Ifergane v. Citizens Prop. Ins. Corp.

• Court: Florida District Court of Appeals
• Writing for the Court: LOGUE, J.
• Citation: Ifergane v. Citizens Prop. Ins. Corp., 232 So.3d 1063 (Fla. App. 2017)
• Decision Date: 18 October 2017
• Docket Number: No. 3D16–1142,3D16–1142
• Parties: Haim Michel IFERGANE, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.

232 So.3d 1063

Haim Michel IFERGANE, Appellant,

v.CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.

No. 3D16–1142

District Court of Appeal of Florida, Third District.

Opinion filed October 18, 2017

Ligman Martin, P.L., and Michael R. Seward and James C. Ligman, for appellant.

Methe & Rockenbach, P.A., and Kara Berard Rockenbach (West Palm Beach), for appellee.

Before EMAS, LOGUE, and LUCK, JJ.

LOGUE, J.

Haim Ifergane, the owner of a Miami Beach residence, appeals a final judgment entered in favor of Citizens Property Insurance Corporation. This case comes before us a second time after we previously reversed the trial court's entry of summary judgment against Citizens and in favor of the homeowner, Ifergane. Because a genuine issue of material fact remains as to whether a letter from Citizens constituted a denial of coverage, we conclude that summary judgment was improper and we reverse and remand for further proceedings.

Haim Ifergane and his now former wife, Alexandra Ifergane, purchased the Miami Beach residence in 2004. The property was insured by a Citizens wind-only dwelling policy, and Alexandra was the only named insured on the policy. Hurricane Wilma damaged the property in October 2005, and the Iferganes initiated a claim with Citizens. Meanwhile, the Iferganes entered into a marital settlement agreement. Based on the agreement, Alexandra assigned to Haim all her "right, title, interest, claim and demand" in the property.

Citizens made an initial payment of $44,955.08 on the claim. When Haim requested additional payment, Citizens requested a sworn proof of loss and sought examinations under oath of both Haim and Alexandra. Haim complied; Alexandra did not. Citizens notified Alexandra that without her examination under oath (EUO), it could not complete its investigation of the claim or determine whether Haim was entitled to coverage under the policy as a "resident spouse" at the time of loss.

In April 2008, Haim made a demand for appraisal under the policy. Citizens filed a declaratory action against the Iferganes, seeking a determination of its coverage obligations. As we explained in detail in Citizens Property Insurance Corp. v. Ifergane, 114 So.3d 190 (Fla. 3d DCA 2012) ( Ifergane I ), the parties filed several motions and cross-motions. The trial court granted Alexandra's motion for partial summary judgment, finding that she had assigned her interest to the insurance claim to Haim. It later granted her motion to dismiss the complaint against her, finding she was not a party to the lawsuit. It denied Citizens' motion for summary judgment which argued that recovery was precluded under the policy because Alexandra refused to comply with policy duties. The trial court also granted Haim's motion for summary judgment as to coverage. Ultimately, after compelling appraisal, the trial court entered a final judgment against Citizens, awarding Haim the appraised amount of $476,594.61. Citizens then filed the first appeal in this case.

On appeal in Ifergane I, this court concluded that the complaint against Alexandra was properly dismissed. But we reversed the summary judgment entered in favor of Haim because the assignment did not relieve Alexandra of her post-loss obligations as a named insured under the policy. Accordingly, we concluded that it was error for the trial court to find coverage as a matter of law because "Alexandra's refusal to submit to a requested EUO precludes recovery under the policy." Ifergane I, 114 So.3d at 197.

On remand, Citizens moved for summary judgment based on this court's holding that Alexandra's refusal to submit to a requested examination under oath precludes recovery. In opposition, Haim argued that factual issues remained to be determined by the trial court, including whether a June 28,...