DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DAVID HIMMEL,
Appellant,
v.
AVATAR PROPERTY & CASUALTY INSURANCE COMPANY,
Appellee.
Nos. 4D17-2724 and 4D18-0004
[October 17, 2018]
Consolidated appeal from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Cymonie S. Rowe, Judge; L.T. Case No. 50-
2016-CA-011319-XXXX-MB.
Cory S. Laufer of Laufer & Laufer, P.A., Boca Raton, for appellant.
Mihaela Cabulea and Anthony J. Russo of Butler Weihmuller Katz
Craig LLP, Tampa, for appellee.
DAMOORGIAN, J.
In this consolidated appeal, David Himmel appeals from two summary
judgments entered in favor of Avatar Property & Casualty Insurance
Company (“Avatar”) in his declaratory relief action. For the reasons
discussed below, we reverse.
Undisputed Material Facts
Appellant owns a home which is insured by Appellee, Avatar.
Appellant’s policy provides that in the event of a loss giving rise to a claim,
Appellant is responsible for, among other things, providing “prompt notice”
to Avatar; submitting a sworn proof of loss within sixty days of request;
and submitting to an examination under oath (“EUO”).
On June 13, 2016, Appellant’s residence sustained interior water
damage after a newly installed air conditioning unit leaked. The next day,
Appellant had the air conditioning installer repair the unit and also had a
water remediation company remove any impacted flooring. The day after
that, Appellant’s public adjuster notified Avatar of the loss.
Avatar agreed to investigate the claim and scheduled an inspection of
the property. Avatar also asked Appellant to submit a sworn proof of loss
within sixty days, and in doing so, provided a proof of loss form and
property loss worksheet. Appellant’s public adjuster timely submitted a
sworn proof of loss to Avatar which provided a detailed estimate of the
necessary repairs to Appellant’s home. However, the public adjuster did
not use the proof of loss form or property loss worksheet provided by
Avatar and did not provide information regarding Appellant’s personal
property.
Thereafter, Avatar’s counsel sent Appellant a letter advising him that
the sworn proof of loss submitted by the public adjuster was “deficient in
several, different respects, and thus, cannot be accepted.” Aside from
stating that the submitted document was “not the form supplied, but
rather, some other form, from some other company, furnishing
information other than that requested and required,” the letter did not
specify what information was missing. The letter also requested that
Appellant, his wife, the public adjuster, and the corporate representatives
and employees of the companies hired by Appellant to perform work on
the property submit to an EUO on a scheduled date.
Appellant subsequently retained counsel who contacted Avatar’s
counsel about rescheduling the EUO due to counsel’s and Appellant’s
unavailability. Avatar’s counsel denied the request to reschedule the EUO
based on Appellant’s purported failure to submit a valid sworn proof of
loss. In response, Appellant’s counsel e-mailed Avatar’s counsel the
previously submitted sworn proof of loss as well as a personal property
inventory form and again requested to reschedule the EUO. Avatar
refused, reiterating that the submitted sworn proof of loss was deficient.
In response, Appellant’s counsel asked that Avatar’s counsel explain why
the proof of loss was deficient and made another request to reschedule the
EUO. Avatar’s counsel again refused to reschedule the EUO or explain
why the proof of loss was deficient.
It is undisputed that neither Appellant, his wife, the public adjuster,
nor the corporate representatives and employees of the companies hired
to perform work on the property appeared for the scheduled EUO. Instead,
Appellant filed a declaratory judgment action seeking a determination of
whether Avatar could reasonably require Appellant, his wife, the public
adjuster, and the various third parties to submit to an EUO at a time that
was not mutually convenient. Avatar, in turn, filed several motions for
summary judgment, two of which are the basis for this appeal. In the first
motion, Avatar sought entry of partial summary judgment on the grounds
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that Appellant failed to satisfy the post-loss contractual obligation of
submitting to an EUO. In the second motion, Avatar sought entry of
summary judgment on the grounds that Appellant failed to satisfy the
post-loss contractual obligations of submitting a sworn proof of loss and
providing “prompt notice” of the loss.
Appellant responded to Avatar’s motions for summary judgment and
argued that his cooperation with the post-loss conditions and explanation
for not submitting to an EUO precluded entry of summary judgment.
Attached to the response were several exhibits, including the various
e-mail exchanges between Appellant’s counsel and Avatar’s counsel
showing the repeated requests to reschedule the EUO; an affidavit from
Appellant’s counsel attesting to his efforts to reschedule the EUO and the
reasons provided for rescheduling; an affidavit from Appellant attesting to
his efforts to mitigate the damage; and the sworn proof of loss submitted
to Avatar by the public adjuster.
Following a hearing, the court granted the two aforementioned motions
for summary judgment. In its orders, the court found that the undisputed
evidence demonstrated that Appellant failed to submit for an EUO; failed
to submit a sworn proof of loss; and failed to provide Avatar with prompt
notice of the loss. The court also found that the undisputed facts
demonstrated Avatar was prejudiced by Appellant’s failure to comply with
the post-loss obligations. The court did not make a determination as to
whether Avatar could reasonably require Appellant to submit to an EUO
at a date and time that was not mutually convenient. In light of the
dispositive nature of the rulings, the court thereafter entered final
judgment in Avatar’s favor. This consolidated appeal follows.
Analysis
1) EUO
We begin our analysis by addressing the trial court’s finding that
Appellant breached the policy by failing to submit to an EUO. “An
insured’s refusal to comply with a demand for an [EUO] is a willful and
material breach of an insurance contract which precludes the insured
from recovery under the policy.” Goldman v. State Farm Fire Gen. Ins. Co.,
660 So. 2d 300, 303 (Fla. 4th DCA 1995). “If, however, the insured
cooperates to some degree or provides an explanation for its
noncompliance, a fact question is presented for resolution by a jury.”
Haiman v. Fed. Ins. Co.,
798 So. 2d 811, 812 (Fla. 4th DCA 2001) (quoting
Diamonds & Denims, Inc. v. First of Ga. Ins. Co.,
417 S.E.2d 440, 442 (Ga.
Ct. App. 1992)).
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Here, although it is undisputed that Appellant failed to appear for the
scheduled EUO, the record evidence reflects that Appellant’s counsel
repeatedly requested to reschedule the EUO to a mutually convenient date
and time due to unavailability. Appellant attached to his response in
opposition to Avatar’s motions for summary judgment evidence showing
the efforts made to reschedule the EUO. Accordingly, Appellant presented
evidence showing that he cooperated to some degree and/or provided an
explanation for his noncompliance which in turn created a question of fact
as to whether there was a willful and material breach of the EUO provision,
thus precluding entry of summary judgment. See Lewis v. Liberty Mut.
Ins. Co.,
121 So. 3d 1136, 1136–37 (Fla. 4th DCA 2013) (whether insured’s
refusal to attend EUO unless it was via telephone or at her attorney’s office
constituted a willful and material breach was a fact issue precluding
summary judgment based on insured’s failure to cooperate);
Haiman, 798
So. 2d at 812.
2) Prompt Notice
We next address the trial court’s finding that Appellant breached the
policy by failing to provide Avatar with prompt notice. “Notice is necessary
when there has been an occurrence that should lead a reasonable and
prudent [person] to believe that a claim for damages would arise.” Ideal
Mut. Ins. Co. v. Waldrep,
400 So. 2d 782, 785 (Fla. 3d DCA 1981). Notice
is said to be prompt when it is provided “with reasonable dispatch and
within a reasonable time in view of all of the facts and circumstances of
the particular case.” Laquer v. Citizens Prop. Ins. Corp.,
167 So. 3d 470,
474 (Fla. 3d DCA 2015) (quoting Yacht Club on the Intracoastal Condo.
Ass’n v. Lexington Ins. Co., 599 Fed. Appx. 875, 879 (11th Cir. 2015)).
Accordingly, “the issue of whether an insured provided ‘prompt’ notice
generally presents an issue of fact.” Id.; see also Gonzalez v. U.S. Fid. &
Guar. Co.,
441 So. 2d 681, 681 (Fla. 3d DCA 1983) (“What constitutes a
reasonable time within which to give notice of an accident under the terms
of a policy of insurance is ordinarily an issue of fact.”). But see Kroener v.
Fla. Ins. Guar. Ass’n,
63 So. 3d 914, 916 (Fla. 4th DCA 2011) (notice of
loss provided over two years after the date of loss did not constitute
“prompt” notice as a matter of law).
In the present case, the policy requires Appellant to provide “prompt
notice” of the loss. Accordingly, Appellant was required to provide notice
within a reasonable time given all of the facts and circumstances
surrounding the loss.
Laquer, 167 So. 3d at 474. To that end, the
summary judgment evidence reflects that Appellant provided Avatar with
notice of the claim two days after the leak was first discovered and one day
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after the actual damage was discovered. The evidence also reflects that
during those two days, Appellant was actively attempting to mitigate the
damage by fixing the leak and removing the impacted flooring. Whether
waiting two days before providing Avatar with notice was untimely in view
of all of the facts and circumstances surrounding the loss was an issue of
fact for the jury to determine.
3) Sworn Proof of Loss
Lastly, we address the trial court’s finding that Appellant breached the
policy by failing to submit a sworn proof of loss. It is well established that
an insured’s failure to submit a sworn proof of loss before filing suit is
usually fatal to the insured’s claim. Kramer v. State Farm Fla. Ins. Co.,
95
So. 3d 303, 306 (Fla. 4th DCA 2012). When an insured does submit a
sworn proof of loss, however, the issue of whether the submitted document
“substantially complie[s] with policy obligations is a question of fact” which
precludes the entry of summary judgment. State Farm Fla. Ins. Co. v.
Figueroa,
218 So. 3d 886, 888 (Fla. 4th DCA 2017); see also Schnagel v.
State Farm Mut. Auto. Ins. Co.,
843 So. 2d 1037, 1038 (Fla. 4th DCA 2003).
Here, it is undisputed that Appellant submitted a timely sworn proof of
loss via his public adjuster. Although on a different form, the submitted
sworn proof of loss contained substantially the same information as
requested in the form provided by Avatar with the exception of any claimed
personal property loss. Nonetheless, whether Appellant’s failure to include
information about his personal property loss in the sworn proof of loss
constituted a material breach of the policy was an issue of fact for the jury,
not the trial court, to determine. See
Schnagel, 843 So. 2d at 1038 (holding
that where the insured provided some, but not all, of the insurer requested
documents pursuant to the policy’s cooperation clause, the issue of
whether the insured materially breached the policy was one for the jury to
resolve).
For the foregoing reasons, we reverse the two summary judgments and
remand for further proceedings consistent with this opinion. 1
1 We reject Avatar’s argument that affirmance is required pursuant to the tipsy
coachman doctrine. In addition to the two motions for summary judgment at
issue in this case, Avatar also filed three other separate motions for summary
judgment. Following a hearing, the trial court entered three separate orders
denying those motions. Avatar has not filed a cross-appeal seeking review of
those orders. Instead, Avatar now seeks affirmance of the two orders before this
Court based on the alternate legal arguments contained in the three
motions/orders which are not properly before this Court. If Avatar wanted to
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Reversed and remanded.
CIKLIN and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
challenge the trial court’s rulings on those motions, it should have filed a cross-
appeal. Allen v. TIC Participations Tr.,
722 So. 2d 260, 261 (Fla. 4th DCA 1998)
(holding that when a final order is entirely favorable to appellee, a cross-appeal
is the appropriate method for seeking review of an earlier non-final order).
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