26 Fla. L. Weekly Supp. 45c
Online Reference: FLWSUPP 2601WATSInsurance — Homeowners — Coverage — Conditions precedent — Failure to comply — Dismissal required where insured failed to submit sworn proof of loss and failed to submit to requested examination under oath
IRMA WATSON, Plaintiff, v. HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 16-3269 COCE (53). April 2, 2018. Robert W. Lee, Judge. Counsel: Jennifer Jimenez, Coral Gables, for Plaintiff. Jordan E. Goldfarb, Miami Lakes, for Defendant.
ORDER GRANTING DEFENDANT’S AMENDEDMOTION FOR SUMMARY FINAL JUDGMENT
THIS CAUSE came before the Court on March 26, 2018 for hearing of the Defendant’s Amended Motion for Final Summary Judgment, and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
In this case involving water damage, the Plaintiff has brought suit for property damage suffered as a result of a dishwasher leak. The Defendant insurer has moved for summary judgment, claiming that the Plaintiff failed to comply with conditions precedent to coverage, i.e., submitting a sworn proof of loss and submitting to a requested examination under oath. The loss in this case occurred on April 7, 2014. On at least three occasions shortly thereafter — April 16, April 30 and May 22 — the insurer requested that the Plaintiff submit a sworn proof of loss. The Plaintiff did not do so. Thereafter, similarly on at least three occasions — June 27, October 30 and November 26 — the insurer requested that the Plaintiff appear for an examination under oath. As with the sworn proof of loss, the Plaintiff failed to comply. More than a year later, the lawsuit was filed on February 9, 2016.
Under the insurance policy, the insured had a 60-day deadline to submit a sworn proof of loss after it was requested. The requirement to submit to an examination under oath has no specific deadline, although the policy provides that it must be done “[a]s often as [the insurer] reasonably requires.”
The Defendant contends that compliance with both requirements is a condition precedent to coverage. On the other hand, the Plaintiff urges that these requirements are merely conditions subsequent to coverage, which require a showing of prejudice. The Defendant is correct. However, even if the Plaintiff were correct, the Court notes that the Plaintiff failed to file a reply asserting lack of prejudice or waiver as avoidances to Defendant’s affirmative defenses. Moreover, the Plaintiff does not argue, neither did she plead, that she was unable to appear on the requested dates of examination which might plausibly tie into an argument that the insurer’s conduct in requiring an examination on the selected dates was not reasonable.
Florida law has long held that when an insurer policy requires submission of a sworn proof of loss or submission to an examination under oath, the failure to do so eliminates the right to recover under the policy. See Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300, 304-06 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D1844a]. While the Florida Supreme Court later recognized that submission to a compulsory medical examination is a condition subsequent rather than a condition precedent to coverage, the high court did not extend its holding to sworn proofs of loss or examinations under oath. Indeed, the Florida Fourth District Court of Appeal has recognized the continuing vitality of the holding in Goldman. See Studio Imports, Ltd. v. Landmark American Ins. Co., 179 So.3d 425, 425 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D2550b]; Hunt v. State Farm Fla. Ins. Co., 145 So.3d 210, 211 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D1762b]; Rodrigo v. State Farm Fla. Ins. Co., 144 So.3d 690, 692 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D1760a]. If requested, these conditions must be met before suit is filed. See Hunt, 145 So.3d at 212.
The Plaintiff argues that even if these requirements are conditions precedent to coverage, Plaintiff offered to comply on January 16, 2015. See Goldman, 660 So.2d at 305 (because forfeitures are disfavored in the law, belated compliance may be excused if it satisfies the “spirit [and] intent of the policy conditions at issue”). The Court is not persuaded because clearly the Plaintiff had the means to belatedly comply with the sworn proof of loss requirement — she was sent the form three times, and she could have submitted it late. She can hardly be heard to argue that her tardiness should be excused when she never submitted the form. So even if it could be argued that she was willing to belatedly sit for an examination under oath, which in any event her letter of January 16, 2015 does not specifically mention, her failure to submit the sworn proof of loss, standing on its own, results in an elimination of coverage.
More troubling to the Court, however, is Plaintiff’s attempt to avoid summary judgment by submitting letters and email chains as “summary judgment evidence” that are in reality settlement negotiations. Clearly, these documents would be inadmissible at trial and cannot be used to thwart summary judgment. See Rule 1.510(e). Additionally, although ultimately not necessary to the Court’s decision in this case, the Defendant has some support for its contention that the email relied on by Plaintiff that purports to waive the EUO requirement has been doctored to eliminate the reply email in which the Defendant responds forcefully that it is not waiving the EUO. In its Motion to Strike the Plaintiff’s affidavit on this ground, the Defendant argues that the filing of the incomplete email is a violation of Rule 1.510(g), and as a result, the Defendant seeks mandatory sanctions under the Rule. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment is GRANTED. Here, the Plaintiff failed to preserve its arguments by not setting them forth as avoidances to the Defendant’s affirmative defenses. However, even if this procedural bar did not exist, the undisputed material facts demonstrate that the Plaintiff failed to comply with conditions precedent to coverage. The Defendant shall submit its proposed judgment to chambers. The Court reserves jurisdiction to consider the Defendant’s request for sanctions.
