24 Fla. L. Weekly Supp. 219a

Online Reference: FLWSUPP 2403MHERInsurance — Homeowners — Appraisal — Where request for appraisal raises issues of insureds’ compliance with post-loss obligations and prejudice to insurer from any noncompliance, trial court exercises its discretion to resolve coverage issues prior to entertaining request to compel appraisal

ROGELIO & MARIA HERNANDEZ, Plaintiff, vs. TOWER HILL PREFERRED INSURANCE COMPANY, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 14-15439. July 7, 2016. Michael A. Hanzman, Judge.

ORDER

A. GRANTING PLAINTIFFS’ MOTION TO VACATE OR, IN THE ALTERNATIVE, FOR REHEARING AND/OR RECONSIDERATION;

AND

B. DENYING PLAINTIFFS’ MOTION TO COMPEL APPRAISAL

I. INTRODUCTION

Plaintiffs, Rogelio and Maria Hernandez, ask this Court to vacate, or reconsider, its March 4, 2016 Order denying their “Motion to Compel Appraisal.” That Order was entered after the Court conducted “an evidentiary hearing on the issue of the insured’s compliance with the insurance policy’s post-loss obligations.” United Prop. & Cas. Ins. Co. v. Concepcion, 83 So. 3d 908, 910 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D511a]. At the conclusion of that truncated hearing the Court found that Plaintiffs had failed to substantially comply with certain post-loss cooperation obligations and — as a result — they were not entitled to an appraisal; a proceeding which is not “ripe” until the litigants have engaged “in some meaningful exchange of information sufficient for each party to arrive at a conclusion before a disagreement (on the amount of loss) could exist.” U.S. Fid. & Guar. Co. v. Romay, 744 So. 2d 467, 470 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D1963a]; Citizens Prop. Ins. Corp. v. Galeria Villas Condo. Ass’n, Inc., 48 So. 3d 188 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D2586a] (until post-loss cooperation obligations are met, an insurer has not had a “reasonable opportunity to investigate and adjust the claim,” and therefore there is no “ ‘disagreement’ (for purposes of the appraisal provision in the policy) regarding the . . . amount of loss”).

Although the Court initially agreed to hold this evidentiary hearing, it has now had an opportunity to thoroughly review applicable precedent and consider the matter more carefully. Upon reflection — and for the reasons discussed herein — this Court has concluded that conducting such a preliminary evidentiary hearing on the merits was both unnecessary and ill advised, as issues that may impact coverage — such as an insured’s compliance (or lack thereof) with post-loss conditions of payment — should not be adjudicated by the Court in the context of a hearing on a motion to compel appraisal. Like in every other civil case, such coverage (i.e., liability) issues should be adjudicated either by summary judgment, or by the jury as the trier of fact, prior to appraisal. Settled rules of procedure governing civil cases should not be abandoned simply because an insurance policy contains an appraisal provision. And if an insurer credibly claims that an insured has failed to comply with post-loss notice or cooperation provisions, that claim — and the ancillary question of whether the insurer suffered prejudice as a result of deficient compliance — should be resolved either by the Court as a matter of undisputed fact (or law) on summary judgment, or by the jury.

The bottom line is that a first party insurance dispute is simply a breach of contract case — nothing more or less — and it should be handled like any other breach of contract case. And like in every other civil case, questions of liability should not be resolved by a court at an evidentiary hearing on a motion. They should be decided by either summary judgment or trial.

II. FACTS

On or about October 24, 2005 Hurricane Wilma caused damage to Plaintiffs’ home which resulted in a “loss” that was reported to their insurance carrier — Defendant Tower Hill Preferred Insurance Company (“Tower Hill”). Tower Hill adjusted the loss, acknowledged coverage, and issued two payments to the insured totaling approximately $30,000.00. The insureds spent these funds on repairs that were completed in 2007. Over three years later — on December 29, 2010 — they asserted that Tower Hill had not paid enough to complete the repair of all damaged property, and requested that their claim be “re-opened” and submitted to appraisal.

According to Tower Hill, Plaintiffs are not entitled to an appraisal because with regard to this “supplemental” claim they failed to comply with three post loss obligations; to wit: (1) the obligation to provide “prompt notice”; (2) the obligation to “keep an accurate record of repair expenses”; and (3) the obligation to provide the carrier with “records or documents” it requests. Policy, p. 9. These failures — according to Tower Hill — deprive the insured of what would otherwise be its right to insist upon the appraisal process mandated by the policy.

Plaintiffs disagree. First, on the issue of “prompt notice,” they insist that this contractual duty is satisfied upon providing timely notice of the initial claim, and that once this notice has been given an insured is under no obligation to provide “prompt notice” of later discovered losses or “supplemental” claims — a contention that has been accepted by two federal district courts. See Oriole Gardens Condominiums, III v. Indep. Cas. & Sur. Co., 11-60294-CIV, 2012 WL 718803 (S.D. Fla. 2012); Cypress Chase Condo. Ass’n A v. QBE Ins. Corp., 10-61987-CIV, 2013 WL 1191413 (S.D. Fla. 2013).¹

As for the other alleged failures, Plaintiffs claim that they complied — or at least substantially complied — with their post loss duty to “keep an accurate record of repair expenses,” and “provide [Tower Hill] with records documents requested.” Policy, p. 9. Id. They also insist that even if compliance was less than perfect, Tower Hill must prove that it suffered prejudice — an issue of fact for a jury. See State Farm Mut. Auto. Ins. Co. v. Curran, 135 So. 3d 1071 (Fla. 2014) [39 Fla. L. Weekly S122a].

Finally, plaintiffs maintain that in adjudicating a “Motion to Compel Appraisal” the only issue that the Court should address is whether the parties have a dispute as to the amount of the loss. If so, Plaintiffs insist that: (a) appraisal should be ordered; and (b) the coverage question of whether they failed to comply with post-loss obligations should proceed on a “dual track.” See Sunshine State Ins. Co. v. Rawlins, 34 So. 3d 753 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D888a].

III. ANALYSIS

The matter at hand is the latest in a seemingly endless line of cases where: (a) a homeowner seeks to compel an appraisal of a “loss” allegedly sustained due to a covered peril; (b) their property insurance carrier resists — and raises coverage defenses — based on the insured’s alleged failure to comply with certain post-loss cooperation obligations; and (c) the court is called upon to decide the order in which the liability (coverage) and damage (appraisal) issues will be addressed. See, e.g., Paradise Plaza Condo. Ass’n, Inc. v. Reinsurance Corp. of New York, 685 So. 2d 937 (Fla. 3d DCA 1996) [22 Fla. L. Weekly D73a]; U.S. Fid. & Guar. Co. v. Romay, 744 So. 2d 467 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D1963a]; Scottsdale Ins. Co. v. Univ. at 107th Ave., Inc., 827 So. 2d 1016 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D1373b]; Sunshine State Ins. Co. v. Rawlins, 34 So. 3d 753 (Fla. 3d DCA 2010)[35 Fla. L. Weekly D888a]; Sunshine State Ins. Co. v. Corridori, 28 So. 3d 129 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D289a]; Citizens Prop. Ins. Corp. v. Galeria Villas Condo. Ass’n, Inc., 48 So. 3d 188 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D2586a]; Citizens Prop. Ins. Corp. v. Michigan Condo. Ass’n, 46 So. 3d 177 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2369a]; Citizens Prop. Ins. Corp. v. Mango Hill Condo. Ass’n 12 Inc., 54 So. 3d 578 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D298a]; Citizens Prop. Ins. Corp. v. Gutierrez, 59 So. 3d 177 (Fla. 3d DCA 2011)[36 Fla. L. Weekly D484a]; United Prop. & Cas. Ins. Co. v. Concepcion, 83 So. 3d 908 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D511a] State Farm Florida Ins. Co. v. Cardelles, 159 So. 3d 239 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D504a]; State Farm Florida Ins. Co. v. Hernandez, 172 So. 3d 473 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D1433a]. Frankly, the Court is perplexed over the amount of judicial attention this benign procedural issue has commanded.

When presented with this obviously far too common dispute, our appellate court has made clear that “the order in which the issues of damages and coverage are to be determined respectively by arbitration [appraisal] and the court should be left within the discretion of the trial judge.” Paradise Plaza Condo. Ass’n, Inc. v. Reinsurance Corp. of New York, 685 So. 2d 937 (Fla. 3d DCA 1996)[22 Fla. L. Weekly D73a]. This is so even though “at first blush it would appear that coverage should be resolved by a court before the amount of a covered loss is determined by appraisal. . . .” Citizens Prop. Ins. Corp. v. Mango Hill Condo. Ass’n 12 Inc., 54 So. 3d 578 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D298a]. Despite the obvious logic of resolving coverage issues first, our appellate court has recognized that in some cases the most “contentious and significant issue is just the appraisable one of damages,” Paradise Plaza at 941, and that in these situations securing a “swift and informal decision by the appraisers as to the amount of the loss” at the outset might be the more prudent course. State Farm Fire & Cas. Co. v. Middleton, 648 So. 2d 1200, 1202 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D99b].

In this district a trial court therefore has the discretion to either: (a) have coverage issues decided first; (b) permit appraisal first; or (c) proceed with both on a “dual track basis.” Sunshine State Ins. Co. v. Rawlins, 34 So. 3d 753 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D888a]. In deciding how to exercise that discretion in a given case, the court should consider, among other things, the “costs involved and the relative importance and viability of the damages and the coverage issues, respectively”; the goal being to resolve the case as expeditiously and efficiently as possible. Paradise Plaza at 941. And sometimes what appears to be the logical “coverage first” rule might not be the most efficient way to proceed. Id.² Put simply, in a first party insurance dispute involving a policy with an appraisal clause, the trial court possesses the same discretion it has in any other breach of contract case. It may bifurcate issues of liability and damages or it may proceed forward on all issues together. Compare, Michigan Condo. Ass’n., supra (disagreeing with Rawlins “dual track” approach and holding that coverage issues must be resolved prior to appraisal).

While there is no doubt that the “order in which the issues of damages and coverage are to be determined by arbitration and the court is left to the discretion of the trial court,” Rawlins at 754, our appellate court also has bridled that discretion by holding that an appraisal may not be ordered if an insured has failed to comply with post-loss cooperation obligations, the reason being that:

No reasonable and thoughtful interpretation of the policy could support compelling appraisal without first complying with the post-loss obligations. If that were so, a policyholder, after incurring a loss, could immediately invoke appraisal and secure a binding determination as to the amount of loss. That determination, in turn, could be enforced in the courts. Under that framework, expressed and agreed-upon terms of the contract, i.e., the post-loss obligations, would be struck from the contract by way of judicial fiat and the bargained-for contractual terms would be rendered surplusage. There exists but one reasonable interpretation of the terms of the policy at issue here: The insured must comply with all of the policy’s post-loss obligations before the appraisal clause is triggered.

Romay, at 471. This is so because:

Until these conditions are met and the insurer has a reasonable opportunity to investigate and adjust the claim, there is no “disagreement” (for purposes of the appraisal provision in the policy) regarding the value of the property or the amount of loss. Only when there is a “real difference in fact, arising out of an actual and honest effort to reach an agreement between the insured and the insurer,” [Editor’s note: supscript “5” omitted] is an appraisal warranted.

Citizens Prop. Ins. Corp. v. Galeria Villas Condo. Ass’n, Inc., at 191. Or, in other words, until the insurer has been given a “reasonable” opportunity to investigate and adjust the claim, a demand for appraisal is not “ripe.” Mango Hill at 581. See also, Hernandez, supra (“[r]equiring that all post-loss obligations be satisfied before the trial court may exercise its discretion to compel appraisal is not only mandated by the case law, it also makes perfect sense”).

As one would expect, insureds and insurers rarely see eye to eye on the question of whether a case is “ripe” for appraisal. Instead, they typically dispute whether the insured has complied (or sufficiently complied) with the policy’s post-loss obligations. And “[w]here the insurer reasonably disputes such compliance and raises a question as to the sufficiency of the insured’s compliance with post-loss obligations, a question of fact is created that must be resolved by the trial court before compelling appraisal.” Concepcion, supra at 910. This of course requires an evidentiary hearing. Citizens Prop. Ins. Corp. v. Maytin, 51 So. 3d 591 (Fla. 3d DCA 2010) [36 Fla. L. Weekly D51b] (holding the trial court must conduct an evidentiary hearing to determine whether the insured complied with the policy’s post-loss condition).

A. The Scope of these Evidentiary Hearings

While there is no doubt that an “insured must comply with all of the policy’s post-loss obligations before the appraisal clause is triggered,” Romay at 471, a careful reading of precedent confirms that the factual issue to be decided is whether the carrier was provided “sufficient information from which to assess its insured’s claim.” Scottsdale Ins. Co. v. Univ. at 107th Ave., Inc., 827 So. 2d 1016 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D1373b]. As our appellate courts have recognized, the purpose of “the post-loss obligations is merely to provide the insurer with an independent means by which to determine the amount of loss, as opposed to relying solely on the representations of the insured.” Romay at 417, n 4. The question to be decided then is whether an insured has “sufficiently complied with the policy’s post-loss requirements,” such that the carrier has had “a reasonable opportunity to investigate and adjust the claim.” Mango Hill, at 582; see also Concepcion at 910 (“[w]here the insurer reasonably disputes such compliance and raises a question as to the sufficiency of the insured’s compliance with post-loss obligations, a question of fact is created that must be resolved by the trial court before compelling appraisal”).

What these decisions demonstrate is that compliance with post-loss cooperation clauses need be adequate — not perfect. But “ ‘sufficient compliance’ still requires that all post-loss obligations be satisfied before the trial court can properly exercise its discretion to compel appraisal.” Cardelles, 159 So. 3d at 241; Hernandez, 172 So. 3d at 477 (an insured who has not complied with their post-loss obligation was not entitled to an appraisal based on a finding that they had “sufficiently complied”). The question again is whether the carrier has had a fair opportunity to investigate the loss and “evaluate [the insured’s] claim for damages.” Scottsdale, at 1016. And when 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.” Sunshine State Ins. Co. v. Corridori at 131. But at the end of the day, if the carrier has been provided a fair opportunity to investigate and adjust the loss, and the parties still are unable to agree on value, a “disagreement” exists and the Court may exercise its discretion and order an appraisal before coverage issues are resolved.

B. The Entanglement with the Merits

While these general principles are easy to articulate, the problem is that a finding of non-compliance with post-loss cooperation clauses can have far reaching consequences beyond a denial (or deferral) of an appraisal. If an insured breaches post-loss obligations the carrier may be relieved of its “duty to make payment.” Edwards v. State Farm Florida Ins. Co., 64 So. 3d 730 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D1269a]. So if the Court — after conducting an evidentiary hearing — finds that the insured failed to comply with post-loss obligations does a judgment in favor of the carrier necessarily follow? Conversely, if the Court concludes that the insured’s compliance was sufficient to order an appraisal, has it not — as a practical matter — disposed of the carrier’s defense based upon non-compliance with the policy’s post-loss cooperation requirements? Or under either scenario does a jury get to revisit these issues de novo at a coverage trial.

Another unanswered question is whether the court should give the insured a second chance to comply if it finds that the post-loss obligations were breached. Such an opportunity to “mend its hold” was afforded the insured in Galeria Villas, when our appellate court reversed an order compelling appraisal and remanded “for what we anticipate will be complete and immediate cooperation by [the insured] in affording access to the property and the remaining records, and a prompt response to the claim by [the insurer] after its prompt investigation”). See also, Aguiar v. U.S. Fid. & Guar. Co., 748 So. 2d 343 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D2705a] (remanding with directions to permit the insured the opportunity “to satisfy the applicable pre-appraisal policy conditions” and thereafter pursue the merits). So does the Court conduct this hearing and then allow the insured a “do-over” if it finds that it has not sufficiently complied with post-loss obligations? Or does it find in the insurer’s favor on coverage and dismiss this case, as it would in any other contract claim when a plaintiff is unable to prove compliance with contractual conditions?

Another material yet unanswered question is whether the Court — at this evidentiary hearing — also must adjudicate the issue of prejudice. In cases involving an outright failure to give notice (or prompt notice) the presumption of prejudice afforded the carrier is admittedly difficult to overcome. See, e.g., 1500 Coral Towers Condo. Ass’n, Inc. v. Citizens Prop. Ins. Corp., 112 So. 3d 541 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D731b] (affirming summary judgment for insurer where there was no factual dispute that timely notice of the loss was not provided, and insured failed to overcome the presumption of prejudice); Hope v. Citizens Prop. Ins. Corp., 114 So. 3d 457 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D1230a] (insurer entitled to summary judgment when record “does not set forth evidence sufficient to rebut the presumption of prejudice. . . resulting from the homeowner’s delayed notice of loss”). But the insured is nevertheless entitled to try and rebut this presumption. Stark v. State Farm Florida Ins. Co., 95 So. 3d 285 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D1446a] (material issue of fact existed on question of which carrier was “prejudiced by the late notice from the insured’s”).

Moreover, in circumstances not involving a failure to provide notice (or prompt notice), but rather an alleged failure to comply with post notice cooperation clauses, the carrier has the burden of pleading and proving prejudice. See State Farm Mut. Auto. Ins. Co. v. Curran, 135 So. 3d 1071 (Fla. 2014) [39 Fla. L. Weekly S122a] (insurer had the burden of pleading and proving it suffered prejudice as a result of insured’s failure to attend a scheduled compulsory medical examination). Thus, in cases such as this, where an insured is alleged to also have failed to provide sufficient documentation, keep required records, or otherwise cooperate in the carrier’s post- notice investigation, the carrier must show that it has been prejudiced before it will be relieved of its contractual obligations.³

The question then is whether the issue of prejudice — or a lack thereof — is supposed to be tried at the “evidentiary hearing on the issue of the insured’s compliance with the insurance policy’s post-loss obligations.” Concepcion, supra at 910. Or does this Court decide only whether the insured sufficiently complied with the policy without regards to whether the insurer suffered any prejudice at all. On the one hand, absent a showing of prejudice one would logically conclude that the carrier has been afforded a reasonable opportunity to investigate and adjust the claim and, for this reason, the question of prejudice may be “built into” the substantial compliance inquiry. But our appellate courts have never held — or suggested — that these evidentiary hearings should address any issue other than the insured’s compliance or lack thereof. So if the Court finds that the insured failed to comply with its obligations — but the carrier has not been prejudiced because it was able to secure adequate information elsewhere and therefore investigate and adjust the claim — is the matter “ripe” for appraisal?

These significant unanswered questions raise the real question: why conduct these hearings in the first place? If the Court can decide the coverage issues on summary judgment, it will either find no coverage as a matter of undisputed fact (i.e., as a matter of law) and the appraisal issue will be moot, or it will find coverage as a matter of law and can then order an appraisal. If, however, coverage issues of “compliance,” “substantial compliance” or “prejudice” have to be decided based upon disputed material facts, why not simply empanel a jury and try those coverage (i.e., liability) issues first? If the jury — as the trier of fact — concludes that the insured complied (or substantially complied) with the policy, or that any non-compliance did not cause the carrier to suffer prejudice — the Court can then order the appraisal to determine the amount of the covered loss. And no appraisal is necessary if the jury finds in favor of the insurer.

When coverage (i.e., liability) issues raised by an allegation that an insured failed to comply with post-loss obligations are not susceptible to being decided on summary judgment, the Court sees no reason why it should conduct an evidentiary hearing in order to decide whether to exercise its discretion to proceed with a “dual track” appraisal. In this Court’s view, it makes far more sense to simply allow the parties to seek summary judgment on the coverage issues first and, if neither prevail, submit the coverage (i.e., liability) case to the jury and proceed to an appraisal (i.e., damages) if — and only if — the insured prevails. In other words, under these circumstances the Court sees no reason why it would not simply exercise its discretion to try the coverage issues (i.e., liability) first; the approach that is mandated in the Fourth District. See Michigan Condo. Ass’n., supra. Why would the Court put the parties through the time and expense of a damage trial (i.e., appraisal) if dispositive issues on liability (i.e., coverage) remain unresolved?

IV. CONCLUSION

This Court certainly has the discretion to order an appraisal before coverage issues have been decided (i.e., on a dual track) if the demand for appraisal is “ripe.” But it is never obligated to exercise that discretion. And in the Court’s view it makes no sense to conduct an evidentiary hearing on the merits in order to determine whether it may exercise the discretion to order an appraisal prior to a final resolution of coverage questions. The far more sensible protocol, in this Court’s opinion, is to first determine if the coverage issues are susceptible to adjudication short of trial. If they cannot be adjudicated short of trial, however, the Court sees no reason to allow an appraisal prior to those liability issues being decided, and it makes no sense whatsoever — at least to this Court — to hold an evidentiary hearing where the Court will usurp the province of the jury by deciding issues such as whether the insured has “complied” or “substantially complied” with the obligations imposed by the policy, and whether any non-compliance caused the insurer “prejudice”; particularly when the only point of this hearing is to decide whether the Court is permitted to exercise its discretion to proceed on a “dual track”; discretion it is never obligated to exercise. Rawlins, supra.

For this reason, the Court will employ the following procedure in this and similar cases. First, the Court will permit discovery on all coverage issues. The parties will then be given an opportunity to move for summary judgment on coverage. If the insurer secures summary judgment the matter will obviously be concluded. See, e.g., Edwards, supra; Hope, supra; 1500 Coral Towers Condo. Ass’n, Inc., supra. If the insured secures summary judgment on coverage an appraisal will then be ordered to determine the amount of the loss. See Johnson v. Nationwide Mut. Ins. Co., 828 So. 2d 1021 (Fla. 2002) [27 Fla. L. Weekly S779a].

In those cases where this Court concludes that a genuine issue of material fact exists on matters of coverage, it will simply exercise its discretion to try the coverage issues (i.e., liability) before entertaining any requests to compel an appraisal, as the Court sees no purpose in conducting an evidentiary hearing on a motion to compel an appraisal before coverage (i.e., liability) is established; a “mini-trial” that: (a) is undefined in scope; (b) will result in “findings” that may or may not be preclusive; (c) wastes party and judicial resources; and (d) encroaches upon the province of the jury.

Accordingly, it is hereby, ORDERED:

1. That Court’s March 4, 2016 Order Denying Plaintiffs’ Motion to Compel Appraisal is vacated.

2. The parties shall conclude discovery on all coverage matters within 60 days.

3. If either party believes the issue of coverage (i.e., the insured compliance with the policy’s cooperation obligation and resulting prejudice) is susceptible to resolution as a matter of undisputed fact (i.e., as a matter of law) they may file a motion for summary judgment on coverage.

4. If neither party moves for summary judgment on coverage, or if the Court denies all motions for summary judgment on coverage, all coverage issues will be tried prior to any appraisal. If the insured prevails on coverage an appraisal will then be ordered for purposes of ascertaining the amount of loss.

5. Plaintiffs Motion to Compel Appraisal at this time is DENIED.

__________________

¹The Court is not sure it agrees with these decisions, but the question of whether this policy requires an insured to provide “prompt notice” of a so-called “supplemental” claim seeking additional damages will be left for another day. The Court, however, rejects Tower Hill’s claim that State Farm Florida Ins. Co. v. Hernandez, 172 So. 3d 473 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D1433a] disposes of this issue.

²The insured’s claim that “the Third District Court of Appeal follows the dual track approach to resolve these types of issues” is grossly overstated. The Third District does not “follow” any particular approach. Rather, it leaves this question to the trial court’s discretion and permits a “dual track” when the appraisal issue is “ripe” prior to coverage questions being resolved.

³On that note the Court agrees with Plaintiffs that cases such as Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D1844a] are no longer viable after Curran. In this Court’s view, Curran clearly requires that an insurer plead and prove prejudice when it asserts a coverage defense based upon an insured’s failure to cooperate in the post-notice investigation or adjustment of a claim, regardless of whether the insured’s breach was a “total” or “partial” failure to comply. See Curran, supra (insurer required to plead and prove prejudice caused by insured’s outright refusal to attend a CME). And a breach of a post-notice cooperation provision is not the same as a failure to provide notice of a claim — a circumstance where the insurer is unable to timely investigate and thus enjoys a presumption of prejudice. Bankers Ins. Co. v. Macias, 475 So. 2d 1216 (Fla. 1985). The Court also believes that the terms “condition precedent” and “condition subsequent” to describe or categorize these obligations of cooperation are misnomers. Obligations to cooperate are neither “conditions precedent” nor “conditions subsequent” to the effectiveness of the policy; a contract that is formed is effective once issued. They are simply contractual “conditions precedent to payment,” Edwards at 732 — nothing more.