ROBERTO SOLANO and MARLENE SOLANO, Appellants, v. STATE FARM FLORIDA
INSURANCE COMPANY, Appellee. 4th District. Case No. 4D12-1198. May 14, 2014.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward
County; Eileen O’Connor and John B. Bowman, Judges; L.T. Case No. 10-40785 02.
Counsel: Timothy H. Crutchfield and Adrian N. Arkin of Mintz Truppman, P.A.,
North Miami, for appellants. Kara Berard Rockenbach and David A. Noel of Methe
& Rockenbach, P.A., West Palm Beach, for appellee.

(Warner, J.) The insureds appeal a final summary judgment in favor of State
Farm, their property insurer, on their claim that State Farm failed to pay a
property damage claim. The trial court held that, because the insureds had not
appeared for an examination under oath as required by the policy provisions,
they failed to comply with a condition precedent to suit, resulting in judgment
for State Farm and a forfeiture of benefits. The record, however, reveals that
disputed issues of fact remain as to the extent of the Solanos’ compliance with
the policy provisions. We therefore reverse.

The insureds, Dr. and Mrs. Solano, own residential property insured by State
Farm and damaged during Hurricane Wilma in 2005. The policy required the
insureds to comply with certain post-loss conditions, including submitting to an
examination under oath (“EUO”), submitting sworn proofs of loss, giving timely
notice of damages, and exhibiting damages at State Farm’s request.

Although State Farm made payments in 2006, the Solanos hired a public
adjuster in 2009 who asked State Farm to reopen the claim. The adjuster
submitted a claim in excess of $200,000. State Farm did inspect the property
with the adjuster and made an additional payment for some damage, but notified
the Solanos that it would continue to investigate the other damage claims.
Thereafter, the adjuster submitted several additional sworn proofs of loss,
increasing the amount of damage claimed.

After the third sworn proof of loss, State Farm asked the Solanos to submit
to an EUO. It also asked that the adjuster submit to examination if the Solanos
intended to rely on his knowledge and opinions. The Solanos appeared for the EUO
and brought a fourth proof of loss.

Dr. Solano was examined under oath and deferred almost entirely to the
adjuster as to the type and extent of damages, as well as its cost. He did
relate the damage he saw after the hurricane, as well as the progress of the
repairs. He also deferred to his wife to answer a few questions.

At the end of Dr. Solano’s interview, he refused to allow his wife to submit
to an EUO that day, because he felt that examination might put her under too
much mental stress. The adjuster also refused to give a statement under oath,
although he said he might do so in the future. He took the position that State
Farm could not compel him to provide a sworn statement.

Later, State Farm informed the Solanos that they had deprived it of a
meaningful EUO and asked them to present any additional documents or information
regarding their claim. State Farm also asserted the Solanos had failed to
provide a proper sworn proof of loss. The adjuster responded for the Solanos,
asking why the proofs of loss were deficient. State Farm eventually responded,
explaining which documents it still needed and why it believed the proofs of
loss were deficient.

The Solanos thereafter retained counsel who wrote to State Farm in July 2010,
submitting a fifth proof of loss and demanding an appraisal. Counsel offered to
submit Mrs. Solano to an EUO. State Farm accepted the fifth proof of loss
together with documentation as complying with the policy, but asserted an
appraisal was premature until it had investigated the claim.

The parties scheduled Mrs. Solano’s EUO for October 12, 2010. State Farm
asked to examine her and the adjuster, as well as to receive the documentation
requested in its letters. Five days before the scheduled EUO, the Solanos’
counsel filed a complaint against State Farm to compel an appraisal.

Mrs. Solano appeared for the EUO on October 12th and was prepared to testify,
but State Farm’s counsel, citing the filing of the lawsuit and pending
litigation, declined to proceed with the EUO.

After State Farm moved to dismiss the original complaint, the Solanos filed
an amended complaint alleging State Farm had breached the policy by denying
coverage. The amended complaint did not request appraisal.

State Farm moved for summary judgment, arguing the Solanos had failed to
comply with their post-loss obligations before filing suit, in violation of the
policy’s “no action” clause. Specifically, State Farm argued the Solanos failed
to appear for a “full, complete and meaningful” EUO and did not provide all the
requested documentation. The Solanos countered with affidavits from the adjuster
and Dr. Solano detailing the information that State Farm had been provided
regarding the damages, as well as countering the allegations in State Farm’s
affidavits.

Following the hearing, the court issued an order granting summary judgment
for State Farm. The court made several findings that the Solanos had failed to
submit to a meaningful EUO which, as a condition precedent, precluded recovery
under the policy, citing Jacobs v. Nationwide Mutual Fire Insurance Co.,
2002 WL 34543222 (S.D. Fla. Sept. 10, 2002), and Goldman v. State Farm Fire
General Insurance Co., 660 So. 2d 300 (Fla. 4th DCA 1995). The court later
entered final judgment for State Farm. After the denial of a motion for
rehearing, the Solanos appeal the final judgment.

An order granting summary judgment is reviewed de novo. Fayad v.
Clarendon Nat’l Ins. Co., 899 So. 2d 1082, 1085 (Fla. 2005). In the context
of summary judgment, an appellate court reviews a trial court’s factual findings
to make sure they are supported by undisputed evidence; a genuine dispute of
material fact will preclude summary judgment. Kroener v. Fla. Ins. Guar.
Ass’n, 63 So. 3d 914, 916 (Fla. 4th DCA 2011); see also Progressive
Express Ins. Co. v. Camillo, 80 So. 3d 394, 399 (Fla. 4th DCA 2012) (“A
trial court may not weigh the evidence or judge the credibility of witnesses in
arriving at summary judgment.”).

We have held that an EUO requirement in an insurance policy is a condition
precedent to recovery, and “[a]n insured’s refusal to comply with a demand for
an [EUO] is a willful and material breach of an insurance contract which
precludes the insured from recovery under the policy.” Goldman, 660 So.
2d at 303; see also Edwards v. State Farm Fla. Ins. Co., 64 So. 3d 730,
732-33 (Fla. 3d DCA 2011) (relying on Goldman and affirming summary
judgment for insurer where insured did not submit any requested documents and
failed to submit to an EUO).1

Although “[a] total failure to comply” with a condition precedent can
preclude an insured from recovering, in a case like this where an insured
cooperates to some extent, a fact question remains as to whether the condition
is breached to the extent of denying the insured any recovery under the policy.
Haiman v. Fed. Ins. Co., 798 So. 2d 811, 812 (Fla. 4th DCA 2001). In
Haiman, this court reversed an order granting summary judgment for the
insurer where the insureds had at least partially complied with a post-loss
condition. This court distinguished Goldman, because in Goldman
the insured refused to make himself available for any examination prior to
filing suit. In Haiman, the insured had appeared for the EUO and brought
substantial documentation, although apparently not all the documents demanded by
the insurer. We said: “Whether the failure to produce documents requested is a
material breach would be a question of fact for the jury.” Id.; see
also Lewis v. Liberty Mut. Ins. Co., 121 So. 3d 1136, 1137 (Fla. 4th DCA
2013) (finding EUO requirement was barred by PIP statute but, even if it was
not, “we would also reverse the final summary judgment, because an issue of fact
remained as to whether [the insured’s] refusal to attend the EUO, under the
conditions required by [the insurer], was unreasonable”); Makryllos v.
Citizens Prop. Ins. Corp., 103 So. 3d 1032, 1034 (Fla. 2d DCA 2012);
Sunshine State Ins. Co. v. Corridori, 28 So. 3d 129, 131 (Fla. 4th DCA
2010); Schnagel v. State Farm Mut. Auto. Ins. Co., 843 So. 2d 1037, 1038
(Fla. 4th DCA 2003).

Here, there was not “a total failure to comply” by the Solanos. Dr. Solano
appeared for his sworn statement, gave answers to some of the questions posed,
and deferred to the adjuster for most of the information and to his wife on
others. He arranged for the adjuster to attend the EUO, but the adjuster on his
own refused to provide a sworn statement. State Farm did not show that the
insureds could compel the adjuster to provide a sworn statement.
Nevertheless, the adjuster did furnish a significant amount of documentation
with the various sworn proofs of loss, the fifth of which State Farm
affirmatively accepted as adequate. In addition, State Farm representatives
actually inspected the property, going over the claims with the adjuster. A
question of fact remains as to whether there was sufficient compliance with the
cooperation provisions of the policy to provide State Farm with adequate
information to settle the loss claims or go to an appraisal, thus precluding a
forfeiture of benefits owed to the insureds.

We therefore conclude that the trial court erred in granting summary final
judgment in favor of State Farm, as material issues of fact remain. We reverse
and remand for further proceedings. (Forst and Klingensmith, JJ., concur.)

__________________

1We do not address State Farm Mutual
Automobile Insurance Co. v. Curran, 39 Fla. L. Weekly S122 (Fla. Mar. 13,
2014). Although in State Farm Automobile Insurance Co. v. Curran, 83 So.
3d 793 (Fla. 5th DCA 2011), the Fifth District certified conflict with our
decision in Goldman, as well as certifying a question of great public
importance, the supreme court declined to address the conflict and decided the
case based upon the question presented. Curran, 39 Fla. L. Weekly S122 at
*3 n.8. While the issue addressed in Curran is similar to the issue
addressed here, the court’s analysis hinges on matters which are not present in
this case.