IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
MARIANA GRACIA,
Appellant,
v. Case No. 5D21-1456
LT Case No. 2018-CA-000942-O
SECURITY FIRST INSURANCE COMPANY,
Appellee.
________________________________/
Opinion filed September 9, 2022
Appeal from the Circuit Court
for Orange County,
Kevin B. Weiss, Judge.
Melissa A. Giasi, of Giasi Law, P.A.,
Tampa, for Appellant.
Angela C. Flowers, of Kubicki Draper,
P.A., Ocala, for Appellee.
PER CURIAM.
Mariana Gracia appeals the trial court’s grant of final summary
judgment in favor of Security First Insurance Company (“Security First”). The
trial court found Gracia had made affirmative misrepresentations regarding
the pre-loss condition of her property, warranting forfeiture of coverage under
the concealment or fraud provision of her homeowner’s insurance policy. We
reverse.
In 2016, Security First issued an insurance policy to Gracia for her
home located in Orlando, Florida. The policy was effective from May 2016 to
May 2017. Gracia reported a loss due to roof damage allegedly caused by a
storm that occurred in April 2017. Security First investigated the claim and
extended approximately $11,000 in coverage for damages. However, Gracia
then submitted a sworn proof of loss, claiming more damages than what
Security First had covered. After Security First denied the full amount, Gracia
filed suit alleging breach of contract and seeking additional damages to cover
roof repairs and interior water damage.
During her deposition, Gracia revealed that a home inspection had
been performed in 2015, prior to her purchasing the property. When asked
the results of the inspection, she stated, “Everything was good” and that the
“roof was in good condition.” After Security First obtained the 2015 inspection
report, it amended its affirmative defenses to include the concealment or
fraud provision of the policy, as the inspection report indicated that the
property had roof and interior ceiling damage in 2015. The inspection report
contained photographs revealing the damage and specifically noted roof
2
leaks around the chimney, water damage in the attic, and interior ceiling
damage caused by water—areas consistent with those noted by Gracia in
her instant claim.
Security First moved for summary judgment on several grounds but
focused exclusively on its concealment or fraud defense at the summary
judgment hearing. It argued that forfeiture of coverage was warranted
because Gracia had made false material statements during her deposition
concerning the pre-loss condition of her home. Gracia countered that to the
best of her knowledge, the damages sought in her instant claim arose from
the 2017 storm and were different than the damages reflected in the 2015
inspection report. She also argued that the existence of the inspection report
did not automatically establish that she had made intentional
misrepresentations.
The trial court agreed with Security First. In applying the new summary
judgment standard, the court found that it was permitted to “weigh the
credibility of the evidence presented,” and in doing so, found that Gracia’s
explanation was not credible in light of the 2015 inspection report and its
photographs of the property. As such, it found that Security First was entitled
to summary judgment as a matter of law. This appeal followed.
3
The issue on appeal is whether, to justify forfeiture of coverage under
the policy’s concealment or fraud provision, Security First was required to
establish that Gracia’s statements regarding the pre-loss condition of her
property were made with the intent to mislead. Our standard of review is de
novo. Chandler v. Geico Indem. Co., 78 So. 3d 1293, 1296 (Fla. 2011)
(noting de novo standard of review when trial court’s summary judgment
ruling turns on interpretation of insurance contract).
Because this case was decided under the new Florida Rule of Civil
Procedure 1.510, summary judgment is appropriate when “the evidence is
such that a reasonable jury could not return a verdict for the nonmoving
party.” In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 75 (Fla. 2021)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The trial
court interpreted this new standard as allowing it to weigh and judge the
credibility of the evidence. While no longer an absolute prohibition—
depending on the nature of the evidence—the general rule remains intact:
credibility determinations and weighing the evidence “are jury functions, not
those of a judge,” when ruling on a motion for summary judgment. Anderson,
477 U.S. at 255; see also A.L. ex rel. D.L. v. Walt Disney Parks & Resorts
US, Inc., 900 F.3d 1270, 1289 (11th Cir. 2018) (noting that under federal
summary judgment rule, “[t]he court does not weigh conflicting evidence or
4
determine the credibility of witnesses” (citations omitted)). This case is not
an exception to that general principle. 1
The insurance provision at issue provides:
3. Concealment or Fraud
a. The entire policy will be void if, whether before or
after a loss, any “insured” has:
(1) Intentionally concealed or misrepresented any
material fact or circumstance;
(2) Engaged in fraudulent conduct; or
(3) Made false material statements;
relating to this insurance.
Gracia argues that where Security First relied upon subsection (3) of
the concealment or fraud provision, it was required to meet its initial burden
of establishing that her statements were made with an intent to mislead and
were material. She contends there was no such showing and that the trial
court effectively decided these fact questions when it granted summary
judgment. We agree.
1
Only when the record evidence blatantly contradicts a litigant’s
version of the facts will a court be allowed to weigh conflicting evidence or
determine the credibility of a witness. See Scott v. Harris, 550 U.S. 372, 380
(2007) (“When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe
it, a court should not adopt that version of the facts for purposes of ruling on
a motion for summary judgment.”).
5
First, it is important to highlight the distinction between
misrepresentation during the insurance application process and
misrepresentation in the post-loss context. With respect to the former, the
law in Florida is clear: an insurer can later void a policy based on an insured’s
false statement without a showing of intent to mislead. See Privilege
Underwriters Reciprocal Exch. v. Clark, 174 So. 3d 1028, 1031 (Fla. 5th DCA
2015); Universal Prop. & Cas. Ins. Co. v. Johnson, 114 So. 3d 1031, 1037
(Fla. 1st DCA 2013) (“[A] misrepresentation ‘need not be fraudulently or
knowingly made but need only affect the insurer’s risk or be a fact which, if
known, would have caused the insurer not to issue the policy or not to issue
it in so large an amount.’” (citations omitted)).
But a different standard is applied to false statements in the post-loss
context, requiring proof of intent to mislead, as the Third and Fourth District
Courts recently held. See Vargas v. Safepoint Ins. Co., 333 So. 3d 752, 755–
56 (Fla. 3d DCA 2022) (interpreting “false statement” in concealment or fraud
provision of insurance policy as including element of intent); Anchor Prop. &
Cas. Ins. Co. v. Trif, 322 So. 3d 663, 671 (Fla. 4th DCA 2021) (“[W]e hold
that, for post-loss conduct, the policy requires proof of knowing or intentional
fraudulent conduct by the insureds to trigger the application of the
‘Concealment or Fraud’ provision to void the policy.”); see also Reyes v.
6
United Prop. & Cas. Ins. Co., 336 So. 3d 782 (Fla. 3d DCA 2022); Universal
Prop. & Cas. Ins. Co. v. Quintero, 333 So. 3d 752 (Fla. 3d DCA 2022).
In Trif, the Fourth District interpreted a concealment or fraud provision
identical to the one at issue here. 322 So. 3d at 666. In that case, the false
statement at issue centered on the insureds’ sworn proof of loss, which
included an estimated repair cost that was inaccurate and inflated. Id. at
667–69. After discovering the inflated nature of the repair estimate, the
insurer amended its affirmative defenses to include the concealment or fraud
provision. Id. at 667. The case proceeded to trial, where the jury returned a
verdict in favor of the insureds on the basis that the insureds did not
intentionally misrepresent the facts or make false material statements. Id. at
669. The trial court denied the insurer’s motion for judgment notwithstanding
the verdict or for a new trial, finding that the issues of intent and materiality
were properly submitted to the jury. Id. at 669–70.
On appeal, the Fourth District began its analysis by noting that the law
“abhors forfeiture of insurance coverage . . . . ‘especially where, as here, a
forfeiture is sought after the happening of the event giving rise to the insurer’s
liability.’” Id. at 671 (quoting Johnson v. Life Ins. Co. of Ga., 52 So. 2d 813,
815 (Fla. 1951)). Addressing the element of intent, the Fourth District noted
that “[m]ost ‘concealment or fraud’ clauses contain, or have been construed
7
to contain, a requirement that a post-loss concealment or misrepresentation
be intentional.” Id. at 673. The court relied in part on Florida Supreme Court
precedent and a plain language analysis of the provision at issue. Id. at 673–
76. First, the Fourth District noted that “[a] century ago, the Florida Supreme
Court read into a policy the requirement that a post-loss misrepresentation
be intentional to void the policy.” Id. at 673 (citing U.S. Fire Ins. Co. v.
Dickerson, 90 So. 613 (1921)). Second, the Trif court analyzed the ordinary
meaning of the term “false statement” contained in the policy. Id. at 675. It
noted that “false statement” was defined in Black’s Law Dictionary as “an
untrue statement knowingly made with the intent to mislead.” Id. And to the
extent the term “false statement” had two different meanings, the court found
that the term should be construed against the drafter. Id.
Shortly after the Fourth District’s decision in Trif, the Third District
decided Vargas, which reinforced that intent is a required element when
analyzing a concealment or fraud provision in the post-loss stage. See
Vargas, 333 So. 3d at 755. Like in Trif, the Vargas court employed a plain
language analysis of the term “false statement,” agreeing with the Fourth
District that the term includes an element of fraudulent intent. Id. (citing Trif,
322 So. 3d at 675). However, the Vargas court recognized the “difficulties”
of its interpretation:
8
Of course, our interpretation is not without its own
difficulties. First, as Judge Edward L. Artau points out
in his principled and carefully reasoned dissent in
Trif, “because subsection (1) [of the policy] already
covers intentional misrepresentations, the majority’s
interpretation of the policy language would render
subsection (3) to be superfluous or meaningless
because it would do nothing more than repeat
subsection (1) if we were to read an intent
requirement into it.” Judge Artau’s observation
cannot be denied. His interpretation of “false
statements” as requiring no intent, however,
presents the same problem.
As Judge Gross noted, no matter how one interprets
the policy, “some portion of the ‘Concealment or
Fraud’ provision will be rendered superfluous.” If
subsection (3) is read to dispense with an intent
requirement as the Trif dissent suggests, then
subsections (1) and (2)’s inclusion of an intent
requirement are rendered superfluous: mere proof of
incorrectness under subsection (3) would forfeit
coverage thus eliminating any need for proof of
intentional misrepresentation or fraud so prominently
featured in subsections (1) and (2).
In these circumstances, where either of the
competing interpretations will render some language
a nullity, the rule of construction requiring avoidance
of interpretations that make any language
superfluous loses traction. The fault is not in the rule
of construction but in the policy language. We
therefore decline to apply the rule in a manner that
defeats the common meaning of “false statement”
and the other principles of construction discussed
above. Thus, while recognizing the accuracy of
Judge Artau’s insight, we continue to interpret the
reference to “false statements” in the “Concealment
or Fraud” provision under review as requiring an
element of fraudulent intent.
9
Id. at 755–56 (internal citations omitted). We agree with our sister courts that
the element of intent is required in the post-loss context and now turn to the
instant case.
Despite having maintained below that fraudulent intent was not
required, Security First argues on appeal that affirmance is warranted
because its evidence undoubtedly established Gracia’s intent to mislead.
Specifically, it maintains that, because Gracia was admittedly in possession
of the 2015 inspection report before her deposition, her statements that
“everything was good” and that the roof was in “good condition” must have
been made with an intent to mislead, because that is the only conclusion one
can reach upon comparing her statements to the inspection report. However,
Gracia’s affidavit filed in opposition to summary judgment stated that, to the
best of her knowledge, the damages alleged in her instant claim arose from
the April 2017 storm and were different than the damages detailed in the
inspection report. While Security First contends that such allegations were
insufficient to create a disputed fact, it still remains that Security First initially
failed to meet its summary judgment burden of providing evidence of each
element of its affirmative defense.2 See Chaplin v. NationsCredit Corp., 307
2
Although Trif and Vargas were decided after Security First had moved
for summary judgment, that did not preclude Security First from asserting
10
F.3d 368, 372 (5th Cir. 2002) (“To obtain summary judgment, if the movant
bears the burden of proof on an issue because as a defendant he is asserting
an affirmative defense, he must establish beyond peradventure all of the
essential elements of the defense to warrant judgment in his favor.”); see
also Blue Cross & Blue Shield of Ala. v. Weitz, 913 F.2d 1544, 1552 (11th
Cir. 1990) (noting that in summary judgment context, defendant raising
affirmative defense has initial burden of proof). 3
Simply put, factual questions relating to fraudulent intent or state of
mind are generally not ripe for summary judgment determination. 4 See
that Gracia had knowingly and intentionally made false material statements
during her deposition. See Trif, 322 So. 3d at 673 (recognizing that “[a]
century ago, the Florida Supreme Court read into a policy the requirement
that a post-loss misrepresentation be intentional to void the policy.” (citing
Dickerson, 90 So. at 618)).
3
Security First relies on Mezadieu v. Safepoint Insurance Co., 315 So.
3d 26 (Fla. 4th DCA 2021). In that case, summary judgment was entered
after the insurer established by unrefuted evidence that the insured had
submitted a claim for $11,000 in damages the insured “clearly knew” were
not caused by the subject loss. Id. at 27–30. Because the insured had “all
but conceded” that her statements were false, it was not necessary to reach
the issue of intent. Id. at 27–28. Here, there was no such concession of
knowledge.
4
As to the materiality of Gracia’s statements, that, too, is generally a
fact question reserved for the jury’s resolution. Trif, 322 So. 3d at 672 (“The
materiality of a misrepresentation is a question for the jury.”); see also Lopes
v. Allstate Indem. Co., 873 So. 2d 344, 347 (Fla. 3d DCA 2004) (“The
question of whether an insured has made a material misrepresentation is a
question for the jury to determine.”).
11
Bowman v. Barker, 172 So. 3d 1013, 1017 (Fla. 1st DCA 2015) (finding that
material issues of fact as to vendor’s intent precluded summary judgment on
purchaser’s fraudulent misrepresentation claim); Fleming v. Peoples First
Fin. Sav. & Loan Ass’n, 667 So. 2d 273, 274 (Fla. 1st DCA 1995) (noting that
fact issues relating to intent generally do not lend themselves to summary
judgment). Accordingly, we reverse the trial court’s grant of summary
judgment in favor of Security First on its concealment or fraud affirmative
defense.
REVERSED AND REMANDED.
EVANDER and COHEN, JJ., concur.
EISNAUGLE, J., concurs in result only, with opinion.
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Case No. 5D21-1456
LT Case No. 2018-CA-000942-0
EISNAUGLE, J., concurring in result only, with opinion.
I agree we must reverse the final summary judgment in this case.
However, I find it unnecessary to decide whether a false statement, as used
in the concealment or fraud provision in the insurance policy, requires proof
of intent.
The trial court granted summary judgment finding that Gracia made
material false statements by testifying that “[e]verything was good” and the
“[r]oof was in good condition” when asked about the results of a home
inspection report. However, Security First did not meet its summary
judgment burden to establish that there is no “genuine dispute” that these
statements were false. See Fla. R. Civ. P. 1.510(a). Given their context,
these statements were too generalized and vague to establish falsity for
purposes of summary judgment. This is especially so considering the
purpose of a home inspection report and the ill-defined questions to which
Gracia was responding. Importantly, on our record, the inspection report
itself does not establish, via its descriptions or its difficult-to-decipher
photographs, that these deposition statements were false.
13