26 Fla. L. Weekly Supp. 93a
Online Reference: FLWSUPP 2602BEEBInsurance — Homeowners — Coverage — Conditions precedent — Insurer not entitled to summary judgment based on its affirmative defenses that plaintiff failed to comply with conditions precedent to suit, including filing of sworn proof of loss and immediate notice of loss, where genuine issue of material fact exists as to whether material breach occurred and whether insurer, that denied coverage on basis that residence did not sustain functional hail damage, was prejudiced
NOLAND’S ROOFING, INC., a/a/o Katherine Beebe, Plaintiff, vs. STATE FARM FLORIDA INSURANCE COMPANY, Defendant. Circuit Court, 5th Judicial Circuit in and for Lake County. Case No. 35-2016-CA-001744. February 15, 2018. Heidi Davis, Judge. Counsel: Katie S. Monroe, Hale, Hale & Jacobson, P.A., Orlando, for Plaintiff. Andrew Gorman, Mimi L. Smith & Associates, Orlando, for Defendant.
ORDER ON DEFENDANT’SMOTION FOR SUMMARY JUDGMENT
THIS CAUSE, came on for consideration on Defendant’s Motion for Final Summary Judgment, Motion for Judicial Notice, and Memorandum of Law (“Motion,”) filed on June 22, 2017. The Court has considered the Motions and applicable responses, the relevant statutory authority and case law, and has been otherwise fully advised.
A. FACTS & PROCEDURAL HISTORY
On October 11, 2016, Plaintiff filed a two count complaint largely centered on an alleged breach of contract claim.
On June 22, 2017, Defendant filed the Motion which is the subject matter of this Order.
On May 11, 2017, Defendants filed the Motion which is the subject matter of this Order. In pertinent part it argues that Plaintiff failed to comply with a condition precedent before filing suit.
On January 23, 2018, Plaintiff filed a response to Defendant’s Motion for Summary Judgment (“Response”).
On January 30, 20 8 this Court held a hearing on the Motion and Response. This Order is a rendition of this Court’s ruling.
B. LEGAL STANDARD
Summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. See Fla. R. Civ. P. 1.510(c); Menendez v. Palms West Condominium Ass’n, 736 So. 2d 58 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D1317a]. The burden of proof is on the party moving for summary judgment to prove a “complete absence of a triable issue of material fact, and the proof must be such as to overcome all reasonable inferences which could be drawn in favor of the” non-moving party. Aagaard-Juergensen, Inc. v. Lettelier, 540 So. 2d 224, 225 (Fla. 5th DCA 1989) citing Landers v. Milton, 370 So. 2d 368 (Fla. 1979). This is a steep burden as “all doubts regarding the existence of an issue in a motion for summary judgment are resolved against the moving party, and all evidence before the court plus favorable inferences reasonably justified thereby are to be liberally construed” in favor of the non-moving party. Id.
I. Because there is a genuine issue of fact, Plaintiff is not entitled to judgment as a matter of law:
The defense raised two issues; to wit: 1) State Farm has never been provided with a sworn proof of loss; 2) State farm was not immediately notified. The Court finds that both issues must be considered in light of prejudice to the defense as the Defendant denied coverage on the basis that the residence did not sustain functional hail damage. See, Castro v. Homeowners Choice Property & Casualty Ins. Co., 228 So. 3d 596 (Fla. 2d DCA 2017) [42 Fla. L. Weekly D1842a].
As is the case here, when there is a genuine issue of fact, the moving party is not entitled to judgment as a matter of law. Lettelier, 540 So. 2d at 225. This is because, there is a dispute as to whether a material breach has occurred and thus whether the insurer has been prejudiced. See Allstate Floridian Ins. Co. v. Farmer, 104 So. 3d 1242 (Fla. 5th DCA 2012) [38 Fla. L. Weekly D75a]. Further, a determination as to prejudice is a question for the jury. See Id.
ORDERED AND ADJUDGED:
1. Defendant’s Motion is DENIED.
