Perez v. Citizens Prop. Ins. Corp.

• Court: Florida District Court of Appeals
• Writing for the Court: LOGUE, J.
• Citation: Perez v. Citizens Prop. Ins. Corp., 343 So.3d 140 (Fla. App. 2022)
• Decision Date: 06 July 2022
• Docket Number: 3D20-1709
• Parties: Yalina PEREZ, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.

343 So.3d 140

Yalina PEREZ, Appellant,

v.CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.

No. 3D20-1709

District Court of Appeal of Florida, Third District.

Opinion filed July 6, 2022

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 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 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 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, 130 (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, 163 So. 2d 784,...