Florida Third DCA Holds Insured’s Engineer’s Conclusory Opinions Failed to Rebut the Presumption of Prejudice Due to Late Notice

By Zachary D. Sonenblum

In Bouchard v. Citizens Prop. Ins. Corp., Florida’s Third District Court of Appeal affirmed the lower court’s entry of summary judgment in favor of Citizens, finding that the Insured’s engineer’s conclusory opinion did not rebut the presumption of prejudice due to late notice.

Despite noticing water leaking through the roof on the day of Tropical Storm Eta, the Insured waited over 13 months to report the claim to Citizens. Citizens denied the claim for failure to timely report the loss and litigation ensued. Citizens moved for summary judgment due to late notice, and in response to summary judgment, the Insured relied on an engineer’s affidavit to attempt to rebut the presumption of prejudice. The trial court granted the motion for summary judgment—finding both that the notice of the claim was untimely and that the Insured failed to adequately rebut the presumption of prejudice resulting from the untimely notice because the engineer affidavit was only conclusory. The Insured’s counsel then filed an engineering report that had not been previously provided to the court or Citizens, and moved for rehearing. The Court concluding that the report was conclusory just like the affidavit, and denied the Insured’s motion for rehearing. The Insured subsequently appealed to the Third DCA.

On appeal, the Insured did not dispute the trial court’s determination that the claim was untimely reported, and only disputed whether the engineer’s opinions were sufficient to rebut the presumption of prejudice. Agreeing with the lower court, the Third DCA found that the engineer’s opinions were insufficient to rebut the presumption. In reaching its decision, the Third DCA explained:

“With respect to the Affidavit, the trial court correctly determined that it was conclusory. The Affidavit simply states that the claimed damage was caused by Tropical Storm Eta and contains no chain of reasoning to support this conclusion.”

“Although the Engineer’s Report is more detailed than the Affidavit, we hold that the trial court did not err in determining that the Report was also too conclusory to survive summary judgment. The Report, which was prepared in May 2023, concludes that Tropical Storm Eta ‘was the credible event responsible for the storm damages.’ However, as the trial court correctly observed, the Report does not address the possibility of alternative causes. In describing the various types of damage, the Report simply states that the damage is ‘consistent with’  Tropical Storm Eta. But the report does not address the likelihood that Tropical Storm Eta was responsible for the damage, nor does it explain why the damage was not likely caused by other storm events before or after Eta.”

The Third DCA ultimately affirmed summary judgment in favor of the insurer, Citizens Property Insurance Corporation.