.
Application for Review of the Decision of the District Court of Appeal
Certified Direct Conflict of Decisions
Second District – Case No. 2D19-130
(Collier County)
Mark A. Boyle and Gregory L. Evans of Boyle, Leonard & Anderson,
P.A., Fort Myers, Florida,
for Petitioner
Kara Rockenbach Link and Daniel M. Schwarz of Link &
Rockenbach, PA, West Palm Beach, Florida; and Robert A.
Kingsford and Lynn S. Alfano of Alfano Kingsford, P.A., Maitland,
Florida,
for Respondent
Kansas R. Gooden of Boyd & Jenerette, PA, Miami, Florida,
for Amicus Curiae Florida Defense Lawyers Association
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L. Michael Billmeier, Jr. of Colodny Fass, Tallahassee, Florida,
for Amici Curiae Florida Property and Casualty Association
and Personal Insurance Federation of Florida
Jason Gonzalez and Amber Stoner Nunnally of Shutts & Bowen
LLP, Tallahassee, Florida, and Elise Engle of Shutts & Bowen LLP,
Tampa, Florida; and William W. Large of Florida Justice Reform
Institute, Tallahassee, Florida,
for Amicus Curiae Florida Justice Reform Institute
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