final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dale Ross, Judge; L.T. Case No. 10-31874
Elizabeth K. Russo and Kevin D. Franz of Russo Appellate
Firm, P.A., Miami, and Green & Ackerman, P.A., Boca
Raton, for appellant.
A. Vaka and Nancy A. Lauten of Vaka Law Group, Tampa, and
David J. Pettinato of Merlin Law Group, Tampa, for appellee.
Farm raises two issues in this appeal of a final judgment
entered for the insured. State Farm argues first that the
trial court erred in denying its summary judgment and
directed verdict motions because the insured failed to timely
comply with policy obligations following the loss. State Farm
also argues that, at a minimum, a new trial is required
because the introduction of the insured's health issues
at trial was both irrelevant and highly prejudicial.
reject the first issue because the insured's substantial
compliance with her post-loss obligations under the policy
involved issues of fact properly resolved by the jury. On the
second issue, because evidence of the insured's health
should never have been introduced, we reverse for a new
insured, Dina Figueroa, first filed a claim on October 30,
2005, after Hurricane Wilma hit on October 24, 2005. State
Farm sent an adjuster to her home on December 17, 2005. The
adjuster believed that 29 roof tiles had been damaged by the
hurricane, but that, because the cost to repair those roof
tiles did not exceed the insured's policy deductible, it
was unable to provide a payment. State Farm advised the
insured that she was free to obtain her own estimate of the
cost of repairs, and to contact it immediately if she
obtained an estimate that was above her deductible. In 2005,
State Farm did not insist that the insured file a sworn proof
insured contacted a few roofers, but none were interested in
the job. In January 2006, the insured began dealing with a
serious medical condition, which distracted her from
following up with her claim.
2008, the insured obtained a contractor's estimate that
included a new roof because more than 25% of her roof tiles
had been loosened by wind damage. The contractor estimated
that a new roof would cost $43, 648. The insured informed
State Farm in early 2009 that she wanted to reopen her claim,
sending along the contractor's estimate.
Farm sent another adjuster to the insured's home in April
2009, who concluded that the original estimate was correct.
After that inspection, State Farm sent the insured a letter
that outlined her obligations under the policy following a
loss. In relevant part, the policy required her to protect
the property from further damage by making reasonable and
necessary temporary repairs, and to submit to State Farm a
signed sworn proof of loss within 60 days of the loss. The
policy provided that no action could be brought against State
Farm unless there was compliance with these provisions.
insured submitted a sworn proof of loss along with the
contractor's estimate on June 8, 2009. Counsel for State
Farm responded in late September 2009, informing the insured
that the proof of loss did not comply with policy provisions.
Subsequently, upon State Farm providing a proof of loss form
to the insured in March 2010, the insured completed and
submitted the proof of loss form on June 10, 2010.
22, 2010, State Farm notified the insured that it was
relieved of its obligations under the policy because of the
insured's material breach, specifically, her failure to
timely submit a valid sworn proof of loss. The insured filed
suit the following month.
Farm moved for summary judgment, arguing that the insured
failed to comply with her post-loss obligations under the
policy. It argued that the insured failed to submit a sworn
proof of loss within 60 days of the loss and failed to
protect her property from further damage by making reasonable
and necessary repairs. The insured responded that she
substantially complied with her post-loss obligations and
that State Farm was not prejudiced by her untimely
compliance. The insured also explained that she was unable ...