Moody and Sonenblum Secure Final Summary Judgment for Insurer Client in Breach of Contract Case

The plaintiff LLC sued Westchester Surplus Lines Insurance Company under a purported assignment of benefits contract for applying a post-Hurricane Sally tarp to a restaurant in Pace, Florida. Discovery revealed that the Insured no longer owned the property on the date of the assignment agreement, which raised a question of whether the Insured had any legal capacity to contract for services to a building the Insured did not own. Through further discovery, the Insured ended up testifying that he did not sign an assignment of benefits contract with the plaintiff LLC, and that his purported signature on the assignment agreement was a forgery.

As such, Westchester filed a motion for summary judgment based upon lack of standing, for plaintiff not having a viable assignment contract, and for Plaintiff having committed fraud upon the court by using a fraudulent instrument.

In response, the plaintiff filed an untimely affidavit one business day before the summary judgment hearing. The plaintiff’s affidavit 1) did not refute the Insured’s testimony that he did not sign an assignment of benefits contract, and 2) confirmed that the plaintiff had no contact with the Insured and could not attest to any personal knowledge of the Insured signing the assignment agreement.

The Court found that plaintiff’s affidavit was untimely, as Rule 1.510(c) required Plaintiff to file its response at least 20 days before the hearing. As such, the Court considered the Insured’s testimony as undisputed, citing to Lloyd S. Meisels, P.A. v. Dobrofsky, 341 So. 3d 1131, 1135 (Fla. 4th DCA 2022) (“When a party fails to file a response with their supporting factual position, as required under the amended rule, the trial court is permitted to consider the facts set forth in the motion for summary judgment as undisputed.”). Moreover, the Court observed that the plaintiff’s untimely affidavit did not refute the Insured’s testimony that he did not sign the assignment agreement, and that the plaintiff could not maintain its cause of action without a valid assignment agreement from the Insured.

Without detailed comment, the Court also rejected the plaintiff’s request for a continuance to allow the plaintiff to obtain additional evidence. As argued at the hearing, the plaintiff had consistently blown several deadlines, and had already successfully argued for the need to conduct additional discovery at a hearing three-months prior. Despite the Court previously allowing the plaintiff to conduct additional discovery, the plaintiff had failed to undertake any further discovery. Under such circumstances, the Court did not allow a continuance.

Accordingly, as Westchester presented evidence establishing that there was no valid assignment contract, and the plaintiff did not submit any evidence to the contrary, the Court entered final summary judgment in favor of Westchester.