In December 2021, Florida’s 3rd District Court of Appeals (DCA) issued its opinion on a final summary judgment entered in favor of an Insurer, Citizens Property Insurance Corporation (Citizens), against a third-party assignee, Rainbow Restoration, LLC (Rainbow). The court considered whether the lower court had given the appropriate weight to prior sworn testimony and affidavit testimony used by Rainbow when arguing against summary judgment.
Rainbow, a restoration company, provided water mitigation services to an Insured of Citizens, in exchange for an Assignment of Benefits under which to recover payment. Rainbow claimed to have submitted the requisite documents to Citizens, but received no payment, and thus initiated suit. Citizens claimed it had never received the alleged documents prior to litigation. When deposing Rainbow’s owner, he testified that, while he could not specifically recall his interactions with Citizens, his personal notes and explanation of general business practices established that such documents were mailed to the Insurer.
Citizens disagreedand filed its Motion for Final Summary Judgment, claiming not only that there existed no disputed issue of material fact, but also that Rainbow had failed to comply with its post-loss duties as assignee when it failed to provide such documents pre-suit. Rainbow responded, attaching an affidavit by Rainbow’s owner where he affirmatively claimed to have sent an invoice, assignment of insurance benefits executed by the insured, and a certificate of completion, all by U.S. Mail prior to suit being filed. Ultimately, the lower court granted summary judgment for Citizens.
On appeal, the 3rd DCA cleared up the lower court’s misunderstanding of Rainbow’s testimonial evidence offered in opposition to summary judgment. Not only did it find that the prior sworn testimony and affidavit testimony did NOT contradict each other, but inversely established that such evidence may be used to create a disputed issue of material fact.[1] Accordingly, summary judgment was reversed and remanded to the lower court for further proceedings.
At first glance, the 3rd DCA has re-established that when an Insurer claims to not have received certain documents prior to litigation, and the Insured/Assignee cannot establish service of such documents with particularity, testimony in the form of a sworn affidavits may be used to create a disputed issue of material fact. Now, while its application was limited to documents such as invoices, assignment contracts and certificates of completion in the Rainbow case, one can imagine the same being said of other documents an Insurer demands pre-suit, such as the Sworn Proof of Loss.
Okay, hear me out:
If you are a homeowner, or property owner, chances are you have an insurance policy to protect and cover that property. Typically, the policy will contain various provisions, including actions (or duties as Insurers will call them) that you, as the Insured, must meet or comply with to recover money or performance from that Insurer under the policy. Most notably, one document which is frequently requested of an Insured is called the Sworn Proof of Loss (SPOL), an official, notarized and sworn statement detailing the damage your property has suffered and which you seek to recover. This document, however, has been given such great weight by Florida courts that its absence is treated as a fatal flaw to anyone attempting to recover under their insurance policy if not submitted during the claims investigation process, or at the very least prior to initiating a lawsuit. Therefore, when an Insurer does not receive a SPOL, or it is received untimely, it is treated in litigation as a fatal flaw to an Insured’s claim which may end in dismissal of your case.
But what happens when you, the Insured, DID send the requisite SPOL to your Insurer, but they claim they never got it? Is your claim Dead on Arrival (DOA)? No, not necessarily. However, it does depend on HOW you provided the SPOL. Did you send it via mail? Email? Carrier pigeon? If you have evidence of how you sent the document, such as proof of delivery, mail tracking or email confirmation, then you can make a reasonable showing that you did provide your Insurer with that document.
And if you have no physical proof or evidence that you sent it? Is it now DOA? Well, the 3rd DCA says not necessarily. The Insurer, or its Assignee, must assert into the record some form of testimonial evidence, whether provided in the form of sworn testimony through deposition, or affidavit testimony of personal knowledge, that you did in fact provide the document in the manner you stated. While this may be sufficient to create a disputed issue of material fact, ultimately it will be for the jury to determine this issue.
If there’s one takeaway, it’s this: KEEP YOUR RECORDS! This whole situation would have been avoided with a proof of delivery or email confirmation. Nowadays, various Insurers accept email delivery of most records requested during the claims handling process, and for those materials which must be provided physically, either spring for some extra money in mail tracking, or better yet, request from your Insurer to provide you with the means to get it to them. If the Insurer wants it so bad, have them go out of their way!
If you have a question regarding this article, or your claim in general, follow the link here, email us at info@schirmerlaw.com, call us at 754-260-5410, or stop by our Fort Lauderdale office for a free consultation. Your Loss is Our Concern.
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[1] Rainbow Restoration, LLC v. Citizens Prop. Ins. Co., 3D21-167, 47 Fla. L. Weekly D 12
[2] The Court cites to Siguenza v. Citizens Prop. Ins. Corp., 121 So. 3d 1125, 1126 (Fla. 3d DCA 2013) as the basis for its reasoning. In Siguenza, similar to this case, there was testimonial evidence in the form of prior sworn and affidavit which facially appeared to contradict, but actually did not. Siguenza relied on the Florida Supreme Court’s decision in Moore v. Morris, 475 So. 2d 666 (Fla. 1985) which found that where evidence raises any issue of material fact, is conflicting, permits reasonable inferences, or tends to prove the issue, it should be submitted to the jury as a question of fact.
