DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RESTORATION CONSTRUCTION, LLC,
Appellant,
v.
SAFEPOINT INSURANCE COMPANY,
Appellee.
No. 4D19-3790
[December 9, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Martin J. Bidwill, Judge; L.T. Case No. CACE 17-012594.
Donald G. Peterson and Yasser Lakhlifi of Yarnell & Peterson, P.A.,
Naples, for appellant.
Curt Allen of Butler Weihmuller Katz Craig, LLP, Tampa, and Paulo R.
Lima and Elizabeth K. Russo of Russo Appellate Firm, Miami, for appellee.
KLINGENSMITH, J.
Appellant Restoration Construction, LLC, as assignee of the insureds’
claim against SafePoint Insurance Company (“the insurer”), appeals the
trial court’s grant of summary judgment in the insurer’s favor. The trial
court found that the insureds’ delay in reporting their insurance claim to
the insurer was a failure to satisfy one of the post-loss contractual
obligations contained in their policy. We reverse the summary judgment.
The insureds had an insurance policy on their property from the
insurer which covered water and mold damage, provided that they
complied with “all applicable provisions of” the policy. One of those
provisions stated that after a claimed loss, the insureds were required to
“give prompt notice to [the insurer] or [its] agent.”
After the insureds discovered a water leak under their kitchen sink on
January 30, they contacted a repair company to remedy the leak. They
also retained Restoration the same day to perform water extraction, mold
remediation, and repair services. Both Restoration and the repair
company began repairs the same day they were contacted. In exchange
for the services that Restoration performed, it received an assignment of
the benefits under the insureds’ insurance policy with the insurer.
However, the insureds did not notify the insurer of the leak until five days
later, on February 4.
When the insurer learned of the leak, it assigned a claim number to the
loss but did not send a representative to inspect the property until
February 9—five days after it received notice. Another twelve days passed
before the insurer sent its retained professional inspectors to visit the
property and prepare a report. In that report, the inspectors noted that
they reviewed an invoice from the repair company indicating that the
repair company had replaced “a leaking hot water supply line servicing the
kitchen sink.” The report stated that this replacement and the removal of
other items within the kitchen area prior to its visit “severely hampered
[their] investigation and impeded [their] ability to determine specific causes
and origins of damage reported by the [insureds] and separate damages
attributable to historical water discharges, leakages, and seepages from
damages which may have been caused by a recent water leakage event.”
Thus, the inspectors opined that they were “unable to confirm” the cause
of the water discharge in the sink or delineate the extent of damage that
was attributable to that water discharge. Based on this report, the insurer
notified the insureds that it was “unable to confirm” the water damage and
neither accepted nor denied coverage of their claimed damages.
As a result of the insurer’s failure to accept coverage for the insureds’
damages, Restoration filed a complaint for breach of contract against the
insurer. Instead of filing an answer to the complaint, the insurer filed two
motions for summary judgment. In its first motion, the insurer claimed
that it did not breach the policy as a matter of law. The insurer’s second
motion claimed that the insureds failed to satisfy two of their post-loss
contractual obligations: provide the insurer “prompt notice” of their loss
and “show the damaged property.” Because the insureds sustained water
loss on or around January 30, and did not contact the insurer about this
until February 4, the insurer argued that the insureds did not provide
“prompt notice” and breached that condition of their policy. The insurer
further asserted that a plumber working for the repair company completely
repaired the cause of the loss and discarded the failed parts. According to
the insurer, this not only deprived it of an opportunity to inspect the parts
but also breached the “show the damaged property” condition of the
insureds’ policy. Finally, the insurer argued these breaches created a
presumption of prejudice that Restoration had not overcome.
In response to the insurer’s motion for summary judgment, Restoration
argued that material facts remained in dispute and precluded summary
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judgment. According to Restoration, this included whether the insurer
received prompt notice of the loss; whether the insureds complied with
their insurance policy; whether the insurer was able to view the damaged
property; and, the value of the repair.
After hearing extensive argument, the court denied the insurer’s first
motion for summary judgment (no breach as a matter of law) but granted
the insurer’s second motion for summary judgment (failure to satisfy post-
loss contractual obligations). The trial court found that “waiting several
days to report the water loss, while at the same time engaging contractors
to repair and remediate the water loss, does not amount to providing
‘prompt’ notice of the loss under the circumstances.” In granting summary
judgment, the court limited its ruling to the issue of notice and did not
address whether the insureds breached the policy provision requiring the
insured to “show the damaged property.” After making its rulings, the trial
court entered a final judgment in the insurer’s favor. This appeal followed.
“The standard of review of an order granting summary judgment is de
novo.” Branch-McKenzie v. Broward Cnty. Sch. Bd., 254 So. 3d 1007, 1012
(Fla. 4th DCA 2018) (quoting Patten v. Winderman, 965 So. 2d 1222, 1224
(Fla. 4th DCA 2007)). “Summary judgment cannot be granted unless the
pleadings, depositions, answers to interrogatories, and admissions on file
together with affidavits, if any, conclusively show that there is no genuine
issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” McCarthy v. Broward Coll., 164 So. 3d 78,
80 (Fla. 4th DCA 2015) (quoting Jelic v. CitiMortgage Inc., 150 So. 3d 1223,
1224–25 (Fla. 4th DCA 2014)). Material facts are those that may affect the
outcome of the case. See Winn–Dixie Stores, Inc. v. Dolgencorp., Inc., 964
So. 2d 261, 263–64 (Fla. 4th DCA 2007). “If the evidence raises any issue
of material fact, if it is conflicting, if it will permit different reasonable
inferences, or if it tends to prove the issues, it should be submitted to the
jury as a question of fact to be determined by it.” Moore v. Morris, 475 So.
2d 666, 668 (Fla. 1985). “When evaluating summary judgment evidence,
the court must ‘draw every reasonable inference in favor of the non-moving
party.’” McCarthy, 164 So. 3d at 80 (quoting Knight Energy Servs., Inc. v.
Amoco Oil Co., 660 So. 2d 786, 788 (Fla. 4th DCA 1995)). Thus, the trial
court should not grant summary judgment “‘unless the facts are so
crystallized that nothing remains but questions of law.’” Villazon v.
Prudential Health Care Plan, Inc., 843 So. 2d 842, 853 (Fla. 2003) (quoting
Shaffran v. Holness, 93 So. 2d 94, 97–98 (Fla. 1957)).
The determination of whether an insured provides “prompt” notice of a
loss to an insurer is a material issue of fact as it may affect the insurer’s
coverage decision. See Himmel v. Avatar Prop. & Cas. Ins., 257 So. 3d 488,
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492 (Fla. 4th DCA 2018). “Notice is said to be prompt when it is provided
‘with reasonable dispatch and within a reasonable time in view of all of the
facts and circumstances of the particular case.’” See id. (quoting Laquer
v. Citizens Prop. Ins. Corp., 167 So. 3d 470, 474 (Fla. 3d DCA 2015)).
In Himmel, this court reversed a summary judgment entered in favor of
an insurer. After reviewing the applicable case law, we held that “the issue
of whether an insured provided ‘prompt’ notice generally presents an issue
of fact.” Id. (citations omitted). We also noted that the evidence in the case
reflected that the insured “provided [the insurer] with notice of the claim
two days after the leak was first discovered and one day after the actual
damage was discovered” and that he “was actively attempting to mitigate
the damage” during those two days. Id. Thus, in light of those facts and
the applicable law, we opined that the issue of whether the insured’s notice
was untimely was an issue of fact for the jury. Id.
Because the resolution of insurance claim cases involve different
scenarios, whereby the timing of the insured’s notice is superimposed over
a backdrop of other relevant facts, we do not wish to create a bright line
rule for when notice to an insurer is no longer “prompt.” In some cases, a
five-day delay could clearly prejudice an insurer’s evaluation of a claim.
Here, the trial court found that the insureds’ notice to the insurer five days
after they discovered a water leak was not prompt as a matter of law. It
made this finding despite the fact that the insurer waited another five days
before sending an adjuster out to see the premises and then waited almost
two additional weeks before engaging a third-party inspector to help assess
the claim. Under these facts, the question of whether the insureds’ notice
to the insurer was untimely and caused prejudice to the insurer is a
question of fact for the jury to resolve in view of “all of the facts and
circumstances surrounding the loss.” See Himmel, 257 So. 3d at 492.
We therefore reverse the summary judgment entered in favor of the
insurer and remand for further proceedings consistent with this opinion.
In doing so, we need not address the other issues raised by Restoration on
appeal.
Reversed and remanded.
GERBER and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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