YALINA PEREZ v. CITIZENS PROPERTY INSURANCE CORPORATION

Third District Court of Appeal
State of Florida

Opinion filed July 6, 2022.
Not final until disposition of timely filed motion for rehearing.

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No. 3D20-1709
Lower Tribunal No. 19-34772
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Yalina Perez,
Appellant,

vs.

Citizens Property Insurance Corporation,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Barbara
Areces, Judge.

David Low & Associates, P.A., and Elizabeth Mitchell (Fort
Lauderdale), for appellant.

Luks, Santaniello, Petrillo, Cohen & Peterfriend, and Lauren J. Smith
(Stuart), for appellee.

Before FERNANDEZ, C.J., and LOGUE and BOKOR, JJ.

LOGUE, J.
 Yalina Perez appeals the trial court’s order granting summary

judgment in favor of Citizens Property Insurance Corporation. Perez

contends that an expert affidavit filed in support of her claim was sufficient

to create a genuine issue of material fact as to whether she could overcome

the prejudice caused by her waiting over two years to report this Hurricane

Irma claim. We affirm the trial court because Perez’s expert investigator’s

report, based on an investigation conducted nearly three years after the

claimed date of loss, was insufficient as a matter of law to create a genuine

issue of material fact to overcome the prejudice caused to Citizens. Perez’s

failure to report her loss for over two years, and only after she had conducted

repairs and failed to keep any records of her claimed repair costs, rendered

it impossible for Citizens to determine whether the claimed damages were a

result of the claimed covered event.

Factual and Procedural Background

Hurricane Irma was a windstorm that struck southern Florida on

September 17, 2017. In the days and weeks immediately following, many

South Florida residents reported damage to their homes and opened repair

claims with their various insurance companies. Insurance companies, faced

with the monumental task of assessing thousands of claims from a single

event, sent investigators to review the damage reports from each of these

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claims. While many of these claims eventually resolved with insureds

receiving compensation for their losses, some eventually reached the courts,

and many have since resolved through litigation.

But this is not the typical Hurricane Irma claim. Yalina Perez did not

report her claim to her insurer, Citizens Property Insurance Corporation, until

September 19, 2019—over two years after her claimed date of loss from

Hurricane Irma. In the meantime, Ms. Perez claims to have, with the help of

her boyfriend, completed several cycles of repairs. These repairs included

water mitigation services, patching of various sections of the roof, and

replacement of walls and fixtures inside the home. Ms. Perez maintained no

records of these repairs, and, because the claim was not reported, Citizens

did not conduct an initial investigation of Ms. Perez’s home until several

years after the claimed loss—after several repairs had already been

conducted.

In response to receiving the claim from Ms. Perez, Citizens sent an

investigator to the property and requested repair records from Ms. Perez. In

response to Citizens’ request, Ms. Perez did not turn over any repair

receipts, and, after several requests, failed to provide Citizens with a sworn

proof of loss detailing her claimed damages. After requesting these

documents several times to no avail, Citizens denied the claim in a letter

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stating that Ms. Perez’s failure to timely report her claim prejudiced Citizens’

investigation to the point that it was unable to make a coverage

determination.

Ms. Perez sued Citizens for breach of contract and, after discovery,

Citizens moved for summary judgment. To oppose summary judgment, Ms.

Perez relied on an affidavit from her own investigator, Grant Renne from

PRAZ Consultants. PRAZ Consultants conducted an investigation of the

property on July 24, 2020. Mr. Renne’s report noted “[m]issing, torn and

creased shingles” on multiple areas of the roof and granular loss “due to

windborne debris and/or hail stone impacts.” He also noted that the shingles

were “extremely brittle.” In the area of rolled roof covering, Mr. Renne noted

areas of excessive ponding. Finally, Mr. Renne noted damage due to interior

moisture in multiple areas of the residence. Based on “statements made by

the insured and a review of historic NOAA weather data” Mr. Renne opined

“that the severe storm event that occurred on/or about the reported date of

loss was the probable storm event that caused the documented roof

damage.”

Ms. Perez conceded that Citizens was entitled to a presumption of

prejudice due to her late reporting, however, argued that a fact issue

remained as to whether this prejudice was overcome because Mr. Renne

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was able to conduct a complete investigation and determine that Hurricane

Irma was the probable cause of loss. The trial court held a hearing and

granted summary judgment on Citizens’ defense that the delay in reporting

of the claim prejudiced its investigation and precluded it from making an

adequate coverage determination. This appeal followed.

Analysis

This Court reviews a trial court’s ruling on a motion for summary

judgment de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760

So. 2d 126, 10 (Fla. 2000). Where an insured provides late notice of their

loss to the insurer, prejudice to the insurer will be presumed, and the insured

must rebut said prejudice. See Stark v. State Farm Fla. Ins. Co., 95 So. 3d

285, 287-88 (Fla. 4th DCA 2012); Kramer v. State Farm Fla. Ins. Co., 95 So.

3d 303 (Fla. 4th DCA 2012) (affirming trial court’s grant of summary

judgment where the insured’s expert concluded that foot traffic and a storm

event were equally likely to have caused the damage to the property).

“The purpose of a provision for notice and proofs of loss is to enable

the insurer to evaluate its rights and liabilities, to afford it an opportunity to

make a timely investigation, and to prevent fraud and imposition upon it.”

State Farm Mut. Auto. Ins. Co. v. Ranson, 121 So. 2d 175, 180 (Fla. 2d DCA

1960), overruled in part on other grounds, Am. Fire & Cas. Co. v. Collura,

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163 So. 2d 784, 793–94 (Fla. 2d DCA 1964). “The question of whether an

insured's untimely reporting of loss is sufficient to result in the denial of

recovery under the policy implicates a two-step analysis.” LoBello v. State

Farm Florida Ins. Co., 152 So. 3d 595, 599 (Fla. 2d DCA 2014). “If the

insured breaches the notice provision, prejudice to the insurer will be

presumed, but may be rebutted by a showing that the insurer has not been

prejudiced by the lack of notice.” Bankers Insurance Co. v. Macias, 475 So.

2d 1216, 1218 (Fla.1985).

Ms. Perez attempted to show that Citizens was not prejudiced by the

late notice because, as demonstrated by the Renne affidavit, an adequate

determination could be made that Hurricane Irma was the cause of the

claimed loss. Florida Rule of Civil Procedure 1.510(e) demands that

“affidavits must be made on personal knowledge, [and] must set forth such

facts as would be admissible in evidence.” “The purpose of this requirement

is ‘to ensure that there is an admissible evidentiary basis for the case rather

than mere supposition or belief.’” Gonzalez v. Citizens Prop. Ins. Corp., 273

So. 3d 1031, 1036 (Fla. 3d DCA 2019) (quoting Alvarez v. Fla. Ins. Guar.

Ass'n, Inc., 661 So. 2d 1230, 1232 (Fla. 3d DCA 1995)). “It is well established

that affidavits, such as those presented by plaintiff, which are based entirely

upon speculation, surmise and conjecture, are inadmissible at trial and

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legally insufficient to create a disputed issue of fact in opposition to a motion

for summary judgment.” Morgan v. Cont'l Cas. Co., 382 So. 2d 351, 353 (Fla.

3d DCA 1980) (citing Food Fair Stores, Inc. v. Trusell, 131 So. 2d 730 (Fla.

1961)). “[N]o weight may be accorded [to] an expert opinion which is totally

conclusory in nature and is unsupported by any discernible, factually-based

chain of underlying reasoning.” Div. of Admin. v. Samter, 393 So. 2d 1142,

1145 (Fla. 3d DCA 1981).

We agree with the trial court that Mr. Renne’s affidavit was wholly

conclusory and not adequately supported. We considered a similar situation

in Hope v. Citizens Prop. Ins. Co., 114 So. 3d 457 (Fla. 3d DCA 2013). In

that case, we determined that the homeowner’s testimony, a repair estimate

from a roofer, and a public claims adjuster’s report were conclusory and

therefore insufficient because “the passage of time [had] rendered Citizens

unable to determine exactly what current damage is directly attributable to

Hurricane Wilma, and thus a covered loss.” Id. at 460.

Mr. Renne’s report and conclusion, coupled with Ms. Perez’s

statement that some of the water damage began in the days following the

Hurricane, may be sufficient to show that some damage may have been

caused by Hurricane Irma. However, as in Hope, the fact that Mr. Renne’s

opinion is based on an investigation conducted nearly three years after the

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claimed date of loss renders it impossible for Citizens to determine which, if

any, of the current damage to the roof came as a result of the Hurricane, and

which, if any, of the current damage was caused by some other event. This

is not a case like Vega v. Safepoint Ins. Co., 326 So. 2d 176 (Fla. 3d DCA

2021), in which we determined that an expert report conducted two years

after the claimed date of loss was sufficient to create an issue of fact as to

whether the damage to the roof was caused by a windstorm. In Vega, the

insured’s expert relied on a report and photographs taken during Safepoint’s

initial investigation of the claim. This material—compiled immediately after

the claimed loss and before any repairs had been conducted—was sufficient

to support the expert’s conclusion that the windstorm was the probable

cause of the damages to Vega’s roof.

Unlike in Vega, Ms. Perez’s expert did not have access to any

information as to the state of the roof immediately following the Hurricane.

There was no investigation following the initial loss because Ms. Perez

waited over two years to report her claim to Citizens. Instead, Mr. Renne

formed his opinion based solely on his investigation conducted nearly three

years after the incident, after repairs had already been conducted on the

roof. This lapse in time, as well as the intervening repairs, rendered Mr.

Renne’s opinion wholly conclusory as to whether the current damage was

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caused by the Hurricane or some other event from the intervening three

years.

Mr. Renne’s affidavit was insufficient to rebut the presumption of

prejudice to Citizens resulting from Ms. Perez’s delay in reporting the claim.

The trial court was therefore eminently correct in its decision to grant

summary judgment in favor of Citizens.

Affirmed.

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