It has been questioned over the years what rights the insured or homeowner has when an insurance claim is filed. Does the homeowner/ insured have the right to video or record the inspection of their home by their insurance company? In a recent opinion filed on April 1st, 2020 by the 3rd District Court of Appeal, State of Florida the homeowner or insured “does” have the right to record the inspection.
Third District Court of Appeal
State of Florida
Opinion filed April 1, 2020.
Not final until disposition of timely filed motion for rehearing.
Lower Tribunal No. 19-6602
State Farm Florida Insurance Company,
On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade
County, Spencer Eig, Judge.
Link & Rockenbach, P.A., and Kara Rockenbach Link and David A. Noel
(West Palm Beach); Methe & Rothell, P.A., and Kristi Bergemann Rothell (West
Palm Beach), for petitioner.
Diener Law Firm, and Daniel Cruz (Plantation); Law Office of Gray Proctor
and Gray Proctor (Richmond, VA), for respondent.
Before LOGUE, LINDSEY, and GORDO, JJ.
State Farm petitions for a writ of certiorari to quash the trial court’s decision
allowing its insured, Armando Chirino, to make a video and audio recording of State
Farm’s appraiser’s inspection of the insured property for purposes of an appraisal
authorized under the policy.
“To grant certiorari relief, there must be: ‘(1) a material injury in the
proceedings that cannot be corrected on appeal (sometimes referred to
as irreparable harm); and (2) a departure from the essential requirements of the law.’
” Florida Power & Light Co. v. Cook, 277 So. 3d 263, 264 (Fla. 3d DCA 2019)
(quoting Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712,
721 (Fla. 2012)).
Among other things, State Farm asserts its appraiser has a right to privacy
protected by the Florida Constitution when he visits the insured’s home for purposes
of conducting the inspection. Art. I, § 23, Fla. Const. (“Every natural person has the
right to be let alone and free from governmental intrusion into the person’s private
life except as otherwise provided herein.”). State Farm argues that irreparable harm
exists because its appraiser will lose the benefit of this right if the appraisal visit is
recorded. We are not persuaded. Florida’s Constitutional right to privacy protects
persons from governmental, not a private intrusion. Mr. Chirino and his
representatives are entitled to be present during the inspection. We, therefore, do not
believe State Farm has shown how the trial court violated the privacy right provided
by Article I, section 23 or otherwise departed from the essential requirements of the law
in authorizing Mr. Chirino, or someone on his behalf, from openly making such a
recording of a legally required inspection in his own home.
State Farm notes that the making of the recording might be unfairly used to
harass or intimidate its appraiser. The possibility of such misconduct, which
presumably will be remedied by the trial court if it occurs, does not rise to the level
of the irreparable harm required for certiorari. Thus, “[a]lthough [the petitioner] may
have meritorious arguments in favor of a protective order at some later time in the
litigation when the record is more developed, the record before us does not reflect
that the orders under review amount to irreparable harm.” Cook, 277 So. 3d at 265.
In this regard, the trial court expressly provided in the order that copies of the
recordings must be made available to any party upon request.