17 Fla. L. Weekly Supp. 1211b
Online Reference: FLWSUPP 1712HENN
Insurance — Property — Conditions precedent — Abatement — Insured’s alleged failure to comply with policy conditions prior to filing suit is defense to suit, not basis for abatement of suit — Motion to abate and motion for protective order are denied
RICHARD HENNIGE, Plaintiff, v. UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. Circuit Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2010 CA 001234 NC. August 18, 2010. Rick DeFuria, Judge. Counsel: William Finn, Morgan & Morgan, P.A., Orlando. Joseph M. Sette, Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Shefer, P.A., Fort Myers.
ORDER ADOPTING RECOMMENDED ORDER
THIS CAUSE came before the Court on the Recommended Order of Magistrate, filed by Magistrate Deborah A. Bailey, and the undersigned, having considered the findings and recommendation contained therein, it is hereby,
ORDERED AND ADJUDGED that:
1. The Recommended Order of Magistrate, entered on AUGUST 02, 2010, a copy of which is attached hereto, is ratified and approved.
2. The parties are ordered to abide by all of the findings and recommendations contained in the Recommended Order of Magistrate, and the Court hereby adopts each and every finding and recommendation therein as the Order of this Court.
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RECOMMENDED ORDER OF MAGISTRATE
(DEBORAH A. BAILEY, Magistrate.) This cause came on for hearing before Magistrate Deborah A. Bailey, on July 30, 2010, on the following motions:
1. Defendant’s Motion to Strike Plaintiffs Notice for Trial/Motion to Abate.
2. Defendant’s Motion for Protective Order, or in the Alternative, Motion for Extension of time to Respond to Plaintiffs Discovery.
The Magistrate has jurisdiction pursuant to Rule 1.490 of the Florida Rules of Civil Procedure. Being fully advised in the premises, the Magistrate reports as follows:
1. Plaintiff filed his one-count Complaint on or about February 3, 2010. The Complaint alleges a breach of the property insurance contract issued by Defendant on the Plaintiff’s home. Plaintiff’s home was burglarized on or about July 11, 2009, In ¶ 5 of the Complaint, Plaintiff alleges that “[a]ll conditions precedent to the initiation and prosecution of this lawsuit have been performed, have occurred or have been waived.” Along with the Complaint, Plaintiff served interrogatories, a request to produce, and a request for admissions.
2. On or about March 4, 2010, Defendant served its Answer and Affirmative Defenses, Demand for Jury Trial and Motion to Abate. In ¶ 4 of its Answer, Defendant denied that all conditions precedent to the initiation of the lawsuit had been performed by Plaintiff or have occurred or have been waived. Defendant then set forth an Affirmative Defense asserting that the Plaintiff had failed to comply with certain policy provisions and setting forth five particular provisions.
3. As part of its Answer, Defendant also moved to abate the action, again alleging Plaintiff’s failure to comply with these policy provisions. Defendant contends that Plaintiff cannot bring this action “unless the policy provisions have been complied with and the action is started within five years of the date of loss.” At the hearing, Defendant’s counsel argued that Plaintiff has not complied with all policy conditions, while Plaintiff’s counsel argued that Plaintiff has complied.
4. At the hearing, Defendant’s counsel proffered three cases in support of its argument that the matter should be abated until the Plaintiff complies with all conditions precedent. See e.g., Starling v. Allstate Floridian Ins. Co., 956 So. 2d 511 (Fla. 5th DCA 2007); Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300 (Fla. 4th DCA 1995); Bierman v. Miller, 639 So. 2d 627 (Fla. 3d DCA 1994). Both Starling and Goldman were appeals from trial court entries of summary judgment in favor of the insurer. In each case, the appellate court affirmed the trial court’s judgment, holding that the insured’s material branch of the policy’s conditions barred any recovery by the insured.
5. Neither of these cases stands for the proposition that an insurer is entitled to abatement upon the allegation or assertion of a defense that the insured has not complied with all policy conditions prior to filing suit. Instead, in both cases, the failure to comply with conditions precedent was asserted as a defense, the insurer subsequently moved for summary judgment, and the written appellate decisions indicate that both decisions were fact intensive.1 Moreover, in Starling, the insured argued that her substantial compliance with the policy conditions should suffice. Starling, 956 So. 2d at 513. The appellate court disagreed, stating: “Her failure to substantially comply with the policy’s condition precedent bars recovery.” Id. at 514. Again, however, the issue of whether or not an insured’s conduct amounts to substantial compliance with policy provisions points out the fact intensive nature of the inquiry and the reason why failure to comply should be asserted as an affirmative defense and decided within the context of a summary judgment motion.2
6. The final case cited by the Defendant, Bierman, deals with the premature filing of a legal malpractice claim and stands only for the general legal proposition that the remedy for premature litigation is an abatement or stay until the claim matures under the law. See Bierman, 639 So. 2d at 628. Here, the Defendant’s claim is not that the Plaintiff’s claim is premature. Instead, Defendant alleges that until the policy conditions are complied with, the Defendant “cannot adequately determine if the claims presented are appropriate for a mediation or appraisal . . . .” Accordingly, Bierman is entirely inapposite to the facts of the instant case. Therefore, the Magistrate recommends that the Court deny the Defendant’s Motion to Abate.
Based upon the above-stated findings, the Magistrate submits the following Recommended Order for approval by the Court:
Recommended Order
1. Defendant’s Motion to Abate is DENIED.
2. Defendant’s Motion to Strike Plaintiff’s Notice for Trial is DENIED.
3. Defendant’s Motion for Protective Order is DENIED. Defendant shall serve its responses to the Plaintiff’s discovery requests within 20 days of the date the Court adopts this Recommended Order as final.
Please take notice that pursuant to Rule 1.490(h), the parties to this cause have ten (10) days from the date of service of this Recommended Order to serve exceptions to its contents. The party filing exceptions is required to send copies of the exceptions directly to the Judge assigned to this case, as well as to the undersigned Magistrate. The party filing exceptions will be required to provide the Court with a record sufficient to support their exceptions or the exceptions will be denied. A record ordinarily includes a written transcript of all relevant proceedings. The party filing the exceptions must have the transcript prepared for the court’s review. If exceptions are timely filed, they shall be heard on reasonable notice by either party or the court. If no exceptions are filed within ten (10) days from the date of service, the Court shall take appropriate action on the report.
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1In Starling, all of the cases analyzed by the court in support of its holding were also decided on summary judgment. See Starling, 956 So. 2d at 513.
2The concurring opinion in Starling notes that Allstate had required a sworn proof of loss, including a list of damaged or destroyed property, at least five times prior to commencement of suit, but Starling was 13 months late in providing the list, and the record “was devoid of a reasonable explanation by Starling for her willful refusal to provide a Sworn Proof of Loss prior to commencing this action.” Id. at 514 (Evander, J., concurring specially).
