Third District Court of Appeal
State of Florida
Opinion filed August 4, 2021.
This Opinion is not final until disposition of any further motion for rehearing
and/or motion for rehearing en banc. Any previously filed motion for
rehearing en banc is deemed moot.
________________
No. 3D19-1614
Lower Tribunal Nos. 16-1435 & 16-1284
________________
Celerina Nunez,
Appellant,
vs.
Universal Property & Casualty Insurance Company,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Michael A.
Hanzman, Judge.
Giasi Law, P.A., and Melissa A. Giasi and Erin M. Berger (Tampa), for
appellant.
Link & Rockenbach, PA, and Kara Rockenbach Link and Daniel M.
Schwarz (West Palm Beach); Kelley Kronenberg, and Alison J. Trejo and
Jeffrey M. Wank (Fort Lauderdale), for appellee.
Before EMAS, SCALES and LOBREE, JJ.
EMAS, J.
ON MOTION FOR REHEARING
We deny appellee’s motion for rehearing, withdraw our previous
opinion, and substitute the following in its stead:
Celerina Nunez (the insured below) appeals the trial court’s order (1)
granting the motion of Universal Property & Casualty Insurance Company
(the insurer below) for directed verdict on whether Nunez materially
breached the insurance contract by failing to attend an EUO, and (2) granting
a new trial, pursuant to our decision in American Integrity Insurance, Co. v.
Estrada, 276 So. 3d 905 (Fla. 3d DCA 2019), to provide Nunez an
opportunity to show that her “breach of [this] post-loss obligation did not
prejudice” Universal. For the reasons that follow, we affirm as to both issues.
Factual and Procedural Background
In April 2015, Nunez reported two water losses occurring days apart:
one due to a leak in the kitchen, and a second due to a leak in the bathroom.
The same day these claims were reported, Universal requested that Nunez
provide a sworn proof of loss. Nunez provided the sworn proof of loss 75
days later (June 29), claiming $30,000 of damage to the kitchen and $20,000
of damage to the bathroom. In the interim, the property was inspected (on
2
May 7) and Nunez provided an unsworn, recorded statement by phone to
Universal (on June 17). 1
It is undisputed that, during the investigation of the claims, Universal
requested Nunez to attend an Examination Under Oath (EUO), and that
Nunez failed to appear. More specifically, Universal sent two letters (August
10 and 17, 2015) to both Nunez and her attorney requesting to set a date for
the EUO. When counsel failed to respond, Universal sent a third letter
(September 10) unilaterally scheduling the EUO for October 1. After Nunez
failed to appear for her EUO, Universal denied both insurance claims based
upon such failure and upon her failure to provide certain documentation.
Nunez sued the insurer for breach of the insurance contract. 2
Prior to trial, Universal moved for summary judgment on the basis that
Nunez’s failure to attend the EUO was a material breach of the insurance
contract precluding recovery. The trial court denied the motion.
1
These dates are included because Nunez maintains that (1) her failure to
attend the Examination Under Oath (EUO) “was not willful”; (2) Universal
was not prejudiced by such failure; and (3) it was unreasonable for Universal
to demand an EUO because, in all other respects, she complied with
Universal’s investigation and Universal did not request the EUO until August
(months after she reported her claims). However, and as Universal points
out, while the claims were first reported in April, Universal did not receive a
sworn proof of loss until the end of June.
2
Two separate complaints were filed—one concerning the kitchen leak and
one concerning the bathroom leak. The cases were consolidated for
purposes of trial, and resulted in two separate verdicts in Nunez’s favor.
3
At trial, Universal’s primary defense was that, because Nunez had
failed to sit for an EUO, she forfeited her rights to receive insurance benefits.
Nunez, in response, generally argued that it was unreasonable for Universal
to request an EUO 110 days after the claims were reported. Both at the
close of the plaintiff’s case and at the close of all the evidence, Universal
raised the issue again, moving for a directed verdict on Nunez’s failure to
attend the EUO. The trial court denied these motions.
During a conference to discuss jury instructions and verdict forms, the
parties disagreed on whether and how the jury should be instructed
regarding Nunez’s failure to attend the EUO. The trial court determined the
jury would be instructed that if Nunez was able to meet her initial burden,
i.e., that she “sustained covered losses during the policy period,” “Universal
must prove by the greater weight of the evidence that [Nunez] failed to
comply with her obligations under the policy by not providing documentation
and not appearing for her examination under oath.” Consistent with this
ruling, and over Universal’s objection, the trial court determined the jury
would be required to answer the following question in its verdict:
Did Universal prove by the greater weight of the
evidence that Plaintiff unreasonably failed to
attend her Examination Under Oath on October 1,
2015?
4
(Emphasis added). 3
Consistent with the verdict form and jury instructions, the arguments
during closing centered upon the reasonableness or unreasonableness of
Nunez’s failure to attend the EUO. Nunez argued that it was unreasonable
for Universal to request an EUO 110 days after she reported her claims, and
Universal argued that it was reasonable because Universal did not receive
Nunez’s sworn proof of loss until early July (75 days after she reported the
claim and approximately thirty days before Universal sent out the first letter
requesting an EUO). Nunez, on rebuttal, again urged that it was
unreasonable for Universal to request the EUO 110 days after she reported
the claim, provided a recorded statement, and Universal inspected the
property.
The jury returned a verdict in Nunez’s favor on both the kitchen claim
($15,000) and the bathroom claim ($20,000). Universal moved for a
judgment notwithstanding the verdict based on Nunez’s failure to attend her
EUO. The trial court again rejected Universal’s argument explaining that
3
During oral argument, counsel for Nunez explained that the
“reasonableness” language was meant to track the insurance policy. But this
interpretation—that the EUO request must be reasonable—is not consistent
with the policy’s plain meaning: “In case of a loss to covered property, you
must see that the following are done: . . . As often as we reasonably
require: . . . Submit to examination under oath, while not in the presence of
any other ‘insured,’ and sign the same.”
5
(given the totality of the circumstances) the jury did not find Nunez’s failure
to attend the EUO unreasonable.
Universal filed a renewed motion for directed verdict or, in the
alternative, motion for new trial. Universal argued (among other things) that
judgment should have been entered for Universal where it was undisputed
Nunez failed to appear for the EUO; and that the trial court erred “by
elevating Universal’s burden of proof” to establishing Nunez “unreasonably”
failed to attend her EUO. In sum, Universal argued that the jury instructions
and verdict forms were contrary to Florida law and that the verdict was
against the manifest weight of the evidence. The day before the hearing on
the renewed motion for directed verdict, this court released its opinion in
American Integrity Insurance Company v. Estrada, 276 So. 3d 905 (Fla. 3d
DCA 2019).
A successor judge presided over the hearing on Universal’s motion.
The successor judge determined that the jury had not been properly
instructed, and questioned whether there was “evidence of prejudice” to
Universal (due to Nunez’s failure to attend the EUO), and whether the fairer
approach would be to grant a new trial “under the construct” of Estrada.
The trial court later entered a detailed order, granting in part
Universal’s motion for directed verdict and ordering a new trial. It found,
6
among other things, that Nunez breached the contract when she failed to
appear for the EUO, and “the court erred when it placed upon Universal a
burden of establishing that this breach was ‘unreasonable.’” In directing a
verdict on the EUO issue and granting a new trial, the trial court reasoned:
Given that: (a) Universal’s unpled EUO defense was
obviously tried by consent[4], and (b) considerable
precedent at the time of trial supported the position
that a carrier could not avoid payment unless an
insured’s failure to attend an EUO caused prejudice,
Plaintiff had an obligation to request a jury instruction
on this issue, as well as an obligation to request that
the jury be asked the question of whether Universal
in fact was prejudiced by its failure to secure an EUO.
Because it did neither, this avoidance was arguably
waived, thereby entitling Universal to a directed
verdict. On the other hand, the trial court—without
hearing any substantive argument—did state on the
record that ‘there is no prejudice required,” arguably
making any attempt to request a jury
instruction/interrogatory futile. On top of that, the
EUO defense was never pled in the first place and—
as a result— never had to be avoided in a formal
pleading. Finally, neither party had the benefit of the
Third District’s [Estrada] decision which exhaustively
surveyed the law on this point and definitely settled it
in this district.
In light of these considerations, the trial court concluded “that the more
appropriate remedy [was] to grant a new trial and direct a verdict in
4
While the affirmative defense pertaining to post-loss obligations was
asserted in the bathroom leak cause of action, it was not asserted in the
kitchen leak cause of action.
7
Universal’s favor on the discrete issue of whether [Nunez] breached the
contract by failing to attend an EUO.” The court concluded that, at the new
trial, the jury would be instructed accordingly. Nunez moved for
reconsideration arguing primarily that the trial court exceeded its authority as
successor judge by reversing the exact same ruling made by the
predecessor judge who presided over the trial, without any intervening
change in circumstances to warrant such an action. The successor judge
denied the motion, and this appeal followed.
Standard of Review
We apply a hybrid standard of review on appeal from an order granting
a new trial:
An order granting a new trial is generally reviewed for
an abuse of discretion. An erroneous view of the law
can constitute an abuse of discretion. Moreover,
appellate courts apply a de novo standard of review
to a trial court's legal conclusions in an order granting
a new trial.
Kratz v. Daou, 299 So. 3d 442, 444 (Fla. 3d DCA 2019) (citations omitted).
Nunez, on appeal, contends that the trial court “erroneously granted directed
verdict in favor of [Universal] because there was evidence that [Nunez’s]
failure to sit for an EUO was not willful and there was no evidence that
[Universal] was prejudiced,” meaning a new trial on prejudice is
unnecessary. This contention goes to whether the verdict was supported by
8
the evidence and, therefore, the appropriate standard of review is abuse of
discretion; to the extent the directed verdict and new trial were based on
legal questions, however, we apply a de novo standard of review.
At the same time, because the ruling on the motion for directed verdict
was made by a successor judge, it “is not entitled to the same deference on
appeal as the ruling of a presiding judge.” Nat'l Healthcorp Ltd. P'ship v.
Cascio, 725 So. 2d 1190, 1193 (Fla. 2d DCA 1998); Gemini Inv'rs III, L.P. v.
Nunez, 78 So. 3d 94, 97 (Fla. 3d DCA 2012) (“[W]hile a successor judge has
the authority to correct any errors in prior interlocutory rulings on matters of
law, a successor judge should give credence to a predecessor's rulings on
issues of law. Generally, the rotation of judges from one division to another
should not be an opportunity to revisit the predecessor's rulings.”) (citations
omitted); Gen. Hosp. of Greater Miami, Inc. v. Gager, 160 So. 2d 749, 751
(Fla. 3d DCA 1964) (“[T]he granting of a new trial . . . does not come to the
appellate court clothed with the same weight as such an order entered by
the judge who tried the case. This is true because we may not say that the
trial judge had the great advantage of observing the witnesses and the
conduct of the trial.”) (citing Wolkowsky v. Goodkind, 153 Fla. 267 (Fla.
1943)).
Discussion
9
The successor judge correctly directed a verdict on the question of
whether Nunez materially breached the contract and, further, correctly
granted the motion for new trial on whether such breach prejudiced
Universal. 5 This result is controlled by our decision in Estrada which
addressed, as an issue of first impression in this District, “whether, after a
finding has been made that an insured materially breached a post-loss policy
provision, a further finding must also be made that the insured's non-
compliance caused prejudice to the insurer.” Estrada, 276 So. 3d at 914-15.
In that case, Maria Estrada filed an insurance claim due to a home burglary,
and the insurer, American Integrity, commenced an investigation and
requested Estrada to comply with several post-loss obligations. The claim,
5
The predecessor judge’s order denying Universal’s motion for directed
verdict was an interlocutory order of which the successor judge had the
“authority” and “obligation” to consider and to correct if it was premised on
an incorrect interpretation of the law. Otis Elevator Co. v. Gerstein, 612 So.
2d 659, 659-60 (Fla. 3d DCA 1993) (“[A] successor judge has the authority
to rule upon a motion for a new trial in a jury case.”); Raymond, James &
Assocs., Inc. v. Zumstorchen Inv., Ltd., 488 So. 2d 843, 845 (Fla. 2d DCA
1986) (“[A] successor judge has the obligation to correct any error in a prior
interlocutory ruling on matters of law.”) See also Atl. Coast Line R. Co. v.
Boone, 85 So. 2d 834, 840 (Fla. 1956) (recognizing that an order denying a
motion for directed verdict is “interlocutory in nature”). See also Fla. R. Civ.
P. 1.480(c) (“A motion for a new trial may be joined with [a motion for directed
verdict] or a new trial may be requested in the alternative. If a verdict was
returned, the court may allow the judgment to stand or may reopen the
judgment and either order a new trial or direct the entry of judgment as if the
requested verdict had been directed.”)
10
however, was denied after Estrada allegedly failed to submit to an EUO and
provide a sworn proof of loss. Id. at 907. Estrada filed a breach of contract
action upon her claim being denied.
A primary issue at trial was the extent of Estrada’s compliance with her
post-loss obligations prior to filing her lawsuit. In proving their case, each
party presented evidence on whether or not Estrada “substantially complied
with her post-loss obligations.” Id. at 909. At the close of the evidence,
Estrada moved for a directed verdict on various affirmative defenses,
including American Integrity’s defense related to post-loss obligations,
arguing that “in order for there to be a valid coverage defense with respect
to an insured’s post-loss obligations in a homeowner’s insurance policy, . . .
the insurer must plead and prove it was prejudiced by the insured’s non-
compliance.” Id. Agreeing with Estrada, the trial court directed a verdict on
the insurer’s affirmative defenses pertaining to failure to comply with post-
loss obligations. Because all of American Integrity’s coverage defenses
were stricken, the only issue left for the jury to consider was the amount of
damages to award Estrada. Id. After the jury awarded damages for Estrada,
final judgment was entered, and the insurer appealed.
11
On appeal, we reversed the trial court’s order directing a verdict in
favor of Estrada, and addressed each party’s burden as it relates to post-
loss obligations:
[F]or an insurer to successfully establish a coverage
defense based upon an insured's failure to satisfy
post-loss obligations such that an insured forfeits
coverage under a policy, the insurer must plead and
prove that the insured has materially breached a
post-loss policy provision. If the insurer establishes
such a material breach by the insured, the burden
then shifts to the insured to prove that any breach did
not prejudice the insurer.
Id. at 912 (emphasis added). We further explained:
[F]or there to be a total forfeiture of coverage under
a homeowner's insurance policy for failure to comply
with post-loss obligations (i.e., conditions precedent
to suit), the insured's breach must be material. See
Drummond, 970 So. 2d at 460 (concluding that the
insured's failure to comply with a post-loss obligation
“was a material breach of a condition precedent to
[the insurer's] duty to provide coverage under the
policy”) (emphasis added); Starling, 956 So. 2d at
513 (“[A] material breach of an insured's duty to
comply with a policy's condition precedent relieves
the insurer of its obligations under the contract.”)
(emphasis added); Goldman v. State Farm Fire Gen.
Ins. Co., 660 So. 2d 300, 303 (Fla. 4th DCA 1995)
(“An insured's refusal to comply with a demand for an
examination under oath is a willful and material
breach of an insurance contract which precludes the
insured from recovery under the policy.”) (emphasis
added); Stringer v. Fireman's Fund Ins. Co., 622 So.
2d 145, 146 (Fla. 3d DCA 1993) (“[T]he failure to
submit to an examination under oath is a material
breach of the policy which will relieve the insurer of
12
its liability to pay.” (quoting 13A Couch on Insurance
2d (Rev. 3d) § 49A:361 at 760 (1982) (footnote
omitted) (emphasis added))).
Further, while the interpretation of the terms of an
insurance contract normally presents an issue of law,
the question of whether certain actions constitute
compliance with the contract often presents an issue
of fact. See State Farm Fla. Ins. Co. v. Figueroa, 218
So. 3d 886, 888 (Fla. 4th DCA 2017) (“Whether an
insured substantially complied with policy obligations
is a question of fact.”) (emphasis added); Solano v.
State Farm Fla. Ins. Co., 155 So. 3d 367, 371 (Fla.
4th DCA 2014) (“A question of fact remains as to
whether there was sufficient compliance with the
cooperation provisions of the policy to provide State
Farm with adequate information to settle the loss
claims or go to an appraisal, thus precluding a
forfeiture of benefits owed to the insureds.”)
Id. at 914 (emphasis added).
As we reiterated in Estrada, the “question of whether certain actions
constitute compliance with the contract often presents an issue of fact.” Id.
However, there is no such question here, as it is undisputed that Nunez failed
to attend the EUO and no evidence was presented that Nunez attempted to
comply with this condition precedent to suit. See Goldman v. State Farm
Fire Gen. Ins. Co., 660 So. 2d 300, 303 (Fla. 4th DCA 1995) (holding that
“insured's refusal to comply with a demand for an examination under oath is
a willful and material breach of an insurance contract which precludes the
insured from recovery under the policy”); Shivdasani v. Universal Prop. &
13
Cas. Ins. Co., 306 So. 3d 1156, 1160 (Fla. 3d DCA 2020) (“It is
unquestionable that in order for there to be substantial compliance, there
must be evidence of some compliance.”); Edwards v. Safepoint Ins. Co., 318
So. 3d 13, 17 (Fla. 4th DCA 2021) (finding “total failure” to comply with the
proof-of-loss requirement, and explaining there was no evidence of
substantial compliance and “[t]he insured never offered any legitimate
explanation for her noncompliance”).
The policy expressly required Nunez to submit to an examination
under oath as part of her “Duties After Loss”:
2. Your Duties After Loss. In case of a loss to covered property,
you must see that the following are done:
***
f. As often as we reasonably require:
(1) Show the damaged property;
(2) Provide use with records and documents we request and
permit us to make copies; and
(3) Submit to examination under oath, while not in the presence
of any other “insured,” and sign the same;
The policy further provided:
8. Suit Against Us. No action can be brought unless the policy
provisions have been complied with and the action is started
within one year after the date of loss.
Universal sent two letters (each letter sent to both Nunez and her
counsel) requesting to set an EUO “for a mutually convenient date and time,”
14
and advising that “any failure to schedule and submit to the Examination
Under Oath may be considered as a violation of the conditions of the subject
Policy and prejudice [the] investigation of [the] claim.” Upon receiving no
response from Nunez or her counsel, Universal sent a third letter to Nunez
and her counsel unilaterally setting the EUO for a month later in Aventura,
and again advising that “failure to appear may be regarded as a breach of
the terms and provisions of [the] Policy.” No evidence was presented at trial
that Nunez responded to the letters, attempted to reschedule the EUO, or
otherwise complied in any manner with the request for an EUO. Compare
with Abdo v. Avatar Prop. & Cas. Ins. Co., 302 So. 3d 926 (Fla. 4th DCA
2020) (finding the record did not demonstrate a “total failure” to comply with
the EUO policy requirement where the insured provided a “reasonable
explanation for his nonattendance at the EUO, and his attorney attempted to
reschedule the EUO on two occasions”) and Himmel v. Avatar Prop. & Cas.
Ins. Co., 257 So. 3d 488, 492 (Fla. 4th DCA 2018) (finding the record did not
demonstrate a “total failure” to comply with the EUO policy requirement
where the insured “repeatedly requested to reschedule the EUO to a
mutually convenient date and time due to unavailability,” the insurer refused,
and the insured did not appear for the EUO). Instead, Nunez failed to
present any evidence showing she “cooperated to some degree and/or
15
provided an explanation for [her] noncompliance which in turn created a
question of fact as to whether there was a willful and material breach of the
EUO provision.” Himmel, 257 So. at 492.
Taking the position that the evidence presented at trial created a
question of fact for the jury on whether she “willfully breached the terms of
the Policy,” Nunez contends (in her Reply)6 that she “cooperated with
[Universal’s] investigation in all other respects.” However, Nunez’s
compliance on other matters, e.g., promptly reporting the claim, allowing
Universal to inspect her home, and providing a sworn proof of loss, does not
bear on whether Nunez substantially complied with the specific, pertinent
policy provision requiring her to submit to an EUO. See Edwards, 318 So.
3d at 16 (rejecting a similar argument by the insured in that case and
explaining: “Cases evaluating whether ‘some degree’ of cooperation has
occurred under Haiman have ho[m]ed in on whether there was some
compliance with the condition precedent that is the focus of an alleged
breach.”) (emphasis added). Stated differently, actual compliance with other
6
There is no direct argument on this point in the Initial Brief, although Nunez
argues broadly there was evidence to support the jury’s verdict. See Brief
for Appellant at 14 (“Judge Hanzman erroneously granted directed verdict in
favor of Insurance Company because there was evidence that Homeowner’s
failure to sit for an EUO was not willful and there was no evidence that
Insurance Company was prejudiced.”) (emphasis added).
16
policy requirements or conditions is not evidence of substantial compliance
with the pertinent policy requirement or condition at issue—in this case the
post-loss obligation that Nunez must sit for an EUO.
Next, to the extent Nunez contends she offered an “explanation for her
noncompliance,” the only potential evidence on this point was her testimony
that she received the letters, but informed someone—though unclear who—
that her husband would not drive outside Miami. Even so, the EUO was set
to take place in Aventura, which is within Miami-Dade County. Further,
Nunez presented no evidence as to whether this concern was relayed to
Universal or anyone else, or whether, based on her husband’s alleged
reluctance to drive too far, Nunez attempted to reschedule or relocate the
EUO. Compare with Abdo, 302 So. 3d 926 and Himmel, 257 So. 3d at 492.
Stated simply, there was no evidence or reasonable inference from the
evidence which could create a question of fact for the jury to determine
whether Nunez attempted to comply with her contractual obligation to appear
for the EUO—an EUO that had to be unilaterally set after Universal received
no response to its first two letters requesting that the EUO be set at a
“mutually convenient date and time.”
Finally, and significantly, we note that Nunez never argued to the jury
that she substantially complied or attempted to comply with the EUO
17
requirement. Instead, Nunez simply maintained that it was unreasonable for
Universal to request that she attend the EUO 110 days after she filed her
claim. However, this is not a legally relevant argument to the question of
Nunez’s compliance with the EUO requirement.
Because the undisputed facts show that Nunez wholly failed to comply
with her post-loss obligation to attend an EUO, and likewise failed to offer
evidence of compliance or attempted compliance—or even a reasonable
justification for the failure to attend—the trial court properly directed a verdict
on whether Nunez materially breached the contract. The trial court also
properly granted a new trial on whether Universal was prejudiced by the
material breach where neither the parties nor the trial court had the benefit
of our Estrada decision at the time of trial. Id. at 912 (holding, as a matter of
first impression, that, upon the insurer establishing a material breach, the
insured bears the burden to prove the insurer was not prejudiced by such
breach).
Conclusion
We affirm the directed verdict on whether Nunez materially breached
the contract, and, consistent with our holding in Estrada, we affirm the trial
court’s order granting a new trial on whether the insurer suffered prejudice
as a result of the material breach.
18
CELERINA NUNEZ v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY
Combined Opinion