FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Jack R. St.
S. Kling of Smith, Kling & Thompson, P.A., Tampa, for
A. Labbe and Jonathan T. Hall of Groelle & Salmon, P.A.,
Tampa, for Appellee.
Castro and Myriam Lopez appeal the final summary judgment in
favor of their insurance company, Homeowners Choice Property
& Casualty Insurance Company, in this breach of contract
action. Because Homeowners Choice denied coverage of their
claim, Castro and Lopez's subsequent failure to comply
with the insurance policy's conditions did not act as a
bar to their filing suit, and we must reverse.
case involves a dispute between Castro and Lopez and
Homeowners Choice about whether the damage to their property
was caused by sinkhole activity. On May 4, 2010, Castro and
Lopez noticed damage to their home that appeared to be caused
by sinkhole activity. They filed a notice of claim with
Homeowners Choice. On June 15, 2010, Homeowners Choice
retained SDI Engineering to conduct a sinkhole investigation.
SDI did not find any evidence of sinkhole activity, and
Homeowners Choice denied coverage on July 12, 2010, based on
the policy exclusion for damage caused by the movement of the
earth beneath the residence. It is undisputed that prior to
denial of the claim, Homeowners Choice did not request that
either Castro or Lopez submit to an examination under oath
(EUO), file a sworn proof of loss, or submit records and
documents in accordance with the "Your Duties After
Loss" section of their insurance policy. And the denial
of coverage letter did not reference the policy provisions
addressing their duties after loss or advise of any
conditions that needed to be met prior to their filing suit.
years later, Castro and Lopez retained FTE Engineers &
Planners, which conducted an investigation and concluded that
the damage to the home was caused by sinkhole activity. On
November 4, 2014, Castro and Lopez sent letters to Homeowners
Choice that included a copy of the FTE report and a request
that Homeowners Choice "reconsider" its denial of
coverage within fourteen days. Homeowners Choice, through its
attorney, replied by faxed letter acknowledging that Castro
and Lopez had provided new information and requesting that
Castro and Lopez each submit to an EUO, provide a sworn proof
of loss, and provide copies of all documentation from FTE.
Homeowners Choice did not provide a date, time, or location
for the EUOs.
December 18, 2014, Castro and Lopez filed suit against
Homeowners Choice for breach of insurance contract. On
December 30, 2014, Homeowners Choice provided Castro and
Lopez with dates for the EUOs. On December 31, 2014, counsel
for Homeowners Choice informed Castro and Lopez that filing
their lawsuit violated the "Suit Against Us"
provision of their policy and demanded that Castro and Lopez
withdraw their lawsuit and coordinate the EUOs by January 9,
2015. Castro and Lopez did not withdraw their lawsuit, and
the record includes emails between their attorney and counsel
for Homeowners Choice that demonstrate an agreement to
schedule the EUOs in January 2015. The last email from Castro
and Lopez's attorney was dated January 8, 2015, and
provided a date and time for the EUOs. There was no response
from Homeowners Choice.
Choice filed a motion for summary judgment based upon Castro
and Lopez's refusal to comply with its demand for EUOs
and the submission of a sworn proof of loss. Homeowners
Choice argued that Castro and Lopez's provision of the
FTE report along with their request to reconsider the claim
constituted a reopening of the claim that allowed it to
require Castro and Lopez to comply with the policy's
conditions precedent to filing suit. Homeowners Choice
contended that Castro and Lopez's refusal to comply with
those conditions precedent was therefore a willful and
material breach of the insurance contract that precluded
recovery under the policy. Homeowners Choice attached an
affidavit from a company employee who stated that the claim
was reopened because Castro and Lopez provided a new
engineering report. Also attached was an affidavit from the
chief engineer of SDI, who reaffirmed that there was no
sinkhole activity at Castro and Lopez's residence.
response, Castro and Lopez asserted that Homeowners Choice
waived compliance with the conditions precedent to filing
suit when it unequivocally denied coverage. The trial court
disagreed and entered final summary judgment in favor of
Homeowners Choice without making any findings of fact or
conclusions of law. This appeal ensued.
standard of review applicable to the granting of a summary
judgment motion is de novo. Volusia County v. Aberdeen at
Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).
Summary judgment can only be granted if there is no issue of
material fact and the moving party is entitled to a judgment
as a matter of law. Id. If there is "the
slightest doubt that an issue might exist, that doubt must be
resolved against the moving party." Nard, Inc. v.
DeVito Contracting & Supply, Inc., 769 So.2d 1138,
1140 (Fla. 2d DCA 2000). Furthermore,
"[a] motion for summary judgment is not a substitute for
a trial on the merits." Hervey v. Alfonso, 650
So.2d 644, 646 (Fla. 2d DCA 1995). Therefore, rather than
resolving any disputed issues of fact, id.,
"the court's function is solely to determine whether
the record conclusively shows that the moving party proved a
negative, that is, 'the nonexistence of a genuine issue
of a material fact, ' " Winst ...