Insurance — Homeowners — Affirmative defenses — Post-loss obligations — In insured’s breach of contract action against insurer, trial court abused discretion by striking insurer’s affirmative defense of insurance fraud where insured’s ore tenus motion was not properly noticed for hearing — After striking affirmative defense, court should have allowed insurer leave to amend defense to allege insurance fraud with requisite specificity — For insurer to successfully establish a coverage defense based upon insured’s failure to comply with post-loss obligations, insurer must plead and prove that insured has materially breached a post-loss policy provision — If insurer establishes such a material breach by insured, burden then shifts to insured to prove that any breach did not prejudice insurer — Insurer must be prejudiced by insured’s non-compliance with post-loss obligation in order for insured to forfeit coverage — Conflict certified — When insurer has alleged and established, as an affirmative defense to coverage, that insured has failed to substantially comply with a post-loss obligation, prejudice to insurer is presumed, and burden shifts to insured to show absence of prejudice
44 Fla. L. Weekly D1639a
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