Failure to Comply with Post-Loss Obligations: Affidavits by Themselves May Not be Enough to Win Summary Judgment Under Florida Rule 1.510

With every coverage afforded under a property insurance policy, there comes a laundry list of conditions that attach for the policyholder to be able to recover. These are usually called something along the lines of “Post Loss Obligations” or “Duties After Loss.”

Once first-party property insurance litigation commences, one way in which an insurer may attempt to avoid its contractual obligations is by filing a “Motion for Summary Judgment” alleging the insured failed to comply with the policy’s conditions. Insurance companies are notorious for arguing in favor of a total preclusion for recovery if it can be shown that an insured failed to comply with the language in the conditions in any way.

Florida’s summary judgment rule states:

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.¹

When faced with an insurer argument that a policyholder should be precluded from recovery for failure to comply with policy’s post-loss obligations, most Florida courts will reject the argument on summary judgment unless a “total failure to comply” is proved by the insurer.² “If, however, the insured cooperates to some degree . . . a fact question is presented for resolution by a jury.”>sup>3 In other words, if an insured can show that they substantially complied with the policy’s obligations, they should not be automatically precluded from recovery when faced with a motion for summary judgment.

The recent decision in Everett v. Avatar Property & Casualty Insurance Company,⁴ puts this scenario into context. In Everett, the insureds filed suit against their insurance carrier, Avatar Property & Casualty Insurance Company, for breach of contract arising from Avatar’s offer to partially repair the roof instead of replacing the entire roof following wind damage. In response, Avatar filed a motion for summary judgment, which alleged that the Everetts failed to provide Avatar with a valid sworn proof of loss because the second proof of loss signed by Everett did not set forth a detailed estimate of repairs.

The subject policy’s “conditions” section, which lists the policyholder’s duties after loss, is shown as follows:

2. Your Duties After Loss. In case of loss to a covered property, you must see that all of the following are done:

g. Send to us, within 60 days after our request, your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief;

(1) The time and cause of loss;
(2) The interest of the “insured” and all others in the property involved and all liens on the property;
(3) Other insurance which may cover the loss;
(4) Changes in title or occupancy of the property during the term of this policy;
(5) Specifications of any damaged building and detailed estimates for repair of the damage;
(6) The inventory of damaged personal property described in 2.e above;
(7) Receipts for additional living expenses incurred and records supporting the fair rental value loss;
and
(8) Evidence or affidavit that supports a claim under the credit Card, Fund Transfer Card, Forgery and Counterfeit Money coverage, stating the amount and cause of the loss.

As support for its motion for summary judgment, Avatar attached a single, sworn affidavit from its corporate representative who attested to the policyholder’s failure to comply with the policy’s obligation to provide a valid sworn proof of loss. The Everett trial court entered final summary judgment in favor of Avatar, but on appeal, the Second District Court of Appeal reversed and remanded for further proceedings, explaining the issue of whether there was substantial compliance with a valid proof of loss is an issue for the trier of fact:

With respect to Avatar’s argument that the Everetts failed to submit a valid SPOL, this is another issue that is generally one for the trier of fact. The record shows that upon request the Everetts submitted a second SPOL before they filed suit. “When an insured does submit a sworn proof of loss, however, the issue of whether the submitted document ‘substantially complie[s] with policy obligations is a question of fact’ which precludes the entry of summary judgment.” Himmel v. Avatar Prop. & Cas. Ins. Co., 257 So. 3d 488, 493 (Fla. 4th DCA 2018) (alteration in original) (quoting State Farm Fla. Ins. Co. v. Figueroa, 218 So. 3d 886, 888 (Fla. 4th DCA 2017)); see also Gonzalez v. People’s Tr. Ins. Co., 45 Fla. L. Weekly D2391, D2391 (Fla. 3d DCA Oct. 21, 2020) (“[W]hether the Gonzalezes substantially complied with their post-loss obligations once People’s Trust acknowledged coverage, or whether they totally failed to comply, is a disputed issue of fact and therefore summary judgment was improvidently granted.”).⁵

The use of affidavits as support for summary judgment must comply with the requirements under Florida Statute 1.510, which states in pertinent part:

(c)Procedures.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.⁶

The appellate court first held that the affidavit filed by Avatar’s corporate representative did not comply with Rule 1.510 and was insufficient to support summary judgment because the affiant did not attest that she had personal knowledge.

Further, not only did the affidavit fail to assert personal knowledge, but the court also found the affidavit, on its own, was insufficient to support summary judgment as the affiant failed to affirmatively show she was competent to testify to matters asserted in the affidavit—including the insureds’ failure to submit a valid sworn proof of loss. Specifically, the court took issue with the fact that the motion for summary judgment was predicated upon one single affidavit without any other documentation to support such testimony. The Everett court explained:

She makes bare assertions that Avatar requested documents that the Everetts did not provide, but she does not assert what documents were requested or when they were requested, and the affidavit does not have any business records attached, such as a letter from Avatar requesting documents.

With respect to the assertion that Avatar requested that the Everetts submit a “valid” SPOL, Shaw asserted that Avatar notified the Everetts that the first SPOL they submitted was invalid and requested that they submit a valid SPOL. She asserts that the Everetts did not comply and did not provide Avatar with a valid SPOL. She does not attach any documents, such as Avatar’s requests or either SPOL that the Everetts submitted

Thus, the result of a Florida policyholder’s failure to strictly comply with each and every stringent requirement, post-loss, may not automatically bar their right to recovery if they can show proof that they at least substantially complied with the condition. Additionally, if an insurer wishes to make such an argument, they better come to the table with enough evidence to support their argument, which goes beyond a mere affidavit.

Summary judgment is a harsh result, especially with duties after loss provisions which contain confusing language and multipart sub-duties. Therefore, if an insurer wishes to make an argument for total forfeiture of coverage, it should be required to proffer an overwhelming amount of evidence to show the insured’s total failure and/or refusal to comply. Otherwise, Florida courts will continue to dismiss these summary judgment motions and allow the jury to tackle the determination as to post-loss obligation compliance.
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¹ Fla. R. Civ. P. 1.510.
² Starling v. Allstate Floridian Ins. Co., 956 So. 2d 511 (Fla. 5th DCA 2007).
³ Id. at 513.
⁴ Everett v. Avatar Property & Cas. Ins. Co., 310 So.3d 536 (Fla. 2d DCA 2021).
⁵ Everett, 2021 WL 300443, at *5.
⁶ Fla R. Civ. P. 1.510.