Typical property policies require the insured to cooperate with the insurer in the investigation of the claim, and specifically require the insured to submit a sworn proof of loss within a certain time period (in some policies this applies only where the insurer requests a proof of loss). If the insured partially complies, i.e., provides an incomplete or untimely proof of loss, the issue becomes whether such partial compliance satisfies the condition for coverage. In addition, conduct by the insurer indicating that the policy requirement will not be enforced may provide the insured with an argument that the requirement was waived.

The court in Makryllos v. Citzens Property Ins. Co., 2012 Fla. App. LEXIS 22148 (Fla. 2d DCA, Dec. 28, 2012) addressed the partial compliance and waiver of a proof of loss policy condition with respect to a roof leak claim. Citizens paid for ensuing loss damages, but denied the Makrylloses’ roof damage claim. A supplemental claim was filed and Citzens advised the Makrylloses that it would take an examination under oath (“EUO”). Citizens requested a proof of loss, and the policy language required submission of the proof of loss within sixty days of Citizens’ request. Multiple communications followed regarding the rescheduling of the EUO, which included repeated instructions from Citizens that the Makrylloses were “expected to submit the Proof of Loss prior to or at the examination under oath.” The insured provided a handwritten proof of loss at the EUO, which took place well more than 60 days from the date that Citizens requested the proof of loss. The case provides no details as to the content or sufficiency of the handwritten proof of loss. The Makrylloses filed suit against Citizens. The trial court granted summary judgment in favor of Citzens based upon the Makrylloses’ failure to timely provide a sworn proof of loss.

The 2d DCA identified the sole issue on appeal as whether the Makrylloses are barred from recovery under the policy of insurance because of the failure to timely submit a sworn proof of loss statement. The court determined that summary judgment in favor of Citizens was improper because there were two genuine issues of material fact which should be resolved by the jury: (1) whether Citizens waived its right to rely on the policy condition requiring submission of a proof of loss within 60 days of Citizens’ request because it instructed Mr. Makryllos, over a course of months, to submit the proof of loss prior to or at the EUO; and (2) whether the Makrylloses’ cooperation to some degree was sufficient to avoid the insurance policy’s condition that “[n]o action can be brought against us unless there has been compliance with the policy provisions.”

With respect to the waiver issue, the court determined that summary judgment was improperly granted because there was an issue of fact as to whether Citizens induced the insureds to wait beyond the 60-day period to provide a proof of loss. With respect to the partial compliance issue, the court stated, without any further analysis, that a sworn proof of loss was provided before summary judgment was entered, and as such, the insureds cooperated to some degree with the Citizen’s investigation. This was sufficient to establish an issue of fact for the jury to consider.

Despite the plain and unambiguous language in the policy requiring a sworn proof of loss within sixty days of its request, Makryllos indicates that deviation from the policy language during the adjustment process (e.g., claim correspondence regarding the applicable proof of loss deadline) can, in some circumstances, lead to waiver arguments that may defeat summary judgment. As to the sufficiency of the proof of loss, Makryllos does not provide sufficient facts or analysis to serve as any useful guideline as to whether or under what circumstances partial compliance is sufficient to survive summary judgment.