Florida’s Citizens Property Insurance Prevails in Late-Reported Hurricane Wilma Claim

During early October 2012, in Slominski v. Citizens Property Insurance Corporation, the Fourth District Court of Appeal issued its third opinion in the last three months on the issue of late notice relating to an insurance claim.

The case arises from Hurricane Wilma, following which a Citizens policyholder reported a timely claim just after the storm.  The claim was investigated by Citizens Property Insurance Corporation (“Citizens”) and deemed to fall under the terms of the policy’s deductible.  The insured’s damages were approximately $1,500; the policy’s hurricane deductible was $12,860.  Three and a half years later, the insureds reported a supplemental claim for additional damages allegedly attributed to Hurricane Wilma.  The insureds claimed they had not reported the claim earlier, because they felt the damages would still be deemed to be under their policy’s deductible.

Upon investigating the supplemental claim, Citizens denied it, explaining that “the damages reported cannot be attributed to Hurricane Wilma due to the amount of time that has transpired since the purposed date of loss to the present date.”  Citizens also cited the insureds’ failure to comply with post-loss obligations in failing to promptly report their supplemental claim.

The insureds subsequently filed suit.  Citizens filed a motion for summary judgment, which was granted by the trial court.  During the hearing, Citizens presented deposition testimony of the insureds’ contractor and engineer.  Both witnesses conceded there was no way to differentiate between the wind damage caused by Hurricane Wilma in 2005, as opposed to Hurricane Frances in 2004.  Despite this testimony, both witnesses executed affidavits after the depositions to conclusively state Hurricane Wilma was the cause of insureds’ damages.  The engineer’s affidavit also gave the opinion that Citizens suffered no prejudice due to the delay.

Notwithstanding the factual dispute between the deposition testimony and the affidavits, the appellate court affirmed the insurer’s summary judgment, largely basing its decision on a Second District Court of Appeal case, Ouellette v. Patel, 967 So.2d 1078 (Fla. 2d DCA 2007) that applied the rule that “a party may not file his or her own affidavit, or that of another, baldly repudiating his or her own deposition testimony to avoid the entry of a summary judgment.”  Having discounted the insureds’ affidavits, the court found the insureds had not met their burden to show the insurer’s lack of prejudice in the late-reported claim.

The Fourth District Court of Appeal previously issued two recent opinions relating to the late notice issue, having ruled in the insurer’s and insured’s favor, respectively: 

In Soronson v. State Farm, — So.3d —-, 2012 WL 3022349 (Fla. 4^th DCA July 25, 2012):   The appellate court upheld summary judgment in favor of insurer based on untimely pre-suit notice in which the insured reported roof damage three years after Hurricane Wilma.  The court rejected insured’s argument that loss was timely reported “upon its discovery” as an improper attempt to “rewrite the policy.”   It found the insured’s affidavit, to which was attached two expert reports that the roof needed to be replaced, did not rebut the presumption that the insurer was prejudiced by insureds’ failure to comply with immediate notice of loss and submit sworn proof of loss within 60 days of loss.

In Leben v. State Farm, 93 So.3d 528 (Fla. 4^th DCA Aug. 1, 2012):  The appellate court reversed summary judgment in favor of the insurer based on late notice in which the insured reported roof damage three years after Hurricane Wilma.  The court found the record contained questions of fact as to whether State Farm was prejudiced by the insureds’ failure to provide timely notice.  The insurer submitted an affidavit attesting it could not determine that the damage was caused by Hurricane Wilma; whereas the insureds’ submitted two reports from a roofing company and leak detection company, which concluded that Hurricane Wilma had caused the damage.  This was sufficient to raise a genuine issue of material fact and defeat the insurer’s motion for summary judgment.  (Note:  A different panel of judges presided over this case.)

The Court’s opinion, which is attached, has not yet been released for publication in the permanent law reports and, therefore, may be subject to revision or withdrawal.

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