Fla. appellate ruling allows policyholders to record insurance appraisals
An expectation of privacy does not apply to insurers going into a policyholder's home to inspect or appraise a property, finds the court.
Despite Florida’s “two-party consent” law, the state’s Fourth District Court of Appeal has ruled that policyholders may openly make audio and video recordings during home inspections by insurance company appraisers. The reason for the ruling is that appraisers have no expectation of privacy while in an insured’s home.
The decision came in a case involving State Farm Insurance Co., in which the appellate panel reversed a ruling from the trial court, which had ruled in the insurer’s favor against a property owner who wanted to videotape the inspection.
Policyholder Heather Silversmith appealed the order that denied her motion for summary judgment and challenged a ruling that found she couldn’t record unless all participants consented.
And the appellate panel agreed with her.
The Fourth DCA found the lower court had erred in applying Section 934.03 of the Florida Statutes, which prevents precludes interception of oral communications in some circumstances.
“The insured is correct that nothing in the policy precluded audio/video recording of an appraisal inspection, and that the insurer’s appraiser has no legitimate expectation of privacy while in the insured’s home for the inspection,” Judges Robert M. Gross, Cory J. Ciklin and Spencer D. Levine wrote in an unsigned opinion. “The insurer has not identified anything that would validly preclude a homeowner from openly recording an inspection of her own home.”
‘An issue of law’
Representing policyholder Silversmith is attorney Samuel Alexander of Alexander Appellate Law in DeLand.
Alexander said the biggest hurdle in any appeal is overcoming the strong presumption in favor of the trial court’s ruling.
“Luckily in our case, the appeal involved an issue of law, rather than an issue of fact or credibility,” he said. “It’s easier to win an appeal by arguing the trial court got the law wrong than by arguing the trial court got the facts wrong.”
Alexander said his client sued for a declaratory judgment after State Farm refused to allow her to record an appraisal inspection of her own home.
“The trial court agreed with State Farm and issued an injunction against recording. We appealed that ruling, and the appellate court agreed with our argument that an appraiser has no expectation of privacy when appraising an insured’s home,” Alexander said. “Therefore, insureds are permitted to audio and video record appraisal inspections of their homes.”
Circuit Civil Judge John B. Bowman presided over the case at trial.
In 2018, Silversmith’s house suffered water damage. State Farm, her insurer, extended coverage and prepared an estimate, according to her appellate brief.
What happened?
Silversmith filed a property damage claim, and State Farm used its right to the appraisal under the policy.
Silversmith then filed an action in circuit court seeking a declaratory judgment that would have stated she had the right to record the appraiser’s inspection of the home, despite Florida’s law on consent.
The lower court rejected Silversmith’s arguments, citing Florida law which states, “The only way to record by way of video or audio is with the full consent of all parties participating.”
‘Honest and on their toes’
Trial attorney Warren Diener of The Diener Firm in Plantation, who also represented Silversmith, said he believes videotaping keeps all on the same page.
“Sometimes some appraisers don’t spend as much time actually doing the due diligence of inspecting a home and examining all the damages and having a detailed discussion,” Diener said. “Occasionally, they walk in and spend 10 minutes, and then walk out and are finished with the appraisal. With video and audio recording, we know what’s happening. It’s full disclosure, and it tends to keep people honest and on their toes.”
Co-counsel Alexander added, “Insurance companies have no protectable privacy right when they are coming to an insured house to inspect or appraise property.”
State Farm’s counsel was Ubaldo J. Perez Jr. of the Law Office of Ubaldo J. Perez Jr. in Miami Lakes and Elizabeth K. Russo of the Russo Appellate Firm in Miami. The attorneys did not immediately respond to requests for comment.