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News Room

Client Update – Florida Coverage

By John Bond Atkinson, Tiffany A. Bustamante, and Justin Forti

We hope this Client Update finds you in good health and positive spirits. As we enter the next phase of life under COVID-19, Atkinson, P.A. remains dedicated and available to advise, address, and support your legal concerns.

As always, we will continue to keep you appraised of new issues emerging in the insurance industry and look forward to sharing time with you as we navigate this new normal together. Below are recent Florida decisions concerning coverage claims, we felt may be of interest.

Celerina Nunez v. Universal Property & Casualty Insurance Company, Case No. 16-1435 & 16-1284 (Fla. 3d DCA March 10, 2021).

In Nunez, the Appellant insured had a homeowner’s policy with the Appellee Universal. In April 2015, the insured experienced two water losses occurring two days apart, with one occurring in the kitchen and the other in a bathroom. Universal requested a sworn proof of loss the same day that these losses were reported; insured provided the same seventy-five days later. In the interim, the property was inspected and the insured made an unsworn but recorded statement to Universal.

Universal sent two pieces of correspondence to Nunez’s counsel in August 2015 requesting dates for an Examination Under Oath (EUO) pursuant to the insured’s obligations under the policy. When Universal received no response, it unilaterally set and notified Nunez of an EUO date. Nunez failed to appear on that date.

At trial, significant points of argument were raised regarding the wording of the jury instructions pertaining to the insured’s failure to comply with the EUO obligations. Though the Court initially denied a Motion for Summary Judgment in favor of the Universal predicated upon Nunez’s failure to comply with post-loss obligations, a successor judge later granted Universal’s Motion for Directed Verdict on the discreet issue of whether Nunez breached the contract by failing to attend the EUO.

The Third DCA reversed the directed verdict and reiterated its decision in American Integrity Insurance Co. v. Estrada, 276 So. 3d 905 (Fla. 3d DCA 2019) that addressed the burden of each party related to post-loss obligations as follows:

For an insurer to successfully establish a coverage defense based upon an insured’s failure to satisfy post-loss obligations such that an insured forfeits coverage under the policy, the insurer must plead and prove that the insured has materially breached a post-loss policy provision. If [such is established] the burden then shifts to the insured to prove that any breach did not prejudice the insurer.
Furthermore, while interpretation of an insurance contract normally presents an issue of law, the questions of whether certain actions constitute compliance with a contract often present an issue of fact. Thus, the factfinder in such a trial must determine whether such a breach was (1) material and, if so, (2) prejudiced the insurer.

In summation, it is especially crucial for an insurer to both plead and present or maintain evidence of the materiality of a post-loss breach by an insured from the inception of a case; if there is doubt concerning the materiality of a breach, it is likely better to plead it and later find it inapplicable than to have not pleaded it and find that it is substantially supported by the evidence.

People’s Trust Insurance Company v. Phillipe Pellicer, Case No. 4D20-2004 (Fla. 4th DCA, March 17, 2021)
In Pellicer, the trial court granted the insured Phillip Pellicer’s Motion to Compel Appraisal of a claim arising under a property insurance policy. This case is notable for a couple of reasons. The first is that the Appellee Pellicer conceded error in the trial court’s granting the motion, yet the District Court still issued a (short) opinion. The second is the substance of this opinion, which reiterates once more that a trial court must conduct an evidentiary hearing to determine the necessity or sufficiency of an insured’s compliance with post-loss policy obligations.

Here, the trial court itself was the factfinder, not a jury, so the order was simply reversed and remanded. However, as we saw in Nunez, above, this can be considerably more complicated in the presence of a jury and which necessitates clear jury instructions. The takeaway lesson once more is to ensure proper pleading of non-compliance with post-loss obligations and to ensure that these claims are extremely well documented in time, tangible evidence, and it materiality to the insurance contract.
Alexandra Lopez v. Avatar Property & Casualty Insurance Company, Case No. 5D20-64 (Fla. 5th DCA, March 12, 2021)

Lopez once again involves water damage claims under a homeowner’s insurance policy. Ms. Lopez appealed the trial court’s summary judgment that held the proofs of loss submitted by the insured did not provide the information required by the policy.

The Fifth DCA reversed and remanded this case upon now-familiar grounds. It acknowledged that a policy provision requiring an insured to submit a sworn proof of loss as a condition precedent to a suit against an insurer, and that conditions precedent must be substantially complied with. However, the Court goes on to cite a substantial body of case law that requires an insured’s breach of conditions precedent to suit to be material, i.e., causing prejudice. In the instant suit, the insured had simply substituted the “convenience” documents supplied by the insurer for a substantially similar sworn proof of loss containing nearly identical information. Because these proofs of loss were coherent and contained adequate explanation, the Court found that there existed genuine issues of material fact inappropriate for the lower court’s summary judgment.

This specific case emphasizes the need to specifically analyze every document returned by an insured, even if late or unrecognized, because characterization of documents as improper can backfire when the documents differ from the norm but contain substantive information usable by an insurer. It must always be shown that the breach is material, not simply formulaic or unusual.

Atkinson, P.A. is committed to providing you with sound guidance, representation, and defense in response to these complex legal issues and we will continue to monitor noteworthy cases.

Our office continues to remain open and all of our attorneys remain fully available to assist you. As needs arise, continue to contact us via telephone or e-mail. Should you need immediate assistant, please feel free to contact our partners directly.

Very truly yours,


John Bond Atkinson        Tiffany A. Bustamante              John B. Atkinson
561-212-4089                      305-431-7497                              561-289-2331