Ninth Judicial Circuit (State) Court of Florida, Orange County, Holds That an Insured Failed to Rebut the Presumption of Prejudice That Arose as a Result of Their Failures to Comply With the Policy’s Conditions

By Douglas M. Cohen

In Flores v. First Protective Ins. Co., 2024 Fla. Cir. LEXIS 1441 (November 27, 2024), the Court entered Final Summary Judgment in favor of Defendant, finding that Plaintiffs failed to rebut the presumption of prejudice to Defendant when Plaintiffs failed to comply with the Policy’s conditions.

Plaintiffs submitted a first-party property claim to Defendant arising out of a water leak in a kitchen sink cabinet. Prior to reporting the claim, Plaintiffs retained a contractor who removed the base shelf of the kitchen cabinet and discarded it.

The Policy sets forth specific duties that must be performed in the event of a loss. Among these duties are to give immediate notice, retain damaged property, allow inspection of damaged property prior to removal, cooperate in the investigation, show the damaged property, and submit to examinations under oath. Here, prior to Defendant’s inspection, the lower base of the kitchen cabinet had been removed, and Defendant was unable to document the origin of the alleged water damage or the removed base cabinet as it had been discarded and was unavailable for moisture testing. Defendant also requested Plaintiffs sit for a recorded statement, and then an examination under oath. In response, Plaintiffs rescheduled and/or failed to appear for the requested examination under oath on multiple occasions, instead filing suit for breach of contract and declaratory relief.

Florida courts routinely hold that upon an insured’s failure to cooperate, prejudice to the insurer is presumed, and it is the duty of the insured to put forth substantial evidence to rebut said presumption. Under Florida law, “prejudice is properly resolved on summary judgment where an insured fails to present evidence sufficient to rebut the presumption.”  In Flores, the Court found that Plaintiffs failure to submit to an examination under oath was a total failure to comply with a condition precedent under the Policy, and a basis for summary judgment alone. Further, the Court found that Plaintiffs failed to show or retain the damaged property, as required by the Policy. The Court also found that Plaintiffs failed to rebut any presumption of prejudice. The Court recognized that depositions and examinations under oath serve different purposes and are not interchangeable as Plaintiff argued and found that Plaintiffs failed to sit for an examination under oath prior to litigation. The Court also found that Plaintiffs alterations to the property prior to Defendant’s inspection complicated its investigation as Defendant was unable to document the origin of the alleged water damage or the removed base cabinet as it had been discarded.

Consequently, the Court held that Plaintiffs failed to rebut the presumption of prejudice to the insurer and granted final summary judgment in favor of Defendant. This case is instructive on non-compliance defenses.