45 Fla. L. Weekly D128b
290 So. 3d 560

Insurance — Homeowners — Summary judgment — Supporting affidavits — Trial court erred in entering summary judgment in favor of insurer on insurer’s breach of contract and fraud claims — Affidavit of corporate representative filed in support of insurer’s motions was insufficient basis for summary judgment where affidavit lacked sufficient information establishing that affiant possessed personal knowledge and competency to testify to the matters set forth in the affidavit, which included statements ranging from contract interpretation to trade specialties of plumbing and contracting

MARIA RODRIGUEZ, Appellant, v. AVATAR PROPERTY & CASUALTY INSURANCE COMPANY, Appellee. 2nd District. Case No. 2D18-65. January 15, 2020. Appeal from the Circuit Court for Hillsborough County; Emmett Lamar Battles, Judge. Counsel: Melissa A. Giasi of Sivyer Barlow & Watson, P.A., Tampa; and Gregory Saldamando of The Strems Law Firm, Coral Gables, for Appellant. Mihaela Cabulea and Anthony J. Russo of Butler Weihmuller Katz Craig LLP, Tampa, for Appellee.

(CASANUEVA, Judge.) Maria Rodriguez appeals the final summary judgment entered in favor of Avatar Property and Casualty Insurance Company. Ms. Rodriguez filed a complaint against Avatar alleging that it breached the parties’ contract of insurance. Avatar filed two motions for summary judgment, one asserting that Ms. Rodriguez breached her obligations under the insurance contract and the other based on a claim of fraud. The trial court entered final summary judgment on both grounds. We reverse.I. FACTS

Ms. Rodriguez purchased an insurance policy from Avatar, effective December 14, 2015, through December 14, 2016, for a home located in Tampa, Florida. The operative pleading in this case is Ms. Rodriguez’s breach of contract complaint. As of the time of the entry of the final summary judgment, Avatar had not filed an answer.

The complaint alleges that Ms. Rodriguez made a claim for a loss caused by a water discharge in a bathroom occurring on April 13, 2016. The complaint alleges that the loss is covered by the homeowner’s policy and that Avatar breached the contract by denying coverage.

Avatar responded by filing two separate motions for summary judgment alleging that Ms. Rodriguez failed to satisfy certain post-loss contractual obligations and that her claim was fraudulent. The trial court granted both motions and entered final summary judgment in favor of Avatar. This appeal ensued.Relevant Policy Provisions

Under Section I of the policy, paragraph two of the “Conditions” identifies certain duties imposed upon Ms. Rodriguez in case of a loss. Pertinent to the instant case, paragraph two states:

In case of loss to a covered property, you must see that all of the following are done:

a. Give prompt notice to us or our agent;

. . . .

f. As often as we reasonably require:

(1) Show the damaged property;

. . . .

(3) Submit to an examination under oath, while not in the presence of any other “insured,” and sign the same;

(4) Submit to a recorded statement.

g. Send to us, within 60 days after our request, your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief:

(1) The time and cause of loss;

(2) The interest of the “insured” and all others in the property involved and all liens on the Property . . . .

As earlier noted, Avatar had not yet filed an answer. Therefore, the record contains no affirmative defense or other avoidance claimed by Avatar.II. DISCUSSION

We begin with Florida Rule of Civil Procedure 1.510 upon which the final summary judgment rests. Our review of a final summary judgment entered by a trial court is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).

A movant is entitled to summary judgment if the pleadings and the summary judgment evidence show “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). In reviewing a summary judgment ruling, we must consider the evidence in the light most favorable to the nonmoving party, and if the record raises the slightest doubt that an issue might exist, we must reverse the summary judgment.

Buck-Leiter Palm Ave. Dev., LLC v. City of Sarasota, 212 So. 3d 1078, 1081 (Fla. 2d DCA 2017).

While “[s]ummary judgment is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings,” The Fla. Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006), “[s]ummary judgment is not intended to weigh and resolve genuine issues of a material fact,” Keys Country Resort, LLC v. 1733 Overseas Highway, LLC, 272 So. 3d 500, 503 (Fla. 3d DCA 2019).

Rule 1.510(b) permits a defendant — here Avatar — to seek a summary judgment “at any time with or without supporting affidavits.” Its motion must comply with certain pleading requirements. The motion must:

1. “state with particularity the grounds upon which it is based”;

2. state “the substantial matters of law to be argued”; and

3. “specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence.”

Rule 1.510(c) (emphasis added).

Where a party such as Avatar relies upon an affidavit, the rule is explicit. Supporting affidavits are required to comply with three “musts.” The affidavit:

1. “must be made on personal knowledge”;

2. “must set forth such facts as would be admissible in evidence”; and

3. “must show affirmatively that the affiant is competent to testify to the matters stated therein.”

Rule 1.510(e) (emphasis added); see also Keys Country Resort, 272 So. 3d at 504. “When a supporting affidavit does not comply with these requirements, it is legally insufficient to support the entry of summary judgment in favor of the moving party.” Enter. Leasing Co. v. Demartino, 15 So. 3d 711, 714 (Fla. 2d DCA 2009).

In West Edge II v. Kunderas, 910 So. 2d 953, 954 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D2269b], this court concluded that the affidavit Kunderas filed in support of her motion for summary judgment was insufficient. Kunderas had filed suit to reform a deed and mortgage, seeking to remove from the legal description a mooring lot which she claims was mistakenly included. West Edge II denied that there was any mutual mistake, but Kunderas filed a motion for summary judgment and affidavit alleging that the deed included the mooring lot, that it was not included in the contract for purchase and sale, and that neither party knew of the mistake. This court noted that “an affidavit in support of a motion for summary judgment must be made on personal knowledge” and concluded that Kunderas’s affidavit, alleging mistake by West Edge II, failed to satisfy that requirement. Id.

Here, in support of both motions for summary judgment, Avatar’s counsel submitted the affidavit of Donna Kundrot. Ms. Kundrot’s affidavit states only that she is “a duly authorized corporate representative” of Avatar; it does not identify her title or specify her corporate duties. Nor does the affidavit state that it is made based on personal knowledge. If the affiant possesses relevant skill sets or experience, that, too, is omitted.

Ms. Kundrot’s affidavit lacks sufficient information to allow us to conclude that she possesses the competency to testify to the matters set forth in her thirty-seven-page affidavit, which includes statements ranging from contract interpretation to trade specialties of plumbing and contracting.¹ Cf. OneWest Bank, FSB v. Jasinski, 173 So. 3d 1009, 1013 (Fla. 2d DCA 2015) (finding affidavit clearly demonstrated affiant’s personal knowledge and competency to testify about employer OneWest’s mortgage servicing business records practices where affiant “specifically attested in her affidavit that . . . ‘the statements made in this affidavit are based on personal knowledge of the mortgage servicing business records practices of OneWest Bank and the facts contained herein [are] based upon such practices. . . . In my capacity of Supervisor II of OneWest Bank, I have access to OneWest Bank’s business records, including business records for and relating to the Borrower’s loan.’ ” (alteration in original)).

“An affidavit in support of summary judgment may not be based on factual conclusions or conclusions of law.” Fla. Dep’t of Fin. Servs. v. Associated Indus. Ins., 868 So. 2d 600, 602 (Fla. 1st DCA 2004) (reversing summary judgment where trial court relied on insufficient affidavit that contained statements not based upon affiant’s personal knowledge but on her “ ‘understanding’ of the underlying issues and her ‘opinion’ of such issues”); see also Johns v. Dannels, 186 So. 3d 620, 622 (Fla. 5th DCA 2016) (reversing summary judgment where “the affidavit failed to provide any predicate to show how appellee was aware of the asserted facts, which are set forth as mere conclusions”). “A factual predicate for the testimony is required, just as it would be required at trial.” Johns, 186 So. 3d at 622.

We therefore conclude that Avatar’s affidavit was insufficient as a basis for summary judgment. The affidavit includes matters upon which the affiant has failed to demonstrate a personal knowledge or competency, and it contains unsupported opinions and conclusions of fact and law. Rather than an affidavit based on personal knowledge, competency, and admissible facts, the affidavit here simply restates, almost verbatim, the motions for summary judgment. Because the affidavit was the basis for summary judgment, its insufficiency is fatal to the final summary judgment, and we must reverse.III. ON REMAND

One of several issues likely to be addressed on remand is whether Ms. Rodriguez’s report of her claim was timely within the meaning of the insurance contract and, if not, the effect of that untimely notice on her claim. “The question of whether an insured’s untimely reporting of loss is sufficient to result in the denial of recovery under the policy implicates a two-step analysis.” LoBello v. State Farm Fla. Ins., 152 So. 3d 595, 599 (Fla. 2d DCA 2014). Analytically, the first step “is to determine whether or not the notice was timely given.” Id. If the notice is found to be untimely, the analysis proceeds to the second step, prejudice. Id. Where the notice is untimely, prejudice to the insurer is presumed, but this presumption is rebuttable. Id. To rebut the presumption, the insured must make “a showing that the insurer has not been prejudiced by the lack of notice.” Id. (quoting Bankers Ins. v. Macias, 475 So. 2d 1216, 1218 (Fla. 1985)).

Here, the policy required “prompt notice.” This provision of Avatar’s policy was recently reviewed by the Fourth District Court of Appeal. Our sister court wrote that “[n]otice is necessary when there has been an occurrence that should lead a reasonable and prudent [person] to believe that a claim for damages would arise.” Himmel v. Avatar Prop. & Cas. Ins., 257 So. 3d 488, 492 (Fla. 4th DCA 2018) (quoting Ideal Mut. Ins. Co. v. Waldrep, 400 So. 2d 782, 785 (Fla. 3d DCA 1981)). “Notice is said to be prompt when it is provided ‘with reasonable dispatch and within a reasonable time in view of all of the facts and circumstances of the particular case.’ ” Id. (quoting Laquer v. Citizens Prop. Ins., 167 So. 3d 470, 474 (Fla. 3d DCA 2015)). Accordingly, whether the insured provided “prompt notice” generally presents an issue of fact. Id. While that is the general rule, there are exceptions. See, e.g., 1500 Coral Towers Condo. Ass’n v. Citizens Prop. Ins., 112 So. 3d 541, 543-44 (Fla. 3d DCA 2013) (finding no genuine factual dispute that notice given five years after damaging hurricane was untimely); Yacht Club on the Intracoastal Condo. Ass’n v. Lexington Ins., 599 Fed. Appx. 875, 880 (11th Cir. 2015) (finding notice provided four years and seven months after damaging hurricane was untimely as a matter of law).

A second issue the trial court will likely confront on remand is the legal consequences of the examination under oath involving the parties to this suit. We will only describe the transcript of the EUO as contentious and decline to comment further as to the level of professionalism reflected in the transcript. We do commend the trial court’s professionalism in the operation of its court in addressing the issue.

The fact that this record discloses that the EUO was terminated raises another set of issues the trial court must navigate. We note only that “for there to be a total forfeiture of coverage under a homeowner’s insurance policy for failure to comply with post-loss obligations (i.e. conditions precedent to suit), the insured’s breach must be material.” Am. Integrity Ins. v. Estrada, 276 So. 3d 905, 914 (Fla. 3d DCA 2019).IV. CONCLUSION

The affidavit submitted by Avatar to support its motions fails to meet the requirements set forth in rule 1.510(e). There is insufficient evidence to demonstrate Avatar’s entitlement to a final summary judgment on either motion, and we therefore reverse.

Reversed and remanded for further proceedings. (NORTHCUTT and BADALAMENTI, JJ., Concur.)

__________________

¹As one example, paragraph fifty-four states, in part: “Clearly, any legitimate contractor, who actually believed that it was necessary to check each and every electrical outlet in the entire house, would already have a megohmmeter.”