ELIZABETH NESBITT v. SAFEPOINT INSURANCE COMPANY

Third District Court of Appeal
State of Florida
Opinion filed August 3, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1126
Lower Tribunal No. 15-30190
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Elizabeth Nesbitt,
Appellant,
vs.
SafePoint Insurance Company,
Appellee.
An appeal from the Circuit Court for Miami-Dade County, David C.
Miller, Judge.
Giasi Law, P.A., and Melissa A. Giasi, and Erin M. Berger (Tampa), for
appellant.
Bickford & Chidnese, LLP, and Frieda C. Lindroth, and Patrick M.
Chidnese (Tampa), for appellee.
Before SCALES, MILLER, and LOBREE, JJ.
PER CURIAM.
Appellant, Elizabeth Nesbitt, challenges a final order granting
summary judgment in favor of appellee, SafePoint Insurance Company, in
her first-party property insurance lawsuit. 1 Irrespective of whether the grant
of summary judgment on an unpled affirmative defense was error, factual
issues surrounding the insured’s compliance, or lack thereof, with post-loss
obligations and the ensuing prejudice precluded the entry of summary
judgment. 2 See Lobrillo v. Brokken, 837 So. 2d 1059, 1061 (Fla. 3d DCA
2002); Nomo Rsch., Inc. v. CCL Plastic Packaging, Inc., 862 So. 2d 785, 787
(Fla. 3d DCA 2003); Stark v. State Farm Fla. Ins. Co., 95 So. 3d 285, 288
(Fla. 4th DCA 2012); Gonzalez v. U.S. Fid. & Guar. Co., 441 So. 2d 681, 681
(Fla. 3d DCA 1983). Accordingly, we reverse and remand for further
proceedings.
Reversed and remanded.
1
We review the case under Florida’s old summary judgment standard. See
Guzman v. S. Fid. Ins. Co., 332 So. 3d 67, 70 n.2 (Fla. 2d DCA 2021) (noting
that the new summary judgment standard “does not apply to judgments
entered before its effective date of May 1, 2021”).
2
We reject appellee’s contention that the alleged six-month delay in
reporting the loss serves as an alternative basis for affirmance. See Sousa
v. Zuni Transp., Inc., 286 So. 3d 820, 822 (Fla. 3d DCA 2019) (alteration in
original) (quoting Mitchell v. Higgs, 61 So. 3d 1152, 1155 n.3 (Fla. 3d DCA
2011)) (“Even if the record on appeal were to support an affirmance on these
alternative grounds—an issue about which we express no opinion—it is well-
settled that ‘[t]he [t]ipsy [c]oachman doctrine does not apply to grounds not
raised in a motion for summary judgment . . . .’”).
2