42
Fla. L. Weekly D339a 

Insurance — Homeowners — In insured’s action against
insurer to recover for damage to roof, trial court did not err in denying
insurer’s motions for summary judgment and directed verdict alleging that
insured failed to comply with post-loss obligations by submitting timely sworn
proof of loss and protecting property from further damage by making reasonable
and necessary repairs — Issue of whether insured substantially complied with
post-loss obligations involved questions of fact properly resolved by jury —
New trial required because of the admission of irrelevant evidence regarding
insured’s health

STATE
FARM FLORIDA INSURANCE COMPANY, Appellant, v. DINA FIGUEROA, Appellee. 4th
District. Case No. 4D15-2698. February 8, 2017. Appeal from the Circuit Court
for the Seventeenth Judicial Circuit, Broward County; Dale Ross, Judge; L.T.
Case No. 10-31874 (08). Counsel: Elizabeth K. Russo and Kevin D. Franz of Russo
Appellate Firm, P.A., Miami, and Green & Ackerman, P.A., Boca Raton, for
appellant. George A. Vaka and Nancy A. Lauten of Vaka Law Group, Tampa, and
David J. Pettinato of Merlin Law Group, Tampa, for appellee.

(GROSS,
J.) State Farm raises two issues in this appeal of a final judgment entered for
the insured. State Farm argues first that the trial court erred in denying its
summary judgment and directed verdict motions because the insured failed to
timely comply with policy obligations following the loss. State Farm also
argues that, at a minimum, a new trial is required because the introduction of
the insured’s health issues at trial was both irrelevant and highly
prejudicial.

We
reject the first issue because the insured’s substantial compliance with her
post-loss obligations under the policy involved issues of fact properly
resolved by the jury. On the second issue, because evidence of the insured’s
health should never have been introduced, we reverse for a new trial.

The
insured, Dina Figueroa, first filed a claim on October 30, 2005, after
Hurricane Wilma hit on October 24, 2005. State Farm sent an adjuster to her
home on December 17, 2005. The adjuster believed that 29 roof tiles had been
damaged by the hurricane, but that, because the cost to repair those roof tiles
did not exceed the insured’s policy deductible, it was unable to provide a
payment. State Farm advised the insured that she was free to obtain her own
estimate of the cost of repairs, and to contact it immediately if she obtained
an estimate that was above her deductible. In 2005, State Farm did not insist
that the insured file a sworn proof of loss.

The
insured contacted a few roofers, but none were interested in the job. In
January 2006, the insured began dealing with a serious medical condition, which
distracted her from following up with her claim.

In
late 2008, the insured obtained a contractor’s estimate that included a new
roof because more than 25% of her roof tiles had been loosened by wind damage.
The contractor estimated that a new roof would cost $43,648. The insured
informed State Farm in early 2009 that she wanted to reopen her claim, sending
along the contractor’s estimate.

State
Farm sent another adjuster to the insured’s home in April 2009, who concluded
that the original estimate was correct. After that inspection, State Farm sent
the insured a letter that outlined her obligations under the policy following a
loss. In relevant part, the policy required her to protect the property from
further damage by making reasonable and necessary temporary repairs, and to
submit to State Farm a signed sworn proof of loss within 60 days of the loss.
The policy provided that no action could be brought against State Farm unless
there was compliance with these provisions.

The
insured submitted a sworn proof of loss along with the contractor’s estimate on
June 8, 2009. Counsel for State Farm responded in late September 2009,
informing the insured that the proof of loss did not comply with policy
provisions. Subsequently, upon State Farm providing a proof of loss form to the
insured in March 2010, the insured completed and submitted the proof of loss
form on June 10, 2010.

On
June 22, 2010, State Farm notified the insured that it was relieved of its
obligations under the policy because of the insured’s material breach,
specifically, her failure to timely submit a valid sworn proof of loss. The insured
filed suit the following month.

State
Farm moved for summary judgment, arguing that the insured failed to comply with
her post-loss obligations under the policy. It argued that the insured failed
to submit a sworn proof of loss within 60 days of the loss and failed to
protect her property from further damage by making reasonable and necessary
repairs. The insured responded that she substantially complied with her
post-loss obligations and that State Farm was not prejudiced by her untimely
compliance. The insured also explained that she was unable to immediately
dispute State Farm’s estimate in 2005 because she began experiencing health
issues. The trial court denied the motion.

Prior
to trial, State Farm moved in limine to prevent the insured from discussing her
medical issues, arguing that such evidence was both irrelevant and highly
prejudicial. The insured argued that the evidence was necessary to explain the
3-year gap between her initial claim at the end of 2005 and her reopening the
claim in early 2009. The court agreed with the insured and denied the motion.

At
trial, in addition to arguing that the insured’s noncompliance with the policy
provisions precluded recovery, State Farm argued that the insured needed a new
roof not because it was damaged by Hurricane Wilma, but because of improper
installation and natural wear and tear. Both sides called roofing experts to
testify about causation and damages.

The
jury found that the insured substantially complied with her post-loss
obligations of submitting a sworn proof of loss within 60 days and protecting
her property from further damage by making reasonable and necessary repairs. It
awarded her the full amount requested to replace her roof. State Farm’s
post-verdict motion for a new trial was denied. This appeal followed.

I.

Rulings
on summary judgment and directed verdict are reviewed de novo. See Volusia
Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); Meruelo
v. Mark Andrew of Palm Beaches, Ltd., 12 So. 3d 247, 250 (Fla. 4th DCA
2009).

As
to State Farm’s first issue, we hold that the trial court did not err in
denying its summary judgment or directed verdict motions. Whether an insured
substantially complied with policy obligations is a question of fact. See
Solano v. State Farm Fla. Ins. Co., 155 So. 3d 367, 370 (Fla. 4th DCA 2014)
(stating that, “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.”). Whether an insurer is prejudiced by
an insured’s untimely compliance is also a question of fact. See Kramer v.
State Farm Fla. Ins. Co., 95 So. 3d 303, 306 (Fla. 4th DCA 2012). Kramer
explains that, although an insured’s “untimely pre-suit submission of the
sworn proof of loss is presumed to have prejudiced the insurer,” that
presumption can be rebutted by the insured showing “that the insurer was not
prejudiced”.

State
Farm argues that Kramer conflicts with Goldman v. State Farm Fire
Gen. Ins. Co., 660 So. 2d 300, 306 (Fla. 4th DCA 1995), where we held that
an insured’s noncompliance with a policy provision that is a condition
precedent to suit “precludes an action on the policy regardless of a showing of
prejudice by the insurer.” But the insured in Goldman failed to perform
the policy obligation of submitting to an examination under oath before
filing suit. Although the insureds in Kramer did not timely submit a
sworn proof of loss within 60 days, they did submit it before filing suit.

Similarly,
here, although the insured did not submit a sworn proof of loss within 60 days
of the loss, she did so before filing suit. In 2005, State Farm responded to
the insured’s claim and evaluated it without requesting a sworn proof of loss.
The insured first submitted a proof of loss shortly after notifying State Farm
that she wished to reopen her claim in 2009. When State Farm advised the
insured that the proof of loss did not comply with the policy and provided her
with its own form, the insured completed and returned that proof of loss form.
The insured complied “to some extent,” creating a question for the factfinder. See
Solano, 155 So. 3d at 370.

Although
the insured’s compliance with the policy provision was untimely, because she
complied prior to suit, whether that compliance was substantial was a fact question.
Such untimely compliance presumes prejudice to the insurer, which the insured
can overcome by showing that the insurer was not prejudiced. Because
substantial compliance and prejudice were both questions of fact, the trial
court did not err in denying State Farm’s summary judgment and directed verdict
motions.

II.

“The
appropriate standard of review applied to a trial court’s denial of a motion
for a new trial is whether the trial court abused its discretion.” Hernandez
v. Gonzalez, 124 So. 3d 988, 989 (Fla. 4th DCA 2013) (quoting Izquierdo
v. Gyroscope, Inc., 946 So. 2d 115, 117 (Fla. 4th DCA 2007)). “Rulings on
the admission of evidence are reviewed under the abuse of discretion standard.”
Cantore ex. rel. Cantore v. West Boca Med. Ctr., Inc., 1674 So. 3d 1114,
1117 (Fla. 4th DCA 2015).

As
to State Farm’s second issue, we agree that the insured’s health was not
relevant to any issue in the case. “Relevant evidence is evidence tending to
prove or disprove a material fact.” § 90.401 Fla. Stat. (2015); see also
Sims v. Brown, 574 So. 2d 131, 134 (Fla. 1991) (explaining that, to be
legally relevant, evidence must “bear[ ] on a fact to be proved” and have “a
tendency to make the fact more or less probable”). Because no provision in the
policy allowed illness to excuse noncompliance or untimely compliance with the
insured’s obligations, evidence of the insured’s health did not tend to prove
or disprove that she substantially complied with the policy obligations or that
State Farm was not prejudiced by her untimely compliance.

Not
only did the insured’s health not “assist the jury in determining a material
fact at issue,” it “may have led the jury to infer” that her health was a
factor to be considered in determining whether she substantially complied. Barrett
v. State, 605 So. 2d 560, 561 (Fla. 4th DCA 1992). Where evidence is both
irrelevant and highly prejudicial, it can amount to harmful error. See
Osborne v. State, 997 So. 2d 1266, 1268-69 (Fla. 4th DCA 2009) (“Admission
of the irrelevant, highly prejudicial gun evidence was harmful error.”). “
‘Unfair prejudice’ has been described as ‘an undue tendency to suggest decision
on an improper basis, commonly, though not necessarily, an emotional one.’ ” McDuffie
v. State, 970 So. 2d 312, 327 (Fla. 2007) (quoting Brown v. State,
719 So. 2d 882, 885 (Fla. 1998)). Evidence of the insured’s medical condition
improperly injected the potential for a sympathy verdict in the case.

This
was a case where State Farm’s main defense was that the insured failed to
comply with her obligations under the policy, and that failure precluded an
action on the policy. Because the insured’s health had no probative value, it
could only have suggested that the jury make a decision on an improper basis.

The
error in allowing this evidence was exacerbated by the multiple times it came
up at trial. It was first mentioned by the insured’s counsel during opening
statements. The insured testified on direct that she “had a recurrence of a
life-threatening illness.” Counsel for State Farm questioned the insured about
her employment during the 3-year gap suggesting that she was well enough to
work during that period, which prompted the insured’s counsel to bring it up
again on redirect:

Counsel:
And during that time period, you were working at some time in that period, and
at other times, you were not?

The insured:
Correct.

Counsel:
But even though you had this medical issue, you still needed to work?

The insured:
Yes. I was the only income in the house.

Moreover,
the jury asked two questions about the insured’s health after she finished
testifying. One question inquired into the nature of the health issue, and the
other asked when the health issue began.

Because
there is a reasonable possibility that the introduction of this irrelevant and
prejudicial evidence contributed to the verdict, we reverse and remand for a
new trial. See Special v. West Boca Med. Ctr., 160 So. 3d 1251, 1256
(Fla. 2014).

Reversed
and remanded. (WARNER and MAY, JJ., concur.)

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