Late notice issues have been cropping up consistently in the Florida appellate courts in the context of Hurricane Wilma claims being reported years after the storm. The latest decision, Slominski v. Citizens Property Ins. Corp., 2012 Fla. App. LEXIS 16730 (Fla. 4th DCA Oct. 3, 2012) attempts to reconcile other recent Fourth District opinions.
In Slominski, the insureds made “minimal repairs” to their home after Hurricane Wilma made landfall on October 24, 2004. They did not report the claim to their insurer, Citizens, because the repairs fell well under the deductible. In 2008, three and a half years after the storm, the insureds reported a claim to Citizens. Citizens denied the claim after finding that “the damages reported cannot be attributed to Hurricane Wilma due to the amount of time that has transpired since the purported date of loss to the present date.” The Slominskis filed suit, and Citizens asserted various late notice defenses. Citizens filed a motion for summary judgment based on failure to promptly notify Citizens of the loss, and the motion was granted. The Slominskis appealed.
The Fourth DCA issued a detailed opinion affirming the trial court’s order granting Citizens’ motion for summary judgment. The court first set forth the standard in Florida regarding prompt notice provisions, noting that “while prejudice to the insurer is presumed, if the insured can demonstrate that the insurer is not prejudiced thereby, then the insurer will not be relieved of liability merely by a showing that notice was not given ‘as soon as practicable.’” Slominski at *5. The court noted that the insureds’ contractor testified in deposition that he was not “100% sure” that the wind damage was caused by Hurricane Wilma or Hurricane Frances in 2004, and further that there was “no way to differentiate” one storm from the other with respect to water damages in the home. Similarly, the insureds’ expert engineer testified in deposition that he was unable to determine exactly when interior staining or roof damage occurred, and could only opine that such damages were caused by a hurricane. Id. at *4. Both the contractor and engineer attested in affidavits procured after their depositions were taken that the damages they observed were caused by Hurricane Wilma. Id.
The Slominski court refused to consider the statements made by the insureds’ contractor and engineer in the affidavits that were procured after deposition testimony was taken based on well- established law that a party cannot repudiate prior deposition testimony by filing self-serving affidavits to avoid entry of summary judgment:
The statements made by both the contractor and the engineer in their prior depositions cannot be given any reasonable meaning which will not conflict with the subsequently filed affidavit.
Id. at *8.
Without the affidavits, the insureds were unable to meet their burden of showing a lack of prejudice to Citizens. Id. at *10-11.
The Slominski court (Warner, Polen, and Damoorgian, JJ) explained that its decision is consistent with Soronson v. State Farm Florida Ins. Co., 2012 Fla. App. LEXIS 12100 (Fla. 4th DCA July 25, 2012) (which we reported on in an earlier blog post) because in Soronson the insureds’ own affidavits and unsworn copies of engineer reports were insufficient to establish lack of prejudice. The court further explained how its decision was consistent with Stark v. State Farm Fla. Ins. Co. 95 So. 3d 285 (Fla. 4th DCA July 20, 2012) (finding that the insured had provided sufficient evidence to rebut the presumption of prejudice) because in Stark, the insureds’ engineer attested in an affidavit that “within reasonable engineering probability . . . the classic pattern of windstorm damage from Hurricane Wilma . . . was clearly evident upon the inspection which was conducted in 2010.”
However, the Slominski court did not attempt to reconcile its decision with Leben v. State Farm Florida Ins. Co. 2012 Fla. App. LEXIS 12522 (Fla. 4th DCA Aug. 1, 2012). Since we posted the Leben summary, we were able to review the appellate briefing, which demonstrated that the insured had provided an affidavit of a roofing inspector who had attested that he “believed” that the damage he observed “may be reasonably attributable to Hurricane Wilma” based on a lack of other severe weather events since Hurricane Wilma and the fact that the roof was only ten years old at the time he inspected it. In its appellate briefing, State Farm argued that the affidavit should not be considered because the affidavit failed to establish that the affiant was a qualified expert, the “belief” that damage “may be” caused by Wilma was essentially a “guess” that does not constitute an admissible expert opinion, and the opinion was not supported by the facts. The only other “evidence” of a lack of prejudice referred to in the appellate briefing is a letter, not an affidavit, submitted by a roofing contractor, which stated that “Mr. & Mrs. Lebens’ roof has truly sustained damages by Hurricane Wilma.” State Farm argued that this letter was inadmissible summary judgment evidence. In reversing the trial court’s decision granting summary judgment to State Farm, the Fourth DCA stated that “two reports from individuals who concluded that Hurricane Wilma had caused the damage” was sufficient to rebut the presumption of prejudice to State Farm. It appears then, that the Lebens court considered both the affidavit of the roofing inspector and the letter from the roofing contractor in reaching its decision. Consideration of the roofing contractor’s letter does not appear to be reconcilable with Soronson, which was based on the fact that the reports were unsworn. Consideration of the roofing inspector’s opinion does not appear to be reconcilable with Stark, where the engineer’s opinion was “within a reasonable engineering probability.”