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August 25, 2017 by admin

Insurance — Homeowners — Sinkhole claims — Insurer waived compliance with conditions precedent to suit when it unequivocally denied coverage — An insurer that investigates a claim of loss and denies coverage because it concludes that a covered loss has not incurred cannot assert an insured’s failure to comply with policy’s conditions precedent to filing suit as basis for summary judgment

42
Fla. L. Weekly D1842a
Top of Form

Insurance
— Homeowners — Sinkhole claims — Insurer waived compliance with conditions
precedent to suit when it unequivocally denied coverage — An insurer that
investigates a claim of loss and denies coverage because it concludes that a
covered loss has not incurred cannot assert an insured’s failure to comply with
policy’s conditions precedent to filing suit as basis for summary judgment —
Insureds’ submission of engineer’s report that reached conclusion that sinkhole
activity caused damage to their home and their request that insurer reconsider
claim did not constitute a reopening of the claim that nullified insurer’s
previous denial of coverage — Trial court erred in granting summary judgment
in favor of insurer on ground that insureds were barred from bringing breach of
contract action

JUAN CASTRO and MYRIAM LOPEZ,
Appellants, v. HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY,
Appellee. 2nd District. Case No. 2D15-5456. Opinion filed August 23, 2017.
Appeal from the Circuit Court for Pinellas County; Jack R. St. Arnold, Judge.
Counsel: Aaron S. Kling of Smith, Kling & Thompson, P.A., Tampa, for Appellants.
Andrew A. Labbe and Jonathan T. Hall of Groelle & Salmon, P.A., Tampa, for
Appellee.

(SLEET, Judge.) Juan Castro and
Myriam Lopez appeal the final summary judgment in favor of their insurance
company, Homeowners Choice Property & Casualty Insurance Company, in this
breach of contract action. Because Homeowners Choice denied coverage of their
claim, Castro and Lopez’s subsequent failure to comply with the insurance
policy’s conditions did not act as a bar to their filing suit, and we must
reverse.

This case involves a dispute between
Castro and Lopez and Homeowners Choice about whether the damage to their
property was caused by sinkhole activity. On May 4, 2010, Castro and Lopez
noticed damage to their home that appeared to be caused by sinkhole activity.
They filed a notice of claim with Homeowners Choice. On June 15, 2010,
Homeowners Choice retained SDI Engineering to conduct a sinkhole investigation.
SDI did not find any evidence of sinkhole activity, and Homeowners Choice
denied coverage on July 12, 2010, based on the policy exclusion for damage
caused by the movement of the earth beneath the residence. It is undisputed
that prior to denial of the claim, Homeowners Choice did not request that
either Castro or Lopez submit to an examination under oath (EUO), file a sworn
proof of loss, or submit records and documents in accordance with the “Your
Duties After Loss” section1 of their insurance policy. And the
denial of coverage letter did not reference the policy provisions addressing
their duties after loss or advise of any conditions that needed to be met prior
to their filing suit.

Four years later, Castro and Lopez
retained FTE Engineers & Planners, which conducted an investigation and
concluded that the damage to the home was caused by sinkhole activity. On
November 4, 2014, Castro and Lopez sent letters to Homeowners Choice that
included a copy of the FTE report and a request that Homeowners Choice
“reconsider” its denial of coverage within fourteen days. Homeowners Choice,
through its attorney, replied by faxed letter acknowledging that Castro and
Lopez had provided new information and requesting that Castro and Lopez each
submit to an EUO, provide a sworn proof of loss, and provide copies of all
documentation from FTE. Homeowners Choice did not provide a date, time, or
location for the EUOs.

On December 18, 2014, Castro and
Lopez filed suit against Homeowners Choice for breach of insurance contract. On
December 30, 2014, Homeowners Choice provided Castro and Lopez with dates for
the EUOs. On December 31, 2014, counsel for Homeowners Choice informed Castro
and Lopez that filing their lawsuit violated the “Suit Against Us” provision of
their policy2 and demanded that Castro and Lopez
withdraw their lawsuit and coordinate the EUOs by January 9, 2015. Castro and
Lopez did not withdraw their lawsuit, and the record includes emails between
their attorney and counsel for Homeowners Choice that demonstrate an agreement
to schedule the EUOs in January 2015. The last email from Castro and Lopez’s
attorney was dated January 8, 2015, and provided a date and time for the EUOs.
There was no response from Homeowners Choice.

Homeowners Choice filed a motion for
summary judgment based upon Castro and Lopez’s refusal to comply with its
demand for EUOs and the submission of a sworn proof of loss. Homeowners Choice
argued that Castro and Lopez’s provision of the FTE report along with their
request to reconsider the claim constituted a reopening of the claim that
allowed it to require Castro and Lopez to comply with the policy’s conditions
precedent to filing suit. Homeowners Choice contended that Castro and Lopez’s
refusal to comply with those conditions precedent was therefore a willful and
material breach of the insurance contract that precluded recovery under the
policy. Homeowners Choice attached an affidavit from a company employee who
stated that the claim was reopened because Castro and Lopez provided a new
engineering report. Also attached was an affidavit from the chief engineer of
SDI, who reaffirmed that there was no sinkhole activity at Castro and Lopez’s
residence.

In response, Castro and Lopez
asserted that Homeowners Choice waived compliance with the conditions precedent
to filing suit when it unequivocally denied coverage. The trial court disagreed
and entered final summary judgment in favor of Homeowners Choice without making
any findings of fact or conclusions of law. This appeal ensued.

The standard of review applicable to
the granting of a summary judgment motion is de novo. Volusia County v.
Aberdeen at Ormond Beach, L.P.
, 760 So. 2d 126, 130 (Fla. 2000). Summary
judgment can only be granted if there is no issue of material fact and the
moving party is entitled to a judgment as a matter of law. Id. If there
is “the slightest doubt that an issue might exist, that doubt must be resolved
against the moving party.” Nard, Inc. v. DeVito Contracting & Supply,
Inc.
, 769 So. 2d 1138, 1140 (Fla. 2d DCA 2000). Furthermore,

“[a]
motion for summary judgment is not a substitute for a trial on the merits.” Hervey
v. Alfonso
, 650 So. 2d 644, 646 (Fla. 2d DCA 1995). Therefore, rather than
resolving any disputed issues of fact, id., “the court’s function is
solely to determine whether the record conclusively shows that the moving party
proved a negative, that is, ‘the nonexistence of a genuine issue of a material
fact,’ ” Winston Park, Ltd. v. City of Coconut Creek, 872 So. 2d 415,
418 (Fla 4th DCA 2004).

Redland Ins. Co. v. Cem Site
Constructors, Inc.
, 86 So. 3d 1259, 1261 (Fla. 2d DCA
2012).

When an insurance carrier
investigates a claim of loss and denies coverage because it concludes that a
covered loss has not occurred, the insurance carrier cannot assert the
insured’s failure to comply with the policy’s conditions precedent to filing
suit as a basis for summary judgment. Tower Hill Select Ins. Co. v. McKee,
151 So. 3d 2, 3-4 (Fla. 2d DCA 2014). In McKee, this court addressed a
factual scenario similar to the one at issue here and concluded that

[w]hen
[the insurer] denied coverage a valid dispute as to the existence of a covered
loss under the insurance policy arose. Accordingly, [the homeowner’s] complaint
properly sought a determination as to whether [the insurer] breached the
insurance contract by denying coverage of a covered loss. The policy provisions
containing conditions precedent to suit that [the insurer] relie[d] on . . .
were only relevant to a situation where [the insurer] admitted liability and a
dispute as to the amount of recovery arose. Accordingly, they could not act to
bar [the homeowner] from filing suit when [the insurer] denied his insurance
claim entirely.

Id. (citations omitted); see also Indian River State
Bank v. Hartford Fire Ins. Co.
, 35 So. 228, 246 (Fla. 1903) (“A simple
allegation of the denial of all liability on the policy by the company . . .
was sufficient to give to the plaintiff any advantage to be derived from the
waiver of proofs of loss following as a legal consequence upon a denial of
liability.”); Hartford Accident & Indem. Co. v. Phelps, 294 So. 2d
362, 365 (Fla. 1st DCA 1974) (“[A]n insurer, by unconditionally denying any
liability upon its policy, waives proof of loss required by the policy.”).
Accordingly, when Homeowners Choice denied Castro and Lopez’s claim, it
foreclosed its right to later assert their failure to comply with the policy’s
conditions precedent, leaving Castro and Lopez free to file a lawsuit for
breach of the insurance contract at any time within the five-year statute of
limitations period.

Furthermore, we reject Homeowners
Choice’s contention that Castro and Lopez’s subsequent submission of the FTE
report and request to reconsider the claim constituted a reopening of the claim
that somehow nullified its previous denial of coverage. Castro and Lopez’s
insurance policy does not include any reference to or definition of the term
“reopened claim,” nor does it include any language that would inform an insured
that an attempt to negotiate a settlement after a denial of coverage would act
as a reopening of a claim requiring the insured to comply with policy
conditions precedent that it never initially invoked or requested. Furthermore,
Florida law regulating insurance does not define what constitutes the reopening
of a claim of loss after a denial of coverage or reference any obligation that
an insured comply with policy conditions precedent after the denial of
coverage.

Additionally, Homeowners Choice’s
reliance on the phrase “initial, reopened, or supplemental property insurance
claim” in section 627.70131(5)(a), Florida Statutes (2014), is misplaced. Section
627.70131(5)(a) authorizes the inclusion of prejudgment interest on “[a]ny
payment of an initial or supplemental claim . . . made [ninety] days after the
insurer receives notice of the claim, or made more than [fifteen] days after
there are no longer factors beyond the control of the insurer which reasonably
prevented such payment, whichever is later.” It does not define “reopened
claim” or require an insured to perform any conditions precedent prior to
filing suit against an insurer.

We also note that in order to file
suit, Castro and Lopez were under no obligation to first provide Homeowners
Choice with the FTE report contradicting its engineer’s conclusion that the
damage to the residence was not sinkhole related. See Citizens Prop.
Ins. Corp. v. Munoz
, 158 So. 3d 671, 673 (Fla. 2d DCA 2014) (“The trial
court properly denied Citizens’ motion for directed verdict because the Munozes
were under no obligation to provide a contrary report to Citizens before filing
suit.”); Herrera v. Tower Hill Preferred Ins. Co., 161 So. 3d 565, 568
(Fla. 2d DCA 2014) (“The policy did not require the Herreras to give the
Geohazards report to Tower Hill unless they had the report at the time of the
claim[ ] but before Tower Hill denied it.”). The fact that they engaged an engineering
firm that reached the conclusion that sinkhole activity caused the damage to
their home and provided that report to Homeowners Choice as a courtesy did not
legally resuscitate the requirement that they comply with their policy’s
conditions precedent to filing suit. Moreover, the FTE report is discoverable,
and Homeowners Choice is entitled to depose Castro and Lopez’s engineers prior
to trial. See generally Fla. R. Civ. P. 1.280.

Accordingly, the trial court erred
in determining that Castro and Lopez were barred from bringing this breach of
contract action and in granting summary judgment in Homeowners Choice’s favor,
and we must reverse and remand for further proceedings.

Reversed and remanded. (MORRIS and
ROTHSTEIN-YOUAKIM, JJ., Concur.)

__________________

1This
clause of the insurance policy provides in part as follows:

In case of
a loss to covered property, you must see that the following are done:

. . . .

f. As
often as we reasonably require:

(1) Show
the damaged property;

(2)
Provide us with the records and documents we request and permit us to make
copies; and

(3) Submit
to examination under oath, while not in the presence of any other “insured,”
and sign the same.

g. Send to us within [sixty] days of
our request, your signed, sworn proof of loss . . . .

2The “Suit
Against Us” clause provides as follows:

No action
can be brought against us; unless:

a. There
has been full compliance with all of the terms of this policy; and

b. The
action is started within [five] years after the date of loss;

Except
that the time for filing suit is extended for a period of [sixty] days
following the conclusion of the neutral evaluation process or [five] years,
whichever is later.

* * *

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