Nunez v. Universal Prop. & Cas. Ins. Co.
| Citation | 325 So.3d 267 |
| Decision Date | 04 August 2021 |
| Docket Number | No. 3D19-1614,3D19-1614 |
| Parties | Celerina NUNEZ, Appellant, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
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.
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.
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 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.
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?
(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 (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, 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 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.
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 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) (...
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