Where issue of fact as to prejudice remains, remand for determination of prejudice is appropriate

Insurance — Insured’s breach of policy provisions —
Prejudice to insurer

MARK HAMILTON, Appellant/Cross-Appellee, v. STATE FARM FLORIDA INSURANCE
COMPANY, Appellee/Cross-Appellant. 5th District. Case No. 5D12-3733. Opinion
filed March 14, 2014. Appeal from the Circuit Court for Citrus County, Patricia
V. Thomas, Judge. Counsel: Raymond T. Elligett, Jr., of Buell & Elligett,
P.A., and K.C. William, III, and William R. Burke, of Williams Law Association,
P.A., Tampa, for Appellant/Cross-Appellee. Scot E. Samis, of Traub, Lieberman,
Straus & Shrewsberry, LLP, St. Petersburg, for Appellee/Cross-Appellant.

(PER CURIAM.) Appellant, Mark Hamilton, has filed a motion for rehearing. We
grant the motion, withdraw the previous opinion, and substitute the following in
its place.

Hamilton contends in his motion that pursuant to Whistler’s Park, Inc. v.
Florida Insurance Guaranty Ass’n, 90 So. 3d 841 (Fla. 5th DCA 2012),
review granted, 123 So. 3d 557 (Fla. 2013), we should reverse the order
under review and remand this case to the trial court for further proceedings to
determine whether the Appellee, State Farm Florida Insurance Company, was
prejudiced by Hamilton’s alleged breach of the pertinent policy provisions.
Specifically, Hamilton contends that remand is appropriate because “the facts in
this case presented at least a disputed issue as to whether State Farm was
prejudiced by an alleged failure to comply.” In the alternative, Hamilton
contends that we withdraw our prior opinion and wait until the Florida Supreme
Court renders its opinion in Whistler’s Park. Upon further review, we
conclude that because we are bound by Whistler’s Park, further
proceedings in the trial court to determine whether State Farm was prejudiced by
the alleged breach are appropriate. Therefore, we reverse the order under review
and remand this case for further proceedings consistent with this opinion.

REVERSED and REMANDED. (SAWAYA and COHEN, JJ., concur. BERGER, J., dissents,
with opinion.)

__________________

(BERGER, J., dissenting.) I disagree with the majority that Whistler’s
Park, Inc. v. Florida Insurance Guaranty Ass’n, 90 So. 3d 841 (Fla. 5th DCA
2012), review granted, 123 So. 3d 557 (Fla. 2013),1 requires us to remand for the purpose of determining
whether State Farm was prejudiced by Hamilton’s breach of pertinent provisions
of his insurance policy.2 Because Hamilton
breached a condition precedent to filing suit, State Farm’s prejudice was
presumed. See Bankers Ins. Co. v. Macias, 475 So. 2d 1216 (Fla.
1985) (holding a presumption of prejudice to an insurer arises when the insured
breaches a notice provision). Accordingly, it was Hamilton’s burden to show lack
of prejudice, especially in light of the fact that his failure to file a sworn
proof of loss3 and failure to provide the
findings of his expert prior to filing suit4 impeded a full investigation of his claim by State
Farm. Id. at 1218 (“The burden should be on the insured [seeking an
avoidance of a condition precedent] to show lack of prejudice where the insurer
has been deprived of the opportunity to investigate the facts and to examine the
insured.”). Below, Hamilton failed to overcome, or even address, the presumption
of prejudice to State Farm in his affidavits in opposition to the motion for
summary judgment,5 and his argument that
State Farm suffered no prejudice is without merit.

I would also note that the purpose of a motion for rehearing is not to
re-argue the merits of the case, but to bring to the court’s attention something
it overlooked or misapprehended. See Fla. R. App. P. 9.330. Because the
arguments made in Hamilton’s motion were already heard and rejected by this
court through a per curiam affirmance, his request for the proverbial “do over”
should be rejected as well. 6

__________________

1In Whistler’s Park, this court
examined a summary judgment entered in favor of the insurance company “based on
Whistler’s Park’s refusal to submit to an Examination Under Oath [‘EUO’].” 90
So. 3d at 841. There, the insurer “requested an EUO, but never set a time or
place for it,” despite the insured’s express willingness to comply. Id.
at 846. Under those circumstances, we held the insurer was not prejudiced by the
insured’s failure to comply. Id. at 847.

2In a similar case, this court affirmed
summary judgment in favor of an insurer where the insured failed to provide a
sworn proof of loss, inventory of damaged property, and proper records of repair
expenses prior to filing suit. Starling v. Allstate Floridian Ins. Co.,
956 So. 2d 511, 512-14 (Fla. 5th DCA 2007) (holding insured’s “failure to
substantially comply with the policy’s condition precedent bar[red] recovery”
where insured waited until three months after she filed suit to file her sworn
proof of loss and another six months to file a contents inventory, despite
multiple requests by the insurer to do so); see also Fassi v. Am. Fire
& Cas. Co., 700 So. 2d 51, 52 (Fla. 5th DCA 1997) (affirming final
judgment denying insured’s claim where insured failed to schedule an examination
under oath or send in the proof of claim after being reminded to do so in a
letter from insurer). In the present case, State Farm clearly set forth the
relevant policy provisions in the two letters it sent Hamilton.

3Hamilton’s proof of loss form was never
filed prior to filing suit. Rather, he submitted the form nearly seven months
after the Complaint was filed.

4Hamilton did not provide his expert’s
report or even advise State Farm that he had obtained an expert until after
State Farm filed its initial summary judgment motion.

5Hamilton incorrectly argued it was State
Farm’s burden to prove prejudice.

6Unlike the concerns expressed by the
majority in Whistler’s Park, this is not a case where State Farm engaged
in a game of “gotcha.” Rather, it was a case where Hamilton opted for a game of
“hide the ball.”