27 Fla. L. Weekly Supp. 255a

Online Reference: FLWSUPP 2703PADRInsurance — Property — Coverage — Conditions precedent — Compliance with post-loss obligations — Insureds who provided sworn proof of loss that stated the amount of damage to building and total loss were “to be determined” and who provided no records regarding repair expenses failed to satisfy conditions precedent requiring sworn proof of loss and estimate of claim prior to litigation — Defendant’s motion for final summary judgment granted

EZEQUIEL PADRON, an individual and AIMEE HERNANDEZ, an individual, Plaintiffs, v. SAFEPOINT INSURANCE COMPANY, a Florida corporation, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2017-029944 CA 01 (02). October 21, 2018. Rodolfo A. Ruiz, Judge.

ORDER GRANTING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT

THIS CAUSE came before the Court on Defendant’s, SafePoint Insurance Company (“SafePoint”), Motion for Final Summary Judgment filed on April 12, 2018 (“Motion”). The Court having reviewed the Motion and all responses thereto, having considered the argument of the parties on September 24, 2018, and being otherwise fully advised in the premises, it is hereby

ORDERED AND ADJUDGED that Defendant SafePoint’s Motion for Final Summary Judgment is GRANTED for the reasons set forth herein.

BACKGROUND

This case deals with a failure to comply with conditions precedent in an insurance contract. The facts are undisputed. The instant claim was reported to SafePoint on October 3, 2017 by Plaintiffs’ counsel. On October 8, 2017, SafePoint requested the insureds provide certain documentation relating to the loss including, but not limited to, a sworn proof of loss and an estimate of damages. On October 17, 2017, Plaintiffs’ counsel responded to SafePoint’s request for documentation, advising the insureds did not have the requested information at that time.

SafePoint informed Plaintiffs’ counsel on November 14, 2017 that it would be issuing an undisputed payment in the amount of $9,828.08 under Coverage A and $1,221.96 under Coverage B. A copy of the payment letter and SafePoint’s estimate was provided to Plaintiffs’ counsel. SafePoint further advised that the payment did not constitute a full or final settlement for the insured, and SafePoint still required the previously requested sworn proof of loss and other requested documents as soon as they were available.

On November 21, 2018, Plaintiffs, through counsel, submitted a document entitled “Sworn Statement in Proof of Loss.” The loss and damage to the building was listed as “TBD.” The whole loss total was listed as “TBD.” And the Whole Amount Claimed Minus Deductible was listed as “TBD.” Essentially, all elements of the loss were to be determined. On January 2, 2018, SafePoint e-mailed Plaintiffs’ counsel an effort to settle the instant claim, advising it had not received an estimate of damages to date and requesting same. Additionally, SafePoint attached correspondence advising the previously provided Sworn Statement in Proof of Loss was insufficient. Plaintiffs’ counsel did not respond to the e-mail. SafePoint sent another e-mail to Plaintiffs’ counsel on January 11, 2018, following up with its request for an estimate of damages. This time, Plaintiffs’ counsel did reply, advising he was still working on getting an estimate. However, SafePoint was served with this suit a mere six days later — on January 17, 2018.

SafePoint asserts that Plaintiffs failed to comply with its request for a sworn proof of loss and estimate of damages, and therefore final summary judgment is warranted. In support of its Motion, Defendant relies upon the Affidavit of its Corporate Representative, which outlines SafePoint’s handling of the claim, and details the aforementioned correspondence between SafePoint and Plaintiffs. Plaintiffs assert they complied with SafePoint’s request by submitting a sworn proof of loss denoting all losses “TBD,” and have filed affidavits in opposition stating they did not have an estimate of the damages at the time of SafePoint’s request.

The policy issued by SafePoint in this case contains the following pertinent provisions:

SECTION I – CONDITIONS

2. Duties After Loss.

You must see that the following are done in the event of loss or damage to covered property:

a. Give prompt notice to us or our agent;

…

e. Cooperate with us in the investigation of a claim;

…

g. As often as we reasonably require:

(1) Show the damaged property;

(2) Provide us with records and documents we request and permit us to make copies;

…

h. Send to us, within 60 days after our request, your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief:

(1) The time and cause of loss;

(2) The interest of all “insureds” and all others in the property involved and all liens on the property;

(3) Other insurance which may cover the loss;

(4) Changes in title or occupancy of the property during the term of the policy;

(5) Specifications of damaged buildings and detailed repair estimates;

(6) The inventory of damaged person property described in 2.f. above;

…

8. Suit Against Us

No action can be brought against us; unless:

a. There has been full compliance with all of the terms of this policy . . .

Plaintiffs’ failure to comply with these policy provisions entitles SafePoint to summary judgment.

STANDARD OF REVIEW

A party is entitled to summary judgment in its favor if the “pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). The moving party bears the burden of demonstrating the nonexistence of any genuine issue of material fact. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]; Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966); Calarese v. Weissfisch, 87 So. 3d 1225, 1227 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D1238c]. However, once the moving party has met its burden, the burden then shifts to the party opposing the motion to come forward with counter-evidence sufficient to reveal a genuine and material disputed issue of fact. Tropical Glass & Const. Co. v. Gitlin, 13 So. 3d 156, 158 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1163a].

ANALYSIS

Under Florida law, “[i]f the insured fails to comply with a condition precedent before filing suit, its breach is deemed material, and thus the insurer is relieved of its duties under the policy.” State Farm Florida Ins. Co. v. Xirinachs, 251 So. 3d 221, 222 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D1087a] (quoting Hunt v. State Farm Fla. Ins. Co., 145 So. 3d 210, 211 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D1762b]); see also Solano v. State Farm Florida Ins. Co., 155 So. 3d 367, 370 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D993b] (noting “total failure to comply” with condition precedent can preclude an insured from recovering under the policy); Starling v. Allstate Floridian Ins. Co., 956 So. 2d 511, 513 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D1100a] (holding that “[w]here the insured has failed to provide sworn proof-of-loss in accordance with the policy contract, the insured is barred from filing suit against the insurer for the policy proceeds”); Haiman v. Fed Ins. Co., 798 So. 2d 811, 812 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D2542a] (“[A] total failure to comply with policy provisions made a prerequisite to suit under the policy may constitute a breach precluding recovery from the insurer as a matter of law.”).

Here, SafePoint argues Plaintiffs entirely failed to comply with two conditions precedent: submission of (1) a sworn proof of loss and (2) a record of repair expenses. Therefore, Plaintiffs are barred from recovery as a matter of law. It is well-settled that submission of a sworn proof of loss when requested by an insurance company is a condition precedent to initiating suit. See, e.g., Gonzalez v. State Farm Fla. Ins. Co., 65 So. 3d 608, 609 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D1555a] (holding “summary judgment entered below for the insurer on the grounds that the insured had failed to comply with the pre-suit requirements of the policy that, among other things, she provide a satisfactory proof of loss and submit to an examination under oath, is affirmed.”); Edwards v. State Farm Fla. Ins. Co., 64 So. 3d 730, 732-33 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D1269a] (affirming summary judgment in favor of insurer based upon insured’s failure to comply with condition precedent by providing insurer with requested documents reflecting the amount of loss claimed); Hunt, 145 So. 3d at 211-12 (“It is well settled in Florida that submission of a sworn proof of loss when required by an insurance policy is a condition precedent to coverage. If the insured fails to comply with a condition precedent before filing suit, its breach is deemed material, and thus the insurer is relieved of its duties under the policy”).

Plaintiffs have taken the position that since they did not know the exact amount of their loss at the time SafePoint made a request for a sworn proof of loss, they were under no obligation to obtain that information and were otherwise in compliance with all policy conditions. However, this position, if correct, would essentially obliterate the proof of loss condition and rewrite the policy. It is particularly disconcerting that Plaintiffs initiated the instant action prior to obtaining any estimate of damages or otherwise providing their insurer with any information or notice regarding their disagreement with the scope and pricing of the loss. As explained by the Third District Court of Appeal, post-loss obligations are designed “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.” United States Fidelity & Guaranty Co. v. Romay, 744 So. 2d 467, 471 n. 4 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D1963a]. Here, SafePoint — faced with a sworn proof of loss that simply read “to be determined” and a complete absence of records regarding repair expenses — was unable to independently determine the amount of loss in an effort to resolve the claim.

The record reflects SafePoint issued an undisputed payment that did not constitute full and final settlement of the claim, and was seeking an estimate of damages in order to further determine the scope of coverage. Plaintiffs failed to provide any estimate or documentation regarding the amount of loss, opted to simply indicate losses are “to be determined,” and rushed to the courthouse to file suit. This failure to provide any meaningful information does not rise to the level of compliance with policy conditions, and Plaintiffs’ suit is clearly premature.

CONCLUSION

Plaintiffs failure to comply with Defendant’s request for a sworn proof of loss and estimate prior to initiating the instant litigation is fatal to their claim. There is no genuine issue of material fact preventing the entry of summary judgment based upon Plaintiffs’ failure to comply with their post-loss obligations. Accordingly, it is hereby

ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment is GRANTED. Plaintiffs, Ezequiel Padron and Aimee Hernandez, shall take nothing by this action and Defendant, SafePoint Insurance Company, shall go henceforth without day.