26 Fla. L. Weekly Supp. 97a

Online Reference: FLWSUPP 2602ZABAInsurance — Homeowners — Final summary judgment is entered in favor of insurer on claim for supplemental hurricane damage where insured failed to comply with post-loss obligations to provide notice of loss and keep repair records — Insured’s initial notice of loss did not satisfy post-loss obligation to give immediate notice of alleged additional damage to property — Insurer was prejudiced by failure to give notice of alleged supplemental damage where insured claims to have repaired damage without maintaining any photographs of damage or record of repairs before giving notice to insurer, thereby depriving insurer of any ability to investigate claim

MARIA ZABALA, Plaintiff, v. CITIZENS PROPERTY INSURANCE COMPANY, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County, Circuit Civil Division. Case No. 16-11020 CA (22). April 25, 2018. Michael Hanzman, Judge. Counsel: David Noel, Link & Rockenbach, P.A., West Palm Beach. J. Bruno de la Fuente, Alvarez, Feltman & Da Silva, PL, Coral Gables.

FINAL SUMMARY JUDGMENT

INTRODUCTION

This Court is the latest to encounter a so-called “supplemental” first party property insurance claim seeking to recover additional damages “discovered” after (in some cases long after) an insured first reported — and the insurer adjusted and paid — a claim for loss caused by Hurricane Wilma. See, e.g., Ocean View Towers Ass’n, Inc. v. QBE Ins. Corp., 11-60447-CIV, 2011 WL 6754063 (S.D. Fla. Dec. 22, 2011); Oriole Gardens Condominiums, III v. Indep. Cas. & Sur. Co., 11-60294-CIV, 2012 WL 718803 (S.D. Fla. Mar. 6, 2012); Cypress Chase Condo. Ass’n A v. QBE Ins. Corp., 10-61987-CIV, 2013 WL 1191413 (S.D. Fla. Mar. 22, 2013); Biscayne Cove Condo. Ass’n v. QBE Ins. Corp., 971 F. Supp. 2d 1121 (S.D. Fla. 2013); Linares v. Universal Prop. & Cas. Ins. Co., 141 So. 3d 719 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D1394a]; Rizo v. State Farm Florida Ins. Co., 133 So. 3d 1114 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D297a]; State Farm Florida Ins. Co. v. Hernandez, 172 So. 3d 473 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D1433a]; State Farm Florida Ins. Co. v. Fernandez, 211 So. 3d 1094 (Fla. 3d DCA 2017) [42 Fla. L. Weekly D407b]. Like the insured in each of these cases, the Plaintiff here — Maria Zabala (“Plaintiff” or “Zabala”) — says that although her initial Hurricane Wilma claim was adjusted and paid over a decade ago, “[s]ometime later I became aware that the damages sustained to my Property, and the necessary repairs,. . . were significantly greater than the damage evaluated in 2005.” Zabala Affidavit, ¶ 8. Through this action she seeks to recover these “significantly greater” damages.

Defendant, Citizens Property Insurance Corp. (“Defendant” or “Citizens”), moves for final summary judgment, insisting that Plaintiff: (a) failed to provide “prompt notice” of the “additional damages purportedly caused by Hurricane Wilma”; (b) failed to keep and provide adequate documentation “establishing the cause and date of loss for the additional claimed Hurricane Wilma damages”; and (c) failed to show the property allegedly damaged. For reasons explained below, the Court agrees on two of these points and grants Final Summary Judgment in Citizens’ favor.

UNDISPUTED MATERIAL FACTS

Zabala is a named insured under a Citizens’ Dwelling Wind Only Policy (no. 155628) that was in effect for the period of October 20, 2005 to October 20, 2006. On November 17, 2005, she made a claim for damages to her home caused by Hurricane Wilma on October 24, 2005. Citizens inspected the property on January 3, 2006, and confirmed damages to a patio cover and metal shed. The carrier estimated the amount of damages at $3,661.01 — subtracted the $2,700.00 hurricane deductible — and paid Zabala the difference — $961.01. It then closed its file.

Approximately five-and-half years later, on August 30, 2011, Citizens received a letter from a public adjuster — Claimserve — advising that: (a) the insured “has requested — as afforded by the policy — appraisal to [sic] the above captioned matter”; and (b) the insured had designated Tony Quintana — Claimserve’s principal — as her “named appraiser.” No further information was provided, and no documentation supporting this “supplemental” claim was attached. Citizens responded on September 13, 2011, advising that “[b]ased on a review of this claim file, we have determined that this claim is not eligible for appraisal at this time. Further investigation and documentation are required to support this newly reported claim for additional damage. Once all post loss conditions have been met and this file is determined to be eligible for appraisal, we will have our appraiser contact you.” Citizens also advised Zabala that it was not waiving “any rights or defense. . . under its policy of insurance. . . or any of the policy terms and conditions. . . .”

On that same date (September 13, 2011), Citizens also sent another correspondence, advising that “[d]ue to the extended period of time that has elapsed” [since it paid the initial claim] its rights “may have been substantially prejudiced” and it would be “necessary for Citizens to conduct an investigation to determine coverage for any additional damages presented, under a full reservation of rights.” Citizens then requested “information which may allow us to evaluate and determine coverage for the additional amounts being claimed,” including a “Sworn Statement in Proof of Loss”; “a written explanation from you as to why the additional damages being claimed have gone unreported to Citizens until now”; and additional “supporting paper or electronic records, including”: (a) all photographs or videos of the damages; (b) all documents related to repairs made, including estimates, contracts, cancelled checks, building permits, etc. . . .; (c) all correspondence and contracts with any public adjuster or appraiser; and (d) all documents which identify the dates the damage to the property “first manifested itself.” The letter advised Zabala of “Your Duties After Loss,” and that compliance with those duties was a “condition precedent to further evaluation of this claim.”

On November 7, 2011, Claimserve sent to Citizens a “Sworn Statement in Proof of Loss” signed by Zabala. It claimed a loss of $50,180.00 (minus deductible) and advised that “no receipts [were] available at this time” because “[a]s you know, due to the proximity of the two noted occurrences [none were specified] and the widespread extent of the damages to the South Florida area, many insureds were left with securing laborers and/or companies which required cash payments in order for the insured to temporarily/permanently repair, protect and/or mitigate damage to their properties.” This “justification” for an absence of documentation therefore suggested that Zabala was now seeking reimbursement for repairs that had already been completed, and that those repairs were done shortly after (i.e., in proximity to) the storm.

Two days later (November 9, 2011), Citizens again reminded Zabala that her policy required her to “keep an accurate record of repair expenses,” and again requested “a written explanation from you that details the basis of the dispute and. . . why the dispute and request for additional coverage has gone unreported to Citizens for more than five years and eleven months.” When that information was not forthcoming Citizens denied the claim, advising that:

Your failure to comply with the post loss conditions of the policy, including, but not limited to, not providing Citizens with prompt notice of this claim for additional damage; the absence of documentation to support that any additional damage to the insured property resulted from the purported occurrence or that the cost of repairs exceeded Citizens’ estimate of damages; all have substantially prejudiced the rights of Citizens. As such, Citizens denies this claim for additional damages and declines to submit this claim to the appraisal process.

See January 10, 2012 correspondence (mis-dated as Jan. 10, 2011).

On April 29, 2016, over four years after Citizens denied her “supplemental claim” — and over a decade after Wilma caused damage to her home — Zabala filed suit for breach of contract, alleging that Citizens had failed to: (a) comply with the policies appraisal clause; (b) acknowledge or deny that further payment would be forthcoming; “and/or” (c) make any further payment of insurance proceeds to Plaintiff. Citizens denied liability and asserted — as affirmative defenses — Zabala’s non-compliance with the post-loss conditions of the policy.

On March 1, 2017, Citizens deposed Zabala. When asked which areas of her home were “damaged by Hurricane Wilma,” she testified that “[i]ts been such a long time that I don’t remember very well.” Depo, pp. 16-17. She then attempted to identify “[w]hat had to be repaired,” first pointing out that “it’s been a long time.” She was nonetheless able to recall that she had repaired the roof over the “actual home,” damages “on the walls” and “rear porch,” and “moisture on the ceiling.” Depo, pp. 16-18. Zabala was then asked why “there was a gap in time of over five-and-half years between the time that Citizens” paid the initial claim and Claimserve August 2011, letter. She answered “I don’t remember.” Nor could she “remember” whether she had repaired any damages to the home during that almost six (6) year gap. Depo, p. 32. She also confirmed that she had no documentation reflecting any repairs of the property “between January 2006 and August of 2011.” Depo, p. 32. And because “it’s just that it was such a long time” ago, she could not remember what repairs were actually done; “who did the repairs,” or “how much [she] paid for the repairs.” Depo, pp. 32-34. Nor did she keep records “for these repairs,” Depo, p. 35, despite acknowledging that she had received “work estimates, proposals and receipts.” Depo, p. 38. She just “didn’t keep them.” Depo, p. 38. Nor did she have any photographs/videos or other documentation of the repairs. Depo, pp. 37-38.

Simply put, Zabala could not remember what was done, who did it, or how much she paid in “cash for all the repairs.” Depo, p. 38. She also at some point possessed — but admittedly failed to keep — relevant documentation. And she candidly acknowledged that Citizens “would have been in a better position to investigate the claim” had she kept — and provided it with — proper documentation. Depo, p. 46. Finally, she confirmed that all damage to her home caused by Wilma “has been repaired.” Depo, p. 49. It is therefore beyond dispute that what Zabala seeks to recover here are the “expenses” she claims to have already incurred in making repairs — not the cost of repairs that remain to be done.

Like virtually all homeowner’s policies, the contract at issue here required the insured to provide “prompt notice” in case of a loss to covered property. The insured — while permitted to make “reasonable and necessary repairs to protect the property” — also was required to “keep an accurate record of repair expenses.” The insured was also contractually obligated to “show [Citizens] the damaged property” as “often as [it] reasonably required[d].” See Policy, p. 17 (“Your Duties After Loss”). This contractually mandated claim protocol is straightforward, and an insured does not need the assistance of the proverbial “Philadelphia Lawyer” to comprehend it or comply. Hartnett v. S. Ins. Co., 181 So. 2d 524 (Fla. 1965).

GOVERNING LAW

The legal principles to be applied here are well settled. Like any contract, an insurance agreement is “construed in accordance with the plain language of the policy as bargained for by the parties.” Fayad v. Clarendon Nat. Ins. Co., 899 So. 2d 1082 (Fla. 2005) [30 Fla. L. Weekly S203a]; Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 33 (Fla. 2000) [25 Fla. L. Weekly S211a]. Furthermore, to the extent any ambiguity exists, the carrier — as the writer of the contract — “is bound by the language of the policy, which is to be construed liberally in favor of the insured and strictly against the insurer.” Washington Nat. Ins. Corp. v. Ruderman, 117 So. 3d 943 (Fla. 2013) [38 Fla. L. Weekly S511a]; St. Paul Fire & Marine Ins. Co. v. Llorente, 156 So. 3d 511 (Fla. 3d DCA 2014) [40 Fla. L. Weekly D67a]. It also is well settled that the interpretation of an insurance contract presents a question of law because: (a) the interpretation of an unambiguous contract provision raises no factual dispute; and (b) even if the relevant provision is found to be ambiguous (i.e., susceptible to more than one reasonable interpretation) the ambiguity is to be construed against the insurer and in favor of coverage. See Penzer v. Transp. Ins. Co., 29 So. 3d 1000 (Fla. 2010) [35 Fla. L. Weekly S73a]; Stuyvesant Ins. Co. v. Butler, 314 So. 2d 567 (Fla. 1975); Jones v. Utica Mut. Ins. Co., 463 So. 2d 1153, 1157 (Fla. 1985). Consideration of extrinsic evidence is a rare matter of last resort to be employed only when an ambiguity cannot be resolved without “outside aid.” Friedman v. Virginia Metal Products Corp., 56 So. 2d 515, 517 (Fla. 1952).

In construing the policy the Court should read it “as a whole, endeavoring to give every provision its full meaning and operative effect,” and the contract should receive a construction that is “reasonable, practical, sensible, and just.” See Gen. Star Indem. Co. v. W. Florida Vill. Inn, Inc., 874 So. 2d 26, 29 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1070b]. But “[i]f the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the [other] limiting coverage, the insurance policy is considered ambiguous,” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005) [30 Fla. L. Weekly S633a], and “any ambiguity which remains after reading the policy as a whole and endeavoring to give every provision its full meaning and operative effect must be liberally construed in favor of coverage and strictly against the insurer.” Ruderman, supra at 949-950.

Finally, the Court must be mindful that the insurer, as the drafter of its policy, is in the best position to construct the contract as it sees fit, and the Court’s task is to apply the parties’ contract as written, not “rewrite” it under the guise of judicial construction. Gulliver Sch., Inc. v. Snay, 137 So. 3d 1045 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D457a] (“[w]here contracts are clear and unambiguous, they should be construed as written, and the court can give them no other meaning”); Pol v. Pol, 705 So. 2d 51, 53 (Fla. 3d DCA 1997) [23 Fla. L. Weekly D75a] (“a court cannot rewrite the clear and unambiguous terms of a voluntary contract”). The Court’s duty is to simply apply the terms of the insurance agreement as they would be understood by the “man-on-the-street.” State Farm Fire & Cas. Co. v. Castillo, 829 So. 2d 242 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D1845a].

ANALYSIS

Prompt Notice

As the first ground advanced in support of its request for summary judgment, Citizens urges that Plaintiff obviously did not give “prompt notice” of her claim for “additional damages” and — as a result — it was undeniably prejudiced. This is so — says Citizens — because the record is undisputed that Plaintiff “discovered” these additional damages, and proceeded to repair them, without giving Citizens any notice whatsoever, thereby depriving Citizens of any opportunity to investigate.

Conceding that she did not give Citizens “prompt notice” (or any notice) of this “supplemental” claim prior to demanding appraisal, Plaintiff insists that the initial notice provided shortly after the storm satisfied her obligation under the policy, and that no further notice — “prompt” or otherwise — of a “supplemental” damage claim was required. Put another way, Plaintiff says that the policy requires only one “notice” per occurrence. So an insured who “discovers” additional damage they claim compensable under the policy is not required to again give the carrier “prompt notice” of this additional claim no matter how much later the damage is discovered; when it is discovered, or the extent of this additional damage. This is so — says Plaintiff — because the claim is only “supplemental.” Some courts in the Southern District of Florida have accepted that argument. See, e.g., Ocean View Towers, supra; Oriole Gardens, supra; Cypress Chase Condo, supra. One has not. See Rodriguez v. Liberty Mut. Fire Ins. Co., 16-21926-CIV, 2017 WL 838633 (S.D. Fla. Mar. 2, 2017) (plaintiff who waited almost ten (10) years to report supplemental claim violated “prompt notice” provision as a matter of law). And while no Florida appellate court has addressed the issue head on, two recent decisions from the Third District do at least suggest that an insured is required to give “prompt notice” of a so-called “supplemental” claim. See State Farm Florida Ins. Co. v. Hernandez, 172 So. 3d 473 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D1433a] (the record reflects that “Hernandez did not provide immediate notice. . . of the claimed supplemental loss”); State Farm Florida Ins. Co. v. Fernandez, 211 So. 3d 1094 (Fla. 3d DCA 2017) [42 Fla. L. Weekly D407b] (. . .the insureds failed to comply with all of their post-loss obligations by failing to: give immediate notice of the alleged additional damage to their property. . .”).

It is undeniable that “[t]he purpose of a provision for notice and proofs of loss is to enable the insurer to evaluate its rights and liabilities, to afford it an opportunity to make a timely investigation, and to prevent fraud and imposition upon it.” State Farm Mut. Auto. Ins. Co. v. Ranson, 121 So. 2d 175, 180 (Fla. 2d DCA 1960), overruled in part on other grounds, Am. Fire & Cas. Co. v. Collura, 163 So. 2d 784 (Fla. 2d DCA 1964). See also Ideal Mut. Ins. Co. v. Waldrep, 400 So. 2d 782, 786 (Fla. 3d DCA 1981) (insured’s extended delay in reporting loss deprived insurer of its right “to notice and an opportunity to eliminate or reduce its loss”). And when an insured fails to give timely notice of a loss, and thereby deprives the carrier of the ability to “make a timely investigation,” prejudice is presumed. Ranson, supra; Bankers Ins. Co. v. Macias, 475 So. 2d 1216 (Fla. 1985); 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] (“[f]ailure to give timely notice creates a presumption that the insurer was prejudiced”).

Those federal courts that have accepted the argument that no notice (“prompt” or otherwise) of a “supplemental” damage claim is required have concluded either: (a) that the provision requiring “prompt notice” can only be triggered once per a covered occurrence; or (b) that the policies were at least ambiguous on the question and, as a result, had to be construed against the carriers. See, e.g., Oriole Gardens, supra (the clause requiring the insured to provide “prompt notice” of the loss was ambiguous as to “whether [the insured’s] duty to notify pertains only to the initial claim, or also imposes a time limit on supplementing its claim”); Cypress Chase, supra (plaintiff provided written notice of loss within forty-eight hours of storm, and hence satisfied its obligation to provide QBE prompt notice of its claim. Thus, plaintiff was not required to provide notice of a supplemental claim submitted nearly five years later). This Court respectfully disagrees.

First, these policies — as plainly written — require that the insured provide “prompt notice” of loss or damage. Nothing limits this “duty” to only an “initial claim,” never to rear its head again no matter what type of “damage” is later discovered; how much “later” that “discovery” occurs; where the “additional damage” is located; or what the scope of the “additional damage” is. To the contrary, the plain language of the policy entitles the insurer to “prompt notice” of any claim for “loss” or “damage” allegedly covered. Furthermore, an “interpretation” that limits the insured’s obligation to only the initial claim leads to an absurd result, as such a tortured reading of the policy allows an insured to “discover” additional damages years after the initial adjustment process is concluded — undertake repairs without providing any notice to the carrier — and then simply file suit demanding reimbursement, thereby depriving the insurer of any opportunity to view the claimed damage — assess whether it was likely caused by a covered peril — and investigate what would reasonably be required to correct the problem. In other words, this “interpretation” sanctions an insurer being unilaterally divested of any right to “evaluate its rights and liabilities” or to “prevent fraud and imposition upon it.” Ranson, supra. Such a result is, in the Court’s opinion, patently absurd. See Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 732 (Fla. 2002) [27 Fla. L. Weekly S492a] (an insurance policy should receive a construction that is reasonable and just, and not one that would reach a strained or absurd result).

On the other hand, applying the “prompt” notice provision to all claims — both “initial” and “supplemental” — does no more than enforce the expectations of the contracting parties and apply the contract as it is supposed to work. An insured who “discovers” considerable “additional damage” allegedly caused by a covered peril reported years earlier simply has to provide the carrier with “prompt” notice of this “discovery,” thereby affording the insurer precisely what it bargained for, the right to investigate the claim in order to see the damage — assess whether it was caused by a covered peril — and consider repair/replacement options. Put another way, construing the policy — as written — and requiring “notice” of any claim, is the only construction that is — in this Court’s view — “reasonable, practical, sensible, and just.” Gen. Star Indem., supra at 29.

This case amply illustrates exactly why the “prompt notice” requirement should apply not only to an “initial” claim, but also to claims for “additional” damages later discovered. Here, the record is unclear as to exactly when Plaintiff made her “discovery.” Her affidavit says only that it was “sometime” after the claim was first adjusted. The record is clear, however, that Zabala undertook repairs she cannot specifically recall, and paid cash to third parties she cannot identify. She also kept no records. And she gave Citizens no notice whatsoever of the additional claim prior to demanding appraisal. Citizens therefore had no opportunity to view the damages — determine the likely “cause” of this additional loss — or have input into the repair process. These are the very rights the “prompt notice” provision is intended to safeguard. Yet acceptance of the premise that the “prompt notice” provision can only be triggered once per occurrence would allow Plaintiff (and encourage other insureds) to deprive the carrier of its right to investigate “additional” claims. This result should not be judicially encouraged or sanctioned. Rather, insureds who “discover” additional damage they believe is covered by their policy should be required to comply with the contract by giving the carrier “prompt notice” of their “discovery” and resulting “additional” claim, thereby affording the insurer its right to investigate. See Rodriguez, supra.¹

This Court obviously understands that any ambiguous provision in an insurance contract must be interpreted liberally in favor of the insured, and strictly against the insurer as drafter of the policy. Stuyvesant Ins. Co. v. Butler, 314 So. 2d 567 (Fla. 1975). But a contractual provision is not ambiguous “simply because the litigants ascribe different meanings to the language employed — something that occurs every time the interpretation of a contract is litigated.” City of Pompano Beach v. Beatty, 222 So. 3d 598, 600, n. 1 (Fla. 4th DCA 2017) [42 Fla. L. Weekly D1556a]. Rather, a true ambiguity exists only when the language at issue “is reasonably susceptible to more than one interpretation.” Lambert v. Berkley S. Condo. Ass’n, Inc., 680 So. 2d 588, 590 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D2015a]. And in this Court’s view the “prompt notice” provision of the policy at issue here cannot “reasonably” be interpreted to require notice of only the initial claim, regardless of how much “additional damage” is later discovered — when it is discovered — where it is discovered — and how long after the initial adjustment this later “discovery” occurs. Such an interpretation would — in the Court’s opinion — frustrate the entire purpose of the “prompt notice” provision and eviscerate the claim processing protocol compelled by a plain reading of the policy.

Zabala admittedly provided Citizens with no notice prior to undertaking repairs. That was a violation of the contract’s “prompt notice” provision and “a legal basis for the denial of recovery under the policy.” Waldrep, supra at 785, citing Boyd v. Pennsylvania Nat. Mut. Cas. Ins. Co., 195 So. 2d 259 (Fla. 4th DCA 1967). The only question, then, is whether a genuine issue of material fact exists on the issue of whether this breach resulted in prejudice to Citizens. See, e.g., LoBello v. State Farm Florida Ins. Co., 152 So. 3d 595 (Fla. 2d DCA 2014) [39 Fla. L. Weekly D1273c] (“[t]he 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. The first step in the analysis is to determine whether or not the notice was timely given. If the notice was untimely, then prejudice to the insurer is presumed. However, the presumption of prejudice to the insurer ‘may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice,’ ” internal citations omitted).

It is difficult to envision how an insured could possibly rebut the presumption of prejudice in a case — such as this — where: (a) no notice was provided at all prior to making a demand for appraisal/payment; and (b) repairs were already undertaken and completed. In such a case, the carrier has been deprived of any ability to “investigate,” and the Court does not see how that obvious prejudice could ever be “rebutted,” as an “investigation by hindsight” cannot be conducted post-repair; particularly in a case — again such as this — where no documentation showing the “condition” of the property pre-repair exists, and no repair records were kept.

In any event, Citizens enjoys a presumption of prejudice, and has presented evidence of prejudice. Plaintiff has not rebutted (or even attempted to rebut) either. Rodriguez, supra (plaintiffs “have not tried to overcome the presumption or put forth evidence that Liberty Mutual was not prejudiced” by failure to give “prompt notice” of supplemental claim). See also State Farm Florida Ins. Co. v. Hernandez, 172 So. 3d 473, 478 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D1433a] (“[t]he prejudice to State Farm in the instant case demonstrates the prejudice that necessarily flows to the insurer when the insured fails to comply with his post-loss obligations. State Farm has been denied a meaningful opportunity to investigate Hernandez’s supplemental claim to determine if the claimed losses were, in fact, based on damages as opposed to the owner’s mere desire to renovate his home. Further, if the claimed losses were based on actual damages to the house, State Farm did not have the opportunity to investigate whether the damages were as a result of Hurricane Wilma, negligence by Hernandez, negligence by the roofer who installed the new roof, or due to some other cause”).

The Failure to Keep Records

Aside from the notice issue, it also is undisputed that Plaintiff breached her obligation to keep and maintain records of her repairs, including estimates, invoices, and receipts for cash payments. This also constitutes a basis for summary judgment when: (a) Citizens has come forth with facts showing it was prejudiced; and (b) Plaintiff has not created a genuine issue of material fact on the question. See State Farm v. Fernandez, supra; (reversing order compelling appraisal where record “reflects that the insured failed to,” among other things, “provide State Farm with any of the requested records and documents to support their supplemental claim”); Edwards v. State Farm Florida Ins. Co., 64 So. 3d 730 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D1269a] (insurer “entitled to judgment as a matter of law” due to insured’s failure to comply with policy condition requiring maintenance of records).

The Failure to Show the Property

The Court denies Citizens’ motion to the extent it is based upon an alleged failure to permit inspection of the property, as Citizens — which had no “notice” of the claim prior to receiving Plaintiff’s demand for appraisal — obviously could not — and did not — request an inspection prior to the repairs being performed. Thus, no such request was rejected.

CONCLUSION

The bottom line here is that Plaintiff allegedly discovered “additional damages” years after her claim was adjusted. Instead of providing Citizens “prompt notice” of her “discovery” — as plainly required by the policy — she elected to: (a) give the insurer no notice whatsoever; (b) undertake repairs on her own; (c) pay cash for the repairs; and (d) discard all documentation supporting the scope of the work done and the amounts charged/paid. She therefore completely deprived Citizens of any opportunity to: “(1) investigate the claim; (2) defend the claim; or (3) mitigate damages. . .” Rodriguez, supra. The presumed prejudice that “necessarily flow[ed]” to Citizens is obvious, and no genuine issues of material fact has been raised on the question of whether Citizens actually suffered that obvious “prejudice.” Hernandez, supra. Citizens is therefore entitled to Final Summary Judgment.

For the reasons set forth herein, it is hereby ORDERED:

1. Citizens Motion for Final Summary Judgment is GRANTED. This case is dismissed with prejudice and Plaintiff shall go hence without day.

2. The Court reserves jurisdiction to address any authorized post judgment motions including, but not limited to, motions for attorney’s fees and costs.

__________________

¹Such notice would be required once the “additional damage” is discovered and a reasonable insured would conclude that potential coverage is implicated. See, e.g., Vision I Homeowners Ass’n, Inc. v. Aspen Specialty Ins. Co., 674 F. Supp. 2d 1333, 1338 (S.D. Fla. 2009) (“the duty to provide notice arises when a reasonable person, viewing all available facts and information, would conclude that an award implicating the policy is likely”).