Florida/Georgia Personal Injury & Workers Compensation

...This figure corresponded exactly to the total of the amounts requested by the Homeowners' 1Although Citizens advised the Homeowners of their right to pursue their claim further through the neutral evaluation process, described in section 627.7074, Florida Statutes (2010), the Homeowners declined to take advantage of this method to resolve their dispute with Citizens. -2- counsel in his closing argument: (1) $72,952 for grouting,...

...rer’s experts receive a statutory presumption of correctness. § 627.7073(l)(c), Fla. Stat. (2015). If the insured disputes whether the insurance company’s report is correct, the sinkhole statutes also provide for a neutral evaluation procedure. § 627.7074, Fla. Stat. (2015). Neutral evaluation is mandatory if requested by either party, section 627.7074(4), Fla. Stat. (2015), but the insurer bears the cost for the neutral evaluation. § 627.7074(6), Fla. Stat. Court proceedings are stayed pending the completion ■ of any neutral evaluation. § 627.7074(10), Fla. Stat. Once the neutral evaluation is completed, the neutral evaluator prepares an independent report to address whether there was damage to the insured property caused by sinkhole activity, and an estimated cost for repairs. § 627.7074(12), Fla. Stat. Significantly, the results of the neutral, independent evaluation are not binding in any subsequent legal proceedings, § 627.7074(4), Fla....

...ection 627.428. During the discovery process, Omega considered the BASIC report, which had found sinkhole damage on Johnson’s property. Thereafter, Omega continued to refuse payment and proceeded to request a neutral evaluation process pursuant to section 627.7074....

...bligations under part II of Chapter 631, Florida Statutes (“the FIGA Act”). In January 2012, FIGA informed Bernard that it would be handling her sinkhole claim. FIGA subsequently invoked the “neutral evaluation” dispute resolution process in section 627.7074, Florida Statutes, to determine whether the damage to Bernard’s home was caused by sinkhole activity and, if so, what remediation and repairs were necessary....

...Sarasota Cnty., 983 So.2d 51, 55 (Fla. 2d DCA 2008) (explaining that as a general rule, “[tjhis court will not interpret statutes so as to render portions of them meaningless when a reading that gives meaning to all portions is possible”). Pursuant to section 627.7074(12), when neutral evaluation is invoked the neutral evaluator must determine the “need for and estimated costs of stabilizing the land and any covered structures or -buildings and other appropriate remediation or structural repairs...

...reject the expert opinions and recommendations of either party’s engineer and is authorized to render alternative opinions and repair recommendations. Id. Importantly, neutral evaluation is nonbinding, “and the parties retain access to court.” § 627.7074(13)....

...And the statute provides a contingency for situations in which the insured declines to accept the neutral evaluator’s recommendation and awards attorney’s fees to the insured only if he or she obtains “a judgment that is more favorable than the recommendation of the neutral evaluator.” § 627.7074(15)(b)....

...Trapeo’s retained engineer as to the appropriate remedial action, Mr. Trapeo filed a lawsuit against Citizens in March 2012. In December 2012, after engaging in discovery, Citizens filed a request for neutral evaluation with the Department of Financial Services (“Department”) pursuant to section 627.7074(4), Florida Statutes (2012). Section 627.7074 is titled “Alternative procedure for resolution of disputed sinkhole insurance claims.” The statute defines and establishes the right to neutral *674 evaluation along with the procedures for neutral evaluation. “Neutral evaluation” is defined as “the alternative dispute resolution provided in s. 627.7074.” § 627.706(2)(b). Citizens also filed a “Notice of Automatic Stay” with the trial court, advising the court that it had filed its request for neutral evaluation with the Department and that section 627.7074 mandated a stay of the court proceedings “pending completion of the neutral evaluation and for 5 days after the filing of the neutral evaluator’s report with the court.” See § 627.7074(10)....

...Trapeo argues that “Citizens failed to protect and safeguard its contractual right to neutral evaluation” and that “it has waived such right to participate in such process.” In addition to the response, Mr. Trapeo filed a “Motion to Prevent the Retroactive Application of Florida Statutes 627.706 through 627.7074” and a motion to determine the constitutionality of section 627.7074....

...As a result, the 2011 amendments to the neutral evaluation statute are intertwined with the issues presented in Citizens’ petition for writ of certiorari. Therefore before reaching the issues directly before us, we must consider whether the 2009 or 2012 version of section 627.7074 is applicable to this case. Section 627.7074 was enacted in 2006 and substantially amended in 2011. The relevant amendment for our purposes was to the stay provision of the statute. Previously, section 627.7074 provided: “Any court proceeding related to the subject matter of the neutral evaluation shall be stayed pending completion of the neutral evaluation.” § 627.7074(11), Fla. Stat. (2006); see ch. 2006-12, § 29, Laws of Fla. (2006). Effective May 17, 2011, the stay provision was renumbered to section 627.7074(10) and substantively provided: “Regardless of when noticed, any court proceeding related to the subject matter of the neutral evaluation shall be stayed pending completion of the neutral evaluation and for 5 days after the filing of the neutral evaluator’s report with the court.” § 627.7074(10) (emphasis added); see ch. 2011-39, § 27, Laws of Fla. (2011). Mr. Trapeo argues that the 2009 version of section 627.7074 is applicable in determining whether waiver occurred because Citizens issued his insurance policy in 2009....

...in effect at the time of the trial is the applicable statute.”); Butler v. Bay Ctr./Chubb Ins. Co., 947 So.2d 570, 572 (Fla. 1st DCA 2006) (“[Procedural or remedial changes to law apply without regard to the date of a claimant’s accident.”). Section 627.7074 contains both procedural and substantive aspects. The right to neutral evaluation is clearly substantive. State Farm Fla. Ins. Co. v. Buitrago, 100 So.3d 85, 88 (Fla. 2d DCA 2012) (quoting Morejon v. Am. Sec. Ins. Co., 829 F.Supp.2d 1258, 1260-61 (M.D.Fla.2011) (“Section 627.7074 provides a substantive right of parties to have a neutral evaluator review the claim and render a nonbinding report before the matter is adjudicated by a court .......

...Cooperativa De Seguros Multiples De Puerto Rico, Inc., 76 So.3d 394, 398 (Fla. 2d DCA 2011). Staying litigation is a means to enforce neutral evaluation and “serve the legislative purpose underlying the statutory requirement of neutral evaluation.” Morejon, 829 F.Supp.2d at 1260 . Section 627.7074(10) does not create new rights or impede existing rights; it is not substantive. And procedural statutes “should be applied to pending cases in order to fully effectuate the legislation’s intended purpose.” Smiley v. State, 966 So.2d 330, 334 (Fla.2007). Thus, the amended version of the stay provision of section 627.7074 applies to a lawsuit filed after its effective date and until and unless a procedural change is made during the pendency of the lawsuit....

...he denial itself does not meet the jurisdictional prongs of certiorari review. If neutral evaluation were to proceed in the absence of a stay, either party could still seek to introduce the neutral evaluator’s report in the circuit court case. See § 627.7074(13) (“The neutral evaluator’s written recommendation, oral testimony, and full report shall be admitted in any action, litigation, or proceeding relating to the claim or to the cause of action giving rise to the claim.”)....

...eutral evaluation through its finding that Citizens waived its right to the process, the order meets the jurisdictional prongs for certiorari review. See Buitrago, 100 So.3d at 88 . “[T]he circuit court’s prohibition [of neutral evaluation under section 627.7074] materially harms [the petitioner] for the remainder of the proceedings by preventing it from participating in a neutral evaluation process, the results of which could favor [the petitioner].” Id....

...The trial court’s determination that neutral evaluation was waived conflicts with the express language of the statute. “Neutral evaluation is available to either party,” “supersedes the alternative dispute resolution process under s. 627.7015,” and is “mandatory if requested by either party.” § 627.7074(2), (3), (4)....

...There is no waiver provision and no timeframe for requesting neutral evaluation. 2 It is an optional but statutorily guaranteed process. That is, once the request for neutral evaluation has been filed with the Department, participation in neutral evaluation is mandatory and guaranteed. See § 627.7074(4); cf....

...The 2012 statute specifically provides, “Regardless of *678 when noticed, any court proceeding related to the subject matter of the neutral evaluation shall be stayed pending completion of the neutral evaluation and for 5 days after the filing of the neutral evaluator’s report with the court.” § 627.7074(10) (emphasis added); cf. Cruz, 76 So.3d at 398 n. 1 (“We also note that section 627.7074 does not impose a waiver or other penalty when a neutral evaluation is not completed within forty-five days. Its proviso that ‘[njeutral evaluation shall be conducted as an informal process in which formal rules of evidence and procedure need not be observed,’ § 627.7074(5), suggests that the legislature intended no sanction for failure to strictly adhere to the time period.”)....

...The Department certifies and maintains a list of qualified neutral evaluators; receives the request for neutral evaluations; may disqualify neutral evaluators; may appoint a neutral evaluator in cases where the parties cannot agree upon one; and has adopted rules of procedure for the neutral evaluation process. § 627.7074(1), (4), (7), (18); see also SB 408 (2011), Staff analysis (Jan. 24, 2011), http://www.flsenate.gov/ Session/Bill/2011/0408/Analyses/2011s0408. pre.bi.PDF (“Section 24. Amends, s. 627.7074, F.S., which provides the procedure for the neutral evaluation of sinkhole claims administered through the Department of Financial Services (DFS).”). The right to request neutral evaluation through the Department stems from section 627.7074(4), which has remained unchanged since 2006. Section 627.7074(4) provides that neutral evaluation is mandatory if requested by either party....

...*679 writ of mandamus and grant it. See Fla. R. App. P. 9.040(c). Citizens argues that the trial court is required to stay court proceedings related to the subject sinkhole once neutral evaluation is requested. It contends that a “plain reading of section 627.7074(10) provides for a non-discretionary, automatic stay of litigation, regardless of the stage of litigation or the extent of the parties’ litigation conduct without judicial approval,” and that “the trial court is without authority or requirement to act, whether before a lawsuit or after, to prevent the suspension of litigation.” It further argues that section 627.7074(4) supports its automatic stay position because “[fjiling a request for neutral evaluation tolls the applicable time requirements for filing suit” and the trial court is without power to order otherwise. Mandamus relief is warranted. The language of the statute is mandatory, requiring that the court proceedings “shall be stayed pending completion of the neutral evaluation.” § 627.7074(10); see Fla....

...v. Crosby, 877 So.2d 861, 863 (Fla. 1st DCA 2004) (“Because the legislature chose to use the word ‘shall’ ... the Department’s obligations are not discretionary.”). The circuit court is required to recognize the automatic stay created by section 627.7074....

...1st DCA 2012) (granting petition for writ of mandamus where statute governing confirmation of arbitration award contained mandatory language); cf. Lee Cnty. v. State Farm Mut. Auto. Ins. Co., 634 So.2d 250, 251 (Fla. 2d DCA 1994) (quashing writ of mandamus where action required discretion). Section 627.7074(10) is a dictate....

...§ 120.56(4)(b), Fla. Stat. (2011) (providing for stay of administrative proceedings during rulemaking process). The statute also expressly states that “[n]eutral evaluation supersedes the alternative dispute resolution process under s. 627.7015.” § 627.7074(3)....

...There would be no need for neutral evaluation to supersede section 627.7015 if the two provided the same process. V. Conclusion Citizens’ petition for writ of certiorari is granted in part; the trial court’s order is quashed to the extent that it prohibits neutral evaluation pursuant to section 627.7074. The petition is converted, in part, to a petition for writ of mandamus and is granted. The trial court is directed to stay the circuit court proceedings pursuant to section 627.7074....

...See Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla.1998); Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995). Alternatively, the Homeowners petition for a writ of mandamus declaring that the mandatory stay provision of section 627.7074(11), Florida Statutes (2010), is unconstitutional....

...Factual Background After receiving the Homeowners’ sinkhole claim, Cooperativa recommended repair work at an estimated cost of about $60,000. The Homeowners responded *396 with a lawsuit for breach of contract. Coo-perativa invoked the “neutral evaluation” procedures set forth in section 627.7074, which provided, in pertinent part, as follows: 627.7074....

...ion of the neutral evaluation process or 5 years, whichever is later. The statute and the policy contemplate no litigation during the neutral evaluation process. Cooperativa moved to stay the lawsuit pending completion of the neutral evaluation. See § 627.7074(11). The Department provided a list of certified evaluators. See § 627.7074(7)....

...Cooperativa chose five and asked the Homeowners whether they would agree to one of them and agree to a stay. The Homeowners balked. At the hearing on the motion to stay, the Homeowners argued that a stay was inappropriate because neutral evaluation likely would not be completed within forty-five days. See § 627.7074(7). The trial court granted the stay and directed the parties to govern themselves according to section 627.7074. Undeterred, the Homeowners moved for reconsideration, asserting that the mandatory stay provision, section 627.7074(11), was facially unconstitutional as a violation of the separation of powers doctrine— more particularly, an infringement of the Florida Supreme Court’s exclusive rule-making authority. The trial court denied the motion. Cooperativa asked the Department to select a neutral evaluator because the Homeowners accepted none of Cooperati-va’s five choices. The Department assigned a succession of evaluators. See § 627.7074(7)....

...2d DCA 2005) (“[T]he rights of access to courts ... *398 may be contractually relinquished, (quoting Global Travel Mktg., Inc. v. Shea, 908 So.2d 392, 398 (Fla.2005)). Moreover, the Homeowners have a pending lawsuit and may continue with it upon completion of the neutral evaluation. See § 627.7074(13) (“The recommendation of the neutral evaluator is not binding on any party, and the parties retain access to court[s].”)....

...t certiorari review, even if the order departs from the essential requirements of law). Accordingly, we dismiss the petition for writ of certiorari. 1 Writ of Mandamus The Homeowners request, alternatively, that we issue a writ of mandamus declaring section 627.7074 unconstitutional for violating the separation of powers doctrine....

...They argue that the automatic stay provision is a legislatively created procedural rule that is within the exclusive province of the Florida Supreme Court’s rule-making authority. Cooperativa responds that the stay provision is valid because it is intertwined with the substantive provisions of section 627.7074....

...Its nonbinding nature, however, means only that the parties do not have to accept the recommendation. The statute has other substantive consequences regarding admissibility of the recommendation in subsequent proceedings and liability for attorney’s fees. See § 627.7074(13), (15)(b)....

...ovisions of the statute combine to facilitate this intent. We deny the petition for writ of mandamus. Dismissed in part, denied in part. VILLANTI and MORRIS, JJ., Concur. . Even if we had certiorari jurisdiction, we would deny the petition. Although section 627.7074(11) states that the neutral evaluation "shall” be completed within forty-five days of the request, we find no support for the position that the lapse of that period bars any statutory or contractual policy right of Coo-perativa to neutral evaluation. This is particularly true where the record indicates that the Homeowners have obstructed the process. See § 627.7074(5). We also note that section 627.7074 does not impose a waiver or other penalty when a neutral evaluation is not completed within forty-five days. Its proviso that “[njeutral evaluation shall be conducted as an informal process in which formal rules of evidence and procedure need not be observed,” § 627.7074(5), suggests that the legislature intended no sanction for failure to strictly adhere to the time period.

CRENSHAW, Judge. State Farm Florida Insurance Company (State Farm) petitions this court for certio- *87 rari review of a nonfinal order from the circuit court ruling that section 627.7074, Florida Statutes (2010), is unconstitutional and prohibiting State Farm from conducting any further action on a neutral evaluation under the statute. We hold that the circuit court departed from the essential requirements of law by finding section 627.7074 unconstitutional....

...ovide coverage and pay for damages sustained as a result of sinkhole activity on their property. 1 In response, State Farm filed an answer and affirmative defenses and moved to stay the proceedings so that it could conduct a neutral evaluation under section 627.7074 as an alternative procedure to resolve the Bui-tragos’ disputed claim. State Farm then requested a neutral evaluation, and pursuant to section 627.7074(4), the Department of Financial Services (the Department) assigned a neutral evaluator to conduct the nonbinding but mandatory evaluation. The Buitragos objected to State Farm’s request for a neutral evaluation, alleging that section 627.7074 was unconstitutional because it violated the separation of powers doctrine by usurping the circuit court’s authority to adjudicate the disputed coverage issues....

...Therefore, they moved for an emergency protective order to block the neutral evaluation from proceeding. After conducting a hearing on the parties’ motions, the circuit court entered an order denying State Farm’s motion to stay and granting the Buitragos’ motion for a protective order. The circuit court found that section 627.7074 unconstitutionally encroached upon the judiciary’s powers and, as such, directed the Department to cease and desist from taking any further action on the neutral evaluation regarding the Buitragos’ claim....

...A clearly established principle of law includes a court’s interpretation or application of a statute or constitutional provision. Id. (citing Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003)). Discussion The legislature explicitly enacted the neutral evaluation process under section 627.7074 “to efficiently resolve sinkhole disputes, in order to accelerate the timeline by which sinkhole activity is mitigated, where verified at the property, and to minimize, if not avoid, the costs associated with unnecessary litigation.” Morejon v....

...& Clinics, Inc., 45 So.3d 118, 122 (Fla. 1st DCA 2010) (noting there was no postjudgment remedy to establish the effect of exclusion of discovery), review denied, 55 So.3d 1288 (Fla.2011). Thus we are left to consider whether the circuit court’s ruling on the constitutionality of section 627.7074 departed from the essential requirements of law....

...e a neutral evaluation is requested] is not an unconstitutional violation of separation of powers.” Cruz v. Cooperativa De Seguros Multiples De P.R., Inc., 76 So.3d 394, 398 (Fla. 2d DCA 2011). Moreover, the federal court in Morejon concluded that section 627.7074 was substantive in nature rather than procedural because the statute would not impact a plaintiff’s method of proceeding with litigation “once the condition precedent of neutral evaluation is met.” 829 F.Supp.2d at 1261 ....

...As such, *89 “Florida law is well-settled [sic] that substantive statutes may permissibly include procedural elements without violating the separation of powers clause.” Id. (citing Caple v. Tuttle’s Design-Build, Inc., 753 So.2d 49, 54 (Fla.2000)). The Buitragos nonetheless aver that section 627.7074 violates the separation of powers by allowing a neutral evaluator appointed by an executive agency to encroach upon the authority of the judiciary....

...tatutes (1995), for PIP claims was unconstitutional because it violated the medical providers’ right of access to the courts to pursue breach of contract claims). Upon reviewing the statute with a presumption of constitutionality, we conclude that section 627.7074 does not encroach on the circuit court’s judicial authority. As we have previously discussed, statutorily created alternative dispute resolution procedures like those in Chrysler Corp. have been found to be constitutional, and we find no basis to conclude that the neutral evaluation procedures outlined in section 627.7074 are unconstitutional in *90 this instance. Further, section 627.7074(13) merely states that the neutral evaluator’s written recommendation is admissible in a subsequent action....

...may consider possible exclusion on the grounds of prejudice or confusion pursuant to section 90.403. Accordingly, we hold that the Buitragos’ arguments fail and, as such, the circuit court departed from the essential requirements of law by finding section 627.7074 unconstitutional....

...The recommendation of the neutral evaluator is not binding on any party, and the parties retain access to court. The neutral evaluator's written recommendation is admissible in any subsequent action or proceeding relating to the claim or to the cause of action giving rise to the claim. § 627.7074(13). . This act was later repealed in 1985. See Ch. 1985-175, § 43 at 1225, Laws of Fla. . We note that the legislature substantially revised section 627.7074 in 2011 and that the constitutionality of those revisions is not before us today....

...6 State Farm reinspected the property .and increased their payment on the underlying sinkhole claim by about $27,000. After the supplemental payment of $27,000, but prior to the expiration of the 60-day cure period, State Farm requested a neutral evaluation under § 627.7074 of the Florida Statutes, which “provides a substantive right of parties to have a neutral evaluator review the claim and render a nonbinding report before the matter is adjudicated by a court.” 7 The neutral evaluator issued her repor...

...Colella’s public adjuster along with a letter stating that, in light of the report, the policy specifically excluded the cause of loss. The letter quoted the relevant language from the insurance policy. It contained a disclosure of the insured’s right to participate in the neutral evaluation program under section 627.7074 and invited the public adjuster to contact either the claims representative or the Florida Department of Financial Services (“the Department”) to learn more *893 about that program....

...with standard geotechnical engineering practices and that State Farm knew or should have known that Ms. Colella had a claim payable under the policy. State Farm responded to the lawsuit with a motion to stay pending neutral evaluation. It relied on section 627.7074, which provides that such evaluation is “nonbinding, but mandatory if requested by either party.” See § 627.7074(4)....

...Colella filed an objection to neutral evaluation and a supplemental objection, claiming that the statute was unconstitutional and otherwise improper. 1 A request for neutral evaluation is actually made to the Florida Department of Financial Services. See § 627.7074(4)....

...The findings, opinions, and recommendations contained in the report “shall be presumed correct.” Id. § 627.7073(l)(c). If a report is issued pursuant to section 627.7073, an alternative procedure for resolution of disputed sinkhole claims is available. Id. § 627.7074. This procedure provides for “neutral evaluation” of the claim to be conducted “as an informal process in which formal rules of evidence and procedure need not be observed.” Id. § 627.7074(5). A request for neutral evaluation is made with the Department of Financial Services. Id. § 627.7074(4); State Farm Fla. Ins. Co. v. Colella, 95 So.3d 891 (Fla. 2d DCA), review denied, 108 So.3d 654 (Fla.2012). “Neutral evaluation is nonbinding, but mandatory if requested by either party.” Id. § 627.7074(4)....

...of damage to her home and it was not able to honor her claim. Omega attached a copy of the report to the correspondence. The correspondence contained the required disclosure of Johnson’s right to participate in the neutral evaluation program under section 627.7074(3) and notified Johnson that Omega was statutorily obligated to bear the expense associated with the neutral evaluation....

...gs contained therein were relayed to Omega prior to the institution of the lawsuit. Omega obtained a copy of the report for the first time during the course of discovery. Omega filed a motion for neutral evaluation and to stay litigation pursuant to section 627.7074....

...ing in connection with that contract.’ ” Menendez v. Progressive Express Ins. Co., Inc., 35 So.3d *247 873, 876 (Fla.2010) (quoting Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla. 1996)). . Johnson also sought fees pursuant to section 627.7074(14), Florida Statutes, but apparently withdrew that request....

...ifton, 31 So.3d at 829 )), review denied, 68 So.3d 235 (Fla.2011). . Although participation in the neutral evaluation process is mandatory once a party elects that process, the recommendation of the neutral evaluator is not binding on any party. See § 627.7074(13), Fla. Stat. (2009). In 2011, the Legislature amended section 627.7074 to provide that if the insurer agrees to comply with the neutral evaluation recommendation, but the insured does not, "[t]he actions of the insurer are not a confession of judgment or admission of liability, and the insurer is not liable for attorney's fees under s. 627.428 ... unless the policyholder obtains a judgment that is more favorable than the recommendation of the neutral evaluator.” § 627.7074(15)(b), Fla....

Florida Administrative Code and as authorized by section 627.7074, Florida Statutes (2013). The evaluator held

...“structural damage to the building, including the foundation, caused by sinkhole activity.” Ch. 2005-111, §§ 17, 18, Laws of Fla. According to Chapter 2011-39, Section 21, Laws of Florida, “In 2005, the Legislature revised [Sections] 627.706-627.7074, Florida Statutes, to adopt certain geological or technical terms; to increase reliance on objective, scientific testing requirements; and generally to reduce the number of sinkhole claims and related disputes arising under prior law.” Con...

...increases the cost of property insurance, and increases the state’s reliance on a residual property insurance market and its potential for imposing assessments on policyholders throughout the state. (2) In 2005, the Legislature revised ss. 627.706-627.7074, Florida Statutes, to adopt certain geological or technical terms; to increase reliance on objective, scientific testing requirements; and generally to reduce the number of sinkhole claims and related disputes arising under prior law....

...(3) Pursuant to sections 22 through 27 of this act, technical or scientific definitions adopted in the 2005 legislation are clarified to implement and advance the Legislature’s intended reduction of sinkhole claims and disputes. Certain other revisions to ss. 627.706-627.7074, Florida Statutes, are enacted to advance legislative intent to rely on scientific or technical determinations relating to sinkholes *1229 and sinkhole claims, reduce the number and cost of disputes relating to sinkhole claims, and ensure th...

...ith the engineer’s recommendation. If required by the policy, the insurer must “pay for other repairs to the structure.” § 627.707(5)(a), Fla. Stat. (2010). If denying a claim, the insurer must inform the insured of the right to proceed under Section 627.7074 to a non-binding “neutral evaluation” before a “neutral evaluator,” an engineer “who has completed a course of study in alternative dispute resolution.” If the matter remains unresolved after the neutral evaluation, the e...

...sinkhole loss is “verified,” the report must contain the evaluator’s opinion about “the need for and estimated costs of stabilizing the land and any covered structures or buildings and other appropriate remediation or structural repairs.” § 627.7074(12), Fla....

...s ensuring the building’s stability. 6 In addition, Section 627.707(5)(a) requires an insurer, for a “verified” loss, to pay to “stabilize the land and building and repair the foundation” (but not to repair all the damage in the building). Section 627.7074(12) requires the neutral evaluator to opine about the “estimated costs of stabilizing ......

...although disarmingly simple in appearance. . In 2011, the legislature expressly incorporated into each property insurance policy the five-part, technical definition of "structural damage.” Fla. Stat. § 627.706 (2) ("As used in [Sections] 627.706-627.7074, and as used in connection with any policy providing coverage for a catastrophic ground cover collapse or for sinkhole losses, the term ......

...vent of a sinkhole.... Since your policy of insurance does not provide coverage for the loss, Tower Hill ... is not able to extend coverage for your claim.” Tower Hill also advised them that they could participate in neutral evaluation pursuant to section 627.7074. That section provides, in pertinent part, as follows: 627.7074 Alternative procedure for resolution of disputed sinkhole insurance claims.— [[Image here]] (3)Following the receipt of the report provided under s....

...LOSS SETTLEMENT [[Image here]] Neutral Evaluation: Following receipt of a sinkhole report or denial of a sinkhole loss claim, “you” may participate in the alternative dispute resolution or neutral evaluation for disputed sinkhole insurance claims provided by F.S. 627.7074....

...urt’s finding that Citizens waived its right to neutral evaluation of the sinkhole claim upon which Marilyn Aguiar Bellas’s lawsuit was based. Citizens argues that the amended stay provision of the neutral evaluation statute that is set forth in section 627.7074(10), Florida Statutes (2011), mandates an automatic litigation stay; that the trial court erroneously concluded that Citizens’ participation in litigation constituted a waiver of its right to a stay; that the trial court departed f...

and BLACK, JJ., Concur. 1 . Section 627.7074, Florida Statutes (2009), sets forth a process

DAVIS, Chief Judge. Citizens Property Insurance Corporation seeks certiorari review of the trial court’s order denying its request for an automatic stay pursuant to section 627.7074(10), Florida Statutes, in the breach of contract action brought against Citizens by Rebecca Hanos. That underlying action stems from a dispute between the parties over repairs made to Hanos’ home after sinkhole damage was discovered. Prior to trial, Citizens invoked the neutral evaluation process outlined in section 627.7074 and filed a notice of automatic stay pursuant to subsection (10) of the statute....

...ges the trial court’s refusal to enter the automatic stay — as a petition for writ of mandamus and grant the petition. The trial court is directed to stay the underlying proceedings pending the completion of the neutral evaluation as required by section 627.7074(10)....

...The insurer may withhold payment for subsurface repairs "until the policyholder enters into a contract for the performance of building stabilization or foundation repairs." § 627.707(5)(b). If the policyholder does not accept the repair recommendations of the insurer's professional, section 627.7074 provides an alternative method to resolve the disputed claim: neutral evaluation that is mandatory if either party requests it. See -2- § 627.7074(4). The neutral evaluator prepares a report detailing his or her findings of the need for repair and estimated costs to stabilize the property. § 627.7074(12). These recommendations are nonbinding. § 627.7074(13)....

...If the insurer agrees to comply with the neutral evaluator's recommendation, but the policyholder refuses, the insurer is not liable for attorney's fees under section 627.428 or other statutory provisions "unless the [insured] obtains a judgment that is more favorable than the recommendation of the neutral evaluator." § 627.7074(15). This Case—The Relevant Facts Citizens inspected the insureds' home and determined that the physical damage may have resulted from sinkhole activity....

...Although Citizens never denied coverage, it held fast to Geohazards' repair recommendation. Consequently, the parties reached an impasse as to the scope and cost of subsurface repairs. After the insureds sued Citizens, Citizens invoked the neutral evaluation process of section 627.7074....

...The trial court agreed and granted Tower Hill a summary judgment. Id. We reversed, observing that -7- neutral evaluation is nonbinding and, importantly, that "the parties retain access to court." Id. at 693 (quoting § 627.7074(13)). [T]he legislature clearly intended and understood that some sinkhole disputes would still need to be resolved by juries. We cannot conceive of any scenario in which the insured...

BLACK, Judge. Citizens Property Insurance Corporation (“Citizens”) seeks certiorari review of the trial court’s order sustaining Donna King’s objection to Citizen’s notice of stay pursuant to section 627.7074(10), Florida Statutes (2013), in the underlying breach of contract action brought by Ms....

...King filed her lawsuit against Citizens for breach of contract and damages for sinkhole losses to her property, which Citizens insured and for which Ms. King had a sinkhole policy. Prior to trial, Citizens invoked the statutory neutral evaluation process and filed a notice of stay with the trial court pursuant to section 627.7074(10)....

...She also contended that Citizens failed to comply with the neutral evaluation statute when it did not provide Ms. King with the statutorily mandated consumer information pamphlet notifying Ms. King of her right to participate in the neutral evaluation process. See § 627.7074(3)....

...Additionally, we treat the remaining portion of Citizens’ petition, challenging the denial of the automatic stay, as a petition for writ of mandamus and grant the petition. The trial court is directed to stay the underlying proceedings pending completion of neutral evaluation, as required by section 627.7074(10)....

CRENSHAW, Judge. Sunshine State Insurance Company (Sunshine State) petitions this court for certiorari review of the circuit court’s non-final order ruling that section 627.7074, Florida Statutes (2010), is unconstitutional and denying Sunshine State’s motion to compel a neutral evaluation of homeowners Phaneze and Carla Benjamins’ sinkhole claim. As we discuss in greater detail in State Farm Insurance Co. v. Buitrago, 100 So.3d 85 (Fla. 2d DCA 2012), we conclude the statute is not unconstitutional, and thus the circuit court departed from the essential requirements of law by finding section 627.7074 unconstitutional....

...Citizens’ petition is converted, in remaining part, to a petition for writ of mandamus. See Fla. R.App. P. 9.040(c). Again, for the reasons discussed in Trapeo , we grant the petition and direct the trial court to stay the court proceedings pending the completion of neutral evaluation pursuant to section 627.7074(10), Florida Statutes (2013)....

...Subsequently, both Tower Hill and Mr. Cuevas procured remediation proposals. The proposals suggested differing remediation approaches and markedly differing costs for remediation. As a result, Tower Hill initiated the neutral evaluation process pursuant to section 627.7074, Florida Statutes (2011). Shortly thereafter, Mr. Cuevas filed his lawsuit. Tower Hill filed motions for summary judgment; however, the trial court stayed the litigation, as required by section 627.7074(10). Following the conclusion of neutral evaluation, the stay was lifted and the trial court heard Tower Hill's Amended First Motion for Summary Judgment (Violation of Section 627.7074(10), Florida Statutes, and "Suit Against Us" Provision). Tower Hill contended that section 627.7074 prohibits the initiation of judicial proceedings until the neutral evaluation process is complete....

...Further, it asserted that because Mr. Cuevas' policy specifically incorporated section 1 Tower Hill Signature Insurance Company was formerly known as Royal Palm Insurance Company. -2- 627.7074(10), making it a term and condition of the contract, Mr....

...Cuevas materially breached his policy and relieved Tower Hill of any further contractual responsibility. Finding that Mr. Cuevas was required to participate in and complete the neutral evaluation process before filing suit and that his suit was filed prematurely and in contravention of both section 627.7074 and the insurance contract, the court granted final summary judgment in favor of Tower Hill. The summary judgment effectively released Tower Hill from its obligations under the insurance policy and foreclosed Mr. Cuevas from recovering his benefits. Section 627.7074(10) provides as follows: "Regardless of when noticed, any court proceeding related to the subject matter of the neutral evaluation shall be stayed pending completion of the neutral evaluation and for 5 days after the filing of the neutral evaluator's report with the court."2 This court has previously held that section 627.7074 "provides neutral evaluation as both a potential precursor and as a parallel, contemporaneous process" to judicial proceedings....

...Thus, neutral evaluation is not a presuit requirement. Id. The plain language of the statute does not preclude the filing of a 2 Although the difference in statutory language between the 2010 and 2011 versions of the stay provision of section 627.7074 has no effect on this case, we reiterate that the stay provision is procedural and appropriate for retroactive application. See Citizens Prop....

...Stat. (2014) (providing that "[n]o suit may be filed for a period of 90 days after [presuit] notice is mailed to any prospective defendant"). And the trial court's finding otherwise was error. Because initiation of neutral evaluation does not preclude the filing of a lawsuit nor violate the stay provision of section 627.7074, it also does not violate the "Suits Against Us" provision of the insurance policy....

...SDll initially concluded that 975 cubic yards of grout needed to be injected into forty-nine holes around the home’s perimeter. SDII did not recommend underpinning. After considering the report of a neutral evaluator from the Department of Financial Services pursuant to section 627.7074, Florida Statutes (2008), SDII amended its report to require an additional fifteen grout injection points. Landers obtained an independent opinion from Biller Reinhart Structural Group (“Reinhart”)....

...Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). For the following reasons, we conclude that Tower Hill's summary judgment motions were not well taken. The two motions granted by the circuit court were captioned "No Payment Owed" and "Violation of Section 627.7074(10), Florida Statutes, and 'Suit Against Us' Provision," respectively....

...The statute includes a stay provision that provides as follows: "Regardless of when noticed, any court proceeding related to the subject matter of the neutral evaluation shall be stayed pending completion of the neutral evaluation and for 5 days after the filing of the neutral evaluator's report with the court." § 627.7074(10), Fla....

...that sinkhole activity was the primary cause of damage at the Property. Plaintiffs ultimately filed this lawsuit, which was served upon Defendant on October 20, 2011. On November 7, 2011, Defendant invoked the neutral evaluation process pursuant to section 627.7074 of the Florida Statutes. In accordance with section 627.7074, Defendant now seeks to stay this action pending the resolution of the neutral evaluation process. Section 627.7074(4) provides that: Neutral evaluation is nonbinding, but mandatory if requested by either party....

...Filing a request for neutral evaluation tolls the applicable time requirements for filing for a period of 60 days following the conclusion of the neutral evaluation process or the time prescribed in s. 95.11, whichever is later. (emphasis added). Moreover, section 627.7074(10) expressly provides that: Regardless of when noticed, any court proceediny related to the subject matter of the neutral evaluation shall be stayed *1260 pending completion of the neutral evaluation and for 5 days after the filing of the neutral evaluator’s report with the court....

...ss to efficiently resolve sinkhole disputes, in order to accelerate the timeline by which sinkhole activity is mitigated, where verified at the property, and to minimize, if not avoid, the costs associated with unnecessary litigation. See Fla. Stat. § 627.7074 , n....

...diversity); Clark v. Sarasota County Public Hosp. Bd., 65 F.Supp.2d 1308, 1313-14 (M.D.Fla.1998) (holding that conditions precedent to adjudication of a medical malpractice action were to be followed in a diversity action in federal court). As such, section 627.7074, when invoked, mandates the completion of the neutral evaluation process as a condition precedent to proceeding with litigation on any related matter until such time as the neutral evaluation process has been completed. The statute requires that any court proceeding related to the subject matter of the neutral evaluation shall be stayed pending completion of the neutral evaluation. Plaintiffs urge that section 627.7074(10) is procedural in nature and, therefore, has no application in a case pending in federal court based upon diversity jurisdiction....

...er materially from other preconditions that states may impose on a plaintiffs right to sue in state court, the applicability of which federal courts have recognized to diversity plaintiffs. Woods, 591 F.2d at 1168-1170 . Therefore, the provisions of section 627.7074 do apply in this case. Section 627.7074 provides a substantive right of parties to have a neutral evaluator review the claim and render a nonbinding report before the matter is adjudicated by a court....

...ed proceeding) in a subsequent trial. 412 at 346. Thus, the Florida Supreme Court expressly approved the type of statutory scheme created by the Legislature through the neutral evaluation statute. Plaintiffs’ challenges to the constitutionality of section 627.7074 are without merit. Contrary to Plaintiffs’ position, there is also no “clash” between Rule 62 of the Federal Rules of Civil Procedure and section 627.7074 of the Florida Statutes....

...8:09-cv-1335-T-33AEP, 2010 WL 2220066 (M.D.Fla. June 2, 2010). ACCORDINGLY, it is ORDERED AND ADJUDGED: Defendant’s Motion to Stay Action Pending Completion of Neutral Evaluation Process (Dkt. 6) is granted. The parties are directed to engage in the Neutral Evaluation Process provided for in section 627.7074....

...3 Pursuant to the Enabling Act, the 2011 Amendment went into effect *1231 on May 17, 2011 (ie., the date it was signed by the Governor and became law). See 2011 Fla. Sess. Law. Serv. Ch. 2011-39, § 32. 4 As amended, section 627.706 provides: (2) As used in ss. 627.706-627.7074 and as used in connection with any policy providing coverage for a catastrophic ground cover collapse or for sinkhole losses, the term: * $ * * # ❖ (j) “Sinkhole loss” means structural damage to the covered building, including the foundation, caused by sinkhole activity....

...increases the cost of property insurance, and increases the state’s reliance on a residual property insurance market and its potential for imposing assessments on policyholders throughout the state. (2) In 2005, the Legislature revised ss. 627.706-627.7074, Florida Statutes, to adopt certain geological or technical terms; to increase reliance on objective, scientific testing requirements; and generally to reduce the number of sinkhole claims and related disputes arising under prior law....

...(3) Pursuant to sections 22 through 27 of this act, technical or scientific definitions adopted in the 2005 legislation are clarified to implement and advance the Legislature’s intended reduction of sinkhole claims and disputes. Certain other revisions to ss. 627.706-627.7074, Florida Statutes, are enacted to advance legislative intent to rely on scientific or technical determinations relating to sinkholes and sinkhole claims, reduce the number and cost of disputes relating to sinkhole claims, and ensure that rep...

...4-5, Dkt. 46, ¶¶ 12, 21. As such, this Order addresses only whether the statutory definition of "structural damage” can be applied retroactively. To the extent Great American asks the Court to determine whether the pre or post amendment version of section 627.7074 would apply if either party elects to proceed with neutral evaluation in the future, the Court declines to provide what essentially would amount to an advisory opinion....

...See FL Staff An., S.B. 408, 5/5/2011. Specifically, the original version of the legislation that was approved by the Senate and submitted to the House included the following relevant language: Section 34. The amendments made by this act to ss. 627.706-627.7074, Florida Statutes, and the accompanying legislative findings related to those statutes, which affect procedural rights, do not apply to insurance claims reported to an insurer before February 1, 2011, but do apply to claims reported to an insurer on or after that date. Amendments made by this act to ss. 627.706-627.7074, Florida Statutes, and the accompanying legislative findings related to those statutes, which affect substantive rights, apply to claims reported to an insurer on or after July 1, 2011....

...lue of the above-ground damages -to his residence caused by the sinkhole loss. AFFIRMED, in part; REVERSED, in part; REMANDED. TORPY and BERGER, JJ., concur. . The parties did participate in the statutorily-authorized neutral evaluation process. See § 627.7074, Fla....

...This amendment does not apply retroactively. Sevila v. First Liberty Ins. Corp., 7 F. Supp. 3d 1226, 1230 (M.D. Fla. 2014). 2 Neutral evaluation is a nonbinding method of alternative dispute resolution created specifically for sinkhole cases. § 627.7074, Fla. Stat. (2010). It is an informal proceeding in which each side presents its position to a qualified and neutral expert, who then issues a decision that is admissible at trial. § 627.7074(12), (13). -3-  At trial, the Wallaces offered the expert testimony of engineer Sonny Gulati of Florida Testing and Environmental, Inc....

...st Citizens. The Blahas alleged that Citizens' "refusal to authorize and approve the contract executed by [them] constitute[d] a breach of the policy." While suit was pending, Citizens invoked the neutral evaluation procedure under section 627.7074, Florida Statutes (2012), and litigation was stayed pending neutral evaluation....

...On January 21, 2015, the Tiptons filed a complaint against Old Dominion for breach of contract in relation to a sinkhole claim. On February 25, 2015, Old Dominion filed a notice of automatic stay pending completion of a neutral evaluation pursuant to section 627.7074, Florida Statutes (2014). See § 627.7074(10) ("Regardless of when noticed, any court proceeding related to the subject matter of the neutral evaluation shall be stayed pending completion of the neutral evaluation and for 5 days after the filing of the neutral evaluator's report with the court.")....

...Santana, 146 So. 3d 129, 133 (Fla. 3d DCA 2014); Regions Bank v. Rhodes, 126 So. 3d 1259, 1261 (Fla. 4th DCA 2013) ("Under Rule 1.442, any premature offer is an invalid offer."). The Tiptons argue that the stay of court proceedings under section 627.7074(10) pending neutral evaluation also stayed the ninety-day waiting period for serving the proposal, rendering the proposal roughly thirty days' premature and therefore invalid. They reason that "[a] proposal for settlement is without a doubt a part of a court proceeding and a matter related to the sinkhole litigation"; that the legislative purpose behind section 627.7074 is "to efficiently resolve sinkhole disputes ....

...purpose. Regardless of whether the serving of a proposal is a "court proceeding," however, the ninety-day waiting period mandated before one may be served is not—it is a rule of civil procedure.1 By its plain language, therefore, section 627.7074(10) does not stay that period. Moreover, there is nothing within rule 1.442 indicating that a stay under section 627.7074(10)—or the operation of any other statute or rule, for that matter—concomitantly stays that period....

...the action has been commenced," Fla. R. Civ. P. 1.442(b), and "[e]very action of a civil nature shall be deemed commenced when the complaint . . . is filed," Fla. R. Civ. P. 1.050. We reject the Tiptons' contention that interpreting section 627.7074(10) in this manner would lead to a result clearly contrary to the legislative intent behind the neutral evaluation procedure, which is to facilitate the timely and cost-effective resolution of sinkhole disputes. See Buitrago, 100 So. 3d at 88 ("The legislature explicitly enacted the neutral evaluation process under section 627.7074 'to efficiently resolve sinkhole disputes, in order to accelerate the timeline by which sinkhole activity is mitigated, where verified at the property, and to minimize, if not avoid, the costs associated with unnecessary litigation.' " (quoting Morejon, 829 F....

...2d 408, 410 (Fla. 2004) ("When a statute is clear, courts will not look behind the statute's plain language for legislative intent or resort to 1We reiterate that when Old Dominion served the Tiptons with the proposal, the stay under section 627.7074 had been lifted, and so we do not address the propriety, or lack thereof, of serving a proposal during the stay period. -4- rules of statutory construction to ascertain intent....

...Consequently, it seems to us that the interpretation that the Tiptons urge—which would stay the ninety-day period and thus prolong the amount of time that a party must wait before serving a proposal for settlement—is the one contrary to legislative intent.2 We therefore hold that section 627.7074(10) does not stay rule 1.442(b)'s ninety-day waiting period for serving a proposal for settlement....

...adjust the claim has evolved alongside other statutory requirements. See Fla. Ins. Guar. Ass'n v. Branco, 148 So. 3d 488, 491, 491-95 (Fla. 5th DCA 2014) ("Appraisals are creatures of contract and the subject or scope of appraisal depends on the contract provisions."); § 627.7074, Fla....