39 Fla. L. Weekly D1760a
precedent — Sworn proof of loss — Insurer was not obligated to pay where
insured failed to file sworn proof of loss, thereby materially breaching
condition precedent — Insurer need not show prejudice when insured breaches
condition precedent to suit — Trial court correctly found that insurer did not
waive sworn proof of loss requirement by tendering payment — Personal property
— Where policy provided personal property coverage for named perils, which
included an “explosion,” and that term was not defined under policy, trial court
correctly gave the term its plain and unambiguous meaning — Insured had burden
of proving her contention that “explosion” included explosive expansion of a
decomposing body, which was the circumstance that caused her loss — Trial court
correctly entered summary judgment in favor of insurer
4th District. Case No. 4D12-3410. August 20, 2014. Appeal from the Circuit Court
for the Fifteenth Judicial Circuit, Palm Beach County; John S. Kastrenakes,
Judge; L.T. Case No. 502008CA019828XXXXMB. Counsel: Roy W. Jordan, Jr. of Roy W.
Jordan, Jr., P.A., West Palm Beach, for appellant. Anthony J. Russo, Jared M.
Krukar and Curt Allen of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for
appellee.
On Motion for Rehearing,
Rehearing En Banc, and For Certification
[Original
Opinion at 39 Fla. L. Weekly D838a]
for certification. We do however withdraw our previously issued opinion and
substitute this opinion in its place.
property damage to her condominium, its contents, and related expenses. She
argues the trial court erred in entering summary judgment because: (1) the
insurer waived a condition precedent, the sworn proof of loss requirement; and
(2) her personal property was covered because the damage was caused by a named
peril, an “explosion.”1
affirm.
discovered. During that time, the decomposed body leaked bodily fluids, which
infiltrated the walls and the insured’s apartment causing damage. This is the
event that gave rise to the insured’s claim.
within 60 days of the date of loss. While the insured sent invoices and lists of
damages, no one disputes that she failed to file a sworn proof of loss. The
policy further provided:
Loss Payment. We will adjust all losses with you. . . . Loss
will be payable 60 days after we receive your proof of loss and:
a. reach agreement with you;
b. there is an entry of a final judgment; or
c. there is a filing of an appraisal award with us.
contractor, who inspected the unit and signed an appraisal award. The insurer
then tendered payment to the insured for that amount, but denied liability for
personal property damage. The insured did not accept the payment.
alleged that the appraisal was invalid, and requested the court to modify or
vacate the award, or appoint new appraisers and a neutral umpire for a second
appraisal. In the second count, the insured alleged that the insurer breached
its contract by failing to pay the owner the amount necessary to repair and
remediate her unit, to compensate her for damage to her personal property, and
for living expenses.
(1) materially breached her duty to satisfy conditions
precedent;
. . . .
(5) failed to satisfy all policy provisions before bringing legal
action; and
(6) otherwise failed to comply with her contractual
obligations.
personal property damage. While acknowledging that the insured made a claim for
personal property damage, the insurer argued the policy covered personal
property damage only for named perils, and a decomposing body was not one of
them. The insured responded that the claim resulted from an “explosion,” a named
peril under the policy. She supplied an affidavit of a licensed physician, who
attested that the deceased’s body “underwent advanced decomposition” and “the
internal contents of her body explosively expanded and leaked.”
comply with a condition precedent — submitting a sworn proof of loss —
constituting a material breach of the insurance policy. Because the insurer and
insured never reached an agreement, no final judgment was entered, and no valid
appraisal award existed, there was no coverage for the claims. The insured
responded, in part, that the insurer had waived the “sworn proof of loss”
requirement by tendering payment to the insured, and that other genuine issues
of material fact precluded entry of a summary judgment.
finding that the insurer did not waive the condition precedent of a sworn proof
of loss, there was no coverage, and the damage caused by the decomposing body
did not constitute an “explosion” as a named peril. From this summary judgment,
the insured now appeals.
summary judgment based upon the interpretation of an insurance policy is de
novo. Chandler v. Geico Indem. Co., 78 So. 3d 1293, 1296 (Fla. 2011).
because the insurer did not show that it was prejudiced by the insured’s failure
to submit a sworn proof of loss. We disagree.
precedent to suit.” Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d
300, 303 (Fla. 4th DCA 1995). Proof of loss is a condition precedent to an
insured’s suit against an insurer. Soronson v. State Farm Fla. Ins. Co.,
96 So. 3d 949, 952 (Fla. 4th DCA 2012); Kramer v. State Farm Fla. Ins.
Co., 95 So. 3d 303, 306 (Fla. 4th DCA 2012).
invoices, and other documents to prove her damages, she failed to file a
sworn proof of loss. Therefore, the insured materially breached a
condition precedent, and the insurer was not obligated to pay. The trial court
properly entered summary judgment in the insurer’s favor. See Amica Mut. Ins.
Co. v. Drummond, 970 So. 2d 456, 459-60 (Fla. 2d DCA 2007).
proof of loss requirement by tendering payment because “[i]nvestigating any loss
or claim under any policy or engaging in negotiations looking toward a
possible settlement of any such loss or claim” does not constitute a waiver
of a “sworn proof of loss” requirement. § 627.426(1)(c), Fla. Stat. (2007)
(emphasis added).
authority and argued that the supreme court’s recent decision in State Farm
Mutual Automobile Insurance Co. v. Curran, 135 So. 3d 1071 (Fla. 2014),
rendered the sworn proof of loss a condition subsequent rather than a condition
precedent. We disagree as our supreme court limited its rationale and holding to
the unique subject of uninsured motorist coverage and compulsory medical exams.
Even if it had not done so, we find the issue in this case vastly different than
the one encountered in Curran.
compulsory medical examination (“CME”) was a condition subsequent, not a
condition precedent to coverage. In doing so, the court specifically said that
“a CME provision in the UM coverage context is not a condition precedent
to coverage and we find that an insured’s breach of this provision should not
result in post-occurrence forfeiture of insurance coverage without regard to
prejudice.” Id. at 1079 (emphasis added) (citations omitted).
of uninsured motorist (“UM”) coverage, and “stressed” that such coverage was not
designed for the benefit of insurers. Id. at 1077. It also reviewed the
role of CMEs in the process of settling personal injury claims. Id. It
then rejected the insurer’s argument and concluded “that a CME provision in the
UM context is a post-loss obligation of the insured and is not a condition
precedent to coverage.” Id. at 1078.
provided:
Loss Payment. We will adjust all losses with you. . . . Loss
will be payable 60 days after we receive your proof of loss
and:
a. reach agreement with you;
b. there is an entry of a final judgment; or
c. there is a filing of an appraisal award with us.
. . . .
Your Duties After Loss. After a loss to which this insurance
may apply, you shall see that the following duties are performed
. . . .
d. submit to us, within 60 days after the loss, your signed,
sworn proof of loss.
the sworn proof of loss. Unlike a CME, which is requested by the insurer to
substantiate a claim already made by the insured, the sworn proof of loss is a
condition precedent. For this reason, Curran does not mandate a reversal
in this case.
summary judgment on the personal property claim because there was an issue of
material fact as to whether there was an explosion under the policy’s terms. We
disagree.
named perils was an “explosion.” That term was not defined. It is black letter
law that “[a]n insurance contract must be construed in accordance with the plain
language of the policy.” Harrington v. Citizens Prop. Ins. Corp., 54 So.
3d 999, 1001 (Fla. 4th DCA 2010) (quoting Taurus Holdings, Inc. v. U.S. Fid.
& Guar. Co., 913 So. 2d 528, 532 (Fla. 2005)). It was the insured’s
burden to prove that the term “explosion” included the explosive expansion of a
decomposing body.
“explosion” its “plain and unambiguous meaning as understood by the
‘man-on-the-street.’ ”2 Id. at 1001
(citation omitted). The plain meaning of the term “explosion” does not include a
decomposing body’s cells explosively expanding, causing leakage of bodily
fluids. In short, although novel in her attempt to do so, the insured could not
establish that the decomposing body was tantamount to an explosion.
therefore affirm.
find lack merit. While we agree with the insured on the insufficiency of the
insurer’s affidavits, it does not alter the outcome of the case. Our decision
turns on the plain reading of the insurance policy and the agreed upon facts.
“explosion” as “the act or instance of exploding” and “a large-scale, rapid, or
spectacular expansion or bursting out or forth.” MERRIAM-WEBSTER: AN
ENCYCLOPÆDIA BRITANNICA COMPANY,
http://www.merriam-webster.com/dictionary/explosion (last visited Mar. 28,
2014).
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