Florida/Georgia Personal Injury & Workers Compensation

...Count I was a claim for breach of contract based on State Farm’s failure to pay the claim. In Count II, the LoBellos alleged a second claim for breach of contract based on State Farm’s failure to conduct testing for sinkhole activity in accordance with section 627.707, Florida Statutes (2007)....

...After the policy was issued, effective June 1, 2005, the Florida Legislature restructured the statutory scheme pertaining to the sinkhole claim process with regard to database information, testing standards, and reporting requirements. See id. The Legislature amended sections 627.706 and 627.707, Florida Statutes (2005), and enacted sections 627.7065, 627.7072, and 627.7073, Florida Statutes (2005). The sinkhole statutes appear in chapter 627, titled “Insurance Rates and Contracts,” specifically in Part X, titled “Property Insurance Contracts.” Section 627.707(2) requires insurance companies, upon receipt of a claim for sinkhole damage, to hire a professional engineer or a professional geologist to conduct testing to determine the cause of the loss and issue a report. Section 627.7073 governs those sinkhole reports, and subsection (l)(c) of that section provides: The respective findings, opinions, and recommendations of the engineer and professional geologist as to the verification or elimination of a sinkhole loss and *50 the findings, opinions, and recommendations of the engineer as to land and building stabilization and foundation repair shall be presumed correct. § 627.7073(l)(c), Fla....

...of insurance benefits for the loss. See id. Before trial, Universal moved the trial court to apply the sinkhole statutes that became effective on June 1, 2005. See id. The trial court denied Universal’s motions with regard to sections 627.706 and 627.707 because it found that those amendments were substantive and did not apply retroactively. See id. at 137 n. 2. However, the trial court granted Universal’s motion to apply sections 627.7065, 627.7072, and 627.7073 retroactively, reasoning that the statutes were procedural. See id. at 137 n. 2. 1 Universal also moved to apply section 90.304, Florida Statutes (2007), and requested that the jury be instructed that the presumption of correctness as articulated in 627.7073(l)(c) was a rebuttable presumption affecting the burden of proof....

...The experts for Warfel concluded that a sinkhole, at least in part, caused the damage to Warfel’s home. See id. The experts for Universal, each affiliated with SD II, concluded that sinkhole activity did not damage the home. See id. Throughout the trial, Warfel repeatedly asserted that the presumption created in section 627.7073(l)(c) was a “vanishing” or “bursting bubble” presumption governed by section 90.303, Florida Statutes (2005), whereas Universal contended that the presumption in that statute should be governed by section 90.304 because it implements public policy relating to a sinkhole insurance crisis....

...ed loss is not covered.” Id. (citing Wallach v. Rosenberg, 527 So.2d 1386, 1388-89 (Fla. 3d DCA 1988)). Finally, the court noted that the Legislature “knows how to create burden-shifting presumptions under section 90.304,” but did not do so in section 627.7073(l)(c)....

...in this case and gave the jury an instruction improperly shifting the burden of proof, a new trial is required.” Id. at 140. Further, the court certified the following question to this Court as one of great public importance: DOES THE LANGUAGE OF SECTION 627.7073(1)(C) CREATE A PRESUMPTION AFFECTING THE BURDEN OF PROOF UNDER SECTION 90.304 OR DOES THE LANGUAGE CREATE A PRESUMPTION AFFECTING THE BURDEN OF PRODUCING EVIDENCE UNDER SECTION 90.303? Id. This review followed. BACKGROUND The central question here is whether the burden shifting presumption articulated in section 90.304 of the Florida Evidence Code applies to the presumption provided in section 627.7073(l)(c)....

...Sinkhole Law Backgrounds In 1981, the Florida Legislature enacted section 627.706, which required “[e]very insurer authorized to transact property insurance in Florida [to] make available coverage for insurable sinkhole losses on any structure.” Ch. 81-280, § 2, Laws of Fla. In 1992, the Florida Legislature enacted section 627.707, which established minimum standards for claim investigations during the sinkhole claim process that must be satisfied before an insurer could reject a claim of loss. See ch. 92-146, § 1, Laws of Fla. That version of section 627.707, which addressed the claim process, provided: (1) Upon receipt of a claim for a sinkhole loss, the insurer must make an inspection of the insured’s premises to determine if there has been physical *55 damage to the structure which might be the result of sinkhole activity....

...d the structure in accordance with the engineering recommendations upon which any payment or policy proceeds was based. Finally, section 3 of chapter 92-146 mandated a study to examine “the issue of insurance coverage of sinkholes in the state.” Section 627.707(2) became effective on April 8, 1992, and the sunset provision of that statute provided for its repeal on July 1, 1993. See § 627.707, Fla. Stat. (Supp.1992). The sunset provision, however, never became effective. In June 1993, the Legislature enacted chapter 93-401, Laws of Florida. 4 Section 4 of chapter 93-401 amended section 627.707 in three significant ways: the law (1) removed the sunset provision of 627.707(2); (2) added a provision that allowed an insurer to collect from the policyholder up to 50 percent, up to $2,500, of the cost of the analysis required by that statute for claims “without good faith grounds”; and (3) precluded an insurer...

...became effective on June 8, 1993, did not contain a sunset provision, and remained unchanged until 2005. In 2005, the Legislature significantly restructured the sinkhole claim process. Chapter 2005-111, Laws of Florida, amended sections 627.706 and 627.707, Florida Statutes (2005), and enacted sections 627.7065, 627.7072, and 627.7073, Florida Statutes (2005). Chapter 2005-111 basically reformed the claim process and the requirements for the investigation and reporting of claims for sinkhole damage that an insurer was required to satisfy before denying a claim of loss. Section 627.707, Florida Statutes, was amended, in part, to comply with the newly enacted sections 627.7072 and 627.7073....

...ations regarding necessary building stabilization, and foundation repair. (2) Testing by a professional geologist shall be conducted in compliance with the Florida Geological Survey Special Publication No. 57 (2005). Ch.2005-111, § 20, Laws of Fla. Section 627.7073, the statute at the heart of this case, was enacted to govern the reports required during the claim process stemming from the tests required pursuant to section 627.7072. That statute provided: (1) Upon completion of testing as provided in s. 627.7072, the engineer and professional geologist shall issue a report and certification to the insurer and the policyholder as provided in this section. (a) Sinkhole loss is verified if, based upon tests performed in accordance with section 627.7072, an engineer and a professional geologist issue a written report and certification stating: 1....

...findings, opinions, and recommendations of the engineer as to land and building stabilization and foundation repair shall be presumed correct. Ch.2005-111, § 21, Laws of Fla. The presumption created during the claim process which is articulated in section 627.7073(l)(c) is the presumption in question in this ease....

...and in studying property claims activities in the insurance industry. Ch.2005-111, § 18, Laws of Fla. ANALYSIS The question of whether the presumption articulated in section 90.304 of the Florida Evidence Code applies to the presumption created in section 627.7073(1)(c) of the claims process statute involves the application of a provision of the Florida Evidence Code and is a pure question of law that is reviewed de novo....

...ance companies to follow when encountering specific types of claims, in this case claims involving sinkhole damage. The application of a specific provision within that scheme to the evidentiary context is both misguided and inappropriate. Nothing in section 627.7073, the statute in question here, justifies application of that statute to the litigation context. That section governs the claims process and the sinkhole reports that must be obtained by insurers and filed by the professional engineer or geologist employed by the insurer during the claim adjustment process to test for sinkhole damage. Section 627.7073(2), which immediately follows section 627.7073(l)(c), provides: Any insurer that has paid a claim for a sinkhole loss shall file a copy of the report and certification, prepared pursuant to subsection (1), with the county property appraiser, who shall record the report and certification with the parcel number....

...h this section. The seller of real property upon which a sinkhole claim has been made shall disclose to the buyer of such property that a claim has been paid and whether or not the full amount of the proceeds were used to repair the sinkhole damage. § 627.7073(2), Fla. Stat. (2006). The only mention of a “cause of action” in section 627.7073 is in the context of what does not constitute a cause of action. See § 627.7073(2)....

...ogist from liability for title defects and the insurance companies from claims of improper denials of claims. Accordingly, because the sinkhole statutes do not apply to the litigation context, the trial court’s application of section *58 90.304 to section 627.7073(l)(c) and the treatment of this statute as evidentiary in nature in this case was incorrect....

...On this basis alone, we reverse and remand for further proceedings consistent with the decision we reach here today. The presumption applies to the initial claim process and investigation that insurance companies are required to follow in accepting or denying claims. Plain Language of Section 627.7073(1) (c) Even if this Court were to hold that section 627.7073(l)(c) is applicable in the context of other litigation, the plain language of the statute precludes the application of section 90.304 to the presumption created in section 627.7073(l)(c), which provides: The respective findings, opinions, and recommendations of the engineer and professional geologist as to the verification or elimination of a sinkhole loss and the findings, opinions, and recommendations of the...

...ilization and foundation repair shall be presumed correct. This language follows sections of legislation that establish the requirement that such a report be obtained as a condition precedent to a denial of benefits. Nothing in the plain language of section 627.7073(l)(c), or any other language in any section, indicates the type of presumption, and, therefore, which evidentiary statute is applicable here. The application of a presumption as alleged and argued by Universal at trial, that an insured could not overcome this presumption, would render any portion of section 627.7073 unconstitutional and inconsistent with all other provisions of the sinkhole statutes....

...Further, the stability of the banking industry and accounts were involved. The facts presently before the Court are clearly distinguishable from Combee for two distinct reasons. First, unlike the statute in Combee, the application of section 90.303 to section 627.7073(l)(c) does not contradict the plain language of the statute. Second, the presumption articulated in section 627.7073(l)(c) was enacted in 2005, long after the enactment of the Florida Evidence Code....

...As discussed above, prior to the enactment of the Florida Evidence Code, the procedural effect given to presumptions in Florida was defined exclusively by a common law approach. See Ins. Co. of State of Pa. v. Estate of Guzman, 421 So.2d 597, 601 (Fla. 4th DCA 1982). For section 627.7073(l)(c), Florida Statutes (2005), the statute at issue, the Legislature certainly knew how to create a burden shifting presumption pursuant to section 90.304, but chose not to do so....

...y owns personal property. 780 So.2d at 57 (emphasis supplied). The Court noted that the presumption in banking relationships in question was an ex *62 pression of social policy, and therefore should affect the burden of proof. Legislative History of Section 627.7073(l)(c) Universal asserts that section 627.7073(l)(c) is an expression of social policy and should therefore be governed by section 90.304....

...The Legislature determines that creating a complete electronic database of sinkhole activity serves an important purpose in protecting the public and in studying property claims activities in the insurance industry. (Emphasis supplied.) Preliminarily, the two “policies” that Universal alleges are advanced by section 627.7073 do not even appear to be “social policies.” At best, section 627.7065 indicates the need for research so that a social policy can be formed and the public protected....

...2 (quoting § 185.34, Fla. Stat. (1957)). Lastly, a review of the bill that enacted the statute (chapter 2005-111) and the staff analyses associated with that bill reveal that nothing in any of those documents indicates that the presumption articulated in section 627.7073(l)(e) is an expression of any social policy, let alone one that favors insurance companies....

...it did not do so here. See, e.g., ch. 93-401, § 1, Laws of Fla. Indeed, the Legislature did not provide such language in the bill, the statute, or even the staff analyses associated with the bill. Section 90.106 The application of section 90.304 to section 627.7073(l)(c), as articulated at trial, was also inconsistent with section 90.106 Florida Statutes (2005), which provides that “[a] judge may not sum up the evidence or comment to the jury upon the weight of the evidence, the credibility o...

...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,...

...Second, Citizens contends that the trial court erred in awarding prejudgment 2The amounts necessary to repair subsurface damages are treated differently than amounts required for cosmetic repairs under the provisions of policies such as the one at issue in this case and as authorized under section § 627.707(5), Florida Statutes (2010)....

...occurring below the ground, until the insureds enter into a contract for the subsurface repairs. In addition, subparagraph (c) provides for progress payments, i.e., "as work is performed and expenses are incurred" for the subsurface repairs. This language is consistent with section 627.707(5)(b), Florida Statutes (2010). Before trial, Citizens filed a motion requesting that the trial court apply the 47B policy restrictions regarding payment for subsurface repairs in any final judgment....

...Hill to pay for subsurface repairs before McKee entered into a contract for those repairs. Because the insurance policy contained a loss settlement provision tracking the language of section 627.707(5)(b), Florida Statutes (2010), Tower Hill had the authority to withhold payment for subsurface repairs until McKee entered into a contract for those repairs. Id....

...Upon submission of a claim for sinkhole damage, a professional engineer or geologist selected exclusively by the insurer.may examine the property to determine whether a *1210 sinkhole loss covered under the insurance policy exists and make recommendations regarding building stabilization and foundation repair. § 627.7072, Fla. Stat. Thereafter, the engineer or geologist exclusively selected by the insurer tenders a report and certification to the insurer and the insured that outlines the analy-ses, any test methods, damages, and recommendations for repair. § 627.7073(1), Fla. Stat. During this initial claims process, these findings and recommendations by the insurer’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....

...as volumetric changes of clay-based soil underlying the site, concrete shrinkage, and defective construction processes. As the insurance company’s, initial report, these conclusions received the initial statutory presumption of correctness pursuant to section 627.7073(l)(c)....

...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....

...to the foundation. The total cost of repairs was estimated to be in excess of $200,000. After this second .adverse report, Omega finally advised Johnson that it would abide by the WRS evaluation report and provide payment for the damages pursuant to section 627.707(5)(b)....

...See 82 So.3d at 57 . The plaintiff in Warfel filed an action for breach of contract after the insurer had denied the claim based on the report of the engineer selected and hired exclusively by the insurance company. Id. at 50 . Relevant here, section- 627.7073(l)(c) had been amended to provide that the findings and recommendations made by an engineer selected and hired by an insurer during the initial claim investigation process are statutorily presumed correct....

...urer’s expert report, which was also the reasoning of the court below. Id. at 50-51 . The Second District Court of Appeal reversed and remanded for new trial, reasoning that the Legislature did not intend to create a burden-shifting presumption in section 627.7073(l)(c). Id. at 51 . This Court affirmed. Id. at 65 . - On appeal, the issue before this Court was whether the presumption of correctness afforded to the insurer-engineer report during the initial claim process in section 627.7073(l)(c) extended to trial proceedings. See id. at 51 . There, we examined both the plain language and legislative history of section 627.7073(l)(c)....

...With respect to the plain wording of the statute itself, this Court recognized that when the Legislature intends to incorporate a burden-shifting provision into a statute, overwhelming precedent indicates that it does so explicitly. See id. at 58 . However, no such explicit language exists in section 627.7073(l)(c). See id. We thus concluded that to apply such a presumption absent direction in the statute would render section 627.7073(l)(c) unconstitutional....

...“If at all,” we explained, “the statutory plan is designed to require that insurance companies have expert reports in the [initial] claims process before denying a request for benefits.” Id. at 63 (emphasis supplied). Ultimately, we held *1214 that the presumption of correctness in section 627.7073(l)(c) is specific and limited to the initial claim adjustment process, and should not be applied to the trial process....

...at 57-58 (“[B]ecause the sinkhole statutes do not apply to the litigation context, the trial court’s .■.. treatment of this statute as evidentiary in nature in this case was incorrect”). • Notwithstanding our explicit holding in Warfel , the Fifth District in the case below applied the presumption in 627.7073(l)(c) to the litigation between Johnson and Omega....

...at shielding the ... insurance companies from claims of improper denials of claims.” Id. (quoting Warfel, 82 So.3d at 57 ). Yet, the court below failed to acknowledge the topic sentence of the same paragraph, where we plainly stated, “Nothing in section 627.7073, the statute in question here, justifies application of that statute to the litigation context.” Warfel, 82 So.3d at 57 (emphasis supplied)....

...Consistent with Warfel , we reiterate that the initial claims process in the sinkhole statutes does not supersede or justify an incorrect denial of benefits under section 627.428. We thus hold that the presumption of correctness granted to the insurer’s investigative report in section 627.7073(l)(c) of the sinkhole statutes is only applicable to the sinkhole initial claims process, and does not continue to apply during the trial stage....

...20 days after we receive your proof of loss and reach agreement with you; or b. 60 days after we receive your proof of loss and: (1) there is an entry of a final judgment; or (2) there is a filing of an appraisal award with us. Notwithstanding this language, State Farm contends that it is authorized by section 627.707(5)(b), Florida Statutes (2007), to withhold the funds until the homeowners have contracted for the repairs....

...ng Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla.1996))); *693 see also Warfel v. Universal Ins. Co. of N. Am., 36 So.3d 136 , 137 n. 2 (Fla. 2d DCA 2010) (affirming the trial court’s decision not to apply an amended version of section 627.707 retroactively) approved, 82 So.3d 47 (Fla.2012). The 2010 version of section 627.707(5), Florida Statutes (2010), states in part as follows: (a) Subject to paragraph (b), if a sinkhole loss is verified, the insurer shall pay to stabilize the land and building and repair the foundation in accordance with the recommendations of the professional engineer as provided under s. 627.7073, and in consultation with the policyholder, subject to the coverage and terms of the policy....

...ng or grouting or any other repair technique performed below the existing foundation of the building, until the policyholder enters into a contract for the performance of building stabilization or foundation repairs. Tower Hill argues on appeal that section 627.707(5) should be read to require the insured to enter into a contract for the subsurface repairs recommended by the insurer’s engineer to the exclusion of any other professional recommendations....

...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)....

...ngineer unilaterally dictates the method of subsurface repairs. The parties do not dispute the fact that all three engineers who evaluated Roker’s home complied with Florida sinkhole testing standards. To the extent that Tower Hill is arguing that section 627.7073(l)(c) creates a presumption which justifies mandating that the insured accept the recommendation of an insurer’s expert, the idea that an insurance company is entitled to rely on that presumption in the litigation context was rejected by the Florida Supreme Court in Warfel, 82 So.3d at 57 . In Warfel , the Florida Supreme Court explained that “[t]he application of a presumption as alleged and argued by [the insurer] at trial, that an insured could not overcome this presumption, would render any portion of section 627.7073 unconstitutional and inconsistent with all other provisions of the sinkhole statutes.” Id. at 58. Ultimately, the supreme court held that the presumption disappeared once evidence rebutting it was introduced. Id. at 59. Because Roker submitted evidence rebutting Tower Hill’s report, Tower Hill may not rely on section 627.7073(l)(c) to disprove the existence of a material fact....

...The ensuing appraisal established the amount of the loss, including amounts for building stabilization and foundation repairs. The Phillipses moved for judicial confirmation of the appraisal award. State Farm responded that the sinkhole loss settlement clause and section 627.707(5)(b), Florida Statutes (2010), 1 on which that clause was modeled, authorized it to withhold partial payment for subsurface repairs until the Phillipses had contracted for those repairs....

...July 3, 2013); Kingsway, 63 So.3d at 67 (citing Maryland Cas. Co. v. Murphy, 342 So.2d 1051, 1052 (Fla. 3d DCA 1977)); see also Geico Indem. Co. v. Virtual Imaging Servs., Inc., 79 So.3d 55, 57 (Fla. 3d DCA 2011) (citing Kingsway, 63 So.3d at 67-68 ). In the instant case, section 627.707(5)(b) gave State Farm the authority to withhold payment for the replacement costs of the necessary subsurface repairs until the Phillipses contracted for those repairs....

...For these reasons, we reverse the trial court’s judgment to the extent that it required State Farm to pay the replacement cost for stabilization and foundation repairs before the Phillipses entered into a contract for those repairs. *509 AFFIRMED in part; REVERSED in part; REMANDED. SAWAYA and EVANDER, JJ., concur. . Section 627.707(5)(b), Florida Statutes (2010), reads, in pertinent part: The insurer may limit its payment to the actual cash value of the sinkhole loss, not including underpinning or grouting or any other repair technique performed below the existi...

...After the policyholder enters into the contract, the insurer shall pay the amounts necessary to begin and perform such repairs as the work is performed and the expenses are incurred. The insurer may not require the policyholder to advance payment for such repairs. This statute has since been reorganized and reworded. See § 627.707(5)(a) & (c), Fla....

...ted the burden of proof to him. Accordingly, we reverse. In March 2005, Universal issued an all-risks homeowners' insurance policy to Mr. Warfel. The policy covered sinkhole claims. Effective June 1, 2005, the legislature amended sections 627.706 to 627.707, Florida Statutes (2005), and enacted sections 627.7065, 627.7072, and 627.7073 relating to database information, testing standards, and reporting requirements for sinkhole claims....

...Alternatively, Universal argued that any impairment was overridden by the State's interest in resolving a sinkhole insurance claim crisis. Universal also asked the trial court to determine that section 90.304, Florida Statutes (2007), allowed a jury instruction based on section 627.7073(1)(c) as a rebuttable presumption affecting the burden of proof....

...They concluded that a sinkhole, at least in part, caused the damage. Universal presented testimony of a structural engineer, a geotechnical engineer, and a geologist, all affiliated with SD II Global. They concluded that sinkhole activity did not damage the home. Universal posited that section 627.7073(1)(c) required Mr. Warfel to prove that he suffered a sinkhole loss as specifically defined by statute. The 2005 version of section 627.7073(1)(c) provided as follows: The respective findings, opinions, and recommendations of the engineer and professional geologist as to the verification or elimination of a sinkhole loss and the findings, opinions, and recommendations of the engineer as to land and building stabilization and foundation repair shall be presumed correct. [3] Universal retained its experts under section 627.707(2) to conduct the testing required by section 627.7072 and to issue a *138 report in accordance with section 627.7073. This report bears the presumption of correctness. Universal also contended that section 627.7073(1)(c) created a section 90.304 presumption because it implemented public policy relating to a sinkhole insurance crisis....

...You must presume that report is correct. That report is the only report in evidence. You can take it back in the room. Read it. You will presume—the Judge will instruct you you must presume that's correct. Throughout the trial court proceedings, Mr. Warfel argued that the section 627.7073(1)(c) presumption was a "vanishing" or "bursting bubble" presumption, a presumption affecting the burden of producing evidence but not one shifting the burden of proof to him....

...We are also mindful that, historically, an all-risks policy encumbers the insurer with the burden to prove that a claimed loss is not covered. See Wallach v. Rosenberg, 527 So.2d 1386, 1388-89 (Fla. 3d DCA 1988). We must assume that the legislature *139 was aware of this fact when it enacted section 627.7073(1)(c)....

...3d DCA 1990) (explaining that the statutory presumption of paternity under section 742.12(1), Florida Statutes (1989), is a rebuttable presumption and the legislature specifically provided that it was governed by section 90.304 of the evidence code). In contrast, the legislature has not declared that the presumption in section 627.7073(1)(c) is a public policy-related presumption. Nor did the legislature specifically provide that section 627.7073(1)(c) was to operate as a burden-shifting presumption under sections 90.302(2) or 90.304. Absent a clear legislative directive, we must conclude that section 627.7073(1)(c) is a "vanishing" or "bursting bubble" presumption that affected only Mr....

...trial is required. Reversed and remanded. However, because our ruling may affect insurance claims for sinkhole losses throughout Florida, we certify the following question to the supreme court as one of great public importance: DOES THE LANGUAGE OF SECTION 627.7073(1)(C) CREATE A PRESUMPTION AFFECTING THE BURDEN OF PROOF UNDER SECTION 90.304 OR DOES THE LANGUAGE CREATE A PRESUMPTION AFFECTING THE BURDEN OF PRODUCING EVIDENCE UNDER SECTION 90.303. WALLACE, J., Concurs. VILLANTI, J., Dissents with opinion. VILLANTI, Judge, Dissenting. I respectfully dissent because I do not agree that the trial court erred in its jury instruction regarding section 627.7073....

...3d DCA 2005) (noting that decisions regarding jury instructions rest within the trial court's discretion and will not be reversed absent a showing of prejudicial error). In this case, the statute stated that the findings, opinions, and recommendations of the experts were presumed correct. See § 627.7073(1)(c)....

...Against this critical economic background, the legislature revised the statutes at issue in this case "in response to a continuing crisis regarding the availability and affordability of sinkhole coverage." Fla. S. Banking & Ins. Comm., CS for SB 286 (2006) Staff Analysis 3 (Apr. 11, 2006) (on file with comm.). Specifically, section 627.707, Florida Statutes (2005), was amended to revise the standards for investigating sinkhole claims. See SB 1488 Staff Analysis at 24. Section 627.707(2) requires an insurer who receives a sinkhole claim to engage an engineer or professional geologist to conduct testing as set forth in section 627.7072, to determine the cause of loss. Section 627.7072 sets forth specific standards to test for the presence or absence of sinkholes. The testing must conform to the Florida Geological Survey Special Publication No. 57 (2005). § 627.7072(2). Section 627.707(2) then requires that a report be issued as provided in section 627.7073. Id. Section 627.7073 specifies what must be included in that report. Section 627.7073(1)(c) then clearly states: The respective findings, opinions, and recommendations of the engineer and professional geologist as to the verification or elimination of a sinkhole loss and the findings, opinions, and recommendations of...

...ns under section 90.304. While this may be true, as illustrated by Caldwell, the fact that the statute does not expressly state that it contains a burden-shifting presumption is not always dispositive of the issue. In fact, this case illustrates why section 627.7073's presumption ought to be a burden-shifting presumption....

...Upon receiving Mr. Warfel's claim, Universal hired experts whose qualifications met the requirements of the relevant statute and had those experts conduct the type of testing required by the statute. The experts then prepared a report as required by section 627.7073. This was all done at Universal's expense. At trial Mr. Warfel offered his own experts, who simply reviewed Universal's *143 report and visited the property; they did not conduct independent testing consistent with the standards set forth in section 627.7072....

...Warfel's experts then simply disagreed with the report's conclusions and opined that a sinkhole contributed to the damage to Mr. Warfel's property. To apply a "vanishing" presumption under these facts effectively negates the presumption of correctness conferred upon the report by section 627.7073(1)(c)....

...cy in claims handling and reduce the number of disputed sinkhole claims. This type of ipse dixit logic from the insured's experts is not consistent with the history and intent of the statute. NOTES [1] Universal was required to retain these experts. Section 627.707 provides, in part, as follows: Upon receipt of a claim for a sinkhole loss, an insurer must meet the following standards in investigating a claim: (1) The insurer must make an inspection of the insured's premises to determine if there has been physical damage to the structure which may be the result of sinkhole activity. (2) Following the insurer's initial inspection, the insurer shall engage an engineer or a professional geologist to conduct testing as provided in s. 627.7072 to determine the cause of the loss within a reasonable professional probability and issue a report as provided in s. 627.7073, if: (a) The insurer is unable to identify a valid cause of the damage or discovers damage to the structure which is consistent with sinkhole loss; or (b) The policyholder demands testing in accordance with this section or s. 627.7072. [2] The trial court denied Universal's motion as to sections 627.706 to 627.707, finding that these amendments were substantive and not applicable retroactively. The trial court granted Universal's motion as to the three new enactments, sections 627.7065, 627.7072, and 627.7073, relating to sinkhole database, testing, and reporting requirements, reasoning that the statutes were procedural and did not involve an issue of retroactivity. Although Mr. Warfel takes issue with the latter ruling, we find no error and discuss the matter no further. [3] The legislature made minor changes to section 627.7073(1)(c) in 2006, none of which are relevant here....

...[7] We recognize the legislature's desire to stem the tide of sinkhole-related insurance claims. Unquestionably, certain provisions of the statutes described earlier in this opinion reflect a concern with identifying and advising homeowners and others of potential sinkhole-prone areas. See §§ 627.7065, 627.7072, 627.7073. For example, the reporting and recording provisions of sections 627.7065 and 627.7073 promote public awareness....

...VILLANTI, Judge. Federated National Insurance Company petitions for a writ of certiorari, asking this court to quash the trial court's order denying its motion to dismiss count II of Frank and Marilyn Copeland's claim against Federated for violation of section 627.707, Florida Statutes (2004)....

...are amenable to certiorari review because appeal after a final judgment in a case where discovery was improperly granted seldom provides adequate redress."). Petition for writ of certiorari is dismissed without prejudice. ALTENBERND and CASANUEVA, JJ., Concur. NOTES [1] Section 627.707 sets forth specific minimum standards for investigating sinkhole claims.

...irected verdict because the Munozes were under no obligation to provide a contrary report to Citizens before filing suit. It is true that Citizens was required by statute to hire an engineer or geologist to conduct testing and issue a report. See § 627.707(2), (4), Fla. Stat. (2010). And section 627.7073(1)(c) does provide that this report "shall be presumed correct." But this statutory scheme was "designed to provide a framework for insurance companies to follow when encountering specific types of claims, in this case claims...

...Certain Interested Underwriters at Lloyds Subscribing to Contract No. 242/99, 930 So. 2d 756, 758 (Fla. 4th DCA 2006). -3- involving sinkhole damage. The application of a specific provision within that scheme [such as the presumption in section 627.7073(1)(c)] to the evidentiary context is both misguided and inappropriate." Universal Ins. Co. of N. Am. v. Warfel, 82 So. 3d 47, 57 (Fla. 2012). Indeed, as this court has recently noted, " 'the [s]ection 627.707(c) presumption in favor of the insurer's engineer's report neither alters the fact of sinkhole damage nor forecloses litigation that attempts to discover the fact of sinkhole damage.' " Herrera v....

...Universal denied the claim, determining that the damage occurred prior to the effective date of its policy. Thereafter, by letter dated October 7, 2011, the Bartons, through their attorney, submitted a claim and request for sinkhole testing to Capitol, pursuant to section 627.707, Florida Statutes (2011).1 The Bartons did not provide a date of loss in their claim....

...payments because the policy was not renewed on April 28, 2011. The letter also stated, “However, if you believe you have documentation which confirms that the incident occurred within the policy effective period, please forward it to this office for review.” 1Section 627.707 sets forth an insurer’s obligation to investigate sinkhole claims. Among other things, once an insurer receives a sinkhole claim for a covered building, the insurer must inspect the premises for structural damage that may have resulted from sinkhole activity and engage a professional engineer or geologist to conduct testing if the cause of damage cannot be ascertained or is consistent with sinkhole activity. § 627.707(1)-(2), Fla....

... However, we agree that it was error for the trial court to order Tower Hill to pay for subsurface repairs before McKee entered into a contract for those repairs. Because the insurance policy contained a loss settlement provision tracking the language of section 627.707(5)(b), Florida Statutes (2010), Tower Hill had the authority to withhold payment for subsurface repairs until McKee entered into a contract for those repairs....

...providing sinkhole coverage on this home. In January 2007, Ms. Colella, with the assistance of a public adjuster, filed a written claim for unspecified damage to her home that “she feels is consistent with sinkhole activity.” In accordance with section 627.707, Florida Statutes (2006), State Farm retained an engineering firm in early February to inspect the home to determine whether it had been damaged by a sinkhole....

...In June 2007, the engineers provided a lengthy report that concluded: “It is our professional opinion, based on the information generated by this investigation, and by testing conducted in compliance with generally accepted scientific practices and with Chapter 627.7072, that evidence of sinkhole activity is not present at the site of investigation.” On June 12, 2007, State Farm sent a copy of the report to Ms....

...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)....

...3 II.THE RECORD DOES NOT ESTABLISH AN UNDISPUTED BREACH OF CONTRACT The trial court’s order does not explain how or in what respect State Farm breached its contract of insurance. From the record before this court, it received a sinkhole claim and processed that claim as it was required to do under section 627.707. It obtained the sinkhole report described in section 627.7073....

...Without regard to the nature of any evidentiary presumption that may be given to that report in a trial, for the purposes of processing this claim, the legislature has established that a report prepared in accordance with the statute is “presumed correct.” See § 627.7073(l)(c); see also Warfel, 82 So.3d 47 ....

State Farm’s receipt of proof of loss, while section 627.707(5)(b), Florida Statutes (2007), a permissive

...claims involving sinkhole damage.” Universal Ins. Co. of N. Am. v. Warfel, 82 So.3d 47, 57 (Fla.2012) (“Warfel II”). It will be helpful to summarize these statutory provisions before proceeding further. The standards for investigating a sinkhole claim are found in section 627.707, Florida Statutes (2009). They require the insurer to inspect the property for structural damage that may be the result of sinkhole activity. § 627.707(1), Fla....

...of the damage, or discovers the damage is consistent with sinkhole loss, or the policyholder demands testing, the insurer shall engage a professional engineer or geologist to conduct testing and render a report regarding the cause of the damage. Id. § 627.707(2). The report shall be in compliance with the requirements of section 627.7073, Florida Statutes, and shall be issued to the insurer and the insured. Id. § 627.7073(1). 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)....

...atory and guaranteed.” Citizens Prop. Ins. Corp. v. Trapeo, 136 So.3d 670, 677 (Fla. 2d DCA 2014). When Omega received Johnson’s claim, it commissioned a professional engineering and geology firm to conduct testing and issue a report pursuant to section 627.707....

...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....

...Arch Speciality Ins. Co., 434 F.Supp.2d 1286, 1297-98 (M.D.Fla.2006)). After Omega received Johnson’s claim for policy benefits, it complied with its statutory obligations by commissioning a professional engineer to identify the cause of loss and issue a report. § 627.707(2), Fla. Stat. (2009). As previously indicated, such reports are presumed correct. Id. § 627.7073(l)(c)....

...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....

...ed contract to complete the necessary repairs. "The issue in this case concerns construction of an insurance policy which is a question of law subject to de novo review." Wash. Nat'l Ins. Corp. v. Ruderman, 117 So. 3d 943, 948 (Fla. 2013). Section 627.707, Florida Statutes (2011), sets forth the procedures for resolving sinkhole claims....

...the policyholder enters into a contract for the performance of building stabilization or foundation repairs in accordance with the recommendations set forth in the insurer's report issued pursuant to s. 627.7073. (b) In order to prevent additional damage to the building or structure, the policyholder must enter into a contract for the performance of building stabilization and foundation repairs...

...completed within the policy limits, the insurer must complete the professional engineer's recommended repair or tender the policy limits to the policyholder without a reduction for the repair expenses incurred. Id. § 627.707(5) (emphasis added). The Second District Court has issued several opinions resolving the precise issue in this case, all of which addressed the same sinkhole provisions in Ringelman's insurance policy....

...“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...

...“structure” denotes the parts and material that ensure the building’s stability. Upon receipt of a claim for a sinkhole loss, an insurer must initially inspect the premises to determine “if there has been physical damage to the structure.” § 627.707(2), Fla. Stat. (2010). After the initial inspection, the insurer must hire a professional engineer to inspect the property and test for a sinkhole. Under Section 627.7073, Florida Statutes (2010), sinkhole loss is “verified” if the engineer determines that “the cause of the actual physical and structural damage is sinkhole activity.” Section 627.7073, Florida Statutes (2010), requires the engineer to issue a written report, even if the engineer eliminates sinkhole activity as “the cause of damage to the structure.” If paying a claim for sinkhole loss, the insurer must file a copy of the report with the clerk of the court for recording. § 627.7073(2)(a), Fla....

...If sinkhole loss “is verified,” the insurer must “pay to stabilize the land and the building and repair the foundation” in accord with 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. Stat. (2010). *1230 First, the adjoining use of “physical” and “structural” in Section 627.7073 (“actual physical and structural damage”) confirms that “physical damage” (read: “any damage”) is different from, and broader than, “structural damage,” which focuses on damage to parts 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 ......

...Apparent from the statute’s expressly identifying three components — a foundation, a structure, and a building — “structure” means something different from “building” (just like “foundation” means something different from “building”). 8 *1231 Thus, neither Section 627.707(2) (“if there has been physical damage to the structure”) nor Section 627.7073 (“the cause of damage to the structure”) mean “damage to the building.” The statutory history and the balance- of the statute confirm the obvious — that “structural damage to the building” does not mean “any damage to...

...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 ......

...ical and structural damage”) than required by the coverage clause ("structural damage”). A plausible reason for the disparity between the extent of damage an insurer must cover and the extent of damage on which an engineer must report appears in Section 627.7073, which requires an insurer paying a claim to file a copy of the engineer's report with the clerk of court, after which the clerk must record the report to provide notice of the damage to a subsequent purchaser....

...In December 2011, the Herreras submitted a sinkhole claim to Tower Hill, their homeowner’s insurer. Tower Hill retained Madrid Engineering Group “to conduct testing [and] ... to determine the cause of the loss within a reasonable professional probability and issue a report.” See § 627.707(2), Fla. Stat. (2010). The insurer must pay the claim if the engineer concludes that sinkhole activity caused damage. § 627.707(5)(a)....

...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. 627.7073 or the denial of a claim for a sinkhole loss, the insurer shall notify the policyholder of his or her *567 right to participate in the neutral evaluation program under this section.......

...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....

...We pause to note that Tower Hill filed four motions for summary judgment. The first argued that the policy excluded the claimed damages. The second argued that, at the time the Herreras filed suit, the policy did not require Tower Hill to pay the claim. 1 The third motion claimed that section 627.707 allowed Tower Hill to deny the claim based on Madrid’s report....

...20, 2014) (“When Tower Hill denied coverage a valid dispute as to the existence of a covered loss under the insurance policy arose."). . The insurer in Surrett v. First Liberty Insurance Co., No. 8:11-cv-60-T-23MAP, 2011 WL 3879515 (M.D.Fla. Sept. 2, 2011), raised this argument. The court ruled that “the [s]ection 627.707(c) presumption in favor of the insurer’s engineer’s report neither alters the fact of sinkhole damage nor forecloses litigation that attempts to discover the fact of sinkhole damage.” Id....

State Farm’s receipt of proof of loss, while section 627.707(5)(b), Florida Statutes (2007), a permissive

...Testing Laboratories, which confirmed sinkhole activity as a cause of damage. In September 2005, it filed suit against Citizens. The complaint alleged breach of contract based in part on Citizens' failure to conduct the investigation required by section 627.707, Florida Statutes (2004), for sinkhole claims....

...er & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561, 563 (Fla. 1988). Accordingly, we reverse on this issue and remand for the court to award prejudgment interest and attorney's fees connected with the other buildings. 2Section 627.707 provided in part as follows: (1) Upon receipt of a claim for a sinkhole loss, an insurer must meet the following minimum standards in investigating a claim: (a) Upon rece...

...lorida Building Code. See FLA. STAT. 627.706(j)-(k) (2011). Defendant claims that the dispute in this case is that Plaintiffs are requiring a “full *1230 subsidence test”, which is a term not used in either the 2011 or prior versions of sections 627.707, 627.7072, and 627.7073....

...Thus, the subsidence test is appropriate. Accordingly it is, ORDERED Plaintiffs Motion for Summary Judgment is GRANTED. Plaintiffs are entitled to findings that: (i) They are entitled to full subsidence investigation in accordance with Florida Statute, § 627.707 (2010), and (ii) “Structural damage” means, “damage to the structure”....

...The policy insured against "sinkhole loss" through a separate sinkhole loss coverage endorsement. The insureds made a sinkhole claim during the policy period. Florida's insurance statutes establish procedures to resolve sinkhole claims. See §§ 627.707-.7074, Fla. Stat. (2010). After the insured makes a claim, the insurer must inspect the insured's property to determine whether there is physical damage to the structure that may have resulted from sinkhole activity. § 627.707(1). If so, the insurer must engage a professional engineer or geologist who will determine the cause of loss within a reasonable professional probability; the professional must issue a written report. §§ 627.707(2)(a), .7073(1). The professional's report certifying sinkhole damage will include a description of the tests performed and a recommended method to stabilize and repair the property. § 627.7073(1)(a). The report is presumed correct. § 627.7073(1)(c). If the professional verifies a sinkhole loss, the insurer must pay to stabilize the property "in accordance with the recommendations of the professional engineer as provided under s. 627.7073, and in consultation with the policyholder." § 627.707(5)(a). 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....

...Citizens hired Geohazards, an engineering firm, to verify a sinkhole loss. Geohazards certified sinkhole damage and recommended compaction grouting to stabilize the home and to repair the foundation. Citizens informed the insureds of Geohazards' determination and recommendation. See § 627.707(3). Citizens paid to repair the above-ground damage to the home. It withheld payment for subsurface repairs until the insureds contracted with a third party to -3- perform that work, as required by the insurance policy1 and section 627.707(5)(b).2 Citizens advised the insureds that it was prepared to pay $10,946.20 for the subsurface repairs....

...and written approval of any lienholder, make payment directly to the persons selected by you to perform the land and building stabilization and foundation repairs. 2 Section 627.707(5)(b) provides: The insurer may limit its total claims payment to the actual cash value of the sinkhole loss, which does not include underpinning or grouting or any...

...contract for the performance of building stabilization or foundation repairs in accordance with the recommendations set forth in the insurer’s report issued pursuant to s. 627.7073. -4- $129,070–$31,750 of which would be for underpinning....

...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...

...utral evaluator's recommendation if the insured were not able to challenge the method of repair in court before a jury. Id. We added that, in the litigation context, the insurer is not entitled to rely on section 627.7073(c)'s presumption that the insurer's engineer's recommendation is correct when the insured provides evidence challenging the insurer's proposed repair method....

...Corp. v. Amat, 41 Fla. L. Weekly D448, D450 (Fla. 2d DCA Feb. 19, 2016); see also Tower Hill Select Ins. Co. v. McKee, 151 So. 3d 2, 4 (Fla. 2d DCA 2014) ("Because the insurance policy contained a loss settlement provision tracking the language of section 627.707(5)(b), Florida Statutes (2010), [the insurer] had the authority to withhold payment for subsurface repairs until [the insured] entered into a contract for those repairs."), reh'g granted (Oct....

statute for such sinkhole claims in 2008. See § 627.707, Fla. Stat. (2008). I write to explain my reading

...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....

...7, 2011) (ordering clerk to administratively close case during stay); Agosto v. American Sec. Ins. Co., No. 8:11-cv-00790-T-17MAP (Dkt. 7) (M.D.Fla. May 2, 2011) (“ORDER granting Motion to stay pending the conclusion of the neutral evaluation process in accordance with § 627.707(11)....

...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....

...We reverse.  Tower Hill insures a piece of real property jointly owned by the appellants, which policy includes coverage for sinkhole damage. On or about March 8, 2010, the appellants noticed damage to their property and filed a claim with Tower Hill. After inspecting the property in compliance with section 627.707, Florida Statutes (2010), Tower Hill determined that the damage was not caused by sinkhole activity and subsequently denied the claim....

...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....

...After you enter into a contract, we shall pay the amounts necessary to begin and perform such repairs as the work is performed and the expenses are incurred, without requiring you to advance payment for such repairs. This provision is consistent with section 627.707(5)(b), Florida Statutes (2010). -6- recommended by a "professional engineer who verifies the presence of a Sinkhole Loss" using the engineering definition of "structural damage."...

...policy's restrictions on Citizens' obligations to pay for the cost of the repair for subsurface damages."); see also Tower Hill Select Ins. Co. v. McKee, 151 So. 3d 2, 4 (Fla. 2d DCA 2014) ("Because the insurance policy contained a loss settlement provision tracking the language of section 627.707(5)(b), Florida Statutes (2010), Tower Hill had the authority to withhold payment for subsurface repairs until McKee entered into a contract for those repairs."), reh'g granted (Oct....