Full Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT BEVERLY EDWARDS, Appellant, v. SAFEPOINT INSURANCE COMPANY, Appellee. No. 4D21-107 [May 12, 2021] Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County; Terri-Ann Miller, Judge; L.T. Case Nos. COSO-17- 006731 (62) and CACE-19-017593 (AP). Justin Cernitz of Cernitz Shabran, LLC, Miami, and Paul B. Feltman of Alvarez, Feltman, Da Silva & Costa, PL, Coral Gables, for appellant. Carol M. Rooney of Butler Weihmuller Katz Craig LLP, Tampa, for appellee. PER CURIAM. Beverly Edwards, the insured, appeals a final judgment entered in favor of the defendant, SafePoint Insurance Company, in her breach-of-contract lawsuit. We affirm, holding that the insured failed to comply with the proof of loss requirement of the policy. The Policy and the Loss SafePoint issued a homeowners’ insurance policy to the insured effective July 18, 2016. The policy conditions required the insured to give prompt notice of the loss and to provide a sworn proof of loss within 60 days after SafePoint’s request. On July 24, 2016, the insured suffered a property loss due to an auto accident that damaged her fence, sprinkler, and septic tank. The next day, she hired a public adjuster. The Handling of the Claim On August 9, 2016, after the repairs to the sprinkler and septic tank had already been made, the insured reported the loss to SafePoint through her public adjuster. On August 15, 2016, SafePoint emailed the public adjuster, requesting various documents, including a sworn proof of loss. On August 30, 2016, SafePoint’s field adjuster inspected the property. On September 16, 2016, SafePoint wrote a letter to the insured, advising her that the claim was being handled under a reservation of rights and that SafePoint was requesting her to provide various documents, including a sworn proof of loss, within 20 days of her receipt of the letter. On October 26, 2016, the public adjuster emailed SafePoint in response to SafePoint’s request for documentation, attaching a police report and advising SafePoint that an estimate and a sworn proof of loss were “currently being completed.” On November 3, 2016, SafePoint emailed the public adjuster requesting only “the receipt for the sprinkler and the septic tank.” The email added that those “items were repaired prior to the inspection of the home.” On November 7, 2016, SafePoint wrote to the insured, stating that “[a]s of the date of this letter, [SafePoint] is unable to pay or deny your claim, as we have not received the information necessary to properly evaluate your loss.” In the letter, which was copied to the public adjuster, SafePoint requested the following information: (1) paid receipts for the sprinkler and the septic tank; and (2) the insured’s estimate of repairs to the fence. SafePoint noted that it did not intend to waive any defenses and that it reserved “all rights to assert any legal or policy defenses deemed appropriate at any time.” However, SafePoint did not specifically request a sworn proof of loss. On November 12, 2016, SafePoint emailed the insured advising that “[t]here have been multiple attempts to contact you and the Public Adjusters on your claim, but attempts to obtain information [have] failed thus far.” SafePoint noted that “[a]s of the date of this email, [SafePoint] is unable to pay or deny your claim, as we have not received the information necessary to properly evaluate your loss.” SafePoint advised that it was awaiting (1) the receipts for the sprinkler and septic tank, and (2) the estimate of repairs to the fence. Without the requested 2 documentation, SafePoint explained, “we cannot resolve the coverage investigation at this time.” Once again, SafePoint did not ask for a sworn proof of loss. On December 17, 2017, the public adjuster emailed SafePoint stating that the estimate was still not ready, that the sprinkler and septic tank were repaired in accordance with the insured’s “duty to remediate damages before they get worse,” and that the insured was demanding payment of the “undisputed amount of insurance proceeds.” On February 17, 2017, SafePoint sent the insured a letter with an enclosed check for $1,176.23, which represented “SafePoint’s payment for dwelling damage” after subtracting the deductible and non-recoverable depreciation. The payment was based on the damage estimate prepared by SafePoint’s field adjuster for the cost to repair the fence, the sprinkler, and the septic tank. The February 17, 2017 letter advised that “[t]his payment does not necessarily constitute a full and final settlement of your claim for damages,” and that “[t]his payment is based on our inspection.” The letter also advised that “[y]ou may submit supplemental claim(s) for any additional damages discovered during the covered reconstruction and repair of the above-mentioned property.” Finally, the letter noted that SafePoint had previously asked the insured to provide “paid receipt[s] to the sprinkler and the septic tank,” and that “to date we have not received those items.” The letter did not mention the insured’s failure to submit a sworn proof of loss, nor did the letter state that the claim was being denied due to the insured’s failure to comply with her post-loss obligations under the insurance contract. On March 15, 2017, the public adjuster sent SafePoint a supplemental request for payment, seeking an additional $12,061.10. Attached to the correspondence were the public adjuster’s statement of loss, the public adjuster’s estimate, and a sprinkler repair invoice. SafePoint failed to respond to the supplemental request for payment within 90 days. The Insured Sues SafePoint On June 29, 2017, the insured filed suit against SafePoint for breach of contract, alleging that SafePoint had not paid the insured for the entire loss covered under the policy and had “denied coverage to portions of the loss.” 3 SafePoint answered and raised various affirmative defenses, including that the insured had breached the policy conditions by failing to provide prompt notice of the loss, failing to produce all the documents requested by SafePoint, and failing to provide a sworn proof of loss. SafePoint’s Motion for Summary Judgment In January 2018, SafePoint moved for summary judgment on the ground that, among other things, the insured failed to satisfy her post-loss contractual obligations. One of the post-loss obligations SafePoint argued was the insured’s failure to provide a sworn proof of loss. The Setting of a Summary Judgment Hearing At a May 2019 case management conference, the trial court scheduled a summary judgment hearing over the insured’s objection that discovery was still pending. That same month, SafePoint filed the corporate representative’s affidavit in support of summary judgment. In the affidavit, the representative attested, among other things, that the insured failed to submit a sworn proof of loss. The Insured’s Response in Opposition to Summary Judgment The insured filed a response in opposition to summary judgment, arguing in relevant part that: (1) SafePoint “admitted liability on February 17, 2017 in its coverage determination letter and thus waived the right to receive the proof of loss”; (2) SafePoint’s February 2017 payment letter confirmed that it was not prejudiced by the insured’s alleged failure to comply with the post-loss obligations, because SafePoint “had all the information it needed to provide it with a basis for granting coverage”; (3) a genuine issue of material fact existed as to whether the insured sufficiently complied with her post-loss obligations by providing requested documents; and (4) the summary judgment hearing should be continued because the deposition of the corporate representative was still pending. In support of the response, the insured filed various documents, including the correspondence discussed above and affidavits of the public adjuster and the insured’s attorney. Summary Judgment Hearing At the summary judgment hearing, SafePoint focused on the insured’s failure to submit a sworn proof of loss. SafePoint argued that, under Rodrigo v. State Farm Florida Insurance Co., 144 So. 3d 690 (Fla. 4th DCA 4 2014), the insured’s failure to provide a sworn proof of loss was a material breach that rendered the policy ineffective regardless of prejudice. The insured’s counsel admitted that no sworn proof of loss was ever provided, but argued that SafePoint waived the proof-of-loss requirement by admitting liability in an unagreed amount. Based solely on the insured’s failure to provide a proof of loss, the trial court granted summary judgment on the basis of Rodrigo. The trial court entered final judgment in favor of SafePoint. The insured moved for rehearing, arguing that the Rodrigo court “did not address the fact that the Florida courts have held that an insurer waives the requirement of a formal proof of loss when it admits liability in some amount.” The trial court denied the insured’s motion for rehearing. The Insured Failed to Preserve its Claim that SafePoint Waived its Right to Demand Compliance with Post-Loss Obligations by Denying the Insured’s Supplemental Claim On appeal, the insured first argues that, by denying the supplemental claim, SafePoint waived its right to demand compliance with post-loss obligations, including the sworn proof of loss. The insured failed to preserve this claim for appellate review. To be preserved for appellate review, “an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) (quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985)). In the lower court, the insured did not raise the specific argument that SafePoint waived the proof-of-loss requirement by denying the insured’s supplemental claim. Instead, the insured raised a different argument— that SafePoint waived the proof-of-loss requirement by admitting liability in some amount. Because the specific argument being asserted on appeal is not the same argument asserted below, the issue is not preserved. The Insured Did Not Cooperate “to Some Degree” with the Proof of Loss Requirement of the Policy The Parties’ Arguments 5 The insured next argues that the summary judgment should be reversed because she cooperated to some degree or offered an explanation for her noncompliance, thereby creating a question of fact for the jury. Specifically, she argues that: (1) she cooperated to some degree because she “provided the requested additional documents in the form of a repair receipt and estimate when [she] made the supplemental claim”; and (2) the explanation for her failure to provide the sworn proof of loss “is that [SafePoint] asked for it one time, adjusted the claim and found coverage without it and did not seek it when the supplemental claim was made.” SafePoint responds that the insured’s failure to submit a sworn proof of loss was a material breach as a matter of law, and that no summary judgment evidence exists to support a substantial-compliance defense. SafePoint argues that the insured “erroneously relies on cases where there was at least a partial attempt to comply with the post-loss obligation.” SafePoint points out that the insured “never submitted summary judgment evidence that she attempted to submit a sworn proof of loss in any form to demonstrate substantial compliance.” Merits “[A]n insurer need not show prejudice when the insured breaches a condition precedent to suit.” Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300, 303 (Fla. 4th DCA 1995). However, in Haiman v. Federal Insurance Co., 798 So. 2d 811, 812 (Fla. 4th DCA 2001), we clarified that [a] total failure to comply with policy provisions made a prerequisite to suit under the policy may constitute a breach precluding recovery from the insurer as a matter of law. If, however, the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury. (Emphasis added). Cases evaluating whether “some degree” of cooperation has occurred under Haiman have honed in on whether there was some compliance with the condition precedent that is the focus of an alleged breach. For example, in Hunt v. State Farm Florida Insurance Co., 145 So. 3d 210, 211– 12 (Fla. 4th DCA 2014), we explained: It is well settled in Florida that submission of a sworn proof of loss when required by an insurance policy is a condition precedent to coverage. If the insured fails to comply with a 6 condition precedent before filing suit, its breach is deemed material, and thus the insurer is relieved of its duties under the policy. However, if the insured complies with the policy’s conditions precedent before filing suit, albeit in an untimely manner, the insurer is only relieved of its duties under the policy if it was prejudiced by the insured’s breach. In such a scenario, prejudice to the insurer is presumed and the insured bears the burden of rebutting the presumption. (Citations omitted). In Hunt, we held that the insureds submission of a proof of loss, almost five years after the loss and days before the insureds filed suit, created a rebuttable presumption of prejudice that the insureds failed to rebut. Id. Here, the record evidence shows that there was a “total failure” by the insured to comply with the proof-of-loss requirement. The insured did not “cooperate to some degree” with the proof-of-loss requirement. For example, this is not a case where the insured submitted a proof of loss in an untimely manner or submitted a proof of loss that wasn’t properly notarized. 1 To the contrary, it is undisputed that the insured never submitted a proof of loss after SafePoint requested it. SafePoint requested a proof of loss in its August 2016 email to the public adjuster and in its September 2016 letter to the insured. The question is not whether, in a general sense, the insured cooperated to some degree with SafePoint’s investigation; rather, the question is whether the insured cooperated to some degree with the proof-of-loss condition. That the insured ultimately submitted an estimate and other documents is irrelevant. See Rodrigo, 144 So. 3d at 692 (“While the insured argued that she provided the insurer with bills, estimates, invoices, and other documents to prove her damages, she failed to file a sworn proof of loss.”). The insured never offered any legitimate explanation for her noncompliance. Her “explanation” focuses solely on SafePoint’s ability to adjust the claim, not her own conduct. She points out that SafePoint eventually stopped asking for a proof of loss in its correspondence, 1 We distinguish this case from our recent decision in Arguello v. People’s Trust Insurance Co., No. 4D20-69, 2021 WL 1202390 (Fla. 4th DCA Mar. 31, 2021), in which we held that the insured complied to some extent with policy requirements where the insurer precipitously filed suit once the 60-day window for submitting a sworn proof of loss had closed, and the insured submitted a sworn proof of loss shortly thereafter. 7 adjusted the claim without one, and did not ask for one when she submitted a supplemental demand. However, while this evidence would be relevant to an analysis of whether SafePoint was prejudiced by the failure to submit a proof of loss, it does not excuse her failure to comply with the deadline for submitting a proof of loss. SafePoint Was Not Required to Demonstrate that It Was Prejudiced by the Insured’s Failure to Comply with the Proof of Loss Requirement of the Policy The insured next argues that SafePoint failed to establish that the failure to comply with the request for a proof of loss was a material breach that prejudiced its investigation of the claim. In Rodrigo this court held that (1) an insurer need not show prejudice when the insured breaches a condition precedent to suit, (2) proof of loss is a condition precedent to the insured’s suit, and (3) “the insurer did not waive the sworn proof of loss requirement by tendering payment because ‘[i]nvestigating any loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim’ does not constitute a waiver of a ‘sworn proof of loss’ requirement.” 144 So. 3d at 692 (quoting § 627.426(1)(c), Fla. Stat. (2007)). Rodrigo compels affirmance on this point. 2 Affirmed. LEVINE, C.J., GROSS and KLINGENSMITH, JJ., concur. GROSS, J., concurring specially. I agree with the analysis of the Third District in American Integrity Insurance Co. v. Estrada, 276 So. 3d 905 (Fla. 3d DCA 2019), and the Fifth District in Allstate Floridian Insurance Co. v. Farmer, 104 So. 3d 1242 (Fla. 5th DCA 2012). But for Rodrigo v. State Farm Florida Insurance Co., 144 So. 3d 690 (Fla. 4th DCA 2014), and Goldman v. State Farm Fire General Insurance Co., 660 So. 2d 300 (Fla. 4th DCA 1995), I would hold that the insurer must demonstrate that it was prejudiced by the insured’s failure to comply with a post-loss obligation, such as the submission of a proof of loss. Also, I agree with Judge Warner’s concurring opinion in Solano v. 2 As to the insured’s final point on appeal, we conclude that, in light of Rodrigo, the corporate representative’s deposition would not have created a genuine issue of material fact. 8 State Farm Florida Insurance Co., 155 So. 3d 367, 372–73 (Fla. 4th DCA 2014), that the approach taken in Goldman and Rodrigo is contrary to the Florida Supreme Court’s handling of a similar issue in State Farm Mutual Automobile Insurance Co. v. Curran, 135 So. 3d 1071 (Fla. 2014). * * * Not final until disposition of timely filed motion for rehearing. 9