This case, Hope v. Citizens Property Ins. Co., 2013 Fla. App. LEXIS 8891 (Fla. 3rd DCA, June 5, 2013), addresses the sufficiency of evidence to overcome the presumption of prejudice in the context of a late notice Hurricane Wilma claim. Mr. Hope, the homeowner, sustained damage to his home as the result of Hurricane Wilma in 2005 and failed to file a claim with Citizens until approximately four years later in 2009. During the intervening period, Mr. Hope made various repairs to the property by himself, in an effort to mitigate the damage. Once it had the opportunity to conduct its investigation, Citizens denied coverage for failure to give prompt notice.
The trial court granted summary judgment in favor of Citizens based solely upon Mr. Hope’s failure to provide timely notice to Citizens and never reached the issue of prejudice. The trial court relied solely upon Kroener v. Florida Ins. Guaranty Ass’n, 63 So. 3d 914 (Fla. 4th DCA 2011), which case has now been clarified in later cases. In short, once the presumption of prejudice is raised in favor of the insurer, the burden shifts to the insured to show that the insurer was not prejudiced by untimely pre-suit notice of loss.
The 3rd DCA identified the primary issue on appeal as whether Mr. Hope met his burden to provide sufficient evidence to overcome the presumption of prejudice as raised in the motions for summary judgment. While the 3rd DCA recognized that the trial court’s reliance on Kroener was misplaced, it examined the record with respect to the prejudice issue and affirmed the trial court’s decision. More specifically, based upon a de novo review, the appellate court concluded that the record does not set forth evidence sufficient to rebut the presumption of prejudice to Citizens resulting from the homeowner’s delayed notice of loss. As stated by the Court,
Mr. Hope addressed the issue of prejudice in his response
to the motion for summary judgment, and attached the
homeowner’s affidavit, a roofer’s repair estimate and
the public claims adjuster’s report listing various repairs
necessary to the roof and house structure. That evidence,
however, is merely conclusory and fails to rebut the
presumption of prejudice to Citizens where the passage
of time has rendered Citizens unable to determine
exactly what current damage is directly attributable
to Hurricane Wilma, and thus a covered loss.
This case reaffirms late notice case law that an insurer will be entitled to summary judgment where an insured does not adequately rebut the presumption of prejudice.