On October 17, 2018, the Fourth District Court of Appeal reversed two summary judgments granted by the trial court, by finding that whether an insured complied with policy conditions is a question of fact. Himmel v. Avatar Prop. & Cas. Ins. Co., 4D17-2724, 2018 WL 5044352 (Fla. 4th DCA Oct. 17, 2018). A copy of the opinion can be accessed here. HIMMEL’s property sustained water damage when an air conditioning unit leaked. HIMMEL filed a claim with AVATAR and AVATAR requested a Proof of Loss. HIMMEL’s public adjuster submitted a Proof of Loss which provided a detailed estimate for repairs. AVATAR’s counsel objected to the Proof of Loss with no explanation other than to state that the document was “not the form supplied, but rather, some other form, from some other company, furnishing information other than that requested and required.” The letter also requested that HIMMEL, his wife public adjuster, and employees of the companies hired by HIMMEL submit to an EUO.

HIMMEL retained an attorney who asked AVATAR’s counsel about rescheduling the EUO. AVATAR’s counsel refused to reschedule the EUO and also refused to explain how the Proof of Loss was deficient. Neither HIMMEL, his wife, the public adjuster or employees of the companies hired by HIMMEL appeared for the EUO. Instead, HIMMEL’s counsel filed a declaratory judgment action seeking a determination of whether AVATAR’s counsel could reasonably require the EUOs. AVATAR’s counsel filed several motions for summary judgment and the trial court granted two of the motions and HIMMEL filed an appeal to the Fourth District.

The Fourth District explained that while it was undisputed that HIMMEL did not appear for the EUO, HIMMEL’s attempts to reschedule the EUO is evidence that he cooperated to some degree or provided an explanation for his noncompliance created a question of fact that precludes summary judgment.

The Fourth District noted that AVATAR claimed HIMMEL failed to provide prompt notice of the loss, even though the claim was reported to AVATAR just two days after the leak was first discovered and HIMMEL attempted to mitigate the water damage by fixing the leak and removing the flooring which was evidence of compliance. Finally, the court explained that although the Proof of Loss was submitted on a different form, it was substantially the same. Regardless, the Fourth District held it was improper to enter summary judgment as whether policy conditions were complied with is an issue of fact for the jury.


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