MARIO ARCE, ET AL.
v.
CITIZENS PROPERTY INSURANCE CORPORATION
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
An insured materially breaches a prompt notice provision when notice is provided nearly three years after a hurricane, as established by the insured's own recorded statement indicating awareness of damage immediately after the storm, and such breach cannot be excused by a subsequent declaration contradicting the recorded statement. The presumption of prejudice that arises from an insured's failure to promptly notify an insurer of a loss applies even when the policy language expressly conditions the insurer's right to deny coverage on prejudice, and such policy language does not shift the burden to the insurer to prove prejudice.
[1] An insured's failure to provide prompt notice of a loss to an insurer creates a rebuttable presumption of prejudice to the insurer.
[2] An insured's conclusory affidavit is insufficient to create a genuine issue of material fact regarding the timeliness of notice of a loss.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Prompt notice of a claim 'afford[s] the insurer an adequate opportunity to investigate, to prevent fraud and imposition upon it, and to form an intelligent estimate of its rights and liabilities before it is obliged to pay.'”
Establishes the foundational purpose of prompt notice provisions in insurance contracts.
Previewing 1 of 4 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn September 10, 2017, Hurricane Irma allegedly damaged the roof of the Arces' home. In his September 11, 2020 recorded statement to Citizens' adjuste…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Rebuttable Presumption Of Prejudice cases and more on FLexlaw
Third District Court of Appeal State of Florida
Opinion filed January3, 2024. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-0722 Lower Tribunal No. 21-3224 ________________
Mario Arce, et al., Appellants,
vs.
Citizens Property Insurance Corporation, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Pedro P. Echarte, Jr., Judge.
Perry & Neblett, P.A., and David Avellar Neblett, John A. Wynn and James M. Mahaffey III, for appellants.
Kelley Kronenberg, P.A., and Kimberly J. Fernandes (Tallahassee), for appellee.
Before EMAS, SCALES and HENDON, JJ.
SCALES, J.
2 In this first-party insurance case, appellants Mario and Marlene Arce (“Insureds”), the plaintiffs below, appeal a February 24, 2022 final summary judgment entered in favor of the defendant below, appellee Citizens Property Insurance Corporation (“Citizens”). The trial court granted summary judgment for Citizens after concluding that Insureds materially breached their insurance policy by failing to timely notify Citizens of a loss allegedly caused by Hurricane Irma, thereby relieving Citizens of its duty to provide coverage under the policy. We affirm the judgment because the trial court: (i) properly concluded, based on the summary judgment evidence, that Insureds breached the policy’s prompt notice provision; and (ii) correctly applied the presumption of prejudice that we have consistently held arises when an insured fails to timely notify the insurer of a loss to covered property. In doing so, we certify conflict with the Fourth District’s decision in Perez v. Citizens Property Insurance Corporation, 345 So. 3d 893 (Fla. 4th DCA 2022), which held that the language contained in the Duties after Loss provision of the Citizens policy upends the presumption and places the initial burden on Citizens to prove that it was prejudiced.
I.
RELEVANT FACTS AND PROCEDURAL BACKGROUND
A. Insureds’ Claim and Citizens’ Denial of Insureds’ Claim
On October1, 2020, Citizens sent Insureds a denial letter stating that “Citizens is respectfully denying this claim since our ability to evaluate this claim has been prejudiced due to failure to report this loss in a timely manner.” Citizens’ denial letter cited to the “Conditions” set forth in the policy, which included the following:
CONDITIONS
. . . .
D. Duties after Loss
In case of a loss to covered property, we have no duty to provide coverage under this Policy if the failure to comply with the following duties is prejudicial to us. These duties must be
1. Give prompt notice to us or your insurance agent.
B. The Instant Litigation
In February 2021, Insureds filed this lawsuit in the Miami-Dade County Circuit Court, alleging that Citizens had breached the policy by failing to make a loss payment for Insureds’ Hurricane Irma claim. Citizens filed an answer and affirmative defenses, alleging throughout that Insureds breached the policy’s Duties after Loss provision by failing to promptly notify Citizens of Insureds’ claim. Citizens alleged further that Insureds’ failure to comply with the policy’s prompt notice provision had prejudiced Citizens’ investigation of the loss, thus authorizing Citizens to deny coverage for the claim.
In November 2021, Citizens moved for summary judgment relying, in part, upon Mr. Arce’s recorded statement, wherein Mr. Arce said that he had discovered, and made temporary repairs to, the damaged roof soon after Hurricane Irma had passed.1 A., infra.
Insureds filed a response to Citizens’ summary judgment motion arguing that: (i) Citizens was not entitled to the presumption of prejudice because there was an issue of material fact as to whether Insureds had promptly reported the loss (i.e., when Insureds first knew or should have known that their home’s roof was damaged); and (ii) even if Insureds’ notice of the loss was not prompt, Insureds had presented sufficient record evidence – in the form of an expert affidavit – to create a triable issue of fact as to whether Insureds had rebutted the presumption.
After conducting a hearing on Citizens’ summary judgment motion, the trial court entered the challenged February 24, 2022 final summary judgment in favor of Citizens. Insureds timely appealed the judgment.
II.
ANALYSIS2
2 “We apply a de novo standard of review to questions of insurance policy construction and interpretation.” People’s Tr. Ins. Co. v. Progressive Express Ins. Co., 336 So. 3d 1207, 1209 (Fla. 3d DCA 2021). We also review the summary judgment record de novo to determine: (i) whether Citizens – which bore the burden of persuasion at trial on its affirmative defense that Insureds had materially breached the subject policy’s prompt notice provision – met its initial summary judgment burden of showing that its affirmative defense was applicable; and (ii) if so, whether Insureds met their summary judgment burden of citing to material in the record that established the presence of a genuine dispute of material fact as to the applicability of the affirmative defense that would preclude entry of summary judgment in Citizens’ favor.
See Chowdhury v. BankUnited, N.A., 366 So. 3d 1130, 1133 n.2 (Fla. 3d DCA 2023).
3 In its adjudication of Citizens’ summary judgment motion, the trial court applied Florida’s “new” summary judgment standard. See In re Amendments to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 76 (Fla. 2021). In moving for summary judgment on its affirmative defense that Insureds had materially breached the subject policy’s prompt notice provision, Citizens was required to make an initial showing that there was no genuine dispute as to any material fact and that Citizens was entitled to judgment as a matter of law. See Fla. R. Civ. P. 1.510(a). To meet this initial burden, Citizens was required to cite to “particular parts of materials in the record.” Fla. R. Civ. P. 1.510(c)(1)(A). Once Citizens satisfied this initial burden, the burden then shifted to Insureds either to (i) show that the particular materials cited by Citizens did not establish the absence of a genuine dispute as to any material fact, or (ii) cite to other materials in the record that established the presence of a genuine dispute as to a material fact. See Fla. R. Civ. P. 1.510(c)(1)(A)-(B).
4 Insureds also argue that, assuming Citizens is entitled to a presumption of prejudice, the affidavit of Insureds’ engineer rebutted the presumption so as to create a fact issue regarding prejudice to Citizens. We reject this argument without further elaboration because the engineer’s affidavit – which was wholly conclusory and not based on any information compiled soon after Insureds’ claimed loss – was insufficient to rebut the presumption. See, e.g., Perez v. Citizens Prop. Ins. Corp., 343 So. 3d 140, 143 (Fla. 3d DCA 2022) (“Perez 3DCA”); Gonzalez v. Citizens Prop. Ins. Corp., 273 So. 3d 1031, 1037 (Fla. 3d DCA 2019).
A. I discovered after a hurricane – after a hurricane passed, yes.
Q. Okay.
A. It was me.
Q. Okay. And – so do you recall when that was? Was it immediately after the hurricane or days or weeks or months after?
A. Was after the hurricane. Actually, I lose a couple more things, like the top of the garage that I have in from of the house, something, and then I found out that.
Q. Okay. So it was pretty much right after the hurricane in 2017 that you noticed it?
A. Yeah. It was after hurricane.
Q. All right. And then is there any – any specific reasons for the delay in reporting the claim to the insurance company?
A. I tried to get it fixed. I thought that’s the best and quick way to do it. But, definitely I need to get a really good repair on my roof.
Q. Okay. All right. And then when you did this – let me see here. What damages did you notice to the home?
A. I was missing some tiles, some of them were losing [sic] completely.
A. Yeah. I got a damage, like I said, I lost – I had a two-carport garage in front of the house, and that was completely – they completely fly, and I lost them and everything. Then inside the house I had like a leak also.
In opposition to Citizens’ summary judgment motion, and in an attempt to explain Mr. Arce’s recorded statement, Insureds filed a declaration of Mr. Arce. In sum, this declaration simply states there was a “misunderstanding” because English is Mr. Arce’s second language and Mr. Arce “was not aware that [his] home had sustained Hurricane Irma damages until July 2020 or August of 2020.” As for the damaged carport referenced in his recorded statement, Arce claimed that the carport “was blown away by a hurricane years before Hurricane Irma.” We agree with the trial court that the exchange contained in Mr. Arce’s recorded statement plainly and unequivocally reveals that Mr. Arce was aware of the alleged damage to Insureds’ home right after the 2017 hurricane, and that, under Florida’s new summary judgment standard, Mr. Arce’s declaration was insufficient to create a genuine issue of material fact that would excuse or explain Insureds’ failure to timely notify Citizens of the damage allegedly caused by the hurricane. See Fla. R. Civ. P. 1.510(c)(4) (providing that “[a]n affidavit or declaration used to . . . oppose a [summary judgment] motion must . . . set out facts that would be admissible in
5 In Castro, we reversed a summary judgment for Citizens concluding that Castro’s affidavit created a genuine issue of material fact as to whether Castro gave prompt notice of a September 2017 Hurricane Irma loss. Castro’s detailed affidavit explained that Castro had not reported the loss until February 2020, because (i) “the property was occupied by a tenant during that time period,” (ii) “the tenant never advised Castro of any damage,” and (iii) “Castro herself was unaware of any damage to her property until the tenant moved out of the property in February 2020.” Castro, 365 So. 3d at 1207. Similarly, in Laquer, this Court reversed a partial summary judgment for Citizens concluding that a genuine issue of material fact existed as to whether Laquer’s May 2009 notice of an October 2005 Hurricane Wilma loss was prompt where “[b]ased on the summary judgment record . . . , damage to Laquer’s unit . . . was not apparent until several years after Hurricane Wilma: no one, including Laquer, her tenant, her housekeeper, and the condominium manager and his agents who regularly visited Laquer’s unit, was able to observe any damage . . . prior to September 2008 or was otherwise put on notice to further inspect for damage.” Laquer, 167 So. 3d at 474.
Unlike in Castro and Laquer, no reasonable view of the summary judgment record before us would support a finding that Insureds’ notice of their loss was given as soon as practicable. It bears repeating that, under Florida’s new summary judgment standard, “it will no longer be plausible to maintain that ‘the existence of any competent evidence creating an issue of fact, however credible or incredible, substantial or trivial, stops the inquiry and precludes summary judgment, so long as the ‘slightest doubt’ is raised.’” In re Amendments to Fla. Rule of Civil Procedure 1.510, 317 So. 3d 72, 76
6 See Castro, 365 So. 3d at 1206, n.2; Navarro, 353 So. 3d at 1280; Perez 3DCA, 343 So. 3d at 142.
13 894. Citizens denied the claim, citing the insureds’ failure to promptly notify Citizens of the loss as required by the same prompt notice provision implicated in this case. Id. The insureds sued Citizens and the trial court found that the insureds had breached the prompt notice provision and, after applying the presumption of prejudice, granted Citizens’ motion for summary judgment. Id. at 895. The Perez court, construing the same policy language at issue here, reversed the trial court’s summary judgment, concluding that the presumption was rendered inapplicable by the language of the policy provision: The trial court . . . found no genuine dispute as to any material fact that Citizens was prejudiced, because insureds failed to rebut the presumption of prejudice to Citizens caused by the late notice. However, the policy language places the burden on the insurer to prove prejudice. The policy language here provides that as a condition of the policy, Citizens has “no duty to provide coverage under this Policy, if the failure to comply with the following duties is prejudicial to us.”
Id. at 896. We note that the Fourth District decided Perez on August10, 2022, several months after Insureds filed their notice of appeal in this case. Because the trial court did not have the benefit of Perez when it adjudicated Citizens’ summary judgment motion, Perez had no bearing on the trial court’s legal analysis. This Court, though, did have the benefit of Perez when this
7 In Castro, released ten months after Perez, this Court concluded it was not necessary to address the Perez holding given this Court’s reversal, on other grounds, of the summary judgment for Citizens. Castro, 365 So. 3d at 1206 n.2; see footnote5, supra. In Perez 3DCA, decided just one month prior to Perez, we applied the presumption and affirmed a final summary judgment in favor of Citizens, concluding that the report submitted by the insured’s expert was “insufficient as a matter of law to create a genuine issue of material fact to overcome the prejudice caused to Citizens.” 343 So. 3d at 141.
8 See World Fin. Grp., LLC v. Progressive Select Ins. Co., 300 So. 3d 1220, 1223 (Fla. 3d DCA 2020) (recognizing that “courts are powerless to rewrite a contractual provision to make it more fair or equitable for one of the parties”).
9 See footnote6, supra.
10 See, e.g., Gall v. Philip Morris USA Inc., 314 So. 3d 359, 360 (Fla. 3d DCA 2020); State v. Washington, 114 So. 3d 182, 185 (Fla. 3d DCA 2012).
11 See Boca Raton Cmty. Hosp., Inc. v. Brucker, 695 So. 2d 911, 912-13 (Fla. 4th DCA 1997).
12 We do not certify conflict with the two cases cited by the Perez court in support of its holding: Arguello v. People’s Trust Ins. Co., 315 So. 3d 35, 41 (Fla. 4th DCA 2021) (concluding, under policy language very similar to that found in the instant Citizens policy, that whether the insurer was prejudiced by the insured’s failure to timely provide a sworn statement in proof of loss and supporting documentation was a fact issue, thus precluding summary judgment in a declaratory judgment action filed by the insurer); and Godfrey v. People’s Trust Ins. Co., 338 So. 3d 908, 909 (Fla. 3d DCA 2022) (reaching the same conclusion as Arguello in a first-party insurance action filed by the insured). We view these cases as dispositively distinguishable because neither case involved an insured’s post-loss duty to promptly notify the insurer of the claim. Rather, both cases, relate to other contractually imposed post-loss duties.
This opinion addresses only the presumption of prejudice that arises with respect to an insured’s post-loss obligation to promptly notify Citizens of a loss to covered property. Because the issue is not before us, we need not, and therefore do not, address whether the presumption applies to any other post-loss obligation contained within the instant policy’s Duties after Loss provision.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited (19 total)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986)
- Tiedtke v. Fid. & Cas. Co. OF NEW York, 222 So. 2d 206 (Fla. 1969)
- Bankers Ins. Co. v. MacIas, 475 So. 2d 1216 (Fla. 1985)
- In re Amendments to Fla. Rule of Civil Procedure 1.510, 317 So. 3d 72 (Fla. 2021)
- Yosvani Gonzalez and Yenisleidy Perez v. Citizens Prop. Ins. Corp., 273 So. 3d 1031 (Fla. 3d DCA 2019)
- LoBELLO v. State Farm Fla. Ins. Co., 152 So. 3d 595 (Fla. 2d DCA 2014)
- Ideal Mut. Ins. Co. v. Waldrep, 400 So. 2d 782 (Fla. 3d DCA 1981)
- Edie Laquer v. Citizens Prop. Ins. Corp., 167 So. 3d 470 (Fla. 3d DCA 2015)
- Yohandy Varona v. SafePoint Ins. Co., 353 So. 3d 1276 (Fla. 3d DCA 2024)
- Nat'l Gypsum Co. v. Travelers Indem. Co., 417 So. 2d 254 (Fla. 1982)