THERESA GROMANN v. AVATAR PROPERTY & CASUALTY INSURANCE COMPANY

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
THERESA GROMANN,
Appellant,
v.
AVATAR PROPERTY & CASUALTY INSURANCE COMPANY,
Appellee.
No. 4D21-1896
[August 10, 2022]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No. 50-2017-CA-
004244-XXXX-MB.
Monique A. Low of David Low & Associates, P.A., Fort Lauderdale, for
appellant.
Paulo R. Lima and Elizabeth K. Russo of Russo Appellate Firm, P.A.,
Miami, for appellee.
FORST, J.
Appellant Theresa Gromann (“Homeowner”) appeals the trial court’s
order granting the summary judgment motion filed by the defendant,
Avatar Property & Casualty Insurance Company (“Avatar”), with respect to
Homeowner’s breach of contract complaint. On appeal, Homeowner
argues final summary judgment for Avatar was inappropriate because
Avatar relied on inadmissible evidence to support its argument. We agree
and reverse the trial court’s summary final judgment, remanding for
further proceedings.
Background
On September 26, 2016, Homeowner allegedly sustained a loss to her
property resulting from external water damage. At the time of this loss,
Homeowner held an all-risks property and casualty insurance policy with
Avatar.
Prior to informing Avatar of the damage, Homeowner hired roof and
drywall contractors to perform repairs. While these repairs were being
conducted, mold was discovered in several rooms. Three weeks after the
initial discovery of damages, Homeowner notified Avatar of the water
intrusion and mold. Avatar promptly dispatched an adjustor to the
property. The adjustor was unable to determine the source or recency of
the damage or confirm the presence of mold. Following the adjustor’s visit,
Homeowner had further repairs to the property.
Pursuant to Avatar’s post-loss guidelines, Homeowner submitted to an
examination under oath (“EUO”) and filed a sworn proof of loss (“SPOL”).
Homeowner filed her SPOL with the assistance of Bulldog Adjusting, Inc.,
a public adjuster. Homeowner sought a replacement cost value of
$109,232.13, including $66,209.33 for a new roof; these numbers were
taken from a repair estimate prepared by Bulldog Adjusting.
Avatar subsequently denied coverage for Homeowner’s loss, claiming
Homeowner committed several material breaches of the policy and
submitted a fraudulent roof repair estimate. Homeowner filed suit against
Avatar for breach of contract, and Avatar responded by filing a motion for
summary judgment. In support of this motion, Avatar filed an affidavit
executed by its “corporate representative” which repeats the contents of
Avatar’s summary judgment motion verbatim.
Following a hearing, the trial court granted Avatar’s motion for
summary judgment. Arguing Avatar’s evidence (primarily the corporate
representative’s affidavit) was insufficient to establish the lack of a genuine
issue of material fact, Homeowner appeals the trial court’s summary
judgment decision.
Analysis
We review de novo the question of whether the trial court erred in
finding Avatar satisfied its burden for summary judgment. See Restoration
Constr., LLC v. SafePoint Ins. Co., 308 So. 3d 649, 651 (Fla. 4th DCA 2020).
Under the standard in force at the time of Avatar’s motion, 1 “[s]ummary
1 After the trial court issued its final summary judgment that is the subject of the
instant appeal, the Florida Supreme Court amended Florida Rule of Civil
Procedure 1.510(c) to adopt a new summary judgment standard. See In re
Amends. to Fla. Rule of Civ. Proc. 1.510, 309 So. 3d 192, 193–95 (Fla. 2020)
(adopting the federal summary judgment standard). The amendment, which
became effective on May 1, 2021, does not apply here as the final judgment
predates that amendment. See Wilsonart, LLC v. Lopez, 308 So. 3d 961, 964 (Fla.
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judgment cannot be granted unless the pleadings, depositions, answers to
interrogatories, and admissions on file together with affidavits, if any,
conclusively 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.” Id.(quoting McCarthy v. Broward Coll., 164 So. 3d 78, 80 (Fla. 4th DCA
2015)).
Generally, “[a]n affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent
to testify on the matters stated.” Fla. R. Civ. P. 1.510(c)(4). When a
supporting summary judgment affidavit fails to establish its basis in the
affiant’s personal knowledge, the affidavit should be found legally
insufficient to support the entry of summary judgment in favor of the
moving party. See, e.g., Huertas v. Avatar Prop. & Cas. Ins. Co., 333 So.
3d 767, 771 (Fla. 4th DCA 2022); Everett v. Avatar Prop. & Cas. Ins. Co.,
310 So. 3d 536, 539 (Fla. 2d DCA 2021); Rodriguez v. Avatar Prop. & Cas.
Ins. Co., 290 So. 3d 560, 563 (Fla. 2d DCA 2020). The justification for this
standard is hardly mysterious; “[t]he personal knowledge requirement . . .
is meant to prevent the trial court from relying on hearsay when deciding
a motion for summary judgment.” Johns v. Dannels, 186 So. 3d 620, 622
(Fla. 5th DCA 2016).
Huertas, Everett, and Rodriguez all concern a fact pattern (and
defendant) substantially similar to that presented in this case. See
Huertas, 333 So. 3d at 770–71, Everett, 310 So. 3d at 539, Rodriguez, 290
So. 3d at 563. In all three cases, Avatar presented an affidavit which
appeared to be a nearly word-for-word recitation of language used in
Avatar’s earlier-filed motion for summary judgment. In yet another case
questioning the sufficiency of an affidavit filed by Avatar, the Fifth District
noted that “Avatar has [previously, in Everett and Rodriguez] used this
‘copy and paste’ approach of transforming a motion into an ‘affidavit’ for
other vaguely identified representatives of Avatar to swear to.” Lopez v.
Avatar Prop. & Cas. Ins. Co., 313 So. 3d 230, 233 n.7 (Fla. 5th DCA 2021).
Avatar’s affidavit was found to be improper and unfit to serve as the basis
for a summary judgment motion in all the aforementioned cases.
2020) (stating that the amendment to rule 1.510(c) applies prospectively); Tank
Tech, Inc. v. Valley Tank Testing, L.L.C., 334 So. 3d 658, 660 n.1 (Fla. 2d DCA
2021) (holding that amendment to rule 1.510 did not apply because final
judgment had been entered before the effective date of the change, May 1, 2021,
and noting that the rule change applies prospectively).
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Similarly, the affidavit presented by Avatar in this case fails as well.
Avatar’s affidavit fails to state a basis for the affiant’s knowledge, is not
dated, includes numerous unsupported legal and factual conclusions, and
is simply a “cut-and-paste” of Avatar’s previously filed motion for summary
judgment. Although this Court is allowed to strike the inadmissible
portions of an affidavit and rely only on the admissible parts—see
Humphrys v. Jarrell, 104 So. 2d 404, 409 (Fla. 2d DCA 1958)—Avatar’s
affidavit is still invalid due to its complete failure to state any basis for the
claims presented therein.
Avatar argues its affidavit was proper, citing this Court’s decision in
Carriage Hills Condominium, Inc. v. JBH Roofing & Constructors, Inc., 109
So. 3d 329 (Fla. 4th DCA 2013). In Carriage Hills, we found a duly
appointed “corporate representative” testifying pursuant to Florida Rule of
Civil Procedure 1.310(b)(6) need not possess personal knowledge to testify
“about matters known or reasonably available to the organization.” Id. at
334. However, Carriage Hills did not address whether such testimony can
serve as the sole basis for a grant of summary judgment. Therefore, in
light of the extensive case law prohibiting the entry of summary judgment
predicated on affidavits lacking any personal knowledge, we find that
Carriage Hills is not relevant here.
Avatar’s affidavit fails to satisfy any prong of rule 1.510(c)(4): the author
of the affidavit did not claim the affidavit was “made on personal
knowledge”; did not “set out facts that would be admissible in evidence”;
and did not “show that the affiant or declarant is competent to testify on
the matters stated.” Thus, the affidavit cannot “be used to support” a
summary judgment motion. Id.Conclusion
As set forth above, the trial court erred in granting summary judgment
for Avatar predicated on a fatally deficient affidavit which merely repeated,
word-for-word, the allegations found in Avatar’s initial motion for
summary judgment. “[T]o prevent the trial court from relying on hearsay
when deciding a motion for summary judgment,” any affidavit used to
support such a ruling must be predicated on the personal knowledge of
the affiant. Johns, 186 So. 3d at 622; see also Huertas, 333 So. 3d at 770–
71; Everett, 310 So. 3d at 539; Rodriguez, 290 So. 3d at 563. Accordingly,
we reverse the final summary judgment and remand for further
proceedings.
Reversed and remanded.
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KLINGENSMITH, C.J., and LEVINE, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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