<p style="text-align: justify;">When Ryan and Andrea Gesten’s home suffered a plumbing leak, made a claim with their carrier American Strategic Insurance Company and hired a public adjuster. The public adjuster put ASI on notice he would video and audio record the inspection. ASI appeared as scheduled, objected to the audio recording and, after the insured insisted, the inspection was not completed.</p>
<p style="text-align: justify;">ASI brought a declaratory judgment action seeking a determination that the insured could not, over the insurer’s objection, audio record the inspectors during the inspection. The trial court agreed, granted final summary judgment in favor of ASI, and the Gestens appealed.</p>
<p style="text-align: justify;">Two of the three judge appellate panel found that ASI’s policy did not preclude audio recording, so ASI could not object to the insured audio recording the inspection. They also found that ASI’s inspector had no right of privacy while inspecting the insured’s home, thus, recording was not barred by § 934.03, the statute prohibiting the recording of conversations without mutual consent.</p>
<p style="text-align: justify;">By special concurrence, Judge Klingensmith agreed that summary judgment for ASI was not proper but disagreed with the majority’s implied waiver reasoning. Judge Klingensmith believed that because the policy did not preclude recording, and because ASI did not raise § 934.03, the statute barring recording without mutual consent, in the trial court, the judgment should be reversed. Judge Klingensmith also noted that waiver of the statute’s protections should not be implied from the policy’s failure to address the recording of inspections and that nothing prevented ASI from addressing the recording issue by amending its policy.</p>
<p style="text-align: justify;">Of Florida’s six appellate districts, only one has directly addressed the audio recording issue raised in <a href="https://www.wcmlaw.com/wp-content/uploads/2022/06/Gesten.pdf">Gesten</a><em> v. ASI.</em> If recording is the threat ASI believes it is, Florida’s property insurers are best advised to deal with the issue upfront, during underwriting, rather than after the fact during litigation. <em>Gesten v. American Strategic Ins.,</em> 47 Fla. L. Weekly D1178a (Fla. 4th DCA June 1, 2022).</p>
Please contact <a href="mailto:Cgeorge@wcmlaw.com">Charles "Chip" George</a> with any questions.