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Homeowners can record insurance company adjusters’ inspections, Florida court rules

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Homeowners and public adjusters may now feel a little more emboldened to register a home inspection by an insurance adjuster, after a Florida appeals court ruled in favor of the practice last week. latest – the third such decision in as many years.

The 4e The West Palm Beach District Court of Appeals ruled that the policy of American Strategic Insurance Corp. not addressing the issue of video and audio recording of an inspection, the case had to be sent back and reconsidered. The court overturned a 2021 Palm Beach County trial court ruling in favor of the insurer, which found the insurance policy did not authorize the shooting of the insurer’s inspector .

“We conclude that nothing in this file prevents an insured from recording an adjuster’s inspection while in his own home”, 3rd DCA Judge Martha Warner wrote in the opinion. “The trial court erred in granting declaratory judgment for the insurer.”

American Strategic, a subsidiary of St. Petersburg-based Progressive Insurance Co., argued that HO policy did not allow registration of its inspector. But the appeals court concluded that the policy did not prohibit it either. The judges noted that courts have always held that any ambiguity in a policy must be construed strictly in favor of the insured “and strictly against the insurer”.

An oft-cited opinion from 1976 of 4e DCA said: “Where a contract is merely silent on a particular matter, that is, its wording does not state either expressly or by reasonable implication that the parties intended to contract with respect to question, the court should not, under the guise of construction, impose upon the parties contractual rights and duties which they themselves have omitted”.

More recent stops from 4e DCA and the 3rd DCA has found that an adjuster has no legitimate expectation of privacy while in an insured’s home. In Silversmith v. State Farm Insurance, the 4e The district found in 2021 that Florida law, which prohibits audio recordings unless both parties agree, does not apply to an insurance inspection scenario. A year earlier, the 3rd The District Court of Appeals declined to review a trial court order allowing an inspection to be recorded.

These rulings were based in part on a 1994 Florida Supreme Court ruling that people who object to registration in most cases must declare “a real subjective expectation of privacy” and a societal recognition that the expectation is reasonable.

In the American Strategic case, homeowners Ryan and Andrea Gesten suffered damage to their home due to a plumbing issue in 2019, the court heard. Ryan Gesten, himself a litigator experienced in insurance claims litigation, hired a public expert to help with the claim. The claim was for $81,000.

The public adjuster informed the insurer that he would record the inspection of the carrier’s home.

“This is done in the interests of transparency and accountability for both parties,” the public adjuster wrote to the insurance company.

American Strategic opposed the audio recording. On the day of the scheduled inspection, ASI’s lawyer, its surveyor and an independent surveyor showed up at the property. The public expert had a camera attached. ASI’s lawyer objected and the parties could not agree. The inspection was never completed, the court explained.

ASI then asked the court of first instance to prohibit the audio recording. The Gestens sued for breach of contract. The Palm Beach court granted summary judgment in favor of the insurance company, and the appeal ensued.

The court notice and original lawsuit filed by ASI explain that ASI argued that the recording would violate state policy and law, and that the insurer had no way to record the inspection. of the public expert. And because ASI’s attorney was present, it would create attorney-client communication that should not be filmed, according to the complaint.

“Finally, there is genuine concern (about) what the public expert may do with the images and audiotape of these individuals,” reads ASI’s petition.

There’s also the fact that the owners’ public adjuster was Scott David Thomas, a man who became famous in the Florida insurance industry for making it difficult for surveyors and insurance company adjusters. these last years. The state Department of Financial Services, which regulates agents and adjusters, filed an administrative complaint against Thomas in March this year, accusing him of repeatedly obstructing insurance company adjusters during property inspections.

In some instances, Thomas became belligerent and derogatory toward Citizens’ Property Adjusters and other adjusters, refused to answer questions, demanded proof of Workers’ Compensation insurance from other inspectors, requested background checks from inspectors, often changed agreed inspection dates and refused to meet except on Saturdays. Thomas could eventually lose his license if an administrative decision is unfavorable to him.

The decision of the Court of Appeal in the ASI case may not completely resolve the issue of audio recording. Samuel Alexander, the owners’ appeal solicitor who was also counsel in the 2021 Silversmith case, pointed out that the concurring but dissenting opinion of 4th DCA Judge Mark Klingensmith challenged his colleagues’ appeal to the Silversmith decision.

Warner

Silversmith’s opinion “is in direct conflict not only legally with our prior decisions” in two other cases, Klingensmith wrote. Florida law’s prohibition against recording without a subject’s consent “prohibits what the respondents want to do” and makes no exceptions for commercial interactions or when an expert is in someone’s home.

That could open the door to further litigation on the issue in years to come, in part because American Strategic’s attorneys failed to raise certain issues at the trial court level.

“Because our opinion here does not explicitly rely on Silversmith as the governing precedent, we need not revisit Silversmith for the purposes of deciding this issue,” Klingensmith wrote. “However, in the future, I would consider doing so in an appropriate case.”

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Florida Proprietary Carriers