finding the trial court correctly found no waiver of sworn proof of loss requirement because “‘[i]nvestigating any loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim’ does not constitute a waiver of a ‘sworn proof of loss’ requirement” (quoting § 627.426(1)(c), Fla. Stat. (2007))
How later courts described this case
- finding the trial court correctly found no waiver of sworn proof of loss requirement because “‘[i]nvestigating any loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim’ does not constitute a waiver of a ‘sworn proof of loss’ requirement” (quoting § 627.426(1)(c), Fla. Stat. (2007))
- holding that an insured who failed to submit a timely proof of loss could not recover under a homeowner’s policy because the insured did not rebut the presumption that the insurer suffered prejudice
- explaining that an insurer does not in fact waive an affirmative defense based on the insured’s failure to comply with a post-loss condition precedent to suit “by tendering payment” to the insured
- “While the insured argued that she provided the insurer with bills, estimates, invoices, and other documents to prove her damages, she failed to file a sworn proof of loss. Therefore, the insured materially breached a condition precedent.”
Written by the judges who cited it.
The opinion
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
JUDY RODRIGO,
Appellant,
v.
STATE FARM FLORIDA INSURANCE COMPANY,
Appellee.
No. 4D12-3410
[August 20, 2014]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No.
502008CA019828XXXXMB.
Roy W. Jordan, Jr. of Roy W. Jordan, Jr., P.A., West Palm Beach, for
appellant.
Anthony J. Russo, Jared M. Krukar and Curt Allen of Butler Pappas
Weihmuller Katz Craig LLP, Tampa, for appellee.
On Motion for Rehearing,
Rehearing En Banc, and For Certification
MAY, J.
We deny the insured’s motion for rehearing, rehearing en banc, and for
certification. We do however withdraw our previously issued opinion and
substitute this opinion in its place.
An insured appeals an adverse final summary judgment on her claim
for property damage to her condominium, its contents, and related
expenses. She argues the trial court erred in entering summary judgment
because: (1) the insurer waived a condition precedent, the sworn proof of
loss requirement; and (2) her personal property was covered because the
damage was caused by a named peril, an “explosion.”1 We disagree and
affirm.
The insured’s next door neighbor died, and time passed before the body
was discovered. During that time, the decomposed body leaked bodily
fluids, which infiltrated the walls and the insured’s apartment causing
damage. This is the event that gave rise to the insured’s claim.
The insurance policy required the insured to file a sworn proof of loss
within 60 days of the date of loss. While the insured sent invoices and
lists of damages, no one disputes that she failed to file a sworn proof of
loss. The policy further provided:
Loss Payment. We will adjust all losses with you. . . . Loss
will be payable 60 days after we receive your proof of loss and:
a. reach agreement with you;
b. there is an entry of a final judgment; or
c. there is a filing of an appraisal award with us.
None of these events occurred. However, the insurer’s adjuster
contacted a contractor, who inspected the unit and signed an appraisal
award. The insurer then tendered payment to the insured for that amount,
but denied liability for personal property damage. The insured did not
accept the payment.
The insured filed a two-count complaint against the insurer. The first
count alleged that the appraisal was invalid, and requested the court to
modify or vacate the award, or appoint new appraisers and a neutral
umpire for a second appraisal. In the second count, the insured alleged
that the insurer breached its contract by failing to pay the owner the
amount necessary to repair and remediate her unit, to compensate her for
damage to her personal property, and for living expenses.
In its amended answer, the insurer pled that the insured had:
(1) materially breached her duty to satisfy conditions
precedent;
....
1 The insured raises other issues, which we find lack merit. While we agree with
the insured on the insufficiency of the insurer’s affidavits, it does not alter the
outcome of the case. Our decision turns on the plain reading of the insurance
policy and the agreed upon facts.
2
(5) failed to satisfy all policy provisions before bringing legal
action; and
(6) otherwise failed to comply with her contractual
obligations.
The insurer moved for partial summary judgment on the issue of
coverage for personal property damage. While acknowledging that the
insured made a claim for personal property damage, the insurer argued
the policy covered personal property damage only for named perils, and a
decomposing body was not one of them. The insured responded that the
claim resulted from an “explosion,” a named peril under the policy. She
supplied an affidavit of a licensed physician, who attested that the
deceased’s body “underwent advanced decomposition” and “the internal
contents of her body explosively expanded and leaked.”
The insurer also moved for summary judgment on whether the insured
failed to comply with a condition precedent—submitting a sworn proof of
loss—constituting a material breach of the insurance policy. Because the
insurer and insured never reached an agreement, no final judgment was
entered, and no valid appraisal award existed, there was no coverage for
the claims. The insured responded, in part, that the insurer had waived
the “sworn proof of loss” requirement by tendering payment to the insured,
and that other genuine issues of material fact precluded entry of a
summary judgment.
The trial court entered a single final summary judgment for the insurer,
finding that the insurer did not waive the condition precedent of a sworn
proof of loss, there was no coverage, and the damage caused by the
decomposing body did not constitute an “explosion” as a named peril.
From this summary judgment, the insured now appeals.
The standard of review governing a trial court’s ruling on a motion for
summary judgment based upon the interpretation of an insurance policy
is de novo. Chandler v. Geico Indem. Co., 78 So. 3d 1293, 1296 (Fla. 2011).
The insured argues that the trial court erred by entering summary
judgment because the insurer did not show that it was prejudiced by the
insured’s failure to submit a sworn proof of loss. We disagree.
“[A]n insurer need not show prejudice when the insured breaches a
condition precedent to suit.” Goldman v. State Farm Fire Gen. Ins. Co., 660
So. 2d 300, 303 (Fla. 4th DCA 1995). Proof of loss is a condition precedent
3
to an insured’s suit against an insurer. Soronson v. State Farm Fla. Ins.
Co., 96 So. 3d 949, 952 (Fla. 4th DCA 2012); Kramer v. State Farm Fla.
Ins. Co., 95 So. 3d 303, 306 (Fla. 4th DCA 2012).
While the insured argued that she provided the insurer with bills,
estimates, invoices, and other documents to prove her damages, she failed
to file a sworn proof of loss. Therefore, the insured materially breached a
condition precedent, and the insurer was not obligated to pay. The trial
court properly entered summary judgment in the insurer’s favor. See
Amica Mut. Ins. Co. v. Drummond, 970 So. 2d 456, 459–60 (Fla. 2d DCA
2007).
The trial court also correctly found that the insurer did not waive the
sworn proof of loss requirement by tendering payment because
“[i]nvestigating any loss or claim under any policy or engaging in
negotiations looking toward a possible settlement of any such loss or claim”
does not constitute a waiver of a “sworn proof of loss” requirement.
§ 627.426(1)(c), Fla. Stat. (2007) (emphasis added).
Just prior to oral argument, the insured filed a notice of supplemental
authority and argued that the supreme court’s recent decision in State
Farm Mutual Automobile Insurance Co. v. Curran, 135 So. 3d 1071 (Fla.
2014), rendered the sworn proof of loss a condition subsequent rather than
a condition precedent. We disagree as our supreme court limited its
rationale and holding to the unique subject of uninsured motorist coverage
and compulsory medical exams. Even if it had not done so, we find the
issue in this case vastly different than the one encountered in Curran.
In Curran, the court held that an insurance policy’s requirement of a
compulsory medical examination (“CME”) was a condition subsequent, not
a condition precedent to coverage. In doing so, the court specifically said
that “a CME provision in the UM coverage context is not a condition
precedent to coverage and we find that an insured’s breach of this
provision should not result in post-occurrence forfeiture of insurance
coverage without regard to prejudice.” Id. at 1079 (emphasis added)
(citations omitted).
In reaching this conclusion, a plurality of the court discussed the
purpose of uninsured motorist (“UM”) coverage, and “stressed” that such
coverage was not designed for the benefit of insurers. Id. at 1077. It also
reviewed the role of CMEs in the process of settling personal injury claims.
Id. It then rejected the insurer’s argument and concluded “that a CME
provision in the UM context is a post-loss obligation of the insured and is
not a condition precedent to coverage.” Id. at 1078.
4
Unlike the UM policy in Curran, the policy in this case specifically
provided:
Loss Payment. We will adjust all losses with you. . . . Loss
will be payable 60 days after we receive your proof of loss
and:
a. reach agreement with you;
b. there is an entry of a final judgment; or
c. there is a filing of an appraisal award with us.
.. ..
Your Duties After Loss. After a loss to which this insurance
may apply, you shall see that the following duties are
performed
....
d. submit to us, within 60 days after the loss, your signed,
sworn proof of loss.
(emphasis added). This places an affirmative duty on the insured to
provide the sworn proof of loss. Unlike a CME, which is requested by the
insurer to substantiate a claim already made by the insured, the sworn
proof of loss is a condition precedent. For this reason, Curran does not
mandate a reversal in this case.
The insured next argues that the trial court erred by entering partial
summary judgment on the personal property claim because there was an
issue of material fact as to whether there was an explosion under the
policy’s terms. We disagree.
The policy provided personal property coverage for named perils.
Among those named perils was an “explosion.” That term was not defined.
It is black letter law that “[a]n insurance contract must be construed in
accordance with the plain language of the policy.” Harrington v. Citizens
Prop. Ins. Corp., 54 So. 3d 999, 1001 (Fla. 4th DCA 2010) (quoting Taurus
Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005)). It
was the insured’s burden to prove that the term “explosion” included the
explosive expansion of a decomposing body.
Rather than stretching common sense, the trial court correctly gave the
term “explosion” its “plain and unambiguous meaning as understood by
5
the ‘man-on-the-street.’”2 Id. at 1001 (citation omitted). The plain
meaning of the term “explosion” does not include a decomposing body’s
cells explosively expanding, causing leakage of bodily fluids. In short,
although novel in her attempt to do so, the insured could not establish
that the decomposing body was tantamount to an explosion.
The trial court correctly entered summary judgment for the insurer. We
therefore affirm.
Affirmed.
GROSS and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2 The Merriam-Webster Dictionary defines “explosion” as “the act or instance of
exploding” and “a large-scale, rapid, or spectacular expansion or bursting out or
forth.” MERRIAM-WEBSTER: AN ENCYCLOPÆDIA BRITANNICA COMPANY,
http://www.merriam-webster.com/dictionary/explosion (last visited Mar. 28,
2014).
6