Neutral Evaluation Denied
Posted By Givens Givens Sparks || Aug 8, 2011In a recent decision (Anderson v. American Strategic Insurance Corporation) Circuit Court Judge Stanly Mills denied American Strategic Insurance Corporation's Motion for Neutral Evaluation and to Stay Litigation Pending Neutral Evaluation.
The matter came before the court on June 8, 2011 upon the Defendant's (American Strategic Ins. Corp) motion for neutral evaluation and in response to the Plaintiff's (Anderson) sinkhole claim. It was alleged that the Plaintiff's property suffered sinkhole damage, which was reported to the Defendant on or about January 7, 2010. The claim was initially denied by the Defendant but on December 15, 2011 the Defendant submitted its Request for Neutral Evaluation.
The Neutral Evaluation process is governed by Florida Statute Section 627.7074 and all requests for Neutral Evaluation are submitted to the Florida Department of Financial Services. If either party of the Florida sinkhole action requests a Neutral Evaluation, it is mandatory under Florida Statute Section 627.7074 and an opinion will be rendered that is admissible in court even without proper evidentiary principles being followed, as specified under Fla. Stat. 627.7074(5).
Judge Mills held that in cases involving sinkhole litigation, the Legislature has delegated to the Department of Financial Services, a part of the Executive Branch of government, the authority to act as (1) the judge by requiring the automatic admission of the Neutral Evaluator's report into evidence without considering its relevancy, credibility, authentication, or other evidentiary concerns and (2) trier of fact in determining whether or not sinkhole activity exists beneath a structure and determining the proper remediation. Based on the above analysis Judge Mills held that "permitting a Neutral Evaluator to give an opinion which is admissible in court without any formal evidentiary rules or procedures, particularly with no right to cross-examination, constitutes a violation of the Plaintiff's due process, under Article I, section 9 of the Florida Constitution."
As a result of the hearing American Strategic Insurance Corporation's Motion for Neutral Evaluation was denied. At this time is unknown if American Strategic intends to appeal the decision, but Judge Mills' ruling reflects the opinion of many policy holder advocates in that it is a violation of the homeowner's rights to allow a Neutral Evaluator's opinion to be admitted into evidence without any formal evidentiary challenges.
The Givens Law Group represents Florida homeowners with sinkhole damage. In the event of a question or concern regarding a Florida sinkhole claim one of the attorneys at the Givens Law Group will be happy to conduct a claim evaluation and address any questions a policyholder may have.