Partner Carol Rooney on the ABA Council of Appellate Lawyers Executive Board
November 7, 2023
On July 7, 2021, Florida’s Fourth District Court of Appeal ruled that an insured may electronically record an insurer’s appraiser during an inspection of the insured’s property. The case is Silversmith v. State Farm Ins. Co., 2021 WL 2910240, 4D20-2685 (4th DCA July 7, 2021).
The case arose after an insured made a first-party property insurance claim. The insurer requested the claim be submitted to appraisal under the insurance policy’s appraisal provision. The insured filed a lawsuit seeking declaratory judgment that it had the right to electronically record the insurer’s appraiser while he inspected her property. The insured moved for summary judgment. The trial court denied the motion finding that Florida privacy laws prohibited the interception of certain oral conversations and that all participants involved must consent to any electronic recording of the appraisal.
The appellate court disagreed and ruled that privacy concerns do not apply when the insurer’s appraiser is on the insured’s property, because the appraiser does not have a legitimate expectation of privacy while performing an appraisal at the insured’s property. Thus, nothing in Florida law prevents the insured from electronically recording the appraiser. Also, the appellate court noted that nothing in the insurance policy prohibited the recording.
The appellate opinion does not address whether an insurer could include language in an insurance policy that prevents an insured from electronically recording an appraisal inspection. The appellate opinion is not yet final, and we will continue to keep you updated on this issue. Please contact attorneys Tim Engelbrecht or Bret Freeman with any questions.