In Certain Underwriters at Lloyd’s, London v. Gables Court Condo. Ass’n, Inc., 357 So. 3d 759 (Fla. 3d DCA 2023), the Third District reminded us that a lawyer’s representations are not evidence. The court held that representations by an insured condominium association’s counsel that its meeting minutes and invoices for completed roof repairs and repairs to a clubhouse interior that were not provided to the insurer did not exist did not constitute evidence on the issue of whether the insured had complied with all of its post-loss obligations.

The insurance company appealed the trial court’s nonfinal order compelling appraisal and its subsequent order on the insurer’s motion for reconsideration.

On appeal, the insurer contended that Gables Court Condominium Association, Inc. (Gables Court) failed to fully comply with its post-loss obligations, thus hindering the insurer’s investigation of the claim. It maintained that, in light of Gables Court’s failure to comply with post-loss obligations, the trial court’s order compelling appraisal was premature because there was not yet a genuine disagreement regarding the amount of a covered loss. The insurer further contended that the trial court had erred in finding Gables Court did not waive its right to appraisal where (according to the insurer) Gables Court engaged in litigation conduct inconsistent with its appraisal rights.

In response, Gables Court conceded partial error. It acknowledged that, because there remained a factual dispute regarding whether Gables Court complied with its post-loss obligations, the trial court erred by granting the motion to compel appraisal without first conducting an evidentiary hearing.

Under the circumstances presented, the Third District held the trial court erred in compelling appraisal without conducting an evidentiary hearing. See Auto Club Ins. Co. of Fla. v. Santee, 347 So. 3d 451, 452 (Fla. 3d DCA 2022) (“Upon review of the record, we find that the trial court erred in granting the motion to compel appraisal and stay litigation without first conducting an evidentiary hearing to determine compliance with post loss obligations. Before compelling appraisal, the trial court must determine that post loss obligations have been met and that an arbitrable issue exists regarding the amount of the loss.”) Specifically, reasoned the Third District, the trial court improperly relied upon counsel’s representations—rather than evidence—in resolving disputed issues of fact and in determining whether Gables Court complied with its post-loss obligations. See People’s Tr. Ins. Co. v. Ortega, 306 So. 3d 280, 284 (Fla. 3d DCA 2020) (“[W]hen an insurer reasonably disputes whether an insured has sufficiently complied with a policy’s post-loss conditions so as to trigger the policy’s appraisal provision, a question of fact is created that must be resolved by the trial court before the trial court may compel appraisal.”) See also Echevarria v. Lennar Homes, LLC, 306 So. 3d 327, 329 n.2 (Fla. 3d DCA 2020) (observing that “unsworn legal argument of counsel is not evidence”); Chase Home Loans LLC v. Sosa, 104 So. 3d 1240, 1241 (Fla. 3d DCA 2012) (“[U]nsworn representations of counsel about factual matters do not have any evidentiary weight in the absence of a stipulation”); State v. T.A., 528 So. 2d 974, 975 (Fla. 2d DCA 1988)(“Although [an] attorney [is] an officer of the court subject to disciplinary action for deceiving a judge by a false statement… representations by counsel not made under oath and not subject to cross-examination, absent a stipulation, are not evidence.”)

The Third District reasoned that its decision in United Prop. & Cas. Ins., Co. v. Concepcion, 83 So. 3d 908 (Fla. 3d DCA 2012) was instructive. In Concepcion, the insurer appealed an order compelling appraisal, maintaining that the insured’s motion was premature because the insured failed to comply with its post-loss obligations, e.g., to provide requested documents, to respond to material inquiries during an examination under oath, and to provide a sworn proof of loss. The insured countered that he provided the insurer with sufficient documents and information to assess the claim, and that the trial court had “ample, sworn documents in the court file, including answers to interrogatories, from which it could conclude that he complied with his post-loss obligations under the insurance contract.” Id. at 909.

The Third District reversed the trial court’s order compelling appraisal and remanded for an evidentiary hearing, noting that the trial court did not review any evidence in determining whether the insured complied with his post-loss obligations, and that “[t]he argument of counsel on this issue does not constitute evidence.” Id. at 910.

In similar fashion, reasoned the Third District, the trial court in Gables Court relied on argument of counsel in reaching its decision, including counsel’s representation that any documents not provided to Lloyd’s do not exist (e.g., meeting minutes and invoices for completed roof repairs and repairs to the clubhouse interior). Counsel’s arguments and representations were not made under oath, nor was counsel subject to cross-examination by the opposing party. Such representations and arguments, ruled the Third District, do not constitute evidence. An evidentiary hearing was necessary to resolve factual disputes regarding Gables Court’s compliance with its post-loss obligations. See Sunshine State Ins. Co. v. Corridori, 28 So. 3d 129, 131 (Fla. 4th DCA 2010) (“[W]here the ‘insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented’ regarding the necessity or sufficiency of compliance. … Whether appellees’ compliance with the policy terms was necessary or sufficient is a dispute of fact”) (citation omitted).